Van Buskirk v. The United Group of Companies
935 F.3d 49
| 2d Cir. | 2019Background
- Bruce and Lori Van Buskirk sued multiple corporate and individual defendants in July 2016 asserting state-law fraud and related claims; their complaints repeatedly alleged New York residence.
- Eighteen months later the district court sua sponte issued an order to show cause why the case should not be dismissed for lack of subject-matter (diversity) jurisdiction.
- Plaintiffs replied with limited evidence (two blurry Florida driver’s license photocopies and a piece of mail dated after filing) and stated they now reside in Naples, Florida; the district court dismissed for lack of diversity and entered judgment.
- Plaintiffs moved for reconsideration, attaching sworn "Declarations of Domicile" dated May 2013 indicating intent to make Florida their permanent home; the district court denied reconsideration as the evidence was available earlier and Plaintiffs gave no valid reason for delay.
- On appeal Plaintiffs argued they were domiciled in Florida when the complaint was filed and also asked the court to permit amendment under 28 U.S.C. § 1653; Defendants did not assert delay-based bad faith.
- The Second Circuit vacated and remanded, concluding that under § 1653 the appellate court may permit amendment and that the 2013 declarations could plausibly show Florida domicile; the case returns to the district court to allow amendment and to determine whether costs/fees should be imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs were domiciled in Florida at time of filing (diversity jurisdiction) | Van Buskirk: the full record (cover sheet, mail, licenses, later declarations) shows Florida domicile at filing | Defs: Plaintiffs’ complaint alleged New York residence and submitted no timely proof of Florida domicile prior to dismissal | Court: On the record before the district court dismissal was proper, but the 2013 declarations on appeal plausibly show Florida domicile and warrant permitting amendment under §1653 |
| Whether the district court erred in denying reconsideration | Van Buskirk: district court ignored declarations proving domicile | Defs: Declarations were known earlier and Plaintiffs offered no basis for late submission | Court: Denial was not an abuse of discretion because Plaintiffs failed to show why the evidence was not submitted earlier |
| Whether appellate court may permit amendment to cure jurisdictional defect (28 U.S.C. §1653) | Van Buskirk: appellate relief under §1653 should be granted to correct defective jurisdictional allegations | Defs: (implicitly) district-level opportunities to amend were available and §1653 relief is not automatic | Court: Appellate courts may amend pleadings under §1653; leave to amend should be afforded unless record shows bad-faith delay; remanded to allow amendment |
| Whether costs/attorney's fees may be imposed as condition of allowing amendment | Van Buskirk: did not contest potential conditions | Defs: seek to mitigate prejudice from late jur. amendment | Court: District court may consider imposing costs/fees as condition of permitting amendment to offset prejudice |
Key Cases Cited
- "R" Best Produce, Inc. v. DiSapio, 540 F.3d 115 (2d Cir. 2008) (standard for appeals from denial of reconsideration brings underlying order up for review)
- Liranzo v. United States, 690 F.3d 78 (2d Cir. 2012) (standard for reviewing dismissal for lack of subject-matter jurisdiction)
- Palazzo ex rel. Delmage v. Corio, 232 F.3d 38 (2d Cir. 2000) (domicile governs citizenship for diversity jurisdiction)
- Universal Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579 (2d Cir. 2002) (relevant domicile is at the time the complaint was filed)
- Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44 (2d Cir. 1996) (residence alone is insufficient to establish domicile)
- Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (standards for granting motions for reconsideration)
- John Birch Soc'y v. Nat'l Broad. Co., 377 F.2d 194 (2d Cir. 1967) (appellate courts may refuse §1653 relief where plaintiff intentionally delayed amendment)
- Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100 (2d Cir. 1997) (§1653 amendments are freely permitted to avoid dismissal on technical grounds)
- Durant, Nichols, Houston, Hodgson & Cortese‑Costa P.C. v. Dupont, 565 F.3d 56 (2d Cir. 2009) (remand for district court to resolve factual disputes bearing on jurisdiction)
- Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500 (9th Cir. 1995) (district courts may condition leave to amend on payment of costs as a remedy for prejudice)