## United States Court of Appeals **For the Eighth Circuit**

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No. 21

- 3815

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Great River Entertainment, LLC

Plaintiff - Appellant

v.
Zurich American Insurance Company

Defendant - Appellee

____________ Appeal from United States District Court for the Southern District of Iowa - Eastern

____________
Submitted: September 21, 2022 Filed: September 11, 2023

____________ Before LOKEN, ARNOLD, and KOBES, Circuit Judges

.

____________
KOBES, Circuit Judge.

Great River Entertainment, LLC sought coverage from Zurich American
Insurance for losses related to the COVID

- 19 pandemic

. The district court granted
Zurich ’ s motion to dismiss for failure to state a claim. Great River appealed and
moved to remand because there was no t complete diversity of citizenship. We
remand to the district court to consider whether there is federal diversity jurisdiction

.-2- I.

In response to the COVID

- 19 pandemic, the Governor of Iowa issued a proclamation closing all Iowa bars and restaurants to indoor dining. To comply, Great River closed its restaurants, casinos, and other properties

. Great River then
filed a claim with Zurich for lost business income and COVID

- 19 mitigation costs

. Zurich denied the claim, and Great River sued in state court for breach of contract and a declaration of coverage

. Zurich removed the case to federal court based on diversity of citizenship

. At that time

, Great River agreed that federal subject matter jurisdiction was proper because the parties were completely diverse

. After t he district court granted Zurich ’ s motion to dismiss for failure to state a claim

, Great River appealed.

One day before its opening brief was due in this C ourt , Great River submitted
an affidavit saying that at least 25 of its members we re citizens of Illinois

—Zurich ’ s principal place of business

. If true, this would destroy complete diversity between the parties and strip both us and the district court of jurisdiction

. Great River moved
to remand to state court on that basis

.

II.

Jurisdiction is always the “ first and fundamental question ” of this Court.
Franklin ex rel. Franklin v. Peterson
, 878 F.3d 631, 635 (8th Cir. 2017) ( quoting
Steel Co. v. Citizens for a Better Env ’t
, 523 U.S. 83, 94 (1998))

. We review the
district court ’ s finding of subject matter jurisdiction de novo

. Am. Fam

. Mut. I ns. Co. v. Vein Ctrs. for Excellence, Inc.
, 912 F.3d 1076, 1080 (8th Cir. 2019)

.

F e deral diversity jurisdiction requires that (1) the amount in controversy exceeds $75,000 and (2) th ere is complete diversity of citizenship

. 28 U.S.C. § 1332 (a) . If any plaintiff is a citizen of the same state as any defendant

, there is not

“ complete diversity ” and federal courts lack jurisdiction

. See Halsey v. Townsend Corp. of Ind. , 20 F.4th 1222, 1226 (8th Cir. 2021)

. Because “ an LLC ’ s citizenship-3- is that of its members ,” Great River is a citizen of any state where its members are
citizens. GMAC Com. Credit LLC v. Dillard Dep ’ t Stores, Inc. , 357 F.3d 827, 829 (8th Cir. 2004). And a corporation

, like Zurich

, is a citizen of every state where it is incorporated and the state where it has its principal place of business

. 28 U.S.C. § 1332(c). If Great River ’ s members were citizens of the same state where Zurich had its principal place of business, Illinois, the parties a re not completely diverse

.

“ Any party or the court may, at any time, raise the issue of subject matter jurisdiction. ” GMAC C o m. Credit LLC

, 357 F.3d at 828. The Supreme Court has held that no action of the parties

— including consent

— can confer subject matter jurisdiction. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982). But “ the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission. ” Ry. Co. v. Ramsey
, 89 U.S. 322, 327 (1874)

. 1 Because Great River initially agreed that the parties were completely diverse , Zurich argues that Great River admitted to a jurisdictional fact. Zurich says that Great River cannot defeat federal jurisdiction by taking back th is admission after it lost a motion to dismiss

.

Requiring a party to stand by their admissions of fact has some support

. In general, stipulations and admissions bind the parties. State Farm Mut. Auto. Ins. Co. v. Worthington , 405 F.2d 683, 686 (8th Cir. 1968). And o ur sister circuits have held parties to their stipulat ions or admi ssions that establish federal question jurisdiction under 28 U.S.C. § 1331

. See , e.g. , Ferguson v. Neighborhood Hous. Servs. of Cleveland, Inc. , 780 F.2d 549, 551 (6th Cir. 1986) ( stating , in dicta, that an employer consented to federal question jurisdiction when it did not challenge its status as an

1 Ramsey is often used to support the proposition that courts can rely on stipulations or admissions to exercise federal subject matter jurisdiction. See, e.g.

, Durbois v. Deutsche Bank Nat ’ l Tr. Co. , 37 F.4th 1053, 1060 (5th Cir. 2022) ; Verzosa v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 589 F.2d 974, 977 (9th Cir. 1978). But in Ramsey , the evidence supporting federal jurisdiction was destroyed. 89 U.S. at 327. So the court was required to accept the parties’ admissions as true to exercise jurisdiction

. Id . at 327

– 28

.-4- FLSA employer ); Meyer v. Berkshire Life Ins. Co. , 372 F.3d 261, 265 (4th Cir. 2004) (finding t here was federal question jurisdiction when a pension plan manager conceded it was an ERISA fiduciary)

.

But no matter how other courts have handled the stipulation of jurisdictional
f

acts related to federal question jurisdiction, our precedent is clear. In GMAC

, a materially identical situation, we remanded the case for factual findings to determine whether the parties are indeed diverse. GMAC Com. Credit LLC , 357 F.3d at 828

. We do the same here. I f Great River ’ s members were citizens of Illinois, they were
citizens of Illinois —a dmissions to the contrary cannot change that fact. GenoSource, LLC v. Inguran, LLC , 386 F. Supp. 3d 984, 995 (N.D. Iowa 2019).

III.

We cannot proceed without subject matter jurisdiction. Crawford v. F. Hoffman

- La Roche Ltd. , 267 F.3d 760, 764 (8th Cir. 2001). B ased on Great River ’ s new affidavit, we are unable to conclude that its members were diverse

. While Great
River ’ s carelessness has clearly wasted judicial resources, we cannot address the
merits before determining federal jurisdiction

. This is a task better suited for the district court. On remand, the court may also take additional action it deems appropriate. See, e.g.

, Belleville Catering Co. v. Champaign Mkt. Place, LLC , 350 F.3d 691, 694 (7th Cir. 2003)

.

Reversed and remanded.

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