Opinion
Civil Action No. 11-cv-02362-PAB
09-14-2011
SAN MIGUEL MOUNTAIN AND RIVER PRODUCTS, INC., and DAVID BLUESTEIN, d/b/a Blue Action Sports Sales, Plaintiffs, v. CLOUDVEIL MOUNTAIN PEAK, LLC, FREE COUNTRY, LTD., WINDSONG BRANDS, LLC, SPYDER ACTIVE SPORTS, INC., WILLIAM SWEEDLER, JIM REILLY, and IRA SCHWARTZ, Defendants.
Judge Philip A. Brimmer
ORDER OF DISMISSAL
This matter is before the Court sua sponte on plaintiffs' complaint [Docket No. 1]. The complaint alleges that the Court has jurisdiction over this case based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
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. Citizens Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). Absent an assurance that jurisdiction exists, a court may not proceed in a case. See Cunningham v. BHP Petroleum Great Britain 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. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) ("[I]f the parties fail to raise the question of the existence of jurisdiction, the federal court has the duty to raise and resolve the matter."). Second, "[s]ubject matter jurisdiction cannot be conferred or waived by consent, estoppel, or failure to challenge jurisdiction early in the proceedings." Laughlin, 50 F.3d at 873. Finally, delay in addressing the issue only compounds the problem given that, if jurisdiction is lacking, the case must be dismissed or remanded regardless of the stage it has reached. See U.S. Fire Ins. Co. v. Pinkard Const. Co., 2009 WL 2338116, at *3 (D. Colo. July 28, 2009).
It is well established that "[t]he 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 invoke 28 U.S.C. § 1332(a)(1), which provides that "[t]he 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." In regard to the citizenship of the parties, however, plaintiffs allege that plaintiff San Miguel Mountain & River Products, Inc. is a citizen of Colorado, see Docket No. 1 at 1, ¶ 1, and that defendant Spyder Active Sports Inc. is a Colorado citizen. See Docket No. 1 at 2, ¶ 6. Contrary to plaintiffs' contention, see Docket No. 1 at 2, ¶ 10, the presence of Colorado citizens on both sides of the dispute destroys diversity. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978) ("[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.") (emphasis in original). Therefore, it is
Plaintiffs' jurisdictional averments are deficient in many other respects. For instance, plaintiffs aver that diversity jurisdiction is determined by reference to "residency." Docket No. 1 at 2, ¶ 10. Furthermore, plaintiffs fail to allege the citizenship of the natural person defendants. See Docket No. 1 at 2, ¶¶ 7, 8, 9. Plaintiffs also do not properly address the citizenship of the limited liability company defendants. See 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) ("[A]n LLC, much like a partnership, is deemed to be a citizen of all of the states of which its members are citizens.") (listing cases).
ORDERED that this case is dismissed for lack of subject matter jurisdiction.
BY THE COURT:
PHILIP A. BRIMMER
United States District Judge