Shafer v. Walmart Inc. et al

Filing 11

ORDER TO SHOW CAUSE by Chief Judge Philip A. Brimmer on 11/15/2021. ORDERED that, on or before November 22, 2021, defendants shall show cause why this case should not be remanded to state court due to the Court's 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-02983-PAB
PENNY SHAFER,
Plaintiff,
v.
WALMART INC., and
WAL-MART REAL ESTATE,
Defendants.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on the Notice of Removal [Docket No.
1]. Defendants assert that this Court has jurisdiction pursuant to 28 U.S.C. § 1332.
Docket No. 1 at 1.
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). Defendants assert that the Court has diversity jurisdiction under
28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 2. 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). W hile, at the pleading stage, the Court takes as
true all “well-pled (that is, plausible, conclusory, and non-speculative) facts,” Dudnikov
v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008), the alleg ations
regarding the citizenship of defendants are not well-pled.
The notice of removal states that defendant “Walmart is a citizen of the state of
Arkansas” and that defendant “Wal-Mart Real Estate is a citizen of the state of
Delaware.” Docket No. 1 at 2, ¶ 3. These allegations are insufficient for two reasons.
First, the notice of removal does not state both W almart’s principal place of business or
state of incorporation, see id., and a corporation is deemed to be a citizen of “every
State and foreign state by which it has been incorporated and of the State or foreign

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state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). Second, the
notice does not indicate what type of entity Wal-Mart Real Estate is. This information is
critical to the Court’s jurisdictional analysis because, while a corporation is a citizen of
both its state of incorporation and its principal place of business, 28 U.S.C.
§ 1332(c)(1), the citizenship of an unincorporated entity is determined, not by its state
of organization or principal place of business, but by the citizenship of all of its
members. See Siloam Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233,
1237–38 (10th Cir. 2015) (“[I]n determining the citizenship of an unincorporated
association for purposes of diversity, federal courts must include all the entities’
members.”).
Because the allegations regarding defendants’ citizenship are not well-pled, the
Court is unable to determine defendants’ 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

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ORDERED that, on or before November 22, 2021, defendants shall show cause
why this case should not be remanded to state court due to the Court’s lack of subject
matter jurisdiction.

DATED November 15, 2021.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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