Case Information
‐ ‐ cv Van Buskirk The United Group Companie s
United States Court of Appeals for the Second Circuit A UGUST TERM
No. ‐ B RUCE A. V AN B USKIRK AND L ORI A. V AN B USKIRK , ‐ Appellants ,
T HE U NITED G ROUP OF C OMPANIES , I NC ., DCG F UNDS M ANAGEMENT , LLC, DCG/UGOC F UNDS M ANAGEMENT II, LLC, M ICHAEL J. U CCELLINI , E XECUTOR OF THE E STATE OF W ALTER F. U CCELLINI , MCM S ECURITIES , LLC, M ILLENNIUM C REDIT M ARKETS , LLC, D AVIS C APITAL G ROUP , I NC ., J ESSICA F. S TEFFENSEN , E XECUTRIX OF
THE E STATE OF W ALTER F. U CCELLINI , ‐ Appellees ,
R ICHARD W. D AVIS , J R .,
Defendant
S UBMITTED : A PRIL
D ECIDED : A UGUST Before: C ALABRESI L OHIER S ULLIVAN Circuit Judges ‐ Appellants judgment United States District Court Northern District York (Sharpe, J. ) dismissing claims subsequent denial reconsideration, arguing parties were diverse at time filing. Because courts may freely permit jurisdictional amendments even appellate level, we vacate judgment district court and remand for further proceedings consistent opinion.
Gary A. Gotto, Keller Rohrback L.L.P., Phoenix, Arizona and David J. Ko, Keller Rohrback L.L.P., Seattle, Washington, for ‐ Appellants Michael B. de Leeuw & Tamar S. Wise, Cozen O’Connor, New York, New York, for ‐ Appellees. R ICHARD J. S ULLIVAN Circuit Judge
: ‐ Appellants Bruce and Lori Van Buskirk (“Plaintiffs”) appeal judgment entered United States District Court Northern District
New York (Gary L. Sharpe, J .) dismissing Plaintiffs’ claims subject matter subsequent denial argue that, de novo review, entire on demonstrates they York filed suit, therefore satisfied complete requirement U.S.C. establishing federal explained below, appellate may freely permit jurisdictional amendments, vacate judgment remand so complaint. At time, may whether impose costs – including attorney’s fees – Plaintiffs attributable their failure provide all relevant of show cause.
I. B ACKGROUND
In July Plaintiffs brought suit against Defendants ‐ Appellees (“Defendants”) The United Group of Companies, Inc.; DCG Funds Management, LLC; DCG/UGOC Funds Management II, LLC; MCM Securities, LLC; Millennium Credit Markets, LLC; Davis Capital Group, Inc.; and individual officers various companies alleging violations state law including common law fraud, breach fiduciary duty, negligent misrepresentation, unjust enrichment, aiding abetting fraud. subsequently amended their twice. In three iterations complaint, alleged were “resident[s] Cobleskill, New York” New York North Carolina.
In February ordered cause why action should dismissed sua sponte under Federal Rule Civil Procedure 12(h)(3) submitted two ‐ paragraph response stating had “Plaintiffs used reside Cobleskill, York but sold residence York and now reside” Naples, Florida. J. App’x at 107. Plaintiffs argued that Defendants were aware of “domicile” because they had sent mail Florida address. Plaintiffs attached (1) blurry photocopies of their Florida drivers’ licenses one visibly dated “12 ‐ ‐ 2016” – and (2) a photocopy of a January piece of mail from one Defendant addressed Plaintiffs at Florida address. In March 21, docket entry, agreed “Plaintiffs failed satisfy burden of proving they were states diverse from those defendants at time filing” and dismissed J. App’x Judgment was entered day.
