McLaughlin Group, Inc. et al v. American Manufacturing & Machine, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-03531-PAB
MCLAUGHLIN GROUP, INC., a South Carolina corporation, and
VAC-TRON EQUIPMENT, LLC, a Delaware limited liability company,
Plaintiffs,
v.
VAC-TRON HOLDINGS, INC., a Delaware corporation,
AMERICAN MANUFACTURING & MACHINE, INC., a Florida corporation,
TIMOMA ENTERPRISES CORPORATION, a Florida corporation,
MCC-6 CORPORATION, a Florida corporation,
DON M. BUCKNER, an individual,
TIM FISCHER, an individual,
CODY MCCRACKEN, an individual,
REPUBLIC FINANCIAL CORPORATION, a Colorado corporation, and
ROBERT POSSEHL, an individual,
Defendants.
SECOND ORDER TO SHOW CAUSE
This matter is before the Court on Plaintiffs’ Response to Order to Show Cause
[Docket No. 18]. Plaintiffs assert that the Court has jurisdiction pursuant to 28 U.S.C.
§ 1332. Docket No. 1 at 2, ¶ 10. On Decem ber 14, 2020, the Court issued an order to
show cause why this case should not be dismissed for lack of subject matter jurisdiction.
Docket No. 13. The Court noted that plaintiffs’ allegations were insufficient to establish
the citizenship of Vac-Tron Holdings, Inc., Don M. Buckner, Tim Fischer, Cody
McCracken, and Robert Possehl and therefore whether there is complete diversity
between the parties, as required by § 1332. Id. at 4.
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In plaintiffs’ response to the order to show cause, plaintiffs provide information
regarding defendant Vac-Tron Holdings, Inc.’s registration as a Delaware corporation
and public records establishing Vac-Tron Holdings, Inc.’s Aurora, Colorado principal
place of business. Docket No. 18 at 2. The Court finds this information sufficient to
establish Vac-Tron Holdings, Inc.’s citizenship. Plaintiffs also provided Mr. Buckner’s,
Mr. Fischer’s, and Mr. Possehl’s voter registration information. Id. at 3–4. This
information is sufficient to establish the citizenship of Mr. Buckner, Mr. Fischer, and Mr.
Possehl.
Plaintiffs’ response as to Cody McCracken, however, remains insufficient. In
support of the allegations that Mr. McCracken is a citizen of Florida, plaintiffs explain that
Mr. McCracken’s LinkedIn profile states that he is located in W inter Garden, Florida, that
public records show that he has a Florida driver’s license “reflecting an address in
Clermont, Florida,” and that Mr McCracken recently purchased a property in Winter
Garden, Florida. Id. at 4. None of this information establishes Mr. McCracken’s
citizenship. As the Court explained to plaintiffs in the first order to show cause, “[t]o
establish domicile in a particular state, a person must be physically present in the state
and intend to remain there.” Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006).
An undated and unverified social media profile establishes neither physical presence in
a state nor intent to remain. Nor is a driver’s license necessarily determinative of
citizenship. Cornelius v. USAA Gen. Indem. Co., No. 20-cv-02918-PAB, 2020 WL
7055444, at *2 (D. Colo. Dec. 2, 2020). Finally, the fact that Mr. McCracken purchased
a property – even a residence – in Florida does not necessarily mean that he is a citizen
of that state. As the Court noted in its first order to show cause, residency is not
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synonymous with domicile. Docket No. 13 at 3 (citing Miss. Band of Chocktaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989)). Only the latter is determinative of a party’s
citizenship. Id. (citing 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.”)).
The allegations are presently insufficient to allow the Court to determine the
citizenship of Mr. McCracken. 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)). Plaintiffs will be given one more opportunity to
establish the Court’s jurisdiction. It is therefore
ORDERED that, on or before December 30, 2020, plaintiffs shall show cause as
to why this case should not be dismissed due to the Court’s lack of subject matter
jurisdiction.
DATED December 23, 2020.
BY THE COURT:
PHILIP A. BRIMMER
Chief United States District Judge
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