Kelley v. Smith et al

Filing 7

ORDER TO SHOW CAUSE by Chief Judge Philip A. Brimmer on 9/25/2024. ORDERED that, on or before October 7, 2024, plaintiff shall show cause why this case should not be dismissed due to the Court's lack of subject matter jurisdiction. (dgumb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-02621-PAB-STV
MICHAEL KELLEY,
Plaintiff,
v.
WILLIAM BRET SMITH D.O., and
JOSHA THUN D.P.M.,
Defendants.
ORDER TO SHOW CAUSE
The Court takes up this matter sua sponte on review of the docket. 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 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). Plaintiff Michael Kelley asserts that this Court has jurisdiction
pursuant to 28 U.S.C. § 1332. Docket No. 1 at 1, ¶ 4. 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.
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”).
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.

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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).
While, at the pleading stage, the Court takes as true all “well-pled (that is,
plausible, non-conclusory, and non-speculative) facts,” Dudnikov v. Chalk & Vermilion
Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008), the allegations regarding the parties in
this case are not well-pled. As to plaintiff, the complaint alleges that Mr. Kelley is “a
resident of the State of Arizona.” Docket No. 1 at 1, ¶ 1. 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) (“allegations of mere ‘residence’ may not be equated with
‘citizenship’ for the purposes of establishing diversity.”). The allegation stating Mr.
Kelley’s residence is therefore insufficient to plead his citizenship. As to the defendants,
the complaint alleges that Willaim Bret Smith “was, at all relevant times, a physician
licensed to practice medicine in Colorado,” and that Joshua Thun “was, at all relevant
times, a physician licensed to practice podiatry in Colorado.” Docket No. 1 at 1, ¶¶ 2-3.
However, the complaint does not allege the domicile of either defendant and therefore
fails to plead defendants’ citizenship.
Because the allegations regarding the parties’ citizenship are not well-pled, the
Court is unable to determine 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.

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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 October 7, 2024, plaintiff shall show cause why
this case should not be dismissed due to the Court’s lack of subject matter jurisdiction.
DATED September 25, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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