*1 may Although Booth an award. basis his to abandon reason good had making rent stop marina boat trial time of at the payments, exact over the dispute good faith had a Indeed, due. amounts elec charges for an award substantially below was tricity that due was claimed Captain J
amount agreed no time Additionally, Booth him. damages that J for Captain indemnify Ohio negligence. his
might arise Cf. Carbon Lakes Co. v. Great River there We 65, erred the district fore conclude mak attorney’s fees awarding in the issue findings on factual
ing sufficient accordingly faith, we bad Booth’s of fees.4 the award
reverse
III. foreclosure decree reverse We affirm rem lack of in Booth, re- $5,178 against
judgment attorney’s fees. award
verse Mo., appel- Bass, Clayton, D.
James lant. Louis, Mo., ap- Puricelli, St. J.
Paul pellee. ARNOLD, Circuit
Before Judge, and STOUFFER The Judge. *, District WOLLE CORPORATION, Appellee, Judge. WOLLE, District BRECKENRIDGE, Appellant. E. Donald presents interlocutory appeal the state question whether 87-2636EM. No. must be Appeals, States United determining whether corpora- an Ohio plaintiff, is satisfied. part- as the action tion, brings this 16, 1988. Submitted on behalf ner 11, 1988. Oct. Decided includes is a citi- defendant citizens. Missouri Court,1 faced District of Missouri. zen cir- from other conflicting decisions
with Cahill, Dis- Clyde United S. Hon. Booth raised issues the other We find Missouri. District Eastern for the trict without merit. Wolle, Dis United Hon. Charles * The Iowa, District Southern Judge for the trict designation. sitting by
76 controlling of citizenship
cuits and no decision of date consideration of lim Court, See New York State Teach Supreme de- United States denied ited Kalkus, Sys. ers Retirement v. gave de- fendant’s to dismiss 764 F.2d Inv., (4th Cir.1985); Elston Ltd. v. permission request interlocutory- fendant 1015 Leasing Corp., we David Altman Having appeal. request, 731 F.2d (7th citizenship Cir.1984); Assocs. v. partners conclude the of limited 436 Ass’n, diversi- First Sav. Loan Fed. determining must be considered in F.2d 657 29 Cir.1981); Carlsberg Corp. ty jurisdiction. (3d Resources We therefore remand the Ass’n, v. Cambria Sav. & Loan district court with directions 554 F.2d (3d Cir.1977). lack of 1254 dismiss for Two circuits have adopted approach, a less restrictive decid is well It established diversi ing on a basis whether par ty only attaches when all party limited is a real to the contro on side of the are of a one Operating versy. See Mesa Ltd. Partner citizenship different from all those ship v. Louisiana Intrastate Gas Curtiss, Strawbridge the other. See v. 7 (5th Cir.1986); 240 Colonial (3 Cranch) 267, 2 L.Ed. 435 v. Bache & F.2d (c). 1332(a)(1), corporate A liti U.S.C. § 385 U.S. gant conclusively presumed has been incorpo to be a resident of its state of only published opinion on the issue ration. See Marshall v. Baltimore & circuit, from this the district court referred O.R.R., (16 How.) 314, 325-29, 57 U.S. circuits, cases from then (1854) (codified L.Ed. 953 at 28 U.S.C. concluded: 1332(c) (1970)). unincorporated An asso better reasoned rule is that citizen- ciation, however, traditionally [T]he has been partners ship of limited must be con- viewed as a citizen of the state of each of in determining diversity sidered of citi- Chapman its constituent members. zenship. Barney, 32 L.Ed. (1889) (federal jurisdiction in could be Castlewood Dev. v. Real Estate As only voked all unincorporat if members of II, socs. Ltd. F.Supp. 1582, (S.D. joint company ed New York stock were of 1987). Iowa tooWe conclude the better citizenship diverse from that of all oppos complete between ing parties); Great S. Fire Hotel Co. plaintiff partners the defend Proof Jones, corporation, ant (1900) (court refused to extend partners. We must therefore reverse the
jurisdiction by way corporate analogy to district court’s refusal to dismiss the com Pennsylvania partnership associa plaint want tion). traditional, narrow view of fed adopt reasons for rule we here eral unincorporated over associ explained are well in the above-cited deci- challenged ations was reaffirmed Third, sions from the Fourth and Seventh Bouligny, United Steelworkers v. R.H. A Circuits. is one form Inc., and the The court held that an unincor long required court has consideration of porated citizenship juris labor union’s citizenship of all members such asso- purposes dictional must take into account Therefore, ciations. “more con- each its members and precedent.” sonant with just not the location of principal office. Inv., Elston Ltd. David Altman Leas- ing Corp., United States Court has sug- F.2d 438. No one yet presented, addressed the issue here gests Congress has ever intended di- and this court has noted but not it. versity jurisdiction decided to partner- extend Missouri-Indiana Group Inv. ships whose limited include citi- Shaw, 957 n. 6 zens of opposing the same state as an Appellate decisions in Carlsberg Corp. Resources party. three circuits man- F.2d Ass’n, Loan&Sav. Cambria dissenting. Con come change should Any Retire majority’s po Teachers State York dissent. respectfully I
gress. New
1019;
Kalkus,
disregards
sition
Sys. v.
ment
*3
ago
recognized
controversy” test
Elston,
at
in Navarro
recently restated
and
also favor
considerations
Practical
Lee,
S.Ct.
Ass’n v.
