IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02328-PAB

WILLIAM KUNZMAN,

Plaintiff,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for 

Argent Securities Inc., Asset-Backed Pass-Through Certificates,

Series 2005-W4, and

DEBORAH A. MORGAN, as Public Trustee of Larimer County, Colorado,

Defendants.

ORDER OF REMAND

This matter is before the Court sua sponte on the Notice of Removal [Docket No.

1] filed by defendant Deutsche Bank National Trust Company (“Deutsche Bank”). The

notice alleges that this Court has subject matter jurisdiction over this case pursuant to

28 U.S.C. § 1332. With respect to the citizenship of the parties, the notice further

provides in pertinent part that “plaintiff avers in the complaint that he is the owner of

property in Colorado, and thus is domiciled in the state of Colorado,” Docket No. 1 at 4,

¶ 9 (citing Docket No. 1-7 at 3, ¶ 1), and that “Deutsche Bank is incorporated in New

York, and therefore is a citizen of that state.” Docket No. 1 at 4, ¶ 10 (citing

MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005), Docket No. 1-

7 at 4, ¶ 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

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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

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 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

Const. 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). 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). 

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Deutsche Bank does not expressly allege that it is a corporation subject to 28 1

U.S.C. § 1332(c). See Eckerle v. Deutsche Bank Nat. Trust, 2010 WL 3984687, at *1

(D. Haw. Sep. 17, 2010) (“In the notice of removal, Defendants allege that [Deutsche

Bank National Trust] is a national banking association with its principal place of

business in California . . . .”); cf. Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006)

(addressing analysis for determining citizenship of national banking associations

pursuant to 28 U.S.C. § 1348).

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Deutsche Bank invokes 28 U.S.C. § 1332(a)(1) as the basis for this Court’s diversity

jurisdiction. 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.” 

In regard to its own citizenship, Deutsche Bank alleges that it is “incorporated in

New York, and therefore is a citizen of that state.” Docket No. 1 at 4, ¶ 10 (citing

MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005), Docket No. 1-

7 at 4, ¶ 3). Deutsche Bank appears to represent that it is a corporation subject to the

provisions of 28 U.S.C. § 1332(c)(1). For example, in describing the relevant analysis 1

for determining its citizenship, Deutsche Bank asserts that “[d]omicile, in the context of

legal entities, is generally determined by where the entity is incorporated, registered, or

has its principle [sic] place of business.” Docket No. 1 at 4, ¶ 8 (emphasis added)

(citing MacGinnitie, 420 F.3d at 1239). However, as the court in MacGinnitie pointed

out, “[f]or diversity purposes, a corporation is a citizen of both the state where it is

incorporated and the state where it has its principal place of business.” 420 F.3d at

1239 (citing 28 U.S.C. § 1332(c)). Deutsche Bank has failed to allege its principal place

of business. Moreover, Deutsche Bank cites the state court complaint in support of its

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The Court also notes that Deutsche Bank is named as a trustee for Argent 2

Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-W4 (“Argent”).

Argent is identified by Deutsche Bank as a limited liability company. See Docket No. 1

at 2, ¶ 2; see also Docket No. 1-7 at 4, ¶ 2. Deutsche Bank does not explain what, if

any, relevance Argent’s citizenship may have on the assessment of the Court’s

jurisdiction. Cf. U.S. Advisor, LLC v. Berkshire Prop. Advisors, No. 09-cv-00697-PABCBS, 2009 WL 2055206, at * 2 (D. Colo. July 10, 2009) (concluding that an 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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averment that it is only a citizen of New York. The state court complaint, however,

alleges that Deutsche Bank “is a corporation with a corporate address of 1761 East St.

Andrew Place, Santa Ana, California.” Docket No. 1-7 at 4, ¶ 3; cf. Roper v. Saxon

Mortgage Services, Inc., 2009 WL 1259193, at *2 (N.D. Ga. May 5, 2009) (“Defendant

Deutsche Bank National Trust Company exists under the laws of the State of California

with its principal place of business in California.”).2

In addition to failing to establish its own citizenship, Deutsche Bank incorrectly

states that citizenship of a natural person is “the state where they reside at the time of

removal.” Docket No. 1 at 4, ¶ 8. Rather, for purposes of diversity jurisdiction, an

individual is a citizen of the state in which he or she is domiciled. Crowley v. Glaze, 710

F.2d 676, 678 (10th Cir. 1983). Domicile, in turn, is determined by the combination of

physical presence in a location and an intent to remain there indefinitely. Miss. Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). Further, “‘[d]omicile’ is not

necessarily synonymous with ‘residence,’ and one can reside in one place but be

domiciled in another.” Id. In any event, Deutsche Bank fails to allege even the

residence of plaintiff. Its only factual averment regarding plaintiff’s citizenship is that

plaintiff “is the owner of property in Colorado.” Docket No. 1 at 4, ¶ 9 (citing Docket No.

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1-7 at 3, ¶ 1 (“Plaintiff owns real property located in Larimer County, Colorado . . . .”).

The foregoing deficiencies in Deutsche Bank’s jurisdictional averments raise a

number of uncertainties regarding the Court’s exercise of jurisdiction over this matter. 

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.”). Therefore, it is

ORDERED that this matter is remanded to the District Court of Larimer County,

Colorado where it was originally filed as Case No. 11 CV 1387.

DATED September 12, 2011.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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