Bruce A. Van Buskirk and Lori A. Van Buskirk, Plaintiffs-Appellants,
The United Group of Companies, Inc., DCG Funds Management, LLC, DCG/UGOC Funds Management II, LLC, Michael J. Uccellini, Executor of the Estate of Walter F. Uccellini, MCM Securities, LLC, Millennium Credit Markets, LLC, Davis Capital Group, Inc., Jessica F. Steffensen, Executrix of the Estate of Walter F. Uccellini, Defendants-Appellees, Richard W. Davis, Jr., Defendant.
Submitted: April 11, 2019
appeal from a judgment of the United States District Court
for the Northern District of New York (Sharpe, /.) dismissing
their claims for lack of subject matter jurisdiction and the
district court's subsequent denial of a motion for
reconsideration, arguing that the district court failed to
consider evidence that the parties were diverse at the time
of filing. Because courts may freely permit jurisdictional
amendments even at the appellate level, we vacate the
judgment of the district court and remand for further
proceedings consistent with this opinion.
A. Gotto, Keller Rohrback L.L.P., Phoenix, Arizona and David
J. Ko, Keller Rohrback L.L.P., Seattle, Washington, for
Michael B. de Leeuw & Tamar S. Wise, Cozen O'Connor,
New York, New York, for Defendants-Appellees.
Before: Calabresi, Lohier, Sullivan, Circuit Judges.
RICHARD J. SULLIVAN, CIRCUIT JUDGE
Bruce and Lori Van Buskirk ("Plaintiffs") appeal
from a judgment entered by the United States District Court
for the Northern District of New York (Gary L. Sharpe, /.)
dismissing Plaintiffs' claims for lack of subject matter
jurisdiction and the district court's subsequent denial
of a motion for reconsideration. Plaintiffs argue that, on
de novo review, the entire record on appeal
demonstrates that they were citizens of Florida - not New
York - at the time they filed their suit, and therefore
satisfied the complete diversity requirement of 28 U.S.C.
§ 1332, establishing federal subject matter
jurisdiction. As explained below, because an appellate court
may freely permit jurisdictional amendments, we vacate the
judgment of the district court and remand so that Plaintiffs
may amend their complaint. At that time, the district court
may also consider whether to impose costs - including
attorney's fees - on Plaintiffs attributable to their
failure to provide the district court with all relevant
evidence at the time of the order to show cause.
2016, 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 of the
various companies - alleging violations of state law
including common law fraud, breach of fiduciary duty,
negligent misrepresentation, unjust enrichment, and aiding
and abetting fraud. Plaintiffs subsequently amended their
complaint twice. In all three iterations of their complaint,
Plaintiffs alleged that they were "resident[s] of
Cobleskill, New York" and that Defendants were citizens
of New York or North Carolina.
February 2018, the district court ordered Plaintiffs to show
cause as to why the action should not be dismissed sua
sponte under Federal Rule of Civil Procedure 12(h)(3)
for lack of subject matter jurisdiction. Plaintiffs submitted
a two-paragraph response stating that the court had diversity
jurisdiction because "Plaintiffs used to reside in
Cobleskill, New York . . . but sold their residence in New
York and now reside" in Naples, Florida. J. App'x at
107. Plaintiffs argued that Defendants were aware of this
"domicile" because they had sent mail to the
Florida address. Plaintiffs also attached (1) blurry
photocopies of their Florida drivers' licenses - one
visibly dated "12-28-2016" - and (2) a photocopy of
a January 2018 piece of mail from one Defendant addressed to
Plaintiffs at the Florida address. In a March 21, 2018 docket
entry, the district court agreed with Defendants that
"Plaintiffs . . . failed to satisfy their burden of
proving that they were citizens of states diverse from those
of all defendants at the time of filing" and dismissed
the complaint for lack of subject matter jurisdiction. J.
App'x at 119. Judgment was entered that day.
thereafter filed a motion for reconsideration, arguing that
dismissal was improper and submitting "Declaration[s] of
Domicile" - sworn statements signed by Plaintiffs on May
9, 2013 indicating that they then resided in Florida and
intended Florida to be their permanent home. On April 13,
2018, the district court denied the motion because the
affidavits were known to Plaintiffs at the time of the prior
order to show cause and Plaintiffs had failed to invoke any
of the strict grounds for reconsideration. Plaintiffs
subsequently filed a timely notice of appeal from the
district court's April 13, 2018 order denying
Plaintiffs' motion for reconsideration.
Standard of Review
generally treat an appeal from a denial of a motion for
reconsideration that largely renews arguments previously made
in the underlying order as bringing up for review the
underlying order or judgment. See "R" Best
Produce, Inc. v. DiSapio,540 F.3d 115, 121-22 (2d Cir.
2008). "When reviewing the dismissal of a complaint for
lack of subject matter jurisdiction, we review factual
findings for clear error and legal conclusions de
novo, accepting all material facts alleged in the
complaint as true and drawing all reasonable inferences in
the plaintiff's favor." Liranzo v. United
States,690 F.3d 78, 84 (2d Cir. 2012). "Denials of
motions for ...