Case Information
‐ cv Title Insurance In the
United States Court of Appeals
For the Second Circuit August Term
No. JOHN Q. GALE, JOHN Q. GALE, LLC, FKA & Kowalyshyn, LLC, Appellants, GALE & KOWALYSHYN, LLC,
Plaintiff Intervenor, CHICAGO TITLE INSURANCE COMPANY, COMMONWEALTH LAND TITLE INSURANCE COMPANY, FIRST AMERICAN TITLE INSURANCE COMPANY, LAWYERS TITLE INSURANCE CORPORATION, individually successor interest Transnation Company, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, STEWART TITLE GUARANTY COMPANY, TICOR TITLE INSURANCE COMPANY, TICOR TITLE INSURANCE COMPANY OF FLORIDA, FIDELITY NATIONAL TITLE INSURANCE COMPANY, UNITED GENERAL
TITLE INSURANCE COMPANY, Appellees
TRANSNATION TITLE INSURANCE COMPANY,
Defendant Chicago Title Insurance
Appeal from United States District Court for District of Connecticut No. Civ. (RNC), Robert N. Chatigny, District Judge, Presiding. (Argued: April 2019; Decided: July 9, 2019) Before: PARKER, WESLEY, and CARNEY, Circuit Judges.
John Q. Gale, a Connecticut attorney, sued a group title insurance companies for allegedly violating Connecticut law allows Connecticut attorneys act title agents state. original complaint included class ‐ action allegations, and District exercised Class Action Fairness Act (“CAFA”), U.S.C. § 1332(d). After number years litigation, amended remove action allegations. United States for Connecticut (Chatigny, J .) concluded withdrawal divested CAFA dismissed agree conclude granting removed from district must be dismissed.
AFFIRMED.
Mathew P. Jasinski, Motley Rice LLC, Hartford, CT, for appellants John Q. Gale, John Q. Gale, LLC, FKA & Kowalyshyn, LLC
Ross L. Hirsch (Arthur G. Jakoby, brief ), Herrick, Feinstein LLP, New York, N.Y., appellees Title Insurance Company, Commonwealth Land Title Insurance Company, Fidelity National Title Insurance Company, Lawyers Title Insurance Company, Ticor Company, Gale Title Insurance Company
Ticor Title Insurance Company Florida, Transnation Title Insurance Company . Frank J. Silvestri, Jr., Verrill Dana LLP, Westport, CT, for appellee Old Republic National Title Company Gerard D. Kelly, Kevin M. Fee, Sidley Austin LLP, Chicago, IL, appellee Stewart Guaranty BARRINGTON D. PARKER, Circuit Judge :
Plaintiff Appellant John Q. Connecticut attorney, who, along with John Q. Gale, LLC, FKA & Kowalyshyn, LLC, different iterations his law firm (collectively “Plaintiffs”), sued Appellees, group title insurance companies, alleging violated Connecticut law allows attorneys admitted practice Connecticut act real estate title agents. In original included maintained those through three subsequent amendments original exercised over initial complaints Class Action Fairness Act (“CAFA”), confers when, among other things, “is action.” U.S.C. § 1332(d)(2). ‐ ‐ Gale
After approximately twelve years litigation, Plaintiffs filed Fourth Amended Complaint (“FAC”) removed ‐ allegations and asserted only state law claims on behalf individual plaintiffs. United States District Connecticut (Chatigny, J .) concluded withdrawal allegations divested CAFA jurisdiction dismissed FAC without prejudice. appeal, principally contending amendment did divest jurisdiction. agree with Judge Chatigny (i) in filed originally in federal court rests solely CAFA, (ii) granting are eliminated from (iii) no new granting added, district is must dismiss
BACKGROUND
John Q. Connecticut attorney who also works as real estate title agent, writing title policies. Generally, Connecticut law, attorneys licensed practice Connecticut may act title agents state. See Conn. Gen. Stat. § 38a 402(13). claims, however, Appellees, title Gale
insurance companies that do business in Connecticut, have been employing work as title agents individuals who not licensed Connecticut attorneys.
In sued Defendants, contending they had tortiously interfered with business opportunities and violated Connecticut statutes regulating trade practices. Jurisdiction was predicated CAFA. sought to represent class consisting Connecticut attorneys law firms worked in the title insurance industry, he sought injunctive declaratory relief as well as damages. Court certified class under Fed. R. Civ. P. 23(b)(2). In Supreme decided Wal Mart Stores, Inc. Dukes U.S. (2011), held class could not be certified Rule 23(b)(2) if class sought monetary relief was merely incidental injunctive or declaratory relief sought, id at 360. Since Gale’s class sought monetary relief, moved decertify class. granted motion but left open possibility could be certified in future.
