Electro-Mechanical Products, Inc. et al v. Alan Lupton Associates Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-00763-PAB
ELECTRO-MECHANICAL PRODUCTS, INC., a Colorado corporation,
DAVID P. MORRIS, an individual, and
DAVID J. WOLENSKI, an individual,
Plaintiffs,
v.
ALAN LUPTON ASSOCIATES INC., a New York corporation, and
ALAN LUPTON II, an individual,
Defendants.
ORDER TO SHOW CAUSE
The Court takes up this matter sua sponte on the filing of the complaint [Docket
No. 2]. Plaintiffs assert that the Court has jurisdiction pursuant to 28 U.S.C. § 1332.
Docket No. 2 at 2, ¶ 6.
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 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). Plaintiffs assert that this Court has diversity jurisdiction under 28
U.S.C. § 1332. Docket No. 2 at 2, ¶ 6. 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 David Morris, David Wolenski, and Alan Lupton
II, however, are not well-pled.
The complaint asserts that David Morris, David Wolenski, and Alan Lupton II are
individuals and provides each person’s residency. Docket No. 2 at 1-2, ¶¶ 2-3, 5.
Residency, however, is not synonymous with domicile, see Miss. Band of Choctaw
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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 dom iciled 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-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 citizenship of David Morris, David
Wolenski, and Alan Lupton II are not well-pled, the Court is unable to determine their
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
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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 April 25, 2022, plaintiffs shall show cause why this
case should not be dismissed due to the Court’s lack of subject matter jurisdiction.
DATED April 12, 2022.
BY THE COURT:
PHILIP A. BRIMMER
Chief United States District Judge
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