*1
showing
potential
of a serious
for conflict.”
helped
Muhammad
Robert
suggested that
Having
the November
Id. at
J. reasons, foregoing For the the convic- Dudley tions and sentences of the district court are affirmed. be
Approximately one week date, govern fore the scheduled trial into a inquiry filed a motion for an
ment concerning David Dud
conflict of interest government
ley’s personal contact with coconspirator, Malarie alleged witness and CAPITOL INDEMNITY February hearing, At Macon. CORPORATION, Appellant, Plaintiff — Dudley Macon testified that had Malarie v. paid her for sex on several occasions and COMPANY, STEEL RUSSELLVILLE illegal drugs presence. in her David used INC., Industries, Inc., Freeman H. having a Dudley admitted sexual relation Mitchener, L. Mitchen William Janet ship pay with Malarie Macon but denied Freeman, er, Boyd Freeman, G. Wanda using illegal drugs. ing for it and Over ppellees. waiver, Def endants— A Robert Francis’s the district court Dudley. The district court disqualified No. 03-2246. making disqual discretion in
had broad
Appeals,
United States Court of
ification determination. Wheat
United
Eighth Circuit.
States,
153, 163-64,
486 U.S.
108 S.Ct.
Submitted: Nov.
2003.
(1988).
1692,
demonstration of actual conflict but cocaine, recently ample argues that he had not used 14. Robеrt Francis district grounds disqualification granted a remained. Un- court should have continuance circumstances, say the Dudley evi- der these we cannot allow time to submit scientific denying drug usage. abused its discretion in dence to show a lack of Howev- district court er, showing Dudley’s Dudley presented motion to continue. even if evidence *2 Grace, Rock, argued, Little David A. AR, appellant. for Russellville, Henry, argued, Patricia D. (John GA, Rife, Roswell, AR William W. Strait, Danville, AR, D. “Bill” and Michael Greenwood, brief), Hamby, AR on the appellee. MELLOY,
Before S. RICHARD COLLOTON, ARNOLD, and Circuit Judges.
MELLOY, Judge. Circuit Indemnity Plaintiff-Appellant Capitol Corp (“Capitol”) appeals the district court’s dismissal of this contract action for failure to demonstrate reverse. I. Defendants-Appellees Rus- sued Company, (collectively et al. sellville Steel $75,000 “Russellville”), pur to collect over general indemnity agreement. suant to a affidavits. These affidavits averred that citizens of Arkansas. were Defendants Capitol alleged that was Russellville had conducted business with complaint, allege did not corporation, twenty years exclusively fоr over place of primary it maintained its through particular attorney-in-fact *3 outside of Arkansas. Allen, somewhere Capitol, business Charles maintained an who to dismiss under Russellville moved office in Arkansas. 12(b)(1) subject lack of matter for F.R.C.P. Capitol request evidentiary did not to
jurisdiction, claiming Capitol that failed hearing object procedure nor to the set out jurisdiction. re diversity Capitol plead by granting the district court in the order motions and moved for sponded to the Three after leave amend. weeks Rus- complaint specifiсally its leave to amend affidavits, sellville submitted its the district cor “[Capitol] that is an insurance allege Capitol court ruled that failed to to the laws of organized pursuant poration principal place it maintained its of Wisconsin, principal with its the of State business in The district court Wisconsin. Madison, in place of business Wisconsin...." that, Capitol held failed to prove because principal place its of business was granted Capitol leave The district court Arkansas, somewhere other than Arkansas addition, In the district court tо amend. had to be considered the the out- procedure forth a address set Accordingly, business. the district court 12(b)(1) motions. The dis- standing Rule diversity citizenship lacking found and Capitol provide trict court instructed 12(b)(1) granted the defendants’ Rule mo- citizenship with the proof of Wisconsin tions. The district court stated: The district court complaint. amended in The assertion Anderson’s affida- that Russellville would have further stated vit that somewhere other Arkansas days filing of the amended ten after the place of business is Capitol’s principal to submit evidence tо the con- complaint is. the bald assertion Wisconsin that, trary “at that time the Court will and fact, any proof Capitol has not submitted and, diversity if neces- resolve the issue policies it writes insurance sary, [the the other issues raised defen- surety any state other than bonds to dismiss.” motions dants’] complaint, Capitol amended With its might enough It is not copy a certified of its submitted is its easily prove able to that Wisconsin