IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-01973-PAB

JESTIBO, LLC, a Colorado limited liability company,

Plaintiff,

v.

CELLAIRIS FRANCHISE, INC., a Georgia corporation, and

GLOBAL CELLULAR, INC., a Georgia corporation,

Defendants.

ORDER OF REMAND

The Court takes up this matter sua sponte on defendants’ notice of removal

[Docket No. 1]. Defendants claim that the Court has jurisdiction over the case based on

28 U.S.C. § 1332 (diversity of citizenship). See Docket No. 1 at 3. The Court finds that

the notice of removal is deficient regarding both diversity of the parties and the amount

in controversy and, therefore, will remand. 

In every case and at every stage of a 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). Generally, a party may remove “any civil action

brought in a State court of which the district courts of the United States have original

jurisdiction.” 28 U.S.C. § 1441(a) (2006). Relevant to the present case, “[t]he district

courts shall have original jurisdiction of all civil actions where the matter in controversy

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exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . .

. citizens of different States . . . .” 28 U.S.C. 1332(a) (2006). 

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). Therefore, when a defendant

removes a case from state court asserting the existence of diversity jurisdiction, the

removing defendant has the burden of establishing that the jurisdictional prerequisites

of § 1332 have been satisfied. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290

(10th Cir. 2001). Where uncertainties exist regarding the Court’s jurisdiction, those

uncertainties are resolved in favor of remand. Martin, 251 F.3d at 1290; see also

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[T]here is a presumption

against removal jurisdiction.”). 

If at any time, “a federal court determines that it is without subject matter

jurisdiction, the court is powerless to continue.” Cunningham v. BHP Petroleum Great

Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Where a case has been removed

from state court and a court determines any time prior to final judgment that jurisdiction

is lacking, 28 U.S.C. § 1447(c) mandates that the case be remanded to state court. 

See McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008). 

“Both the requisite amount in controversy and the existence of diversity must be

affirmatively established on the face of either the petition or the removal notice.” 

Laughlin, 50 F.3d at 873. “The amount in controversy is ordinarily determined by the

allegations of the complaint, or, where they are not dispositive, by the allegations in the

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notice of removal.” Martin, 251 F.3d at 1290 (quoting Laughlin, 50 F.3d at 873). When

the plaintiff’s damages are unspecified, the defendant must establish the jurisdictional

amount by at least a preponderance of the evidence. Martin, 251 F.3d at 1290.

Here, there is no specific dollar amount suggested by the complaint beyond

plaintiff’s statement that “the amount at issue is greater than $15,000.00.” See Docket

No. 2 at 2. Because the complaint fails to establish a sufficient amount in controversy,

the Court looks to the notice of removal to determine if defendants have “affirmatively

established” the amount in controversy. Laughlin, 50 F.3d at 873. The only evidence

that defendants proffer regarding the amount in controversy in this case comes from the

District Court Civil Case Cover Sheet filed in state court. In their notice of removal,

defendants assert that “Plaintiff Jestibo alleges in the Case Cover Sheet that it is

seeking ‘a monetary judgment for more than $100,000 against another party, including

attorney fees, penalties or punitive damages, but excluding interest and costs.’” Docket

No. 1 at 2-3. It is firmly established in this District that state court civil cover sheets

indicating that a plaintiff is “seeking a monetary judgment for more than $100,000

against another party” do not by themselves affirmatively establish the amount in

controversy. See Baker v. Sears Holdings Corp., 557 F. Supp. 2d 1208, 1214 (D. Colo.

2007); Bauer v. Kipling, No. 10-cv-01615-WYD-MEH, 2010 WL 2867868, at *2 (D.

Colo. July 21, 2010); Graff v. Allergan, Inc., No. 10-cv-01296-CMA-BNB, 2010 WL

2400063, at *1 (D. Colo. June 14, 2010); Asbury v. American Family Mut. Ins. Co., No.

08-cv-01522-REB-CBS, 2009 WL 310479, at *1-2 (D. Colo. Feb. 9, 2009).

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 The Supreme Court recently clarified that a corporation’s “principal place of 1

business” is “the place where a corporation’s officers direct, control, and coordinate the

corporation’s activities,” that is, what is commonly referred to as the corporation’s

“nerve center.” Hertz Corp. v. Friend, --- U.S. ----, 130 S. Ct. 1181, 1192 (2010).

