NIKE, INC., an Oregon corporation, Plaintiff-Appellant,
v.
COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanish
corporation; S.A. Distribuciones Internacionales,
a Spanish corporation; Carlos Rosal
Bertrand, Defendants-Appellees.
NIKE, INC., an Oregon corporation, Plaintiff-Appellee,
v.
COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanish
corporation; S.A. Distribuciones Internacionales,
a Spanish corporation; Carlos Rosal
Bertrand, et al.,
Defendants-Appellants.
NIKE, INC., an Oregon corporation, Plaintiff-Appellee,
v.
COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanish
сorporation; S.A. Distribuciones Internacionales, a Spanish
corporation; Carlos Rosal Bertrand; Lorenzo Rosal
Bertrand; Mario Loscos, Defendants-Appellants.
NIKE, INC., an Oregon corporation, Plaintiff-Appellee,
v.
COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanish
corporation; S.A. Distribuciones Internacionales, a Spanish
corporation; Carlos Rosal Bertrand; Lorenzo Rosal
Bertrand; Mario Loscos, Defendants-Appellants.
Nos. 92-35487, 92-35489, 92-35548, 92-36583.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Aug. 31, 1993.
Decided March 31, 1994.
Sean Donahue, Donahue & Associates, Shelley Larkins, John F. McGrory, Jr., Davis Wright Tremaine, Portland, OR, for defendants-appellees-cross-appellants.
Douglas G. Houser, I. Franklin Hunsaker and Stuart D. Jones, Bullivant, Houser, Baily, Pendergrass & Hoffman, Portland, OR, for plaintiff-appellant-cross-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: BROWNING, SCHROEDER and HALL, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:
These consolidated appeals raise numerous challenges to the proceedings before the district court. We do not address most of these claims, however, because we find that the district court lacked subject matter jurisdiction.
* FACTS AND PROCEDURAL HISTORY
This disputе arises from the alleged breach of several contracts between Comercial Iberica de Exclusivas Deportivas, S.A. (Cidesport) and Nike, International, Ltd. (NIL), a wholly owned subsidiary of Nike, Inc. (Nike).1 These contracts authorized Cidesport to act as the exclusive distributor of Nike shoes, apparel and bags in several European countries.
Nike brought these claims for breach of contract, fraud and tortious interference with prospective advantage against Cidesport, its parent corporation, and the individual corporate officers of these two corporations (collectively "defendants").2 Nike claims the district court had jurisdiction over this action pursuant to 28 U.S.C. Sеc. 1332(a)(2) because the action was between a "citizen[ ] of a State," Nike, an Oregon corporation with its principal place of business in Beaverton, Oregon, and "citizens or subjects of a foreign state," the defendants, none of whom are United States citizens. NIL, a Bermuda corporation, was not a party to the action, having assignеd its claims to Nike just three days before Nike filed its complaint.
Defendants moved to dismiss for lack of subject matter jurisdiction, alleging that NIL had collusively assigned its claims to Nike to create diversity jurisdiction. The district court granted the motion, reasoning that Nike had not overcome the presumption of collusion applicable because NIL is a wholly-owned subsidiary of Nike. Nike successfully sought reconsideration of this decision. To rebut the presumption of collusion, Nike submitted the affidavit of its corporate counsel, Lindsey Stewart. Stewart explained that the assignment occurred because Nike prefers to litigate in Oregon, particularly the United States District Court in Oregon. Nike considers the district court a superior forum because it is more convenient, more expeditious, less expensive and allows Nike to maintain better control over the litigation.
Nike also submitted an affidavit from George Porter, the Vice President of Finance for Nike and NIL. Porter's affidavit reiterated the language of the assignment, claiming that the assignment was made "for good and valuable consideration." Porter also offered additional reasons for the assignment including Nike's preexisting interest in the enforcement of the contract rights; the similar interest of Nike's newly-created, wholly-owned subsidiary that now performs the tasks Cidesport was previously authorized to do; Nike's ultimate entitlement to NIL's profits; and Nike's interest in protecting its trademarks, trade names, business reputation and goodwill.
Nike offered a third affidavit from Philip Knight, the Chief Executive Officer of NIL and Nike. Knight's affidavit reiterated Nike's position that the assignment of claims was made for good business reasons and not for purposes of improper collusion.3
The district court vacated its earlier decision, finding that Nike had overcome the presumption of collusion by showing that it made the assignment for legitimate business purposes, and reinstated the action.4 In this appeal, defendants renew their challenge to the district court's jurisdiction.
II
STANDARD OF REVIEW
"The existence of subject matter jurisdiction is a question of law, and our review is de novo." Yokeno v. Mafnas,
III
DISCUSSION
Defendants maintain that the claim assignment from NIL to Nike violates the proscriptions of the federal anti-collusion statute.5 28 U.S.C. Sec. 1359. Under that statute, "[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." 28 U.S.C. Sec. 1359.
* Before we evaluate this assignment for collusion, we must respond to the district court's suggestion that the assignment did not create jurisdiction. The district court speculated that even if NIL had been a plaintiff in this action, diversity jurisdiction would have existed. If this suggestion is correct, the assignment could not violate the anti-collusion statute regardless of Nike's and NIL's motivation.
We draw no distinction between corporations incorporated in a state of the United States and those incorporated in a foreign country when determining the cоrporation's citizenship for purposes of diversity jurisdiction. Danjaq, S.A. v. Pathe Communications Corp.,
NIL, however, is a corporation and we cannot disregard either its site of incorporation, Bermuda, or its principal place of business, which Nike alleges is Oregon,6 when testing for complete diversity. In this instance, when we treat NIL as an alien citizen due to its Bermuda incorporation, the requirements of diversity jurisdiction are not met. Although the federal courts have jurisdiction over an action between "citizens of a State and citizens or subjects of a foreign state," 28 U.S.C. Sec. 1332(a)(2), diversity jurisdiction does not encompass a foreign рlaintiff suing foreign defendants, Cheng v. Boeing Co.,
Moreover, if Nikе had filed this suit as the sole plaintiff, it could not have relied on the district court's supplemental jurisdiction to add NIL and NIL's claims. Prior to the assignment, NIL was an indispensable party, see Harrell & Sumner Contracting v. Peabody Peterson,
B
We may now proceed to determine whether the assignment was "collusive." In this circuit, we have concluded that "[c]ertain kinds of diversity-creating assignments warrant particularly close scrutiny." Yokeno v. Mafnas,
When testing this assignment, although the district court applied the presumption, it did not have the benefit of our decision in Yokeno v. Mafnas,
This case compels application of the heightened presumption. In an affidavit explaining Nike's "excellent business reasons" for the assignment, Nike explained:
Part of the reason NIKE, Inc. has included the Oregon choice of law and consent to jurisdiction in Oregon in contracts with distributors and licensees worldwide is that NIKE, Inc. is convinced for good business reasons that the expense of litigation in the Oregon Federal District Court is considerably less than the cost of litigation in other parts of the world, or, indeed, in other parts of the United States. The docket of the United States District Court for the District of Oregon is well managed, and cases come on for early trial when compared with other forums.
If we had any remaining dоubts whether NIL and Nike acted at least in part to obtain a federal forum, the timing of the assignment, only three days before Nike filed the complaint in this action, dispels them.
Presented with this heightened presumption, we conclude that Nike has not advanced a "sufficiently compelling" business reason. As justification for the assignment, Nike maintains that it had an interest in the litigаtion before the assignment and therefore it made sense for it to assume control of all the claims.9 Although a preexisting interest is a factor to consider, see Yokeno,
Nike's other proffered business reasons are equally dubious. It maintains that cost considerations compelled the assignment. During this litigation, Nike also argued, however, that NIL's principal place of business is Beaverton, Oregon, same as Nikе, and we know that Nike and NIL share many corporate officers. Thus, we do not find any obvious cost savings from excluding NIL, an organization with officers located in Oregon despite its Bermuda incorporation and Spanish affiliations, and Nike does not explain why NIL's presence in the litigation would increase costs.
"Nor do we find the recital of considerаtion in the ... assignment, without more, sufficient to establish that business concerns were an independent reason for the assignment." Yokeno,
The district court also found support for its exercise оf jurisdiction in the complex nature of Nike's claims and their close relationship to the federal trademark laws. We do not agree that Nike's tort and contract claims are any different from the ordinary business litigation the federal anti-collusion statute is aimed at keeping out of the federal courts. See Yokeno,
Because we conclude the district court did not have diversity jurisdiction, our jurisdiction is "not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Corrick,
The judgment of the district court, including its award of attorney's fees, is VACATED. The distriсt court is directed to dismiss Nike's complaint.
Notes
In each contract, the opening paragraphs recite that the agreements are entered into between NIL and Cidesport
Other individuals were initially named as defendants, but the district court granted their motion to dismiss for lack of personal jurisdiction. These individuals were not United States citizens
Nike offered оther affidavits but we do not refer to them because they either contain the same general statements or address other aspects of this issue
Ultimately, the district court struck defendants' answer as a sanction for failure to comply with one of its orders. Defendants were considered in default and the district court held a hearing without a jury. Although the district court found that Cidesport had breached the contracts, it concluded that Nike had failed to prove damages. The district court granted Nike declaratory relief and awarded it substantial attorney's fees
Relying on Rule 3(c) of the Federal Rules of Appellate Procedure, Nike contests our jurisdiction to entertain the issues concerning the district сourt's entry of a preliminary injunction and its orders holding defendants in contempt and striking their answer. Nike has not expressly questioned our jurisdiction to evaluate for collusion the assignment from NIL to Nike. See Fed.R.App.P. 3(c) (requiring notice of appeal to designate order from which party appeals). We attribute this silence to the nature of the latter issue. See Kantor v. Commissioner,
The district court did not accept Nike's assertion that NIL's principal place of business is Oregon. For the purpose of this appeal, we need not review this dеcision because even if NIL's principal place of business is in Oregon the district court lacked diversity jurisdiction
Nike argues that after the assignment NIL was not an indispensable party. Here, however, we are considering NIL's status if it had not assigned its claims. The contracts upon which Nike sued were entered into between Cidesport and NIL. The signatories were rеpresentatives of Cidesport and NIL. The licensing agreement authorized defendants to use Spanish trademarks owned by NIL. NIL notified Cidesport of its intent to terminate the distribution and licensing agreements. Thus, it is clear that NIL was the principal party to the contracts. Nike may also have an interest in these contracts but that interest does not dilute the importаnce of NIL's role
The circumstances of this assignment illustrate the impact of the close relationship between the parent and subsidiary. An individual who serves as Vice-President of Finance for both Nike and NIL signed the assignment on behalf of NIL and, while the transfer was allegedly "for good and valuable consideration," no one from Nike identified the nature or amount of the consideration
Nike's reliance on North Am. Watch v. Princess Ermine Jewels,
The district court denied defendants' motion to dismiss for lack of jurisdiction. To defeat a motion to dismiss for lack of jurisdiction Nike was required to make a prima facie showing of facts to support the district сourt's exercise of jurisdiction. See Societe de Conditionnement en Aluminum v. Hunter Eng'g Co.,