After was decertified, informed order facilitate resolution would be willing litigate case their individual capacities rather than action. See Joint App’x ‐ ‐ (Plaintiffs’ letter to District Court). At pre trial conference addressing this request, Plaintiffs offered to “withdraw any form class allegations.” Joint App’x 146. Defendants then explained that “the first order business . for Plaintiffs to move to amend” so Defendants could “review [the FAC] see claims then asserted.” Joint App’x 148. After this conference, Plaintiffs filed FAC, omitted class but added no new bases for jurisdiction. Defendants then moved dismiss arguing FAC’s omission class had court CAFA jurisdiction. FAC does allege any statutory basis for Court’s other than CAFA. agreed with Defendants was lacking dismissed Plaintiffs appealed. This reviews district court’s dismissal complaint lack subject *7 17 3497 v.
matter jurisdiction de novo Ford v. D.C. 37 Union Local 1549 , 579 F.3d 187, 188 (2d Cir. 2009).
DISCUSSION
I.
Plaintiffs’ original well as first three complaints, contained class CAFA, which confers original over class actions where there is minimal diversity between parties amount controversy exceeds $5,000,000. See 28 U.S.C. § 1332(d). No one disputes CAFA existed was initially filed continued exist until FAC became operative complaint. Both parties agree after class was decertified, still had CAFA because remained See, e.g. , Metz Unizan Bank , F.3d 492, 500 (6th Cir. 2011) (stating “denial certification does divest courts [CAFA] jurisdiction”); see also F5 Capital Pappas F.3d (2d Cir.), cert. denied , S. Ct. (2017). Therefore, question before us whether filing FAC, omitted allegations, required dismissal. agree did. *8 17 3497 v.
In Rockwell Int’l Corp. United States , 549 U.S. 457, 473–74 (2007), the Supreme Court considered this situation. There Court explained that both “the state things” and “the alleged state things” must support jurisdiction. Id . “[W]hen a plaintiff files a complaint federal court then voluntarily amends complaint, courts look to complaint to determine jurisdiction.” Id. Court went on to explain: “demonstration that original were false will defeat jurisdiction. So also will withdrawal those allegations, unless replaced by others that establish jurisdiction.” Id at (internal citations omitted). [2] Neither party contends FAC introduced new granting allegations.
In Touch Concepts, Inc. Cellco Partnership F.3d (2d Cir. 2015), made clear Rockwell applies to cases brought CAFA. explained 3497 ‐ that “[i]n cases filed originally in federal court, . . . ‘courts look the amended complaint determine jurisdiction.’” Id . (citing Rockwell , U.S. at 473–74). then stated, albeit in dicta, the general rule: “So if this case had been filed originally in federal court, the district court would have had dismiss it as soon [the plaintiff] filed the First Amended Complaint, which dropped ‐ action thereby destroyed the basis jurisdiction.” Id These principles resolve this appeal.
Plaintiffs’ main contention this case should be governed by the time filing rule, states “the depends upon state things at time brought.” Grupo Dataflux Atlas Glob. Grp., L.P ., U.S. (2004). claim because this was was filed, continues have after FAC. This contention misunderstands time filing rule and, any event, was rejected in Rockwell In Rockwell , emphasized must be supported solely by made clear “[t]he rule subject matter ‘depends state things at time brought,’ does suggest different interpretation.” Rockwell U.S. at (internal citation omitted). time filing rule applies changes “state of things,” but changes “ alleged state things.” Id. (emphasis added). Therefore, because can look ascertain jurisdiction, “withdrawal those [that support court’s jurisdiction]” will defeat “unless replaced by others establish jurisdiction.” Id Therefore, by removing FAC, jurisdiction.
CONCLUSION judgment AFFIRMED
[1] Plaintiffs advised were willing abandon their claims proceed exclusively with their individual claims so expedite matters while “eliminat[ing] any risk violating ‘one way intervention’ rule.” Joint App’x 137. (That judicially made rule bars plaintiffs from seeking pre certification merits rulings. See, e.g., Brecher Republic Argentina, F.3d 22, (2d Cir. 2015)). expressed an openness this proposal, provided, however, amend their accordingly. Joint App’x 148.
[2] noted this rule would not apply to cases were removed to federal court: “[W]hen a defendant removes a case to federal court based presence a federal claim, an amendment eliminating original basis federal generally does not defeat jurisdiction.” Rockwell U.S. at n.6. This is because, although a plaintiff is master his or her to allow plaintiff to divest a federal by amending would allow plaintiff frustrate defendant’s federal right remove be heard federal court. But this exception, Supreme explained, applies removal cases because “removal cases raise forum manipulation concerns simply do exist plaintiff who chooses forum then pleads away through amendment.” Id (emphasis omitted)