Lopez v. Matthews

Filing 8

ORDER TO SHOW CAUSE by Chief Judge Philip A. Brimmer on 4/1/2021. ORDERED that, on or before April 15, 2021, defendant shall show cause why this case should not be remanded due to the Courts lack of subject matter jurisdiction (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-00880-PAB
ANN LOPEZ,
Plaintiff,
v.
AMANDA MATTHEWS,
Defendant.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on the Notice of Removal [Docket No.
1] of defendant Amanda Matthews. Defendant asserts that the Court has jurisdiction
pursuant to 28 U.S.C. § 1332. Docket No. 1 at 3, ¶ 12.
In every case and at every stage of the proceeding, a federal court must satisfy
itself as to its own jurisdiction, even if doing so requires sua sponte action. See
Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver , 628
F.2d 1289, 1297 (10th Cir. 1980). Absent an assurance that jurisdiction ex ists, a court
may not proceed in a case. See Cunningham v. BHP Petroleum Gr. Brit. PLC, 427
F.3d 1238, 1245 (10th Cir. 2005). Courts are well-advised to raise the issue of
jurisdiction on their own, regardless of parties’ apparent acquiescence. First, it is the
Court’s duty to do so. Tuck v. United Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th Cir.
1988). Second, regarding subject matter jurisdiction, “the consent of the parties is
irrelevant, principles of estoppel do not apply, and a party does not waive the

requirement by failing to challenge jurisdiction.” Ins. Corp. of Ir. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982) (citations omitted). Finally, delay in
addressing the issue only compounds the problem if, despite much time and expense
having been dedicated to the case, a lack of jurisdiction causes it to be dismissed. See
U.S. Fire Ins. Co. v. Pinkard Constr. Co., No. 09-cv-00491-PAB-MJW, 2009 WL
2338116, at *3 (D. Colo. July 28, 2009).
“The party invoking federal jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220,
1224 (10th Cir. 2004). Defendant asserts that this Court has diversity jurisdiction under
28 U.S.C. § 1332. Docket No. 1 at 3, ¶ 12. Pursuant to that section, “district courts
shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C. § 1332(a). “For purposes of federal
diversity jurisdiction, an individual’s state citizenship is equivalent to domicile.” Smith v.
Cummings, 445 F.3d 1254, 1259 (10th Cir. 2006). “T o establish domicile in a particular
state, a person must be physically present in the state and intend to remain there.” Id.
at 1260. The allegations regarding the citizenship of plaintiff and defendant, however,
are not well-pled.
The Notice of Removal asserts that at all relevant times plaintiff was “a citizen of
the State of Colorado,” and, in support, cites to paragraph one of plaintiff’s complaint.
Docket No. 1 at 1, ¶ 3. However, paragraph one of the complaint states only that
plaintiff is a “resident of Durango, La Plata County, Colorado.” Docket No. 1-1 at 1, ¶ 1.

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Residency, however, is not synonymous with domicile, see Miss. Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“‘Domicile’ is not necessarily synonymous
with ‘residence,’ and one can reside in one place but be dom iciled in another.”)
(citations omitted)), and only the latter is determinative of a party’s citizenship. See
Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972) (“[A]llegations of mere
‘residence’ may not be equated with ‘citizenship’ for the purposes of establishing
diversity.”). Defendant’s allegation of plaintiff’s citizenship is not well-pled because it is
not supported by the cited material.
The Notice of Removal states that defendant was a resident of Texas at all
relevant times. Docket No. 1 at 2, ¶ 5. As noted, however, allegations of residency are
insufficient to show domicile and allow the Court to determine whether or not it has
jurisdiction. “To establish domicile in a particular state, a person must be physically
present in the state and intend to remain there.” Smith, 445 F.3d at 1260 (citing Keys
Youth Servs., Inc. v. Olathe, 248 F.3d 1267, 1272 (10th Cir. 2001)). Courts are to
consider the “totality of the circumstances” to determine a party’s domicile. Middleton v.
Stephenson, 749 F.3d 1197, 1200-01 (10th Cir. 2014); cf. Dumas v. Warner Literary
Grp., LLC, No. 16-cv- 00518-RM-NYW, 2016 WL 10879185, at *2 (D. Colo. Apr. 29,
2016) (stating that courts consider a number of factors in determining a party’s
citizenship, including “voter registration and voting practices.”).
Because the allegations regarding the citizenship of plaintiff and defendant are
not well-pled, the Court is unable to determine the citizenship of either party and
whether the Court has jurisdiction. See United States ex rel. General Rock & Sand

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Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1495 (10th Cir. 1995) (“The party seeking
the exercise of jurisdiction in his favor must allege in his pleading the facts essential to
show jurisdiction.” (quotations omitted)). It is therefore
ORDERED that, on or before April 15, 2021, defendant shall show cause why
this case should not be remanded due to the Court’s lack of subject matter jurisdiction.

DATED April 1, 2021.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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