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The notice of removal also fails to properly account for the citizenship of the

plaintiff. The notice of removal avers the following regarding plaintiff Jestibo LLC’s

citizenship: “Plaintiff Jestibo, according to the Complaint, is a Colorado limited liability

company with its principal place of business in Denver, Colorado.” Docket No. 1 at 2.

While, for diversity purposes, “a corporation shall be deemed to be a citizen of any

State by which it has been incorporated and of the State where it has its principal place

of business,” 28 U.S.C. § 1332(c)(1) (2006); see Hertz Corp. v. Friend, --- U.S. ----, 130

S. Ct. 1181, 1187-90 (2010), these considerations are irrelevant to the determination of 1

an LLC’s citizenship. Although the Supreme Court and the Tenth Circuit have not

spoken specifically on the issue of citizenship of LLCs, the consensus in this District

and throughout the circuits is that an LLC, much like a partnership, is deemed to be a

citizen of all of the states of which its members are citizens. See Smith v. Locher, No.

10-cv-00999-MSK, 2010 WL 2342475, at *1 (D. Colo. June 8, 2010); U.S. Advisor, LLC

v. Berkshire Prop. Advisors, No. 09-cv-00697-PAB-CBS, 2009 WL 2055206, at * 2 (D.

Colo. July 10, 2009); Hale v. MasterSoft Int’l Pty. Ltd., 93 F. Supp. 2d 1108, 1112 (D.

Colo. 2000); see also Pramco, LLC ex rel. CFSC Consortium, LLC v. San Juan Bay

Marina, Inc., 435 F.3d 51 (1st Cir. 2006); Handelsman v. Bedford Vill. Assocs. Ltd.

P’ship, 213 F.3d 48 (2d Cir. 2000); Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d

412, 420 (3d Cir. 2010); Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114 (4th

Cir. 2004); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077 (5th Cir. 2008); Delay v.

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Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009); Cosgrove v.

Bartolotta, 150 F.3d 729 (7th Cir. 1998); GMAC Commercial Credit LLC v. Dillard Dep’t

Stores, Inc., 357 F.3d 827 (8th Cir. 2004); Johnson v. Columbia Props. Anchorage, LP,

437 F.3d 894 (9th Cir. 2006); Rolling Greens MHP, L.P. v. Comcast SCH Holdings

L.L.C., 374 F.3d 1020 (11th Cir. 2004); cf. Carden v. Arkoma Assoc., 494 U.S. 185,

195-96 (1990) (while not discussing LLCs in particular, noting that with regard to other

types of non-corporate entities, “[w]e adhere to our oft-repeated rule that diversity

jurisdiction in a suit by or against the entity depends on the citizenship of ‘all the

members,’ ‘the several persons composing such association,’ or ‘each of its members’”

(internal citations omitted)).

Furthermore, when an entity consists of multiple tiers of ownership and control,

the entire structure must be considered for diversity purposes. In other words, when an

entity is composed of multiple layers of constituent entities, the citizenship

determination requires an exploration of the citizenship of the constituent entities as far

down as necessary to unravel fully the citizenship of the entity before the court. See

U.S. Advisor, LLC, 2009 WL 2055206, at * 2; SREI-Miami, LLC v. Thomas, No. 08-cv00730-MSK-BNB, 2008 WL 1944322, at *1 (D. Colo. May 2, 2008); see also Hicklin

Eng’g, L.C. v. Bartell, 439 F.3d 346, 347 (7th Cir. 2006); Turner Bros. Crane & Rigging,

LLC v. Kingboard Chem. Holding Ltd., No. 06-88-A, 2007 WL 2848154, at *4-5 (M.D.

La. Sept. 24, 2007); cf. Carden v. Arkoma Assocs., 494 U.S. 185, 195 (1990) (“[W]e

reject the contention that to determine, for diversity purposes, the citizenship of an

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artificial entity, the court may consult the citizenship of less than all of the entity’s

members.”). 

Therefore, although it is their burden to do so, defendants have failed to

establish either the amount in controversy or the complete diversity of the parties.

Accordingly, it is

ORDERED that pursuant to 28 U.S.C. § 1447(c) and due to this Court’s lack of

subject-matter jurisdiction, this case is REMANDED to the District Court for Boulder

County, Colorado, where it was originally filed as Case No. 2011 CV 753.

DATED August 2, 2011.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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