Batchelor v. Blazin Wings, Inc
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, )
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
BLAZIN WINGS, INC.,
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
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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
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