IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 22-cv-00550-PAB ASCENTIUM CAPITAL LLC, Plaintiff, v. PREMIERE COPIER, INC., a Colorado corporation MARK D. KLENIN, and TOD R. NORTH, individually and in his capacity as Trustee of the Tod R. North Trust, Defendants. ORDER TO SHOW CAUSE This matter is before the Court sua sponte on the Complaint [Docket No. 1]. Plaintiff asserts that the Court has jurisdiction over this matter pursuant to

.

. 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,

(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,

(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,

(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 Ireland v. Compagnie des Bauxites de Guinee,

(1982) (internal 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,

, 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.,

(10th Cir. 2004). Thus, the Court presumes that no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction. Lorentzen v. Lorentzen, No. 09-cv-00506-PAB,

, at *1 (D. Colo. Mar. 11, 2009). Plaintiff asserts that the Court has diversity jurisdiction under

. Docket No. 1 at 4-5, ¶ 18. 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.”

(a). While, at the pleading stage, the Court takes as true all “well-pled (that is, plausible, conclusory, and non-speculative) facts,” Dudnikov v. Chalk & Vermilion Fine Arts,

(10th Cir. 2008), the allegations regarding the citizenship of the individual defendants are not well-pled. First, plaintiff alleges that defendant Mark D. Klenin “is a citizen of the State of Colorado” for diversity purposes. Docket No. 1 at 4, ¶ 11. Plaintiff supports this

2 allegation by stating that Klenin is a resident of Colorado and a shareholder, officer, and co-owner of a Colorado corporation. Id. at 3-4, ¶¶ 8-10. Plaintiff also alleges defendant Tod R. North is “a citizen of the State of Colorado–both in his individual capacity and in his capacity as Trustee of the Trust,” because he is a resident of Colorado and a shareholder, co-owner, and officer of a Colorado corporation. Id. at 4, ¶¶ 12-17. These

allegations are deficient. “For purposes of federal diversity jurisdiction, an individual’s state citizenship is equivalent to domicile.” Smith v. Cummings,

(10th Cir. 2006). “[W]hen a trustee files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes.” Americold Realty Trust v. ConAgra Foods, Inc.,

, 383 (2016). “To establish domicile in a particular state, a person must be physically present in the state and intend to remain there.” Smith,

. Plaintiff’s allegations regarding the individual defendants’ citizenship are not well-pled because they establish only those parties’ residency and involvement with a Colorado corporation. Residency, however, is not synonymous with domicile, see

Miss. Band of Choctaw Indians v. Holyfield,

(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,

(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,

, 1200–01 (10th Cir. 2014); cf. Dumas v. Warner Literary Grp., LLC, No. 16-cv-

3 00518-RM-NYW,

, 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,

, 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 individual defendants’ citizenship are not well-pled, the Court is unable to determine the parties’ citizenship and whether the Court has jurisdiction. See United States ex rel. General Rock & Sand Corp. v. Chuska Dev. Corp.,

(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 ORDERED that, on or before May 19, 2022, plaintiff shall show cause why this case should not be dismissed due to the Court’s lack of subject matter jurisdiction. DATED May 9, 2022. BY THE COURT:

PHILIP A. BRIMMER Chief United States District Judge 4