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Kalhorn v. Pham, 18-cv-01685-PAB. (2018)

Court: District Court, D. Colorado Number: infdco20180711g58 Visitors: 12
Filed: Jul. 11, 2018
Latest Update: Jul. 11, 2018
Summary: ORDER TO SHOW CAUSE PHILIP A. BRIMMER , District Judge . The Court takes up this matter sua sponte on the complaint [Docket No. 2] filed by plaintiff James Paul Kalhorn. Plaintiff claims that the Court has subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. 1332. Docket No. 2 at 1, 3. 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
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ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on the complaint [Docket No. 2] filed by plaintiff James Paul Kalhorn. Plaintiff claims that the Court has subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332. Docket No. 2 at 1, ¶ 3.

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 & Cty. 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 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."), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547 (2014). Second, "[s]ubject matter jurisdiction cannot be conferred or waived by consent, estoppel, or failure to challenge jurisdiction early in the proceedings." Id. Finally, delay in addressing the issue only compounds the problem if it turns out that, despite much time and expense having been dedicated to a case, a lack of jurisdiction causes it to be dismissed or remanded regardless of the stage it has reached. 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).

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). Plaintiff invokes 28 U.S.C. § 1332 as the basis for this Court's diversity jurisdiction. Docket No. 2 at 1, ¶ 3. Section 1332(a)(1) states: "The 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." The facts as presently averred, however, do not provide sufficient information regarding the citizenship of defendant.

The complaint states, "[u]pon information and belief, Defendant Andy Pham is a citizen and resident of the State of Nevada with an address of 6040 South Durango Drive, #105, Las Vegas, Nevada 89113." Docket No. 2 at 1, ¶ 2. First, the Court reads plaintiff's averment "[u]pon information and belief" to mean that plaintiff does not have affirmative knowledge of defendant's citizenship. Such unsupported allegations do not confer subject matter jurisdiction over this case. See Yates v. Portofino Real Estate Props. Co., LLC, No. 08-cv-00324-PAB-MJW, 2009 WL 2588833, at *3 (D. Colo. Aug. 17, 2009) (requiring plaintiff to "address the citizenship of each of [defendant's] members without resorting merely to their `information and belief' as to the same"); U.S. Fire Ins. Co., 2009 WL 2338116, at *3 (interpreting allegations based on "information and belief" to "mean that plaintiffs have no affirmative knowledge of a lack of diversity"). Second, the address provided for defendant appears to be a business address, rather than a residence. The information provided by plaintiff is insufficient because it does not allow the Court to independently assess the alleged jurisdictional basis. See U.S. Fire Ins. Co., 2009 WL 2338116, at *3; Affordable Cmty. of Mo. v. EF & A Capital Corp., 2008 WL 4966731, at *2-3 (E.D. Mo. Nov. 19, 2008) (statement that none of the unidentified members of an LLC was a citizen of a particular state was insufficient to establish diversity of citizenship).

For the foregoing reasons, it is ORDERED that, on or before 5:00 p.m. on July 24, 2018, plaintiff James Paul Kalhorn shall show cause why this case should not be dismissed due to the Court's lack of subject matter jurisdiction.

Source:  Leagle

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