incorporation as well as the articles business; it has not principal place of Anderson, Andy affidavit of L. Senior enough is it that the donе so. Neither Capitol. Examiner for Mr. Claims information on Court could discover the Anderson averred as fact that Capitol’s byor through its own website Wisconsin, maintained its Court, means; the limited to re- other Madison, of business in viewing submitted the evidence Wisconsin, maintain a did not short, may Capi- not do so. In parties, its and conducted prove by preponder- tol has failed writing policies business of insurance principal its ance of the evidence exclusively surety in Arkansas bonds Al- is in place of business Wisconsin. through independent agents use diversity jurisdiction is оften eas- though employees Capitol. who were not frequently “bump is a ily proven way on the to more substan- days Capitol’s filing of the the road” Within ten believe, and, more inter- Russellville submitted tive some complaint, amended issues, II. esting refuses to shirk Court duty jurisdiction of protecting not district court did abuse courts. federal broad discretion when denied In a motion to reconsider filed under 59(e) Rule Motion to Reconsider. District 59(e), Capitol challenged Rule the district enjoy in ruling courts broad discretion and, time, the first findings court’s College such motions. Seе Concordia challenged procedure the district court’s Corp. v. W.R. Grace & submitting on the evidence (8th Cir.1993) (“The District Court did previously issue. Because had not abuse its broad discretion conclud challenged procedure, and because *4 ing improperly that Concordia was at complied and the defendants all raise, tempting to via a or motion alter objection, procedure with without amend, arguments it could have rejected challenge district court as in response raised to W.R. Grace’s motion impermissible attempt raise new issues summary judgment.”). re We have judgment Capitol’s after and denied mo- 59(e) peatedly held that Rule motions are tion. not proper raising argu vehicles for new appeal, Capitol On raises two issues. (“... ments. id. nor a motion See should First, Capitol argues procedure for reconsideration serve as the occasion to by the district court a “ra- used was not legal tender new theories for the first inquiry” tional mode of and therefore time.”) (quoting Hagerman v. Yukon En Capitol adequate pro- failed to afford due ergy Corp., 839 F.2d Cir. protection. cess See Osborn v. United Care, 1988)); Innovative Home Health States, 918 F.2d Hills, Inc. v. P.T.-O.T. Assocs. the Black (“As no or prescribes statute rule format (8th Cir.1998) (“Rule evidentiary hearings jurisdiction, 59(e) motions serve a limited function of ”) ‘any rational inquiry mode of will do.’ correcting” ‘manifest errors of law or fact States, (quoting United Crawford evidence.’) present newly or to discovered (7th Cir.1986)). Second, F.2d (citations omitted). Capitol impermissibly Capitol argues that the district court clear- attempted procedural challenge to raise its ly Capitol’s erred when it determined that for the first time its Rule 59 motion. principal place of business was in Arkan- We therefore affirm the district court’s sas. judgment regarding of the Rule dismissal issue, argues
As to the first Russellville 59(e) motion. the district court did not abuse its find, however, it discretion when denied Rule un 59(e) Further, derlying diversity motion to reconsider. Rus- decision regarding argues sellville that Capitol entirely citizenship is was clear error. See Blake presenting foreclosed from procedural its more v. Missouri Pac. R.R. (8th Cir.1986)
challenge argument appellate to the court (applying clear er due the fact did not raise this ror standard to a of citizenship issue until the motion for stating reconsideration. determination and determina “[a] issue, argues As to the second tion of citizenship purpose Russellville for the of diver fact, that Capitol’s provide sity question failure to evidence of a mixed is of law and fact.”). mainly activities outside Arkansas man- but was not re finding dates a princi- quired prove specifically princi Arkansas is the that its pal place of pal place business. business was Wisconsin. incorporation, but also diversity of state as Rather, complete to establish defendants, citizen of the state which maintains all that with the of business. This will was that it required Capitol was corporations doing a lo- eliminate those of Arkansas. Because a citizen was not court, a foreign cal business with charter but district before the the evidence corporations will not eliminate those that could be reasonable inferences all the evidence, large which do business over a number precluded from that drawn states, railroads, such of Arkan- as insur- Capitol was a citizen finding that companies, corporations ance and other sas, Capitol met its burden. whose businesses are not localized in Diversity jurisdiction exists where particular state. Even such a cor- controversy greater is the amount however, regarded poration, would be as $75,000 complete diver and where there a citizen of that one the states 1332(a). § citizenship. 