Batchelor v. Blazin Wings, Inc

Filing 9

ORDER TO SHOW CAUSE by Chief Judge Philip A. Brimmer on 7/19/2021. ORDERED that, on or before July 30, 2021, defendant shall show cause why this case should not be remanded due to the Court's lack of subject matter jurisdiction. (sphil, )

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Case 1:21-cv-01900-PAB Document 9 Filed 07/19/21 USDC Colorado Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 21-cv-01900-PAB JUDITH BATCHELOR, Plaintiff, v. BLAZIN WINGS, INC., Defendant. ORDER TO SHOW CAUSE The Court takes up this matter sua sponte on the Notice of Removal [Docket No. 1] of defendant Blazin Wings, Inc. 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 exists, 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 Case 1:21-cv-01900-PAB Document 9 Filed 07/19/21 USDC Colorado Page 2 of 3 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). “To 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, however, are not wellpled. The Notice of Removal asserts that plaintiff is “a citizen of Colorado” and, in support, cites paragraph one of plaintiff’s amended complaint. Docket No. 1 at 3, ¶ 13. Paragraph one of the amended complaint states only that plaintiff is “a Colorado resident, living at 13890 E. Marina Drive, #301, Aurora, CO 80014.” Docket No. 1-2 at 1, ¶ 1. Residency, however, is not synonymous with domicile, see Miss. Band of 2 Case 1:21-cv-01900-PAB Document 9 Filed 07/19/21 USDC Colorado Page 3 of 3 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 domiciled 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.”). Because the allegations regarding the citizenship of plaintiff are not well-pled, the Court is unable to determine plaintiff’s citizenship and whether the Court has jurisdiction. See United States ex rel. General Rock & Sand 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 July 30, 2021, defendant shall show cause why this case should not be remanded due to the Court’s lack of subject matter jurisdiction. DATED July 19, 2021. BY THE COURT: PHILIP A. BRIMMER Chief United States District Judge 3

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