Sav.
partnerships
that
treats
rule
test
purposes.
jurisdictional
alike
must
court
“a
that
federal
clearly provides
parties and
the
enable
will
bright-line
and
parties
or formal
disregard nominal
involving a
contemplating
counsel
the
only upon
[diversity]
rest
readily
to determine
the controver
parties
real
to
citizenship will
partner’s
whether
(2
Bland,
U.S.
sy. E.g.,
[43
McNutt
con-
jurisdiction.
diversity
preclude
A.
Wright see 6 C.
How.) 1,
(1844)];
Fifth
and
the Second
trary
Procedure
and
Miller,
Practice
Federal
determination
a
requiring
Navarro,
(1971).”
su
1556, pp. 710-711
to
parties
real
are
whether
461, 100 S.Ct. at
at
pra,
an
mandate
often
controversy, would
the
applied
Court
Navarro,
the
In
the threshold
hearing
evidentiary
test to
controversy”
to
parties
the
the
rule thus enhances
Our
whether,
situ-
trust
in a business
determine
judi-
promotes
and
of result
predictability
benefi-
trust
citizenship of the
ation, the
economy.
cial
as that
be
must
ciaries
case, the Court
that
the trustees.
conten
plaintiff’s
reject
Finally, we
real
were the
the trustees
that
concluded
Ass’n
in Navarro Sav.
tion that
465-66,
at
controversy.
Id.
to the
parties
1779, 64
S.Ct.
Lee,
U.S.
rested
1784-85.
at
100 S.Ct.
and
direction
(1980), changed
under
findings
upon
conclusion
determination
detailed
a
now
au-
(a)
were
the trustees
agreement
trust
real
are
citizens
nondiverse
whether
trust
to the
legal title
have
to
thorized
involving
all cases
controversy in
to
the assets
invest
assets, manage and
to
ex
The court
associations.
beneficiaries,
to sue
and
of the
the benefit
“an
involved
the case
stated
plicitly
trustees,
capacity
in their
and be sued
association
an
“neither
and
express trust”
had no
(b)
beneficiaries
the trust
462,100
at
Id.,
at
corporation.”
nor a
decisions, to intervene
investment
to make
underlined
dissenting justice
in the
(except
trust
of the
in the affairs
opinion.
majority
disclaimer
situations),
con-
or to
extraordinary
most
6;n.
see
S.Ct. at
at 475 n.
Id.
n.&
at 464-65
Id.
litigation.
trol
Assocs., 657 F.2d
par-
As “real
n. 14.
1783-84
citizenship absent
diversity of
were
trustees
controversy,” the
With
to the
jurisdiction,
federal
diversity
other basis
to invoke
entitled
defend-
regard to the
should
federal
district
of the
Id.
remand
dismiss.
beneficiaries.
the trust
ant’s
directions
1784-85.
465-66,
court with
100 S.Ct. at
lack
dismiss
is that
message of Navarro
clear
beyond
to look
required
are
courts
federal
DIRECTIONS.
WITH
REMANDED
courts.”
Congress and not
Bouligny
made
Supreme Court in
The United
150-51,
at 274-75.
U.S. at
a
proffered
arguments
force
conceded
jurisdiction,
extending
union
labor
Wall.)
(11
Blatchford,
argu-
Coal
these
1. See
“that
response was
its clear-cut
Balti
Marshall
172, 177,
L.Ed.
an
ments,
addressed
appealing, are
however
How.)
(16
Co., 57 U.S.
& Ohio
forum,
more
349-51,
pleas for exten-
and that
inappropriate
(1854); and McNutt
un-
jurisdiction to hitherto
of the
sion
How.)
(2
Bland,
ought to be
litigants
categories of
broad
covered
the superficial
contours
business enti-
tion of the citizenship of all members for
ty to determine the real parties to the
diversity purposes. Such
approach
an
fails
federal court
“[A]
must dis-
recognize
the unique character of most
* *
regard nominal or formal parties
*.”
limited partnerships
corporation
—neither
Navarro, supra,
446 U.S. at
nor
hybrid
a
between the
at 1782. Navarro also illustrates that the
two. See Mesa Operating Ltd. Partner
“real parties to the controversy” typically ship, supra,
ness assets and to control all litigation.
Mesa Operating Ltd. Partnership v. Loui
siana Intrastate Gas Corp., Cir.1986) (exclusive power pursu
ant to partnership agreement); Colonial Bache Stanley PARISER, M. M.D., Appellant, (1966) (exclusive power litigate pursuant partner state CHRISTIAN HEALTH ship law). CARE Similarly, in present SYSTEMS, INC., Appellee. diversity jurisdiction should not be defeat ed the citizenship of Stouffer’s limited No. 88-1484. (1) because presently under Mis United States Court Appeals, souri law the limited partners are not prop er parties action, to this see Mo.Ann.Stat. (Vernon 1968)2, impor Submitted Sept. 1988. tantly (2) Stouffer, as partner Decided Oct. Airport Concourse Hotel Partnership, Rehearing Denied “has Nov. exclusive contract, con duct all business transactions, and is in control of all litigation” for partner ship. Corp. v. Breckenridge, No. Stouffer 86-629-C(4), slip (E.D.Mo. op. 5 1987). By definition, Stouffer is the real
party to the controversy, not the limited
The majority instead chooses to follow
the “bright-line” position adopted by the
Third, Fourth and Seventh which
classifies limited partnerships as unincorpo-
rated associations considera- (Vernon Mo.Ann.Stat. 1968), § 359.260 (Vernon Mo.Ann.Stat. §§ 359.010-.691 provides that a proper not a Supp.1988). Notwithstanding the statute’s im- party to a proceeding, repealed has been effec- pending repeal, this section is presently effective January tive pursuant to revisions of and relevant to the of determining the real the state’s Uniform Limited Partnership Law. present