28 U.S.C. which was located its citizenship exists diversity of Complete business. citizenship in a no defendants hold where 85-1830, Rep. Cong. S. U.S.Code & Adm any holds рlaintiff state where (1958). in.News at 3099 at 3102 *5 Kroger, Erection v. Equipment & Owen the undisputed Here evidence showed 2396, 365, 373, 57 98 S.Ct. 437 U.S. Capitol (1978). diversity pur L.Ed.2d 274 For all and that defendants were citizens of may the citizen of poses, corporation a be only Accordingly, issue be- First, a citizen corporation a is two states. fore the district court was whether 28 incorporated. of the state which it is of principal place maintained its business 1332(c)(1). corporation § a Second U.S.C. corporation in Arkansas. Because a can it main a citizen of the state is business, of only princiрal place have one Id. A place of business. principal tains its principal and because believed only principal one corporation can have Wisconsin, place of business to be sub- of diver purposes of business for the place description Capitol’s of simple mission of a citizenship. See 28 U.S.C. would have been the activities Wisconsin 1332(c)(1) (“a § shall be corporation straightforward preferred most meth- a citizen of the State where has deemed jurisdic- responding od of to Russellville’s business”) principal place (emphasis of conclude, however, attack. tional added); Elec. 997 F.2d v. Gen. Gafford case, showing a that Arkansas is not this (6th Cir.1993) (“By common sense 161 place of business is suf- Capitol’s principal law, only can have corporation a ficient to establish pur- for of business of citizen- poses establishing its state adopted not a Eighth The Circuit has clear in 1958 ship.”). Congress made this corporation’s “prin- determining test for corpo- expanded when it the definition However, other cipal place of business.” diversity рurposes to rate applied circuits have three different tests. incorporation, only include not the state test, or “locus first the “nerve center” The corporation’s princi- the state of a but also test, principal considers the operations” pal place of business: the location of of business to be the location decision-makers and corporate of the United
The Judicial Conference v. Britt control. See Buethe that the law of overall States has recommended (7th Airlines, Inc., F.2d 1196 corporation so that a shall be amended Intern., Cir.1986); Pueblo Lugo-Vina v. regarded as a citizen of the Cir.1978). (1st no Inc., the balance of the evidence offers 574 F.2d test, test, rejection. regard, In we “corporate grounds activities” second company Capitol, considers the find that an insurance corporation’s produc- surety indemnity policies be the location of that writes Kelly bonds, activities. v. United tion and service maintained no offices in Arkansas. (3d F.2d Corp., Further, States Steel in Ar- Capitol conducted business Cir.1960). test, The final the “total activi- only through independent sales kansas test, hybrid ty” actually of the other affiant, agents. Finally, Sen- because activity recognizes two. The total test Anderson, Andy L. ior Claims Examiner corporation’s activities that the nature of presumably employee was an and not impact importance pro- will the relative independent agent, it is clear that activities, activities, and duction service employees and offices outside maintained making. Accordingly, corporate decision disputed of Arkansas. Russellville none of аctivity at all corporate the total test looks facts, before the these and the evidence See, City activities. J.A. Olson Co. v. rejec- provided district court no basis for (5th Miss., Winona, 401, 411 fact, In tion of these assertions. Russell- Invs., Cir.1987); Vareka N.V. v. American supported Capitol’s ville’s own affidavits Inc., Props., Inv. in Arkan- claim that it conducted business Cir.1984). solely through agents. sas sales Eighth District courts within the Circuit infer- We also look to the reasonable applied open-ended have the most of these necessarily from the undis- ences flow activity” tests-thе “total test. White v. inferences, puted making facts. these Indus., Inc., F.Supp. Halstead beyond look the evidence and we *6 (E.D.Ark.1990); North Star Hotels 398 general