Plaintiffs thereafter filed motion reconsideration, arguing dismissal improper submitting “Declaration[s] Domicile” sworn statements signed May 9, indicating then resided intended Florida permanent home. On April denied motion affidavits known prior order cause had invoke any strict grounds subsequently filed timely notice April denying Plaintiffs’ *5 for
II. S TANDARD OF R EVIEW
We generally treat from a denial of a motion for reconsideration largely renews arguments previously made in the underlying order bringing up for review the underlying order judgment. See “R” Best Produce, Inc. v. DiSapio , 540 F.3d 115, 121–22 (2d Cir. 2008). “When reviewing the dismissal of complaint for lack of jurisdiction, review factual findings for clear error legal conclusions de novo, accepting all material facts alleged in the true drawing all reasonable inferences the plaintiff’s favor.” Liranzo v. United States 690 F.3d 78, 84 (2d Cir. 2012). “Denials of motions for reconsideration are reviewed only for abuse of discretion.” Analytical Surveys, Inc. Tonga Partners, L.P. 36, 52 (2d Cir. 2012). [1]
III. D ISCUSSION
Plaintiffs argue on that district court to properly evidence proving they they filed their complaint. Specifically, argue that district did not attribute enough weight submitted response to court’s cause civil cover sheet they submitted when they filed their initial complaint; further contend that ought considered declarations domicile 2013 submitted part In alternative, argue we should invoke our authority under U.S.C. § find complete diversity based on newly submitted evidence. While we essentially agree with rulings based on existed time, agree § affords them another opportunity establish diversity
The parties do dispute this case only properly entertained federal basis diversity jurisdiction under U.S.C. relevant appeal, “diversity available only adverse parties litigation are completely diverse citizenships.” Herrick Co. SCS Commc’ns, Inc. 2001). Complete requires “all plaintiffs . . citizens states diverse those defendants.” Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co. , 772 F.3d 111, 118 (2d Cir. 2014). At issue here is whether are fact diverse; since it is undisputed are New York and North Carolina, may share citizenship and still satisfy requirements diversity
“An individual’s citizenship, within meaning diversity statute, is determined his domicile. [in other words] place where person has his true fixed home principal establishment, which, whenever he is absent, he has intention returning.” Palazzo ex rel. Delmage v. Corio F.3d (2d Cir. (internal citation marks citations omitted). A person has only one domicile any given moment, though it change. Id. For purposes jurisdiction, relevant domicile parties’ domicile complaint filed. See Universal Licensing Corp. Paola del Lungo S.p.A. (2d Cir. 2002).
Here, alleged residents Cobleskill, York. threshold matter, residence alone insufficient establish domicile jurisdictional purposes. See Leveraged Leasing Admin. Corp. PacifiCorp Capital, Inc. 1996). In any case, even if *8 had alleged they were domiciled in Cobleskill, New York, complaint would still have been inadequate, since, already observed, at least one Defendant was citizen York, defeating complete diversity. To invoke federal jurisdiction, in response the district cause, needed produce evidence establishing they had been domiciled in Florida at filed suit But they did not produce such evidence. The sworn declarations indicated had moved Florida but did not specify when move occurred. The attached exhibits similarly unavailing; one driver’s license was dated December piece mail was dated January both after July filing. On appeal, argue should considered civil cover sheet filed initial complaint it suggested resided in complaint filed listing “Collier” county which Bruce Van Buskirk resided. But again, evidence residence insufficient establish domicile. Accordingly, properly dismissed based before it time.
Nor did abuse discretion denying Plaintiffs’ *9 for reconsideration its March dismissal. A motion for reconsideration extraordinary request that is granted only rare circumstances, such as where the court failed to evidence or binding authority. “The standard for granting such motion strict, reconsideration will generally be denied unless the moving party can point to controlling decisions data the court overlooked – matters, other words, might reasonably expected to alter conclusion reached court.” Shrader CSX Transp., Inc. 1995). part motion reconsideration, for first time attached sworn declarations stating domicile as early But since had not provided evidence until motion reconsideration – did not explain why they failed to provide declarations response order to show cause – overlooked nothing time dismissal. Therefore, did not abuse discretion it denied late request add previously known cause part likewise explained why move pursuant either Federal Rule Civil Procedure 15(a)(2), which provides *10 leave to amend “should [be] freely give[n] . . . when justice so requires” – including after final judgment has been vacated, see Nat’l Petrochem. Co. Iran v. M/T Stolt Sheaf 240, (2d Cir. (observing some cases “it might appropriate . . . to take into account nature proposed amendment deciding whether to vacate”) – or U.S.C. § which broadly allows for amendment “[d]efective allegations trial appellate courts.” Rather than pursue such relief, submitted a two ‐ page motion – characterized as motion reconsideration – which included request consider new clearly available to cause. Although might have construed Plaintiffs’ motion clumsily ‐ made motion amend, cannot find abused discretion it denied – who represented counsel –
Nevertheless, pursuant U.S.C. § appellate courts discretion entire determine whether there This provision noted above allows both “trial appellate courts” “defective allegations jurisdiction.” U.S.C. 1653; see John Birch Soc’y Nat’l Broad. Co. 198–99 1967); see Troupe *11 Chi., D. & G. Bay Transit Co. , F.2d 253, 258 n.6 (2d Cir. 1956) (holding courts appeals can the whole record under § 1653). “Such amendments will be freely permitted where necessary avoid dismissal on purely technical grounds. . . . [And u]nless clearly indicates the complaint could not be saved any truthful amendment, . . . we generally afford opportunity for amendment.” Canedy v. Liberty Mut. Ins. Co. , F.3d (2d Cir. 1997). In past, statute has provided basis us deem pleadings amended on grant leave on appeal remand proceedings on merits court. See, e.g. , Durant, Nichols, Houston, Hodgson & Cortese ‐ Costa P.C. Dupont 64–66 (2d Cir. 2009) (remanding so could resolve factual disputes); see also Maitland Fishbein F. App’x 92–93 (summary order) (remanding further proceedings merits).
