Ascentium Capital LLC v. Premiere Copier, Inc. et al

Filing 14

ORDER TO SHOW CAUSE by Chief Judge Philip A. Brimmer on 5/9/2022. ORDERED that, on or before May 19, 2022, plaintiff shall show cause why this case should not be dismissed due to the Courts lack of subject matter jurisdiction. (sphil, )

Case 1:22-cv-00550-PAB Document 14 Filed 05/09/22 USDC Colorado Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-00550-PAB
ASCENTIUM CAPITAL LLC,
Plaintiff,
v.
PREMIERE COPIER, INC., a Colorado corporation
MARK D. KLENIN, and
TOD R. NORTH, individually and in his capacity as Trustee of the Tod R. North Trust,
Defendants.

ORDER TO SHOW CAUSE

This matter is before the Court sua sponte on the Complaint [Docket No. 1].
Plaintiff asserts that the Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1332. Id. at 4-5, ¶ 18.
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

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irrelevant, principles of estoppel do not apply, and a party does not waive the
requirement by failing to challenge jurisdiction.” Ins. Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982) (internal 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). Thus, the Court presumes that no jurisdiction exists absent an
adequate showing by the party invoking federal jurisdiction. Lorentzen v. Lorentzen,
No. 09-cv-00506-PAB, 2009 WL 641299, at *1 (D. Colo. Mar. 11, 2009). Plaintif f
asserts that the Court has diversity jurisdiction under 28 U.S.C. § 1332. Docket No. 1
at 4-5, ¶ 18. Pursuant to that section, “district courts shall hav e 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). While, 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 the individual defendants are not well-pled.
First, plaintiff alleges that defendant Mark D. Klenin “is a citizen of the State of
Colorado” for diversity purposes. Docket No. 1 at 4, ¶ 11. Plaintif f supports this

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allegation by stating that Klenin is a resident of Colorado and a shareholder, officer, and
co-owner of a Colorado corporation. Id. at 3-4, ¶¶ 8-10. Plaintiff also alleges defendant
Tod R. North is “a citizen of the State of Colorado–both in his individual capacity and in
his capacity as Trustee of the Trust,” because he is a resident of Colorado and a
shareholder, co-owner, and officer of a Colorado corporation. Id. at 4, ¶¶ 12-17. These
allegations are deficient. “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). “[W]hen a trustee files a lawsuit or is sued in her own name, her
citizenship is all that matters for diversity purposes.” Americold Realty Trust v. ConAgra
Foods, Inc., 577 U.S. 378, 383 (2016). “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. Plaintiff’s allegations regarding the individual defendants’ citizenship are
not well-pled because they establish only those parties’ residency and involvement with
a Colorado corporation. 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
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.”). 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-

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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”). Voter registration is persuasive evidence of a
person's citizenship because an individual registering to vote often must declare, under
penalty of perjury, that he or she has been a resident of the state for a period of time
before registration and that the address provided on the registration is the registrant's
only place of residence. See Searle v. CryoHeart Lab’ys, Inc., No. 20-cv-03830-PAB,
2021 WL 1589268, at *2–3 (D. Colo. Apr. 22, 2021) (describing Colorado voter
registration requirements and explaining why voter registration and voting practices are
strong evidence of citizenship).
Because the allegations regarding the individual defendants’ citizenship are not
well-pled, the Court is unable to determine the parties’ 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 May 19, 2022, plaintiff shall show cause
why this case should not be dismissed due to the Court’s lack of subject matter
jurisdiction.
DATED May 9, 2022.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge
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