knowledge of com- draw on our Assocs., Mid-City Corp. v. Hotel 696 monly information without a known even 1265, (D.Minn.1988); F.Supp. 1270 Associ request judicial par- take notice of we Producers, Inc. ated Petro. v. Treco 3 Riv See, e.g., ticular v. facts. United States 1070, Corp., F.Supp. 692 1074 Energy ers (8th Cir.1990) Fousek, 912 F.2d 981 (E.D.Mo.1988). The district court in the (“We conclude that no such evidence was present purported apply case the “total nеcessary, person position for when a activity” party disputes test. Neither the public money trust ... embezzles from test, use of this and we find this test to be aid, those he is bound to it stands to appropriate limiting the most and least resulting reason that there will be some applied. the tests other circuits have public in that loss confidence institu- tion.”); Slone, Applying activity the total test to v. 405 F.2d United States (8th Cir.1969) (“It case, present we look first at 1036 is common knowledge claims made affidavits. We that the movements of a child give weight hardly unpredictable.”); no to the claim that are direct months old Lohm, maintained its of St. Paul Hotel v. 196 F.2d Co. (8th Cir.1952) (“But equally business Wisconsin. The ultimate de it is com- a corporation knowledge hinged termination of where main mon that such seats porcelain parts tains its of business is a the brittle are not meant to question pressure weights mixed of law and fact and not resist thrust appropriate subject against plaintiff matter for an affidavit. them from the side as however, instance.”); give great weight, Capi admits he did Wal- undisputed allegations Realty tol’s of fact Inv. v. where dheim & Co. Comm’r of (8th Rаther, was in Arkansas. it Rev., Cir. of business 245 F.2d Internal 1957) (“It supports the inference that all underwrit- knowledge that the is common examination, ing, manage- claims asset policy of a cancelled value surrender ment, occurred corporate governance rate a short term upon the insured Although Capitol failed to elsewhere. basis, considerably pro- less than the policies anywhere that it sold demonstrate for the unex premium of the rata return policy do not find that we Pastor, term.”); Noland pired satisfy alone are sufficient tо Cir.1951) (“That sales (8th a driver activity total test and define an insurance hour can make a thirty miles an going principal place of business. company’s and can than ten inches of more swerve sufficiently, inefficiently, albeit horn, apply even brakes or sound it not a citizen of demonstrated that was distance stop a much shorter within feet, common is a matter such The court to be obvious. knowledge as of the district court is judgment it.”); notice of Gardner judicial must take reversed. Grain
v. Mid-Continent COLLOTON, Judge, dissenting. Circuit Cir.1948) (“It matter of com is a course, which wе knowledge, of mon not I conclude that the district court did notice, ordinary soy judicial may take dismissing the com- commit clear error goods and perishable beans are plaint, respectfully and I dissent. being in a spoil rot and from they will not mind, my straightforward this is a To was here period as grain car for such Indemnity plaintiff Capitol case. When from De transportation consumed their allege a failed basis Corporation even City.”). catur to Kansas com- jurisdiction in its first for federal then, proof, we without an offer Even court allowed рlaint, the district that insurance may take notice of the fact complaint, but directed amend its through sales companies cannot exist to demonstrate submit sufficient evidence are companies agents days, alone. Insurance ten at within a home of- require entities that regulated court would resolve the point *7 (or agents produce policies fice to the mode perfectly a “rational matter. This is manage the assets employees) precedents, sell and inquiry” in accord with our of States, 724, com- pоlicies. Insurance stand behind the F.2d see Osborn United accountants, actuaries, (8th Cir.1990), panies require and the court does (like affiant, the Senior claim examiners contend otherwise. Anderson), and Andy L. Claims Examiner court’s di- response to the district manag- personnel as well as support other rective, two-page a affi- Capitol submitted reasonably be It cannot ers and directors. davit, only conclusory contained which exist, it employees and disputed that such principal concerning Capitol’s allegation Anderson’s from thе claims Mr. follows (on prop- the court place of business offices and activities of affidavits that the 835-836), and rely, to ante at erly declines managers, and directors employees, such (1) of fact: relevant statements three of Arkansas.
