IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02362-PAB

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.

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
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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
Plaintiffs’ jurisdictional averments are deficient in many other respects. For 1

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). 

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each plaintiff.”) (emphasis in original). Therefore, it is 1

ORDERED that this case is dismissed for lack of subject matter jurisdiction.

DATED September 14, 2011.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge