IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 22-cv-01217-PAB CARLY KIRKPATRICK, individually and as personal representative of the wrongful death ESTATE OF WILLIAM KIRKPATRICK, deceased, Plaintiffs, v. DONNA BRUMMET, and MENKHAVEN LODGE, LLC, Defendants. _____________________________________________________________________ ORDER TO SHOW CAUSE _____________________________________________________________________ The Court takes up this matter sua sponte on the filing of the Complaint for Personal Injury [Docket No. 1] by plaintiffs. Plaintiffs assert that the Court has jurisdiction pursuant to 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 10. 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). Plaintiffs assert that this Court has diversity jurisdiction under 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 10. 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). The allegations regarding the citizenship of all parties, however, are not well-pled. The complaint states that plaintiff Carly Kirkpatrick brings this action individually and as the personal representative of the estate of her deceased husband, William Kirkpatrick. See Docket No. 1 at 1, 2. The Court accordingly construes the complaint to allege that there are two plaintiffs: Ms. Kirkpatrick and the Estate of William Kirkpatrick. The complaint alleges that Ms. Kirkpatrick is a New Mexico resident and
2 Mr. Kirkpatrick was a New Mexico resident at the relevant times. Id. at 1-2, ¶¶ 2, 4. For diversity jurisdiction, “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. § 1332(c)(2). Additionally, the complaint alleges that, upon information and belief, defendant Donna Brummett was a resident of Colorado at all relevant times. Id. at 2,
¶ 5. 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-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.
3 Apr. 22, 2021) (describing Colorado voter registration requirements and explaining why voter registration and voting practices are strong evidence of citizenship). “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 (citing Keys Youth Servs., Inc. v. Olathe, 248 F.3d 1267, 1272 (10th Cir. 2001)); see also Schmidt v. Reinalt-Thomas
Corp., 2018 WL 6002394, at *3–4 (D.N.M. Nov. 14, 2018) (using standard test to determine domicile of decedent); Ramirez v. Billy Crews, Inc., 2021 WL 876950, at *2 (D.N.M. Mar. 9, 2021) (finding notice of removal deficient where it did not identify the citizenship of the decedent at the time of death). The allegations regarding the domicile of Ms. Kirkpatrick, the Estate of William Kirkpatrick, and Ms. Brummett are insufficient. Additionally, the allegations regarding the citizenship of defendant Menkhaven Lodge, LLC (“Menkhaven”) are insufficient. The citizenship of a limited liability company 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.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 22-cv-01217-PAB CARLY KIRKPATRICK, individually and as personal representative of the wrongful death ESTATE OF WILLIAM KIRKPATRICK, deceased, Plaintiffs, v. DONNA BRUMMET, and MENKHAVEN LODGE, LLC, Defendants. _____________________________________________________________________ ORDER TO SHOW CAUSE _____________________________________________________________________ The Court takes up this matter sua sponte on the filing of the Complaint for Personal Injury [Docket No. 1] by plaintiffs. Plaintiffs assert that the Court has jurisdiction pursuant to 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 10. 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). Plaintiffs assert that this Court has diversity jurisdiction under 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 10. 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). The allegations regarding the citizenship of all parties, however, are not well-pled. The complaint states that plaintiff Carly Kirkpatrick brings this action individually and as the personal representative of the estate of her deceased husband, William Kirkpatrick. See Docket No. 1 at 1, 2. The Court accordingly construes the complaint to allege that there are two plaintiffs: Ms. Kirkpatrick and the Estate of William Kirkpatrick. The complaint alleges that Ms. Kirkpatrick is a New Mexico resident and
2 Mr. Kirkpatrick was a New Mexico resident at the relevant times. Id. at 1-2, ¶¶ 2, 4. For diversity jurisdiction, “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. § 1332(c)(2). Additionally, the complaint alleges that, upon information and belief, defendant Donna Brummett was a resident of Colorado at all relevant times. Id. at 2,
¶ 5. 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-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.
3 Apr. 22, 2021) (describing Colorado voter registration requirements and explaining why voter registration and voting practices are strong evidence of citizenship). “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 (citing Keys Youth Servs., Inc. v. Olathe, 248 F.3d 1267, 1272 (10th Cir. 2001)); see also Schmidt v. Reinalt-Thomas
Corp., 2018 WL 6002394, at *3–4 (D.N.M. Nov. 14, 2018) (using standard test to determine domicile of decedent); Ramirez v. Billy Crews, Inc., 2021 WL 876950, at *2 (D.N.M. Mar. 9, 2021) (finding notice of removal deficient where it did not identify the citizenship of the decedent at the time of death). The allegations regarding the domicile of Ms. Kirkpatrick, the Estate of William Kirkpatrick, and Ms. Brummett are insufficient. Additionally, the allegations regarding the citizenship of defendant Menkhaven Lodge, LLC (“Menkhaven”) are insufficient. The citizenship of a limited liability company 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.”). Plaintiffs have neither identified Menkhaven’s members nor alleged each member’s citizenship. See Den 8888, LLC v. Navajo Express, Inc., No. 21-cv-00321-STV, 2021 WL 463623, at *3 (D. Colo. Feb. 9, 2021); U.S. Advisor, LLC v. Berkshire Prop. Advisors, LLC, No. 09-cv-00697-PAB-CBS, 2009 WL 2055206, at *2 (D. Colo. July 10, 2009) (citing Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 347 (7th Cir. 2006)); Alphonse v. Arch Bay Holdings, L.L.C., 618 F. App’x 765, 768 (5th Cir. 2015)
4 (unpublished) (“[W]e have observed that the appropriate tests for citizenship involve tracing [entities’] citizenships down the various organizational layers where necessary.” (internal citation omitted)); Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1092 (11th Cir. 2010) (remanding case in which party invoking the court’s diversity jurisdiction did not disclose the identity and citizenship of each member of an
unincorporated entity); Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009) (“When diversity jurisdiction is invoked in a case in which a limited liability company is a party, the court needs to know the citizenship of each member of the company. And because a member of a limited liability company may itself have multiple members – and thus may itself have multiple citizenships – the federal court needs to know the citizenship of each ‘sub-member’ as well.”); Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (“[A] party must list the citizenships of all the members of the limited liability company.”); Prospect Funding Holdings, LLC v. Fennell, 2015 WL 4477120, at *2 (S.D.N.Y. July 15, 2015)
(collecting New York district court decisions holding that a limited liability company must “plead facts establishing their citizenship including, . . . the identity and citizenship of their members” in order to invoke diversity jurisdiction). Because the allegations regarding each parties’ citizenship are not well-pled, the Court is unable to determine whether it 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
5 ORDERED that, on or before June 14, 2022, plaintiffs shall show cause why this case should not be dismissed due to the Court’s lack of subject matter jurisdiction.
DATED June 2, 2022.
BY THE COURT:
PHILIP A. BRIMMER Chief United States District Judge