were located outside in the State of “Capitol is (2) maintain Arkansas, Wisconsin,” “Capitol does not employ- no With no office (3) Arkansas,” and Arkansas, in a of business only agents sales ees in and writing insurance support “Capitol’s business the does not evidence in the State of surety and bonds place policies Capitol’s principal an inference Houde, 201(c); entirely through conducted Fed.R.Evid. FDIC v. Arkansas is (1st Cir.1996). independent agents the use of who are not F.3d 607-08 The court employees Capitol.” necessary The district court should not reach out for facts evidence-presented by diversity jurisdiction, concluded that the establish because “[jjudicial inappropriate was insufficient establish diver- notice anis device I agree with that con- remedying proof.” a failure of Glover clusion, Cole, and the court does not contend v. 1200 n. 6 analysis. That should end the Cir.1985); otherwise. Haw- see also United States v. kins, court, however, proceeds to find that the district court committed clear er- Assuming argument for the sake of beyond ror because failed to “look the required sponte the district court sua “general and draw on its knowl- evidence” “general in- knowledge” consider about information,” edge commonly known companies, scope may surance of what though Capitol ante at even never judicially noticed about insurance argued any “commonly cited or such company is limited. The court is forced information” to known the district court or paltry “presum[e]” Capi- record to to this court. The court concludes that (who tol’s senior claims examiner served as sufficient, general knowledge is under court) an affiant the district is an em- newly adopted “total activities” test for ployee independent agent, and not an ante business, determining entirely at it is that an possible principal place of company independent insurance would use I business cannot be dis- contractors as examiners. I claims dare- agree analysis. with this say it “commonly is known” that the insur- course, accept, general
I proposi- industry century ance the 21st increas- judicial tion that a court ingly outsourcing take notice of such functions as facts, adjudicative including administration, certain processing those claims un- “generally ju- known within the territorial derwriting, accounting, and information See, risdiction of trial technology e.g., court.” Fed.R.Evid. Doug services. 201(b). McPhie, But a district court is required up Outsourcing, Thumbs judicial CURRENTS, adjudicative take notice of an fact CROSS Summer at 12-14, “requested by party when sup- (recognizing growing trend in life plied necessary with the industry outsourcing information.” insurance toward 201(d). Fed.R.Evid. Given that technology pro- information and business cesses, never asked the court citing examples district to consider of outsourced “general knowledge commonly policy functions, known administration such as un- *8 information,” supplied any derwriting adjudication), and never nec- and claims essary in regard, information it was http://www.ey.com/global/download.nsfi' Currents_Summer_2002 within the district court’s discretion Belgium_E/Cross wheth- еr to consider such information on its /$file/CrossCurrents_Summer_2002.pdf.1 own initiative, required and it was not industry developments do so. These show also, recoveries, e.g., Pryer, Outsourcing ing; 1. See Chris comprises financial collection; Play Larger Among Compa subrogation premium Role Insurance and and nies, JOURNAL, January management regulatory reporting), OUTSOURCING data and (describing outsourcing http://www.outsourcing-journal.com/ of insurance at processes, including issues/jan2003/insurance.html; field-based services such William R. Merrier, auditing; policy Pape, as administration and bill- The Fеwer the INC. MAGA- (E.D.Mo.1988). If, example, Capitol assump- broad reliably make one cannot function of and the number in for the tions about were company. an insurance at employees in purpose selling exclusively insurance Moreover, of cer- existence presumed (a scenario that the record and Arkansas and di- managers, employees, tain core judicially