To sure, have articulated caveat 1653’s general principle: “[w]here has pointed out defects has afforded plaintiff reasonable amend[,] plaintiff, intention delay, has done so, appellate will not allow plaintiff ‐ appellant leave amend.” John Birch Soc’y But *12 not argued had any intention to delay suit, nor is such motive otherwise apparent record. Defendants point out, other circuits refused to permit § relief even absent an intent to delay when party seeking to invoke federal
jurisdiction has been given an opportunity to amend their pleadings level to do so. See, e.g. Naartex Consulting Corp. Watt n.21 (D.C. Cir. 1983) (“[C]ourts are not obliged to indulge litigants indefinitely, especially when amendments constitute futile gestures.”); Mills Maine (1st (“[W]e reiterate our view that, where party has had opportunity to seek to amend pleadings court, it not appropriate party belatedly seek leave amend on pursuant U.S.C. 1653.”). Nevertheless, before us, are not persuaded such refusal warranted here. Significantly, issue was never raised only identified by eighteen months after case commenced, sua sponte ordered cause why case should not dismissed. Beyond show cause, not provided other opportunities otherwise clarify jurisdictional argument prior entry judgment. are *13 blameless; could have requested an opportunity to amend, and response Judge Sharpe’s left much desired. But we are reluctant to dismiss a complaint jurisdiction when subsequent facts reveal diversity may existed along. See Dupont 565 F.3d 64.
Considering whole pursuant we conclude sworn declarations domicile dated May 2013 offered as part Plaintiffs’ reconsideration suggest in fact domiciled in as early Since district court in best position consider veracity this evidence first instance, vacate judgment district remand so may so may determine whether provided by – a whole – sufficient invoke federal diversity [3] On remand, may whether award costs Defendants including attorney’s fees would mitigate prejudice incurred by through late amendment. See, e.g., Gen. Signal Corp. MCI Telecomms. Corp. (9th 1995) (“[A] court, discretion, impose costs pursuant *14 Rule condition granting leave compensate opposing party additional costs incurred original pleading faulty.”); Charles Alan Wright et al., Federal Practice Procedure ed. (“The statement Rule 15(a)(2) ‘should freely give leave justice so requires’ presupposes use discretion impose conditions on allowance proposed amendment an appropriate means balancing interests party seeking amendment those party objecting it. The most common condition imposed on amending party costs.”). Additionally, parties shall bear own costs appeal.
IV. C ONCLUSION
For foregoing reasons, judgment VACATED REMANDED further proceedings consistent opinion.
[1] argue district court’s denial of the motion for reconsideration must reviewed de novo denial “both affirmed court’s prior Dismissal Order offered, for first time, explanation support of its prior conclusion.” (Appellants’ Brief at 13.) But expressly stated reasoning for dismissal its March docket entry, finding “Plaintiffs [had] satisfy burden proving states diverse those defendants filing.” J. App’x By contrast, April only considered grounds motion for reconsideration, merits dismissal Accordingly, abuse discretion proper standard. See AEP Energy Servs. Gas Holding Co. Bank Am., N.A. n.21 (concluding de novo review required first addresses merits reconsideration).
[2] The parties dispute whether civil cover sheet considered all. Because we find it insufficient establish Plaintiffs’ domicile any event, need address issue.
[3] general matter, must prove complete by a preponderance evidence, but change domicile clear convincing evidence. See Palazzo ex rel. Delmage 42; Brignoli Balch, Hardy & Scheinman, Inc ., F. Supp. & n.5 (S.D.N.Y. (holding higher burden applies proving change domicile).