the court’s noticed facts do not anything about not tell us rectors does exclude), applying decisions the total activ- located, including whether they are where company’s princi- that the ity test indicate single dispersed in a state or they are pal place of business would be Arkansas. venues. among different While (where See id. at 1075 sole officers and affida- to infer from the barebones possible employees, company headquarters, policy- knowledge common vit and functions, making place incorpo- and outside sort of “home office” has some Missouri, in ration were but 92% of sales is left beyond much place Kentucky, principal were busi- speculation. Kentucky); North Hotels ness was Star legal conclusion problematic More Assocs., Mid-City v. Hotel Corp. knowledge” about insurance “general (where (D.Minn.1988) F.Supp. diver- necessarily demonstrates companies plaintiffs incorporation, Texas was state of The mere this case. directors, residence of officers and situs of home office judicially of a noticed existence tasks, lo- bookkeeping accounting and and Arkansas, especially when the na- outside policy offices where corporatе cation of speculative, such an office is does ture of were made and records were decisions that Capitol’s not establish maintained, of income was but sole source very is outside Arkansas. of business managed operated and hotel Minnesota to illustrate the cases cited the court through management agreement, principal test, ante at demon- “total activities” Minnesota); of business was White place point. strate the Indus., Inc., 750 F.Supp. Halstead observes, Capitol failed to As the court (E.D.Ark.1990) (where company’s ex- any- policies it sold insurance prove that Carolina, in North ecutive offices were court’s other than Arkansas. The where sales, majority goods, employees and virtually all agree “[w]hen authorities in Arkan- plants associated with two were corporate business is conducted of the sas, Arkan- of business was state, headquarters policy- but the sas); Mining v. Minnesota Hanna Co. another, are conducted making functions 1395, 1400 Light, F.Supp. Power & corporate business as- the situs of the (where (D.Minn.1983) creat- company was Associated greater importance.” sumes operate parent’s interest Producers, ed to hold Inc. v. Treco 3 Riv- Petroleum mining project, principal F.Supp. 1074 Minnesota Energy Corp., ers ZINE, underwriting, produc- agent provide (reporting that in out- eral Dec. 1998 issuance, tion, sourcing premium allowed GeneraLife Insurance Com- marketing, policy employ a pany collection, of America to staff accounting, billing premium students, college manage them some of auditing, payroll adjusting, issuance claims 3,000 independent insurancе more than services, managing while and various other *9 http://www.inc.com/maga- agents), agent policy admin- general subcontracts Ins., zine/19981201/5420.html; Dep’t Florida administration functions istration and claims Target Property Casualty Market servicing providers), third-party Examination DeSoto Insurance Conduct http://www.fldfs.com/companies/pc/Exams/ 8, 2002) (insurance (March Company, 4at Desoto_030802_Rpt.Pdf. third-party managing gen- company relied on of business was Minnesota rather
state where executive and administrative located), aff'd,
offices
dence the record about even augmented judicially
when it is
noticed existence of home office outside
Arkansas, I do not clear error in the find
conclusion that failed to di
versity observed, may
As the district court that Capitol
well be could demonstrate
easily that its
outside Arkansas. It should remain free litigation.
to do so in other But requisite showing
failed to make the in this
case, good and I see no reason to strain judicial the doctrine of
both notice and the
“total activities” test to create
jurisdiction I af- over this lawsuit. would court, judgment
firm the of the district respectfully
and I dissent.
Hugo BELLIDO; Ivan Miriam Puna-
Villaneuvam, Petitioners, Attorney ASHCROFT,
John General of States, Respondent.
the United
No. 02-4076.
United of Appeals, States Court
Eighth Circuit.
Submitted: Feb. 2004. April
Filed: 2004.