Opinion
No. 06-3778-cv.
November 19, 2007.
Appeal from the United States District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREEDthat the judgment of the District Court is VACATED AND REMANDED for further proceedings.
FOR PLAINTIFFS-APPELLANTS: Daniel Cobrinik, P.C. New York, NY (Greenfield Goodman, LLC., Easton, MD, on the brief).
FOR DEFENDANTS-APPELLEES: Kenneth A. Lapatine (Toby S. Soli, Mark H. Budoff, on the brief) Greenberg Traurig LLP, New York, NY.
PRESENT: HON. JOSEPH M. McLAUGHLIN, HON. JOSÉ A. CABRANES, HON. ROBERTD. SACK, Circuit Judges.
Plaintiffs commenced this class action in June 2002 in the Supreme Court for the State of New York, County of New York. In August 2002, defendants removed the action to the United States District Court for the Southern District of New York on grounds of diversity. The District Court dismissed the complaint for failure to state a claim in an opinion and order dated March 13, 2006. On July 14, 2006, the District Court denied plaintiffs' motion for reconsideration.
We ordered the parties to provide supplemental briefing on "the basis for the District Court's jurisdiction over this suit, with specific attention to the question of where plaintiff Hal Hughes was domiciled at the time that (1) the suit was removed from state court and (2) the District Court issued its judgment." Plaintiffs' letter brief asserts that the District Court lacked jurisdiction over this suit because complete diversity of the parties was lacking; specifically, plaintiffs assert that Hal Hughes has been domiciled continuously in Europe from 1994 to the present. Defendants' letter brief asserts that the District Court had diversity jurisdiction because Hal Hughes was, as described in plaintiffs' opening brief to this court, a citizen of Texas. In the alternative, defendants contend that, even if Hal Hughes was in fact domiciled in Europe throughout the pendency of the suit, the District Court had diversity jurisdiction pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d).
We noted in Herrick Co. v. SCS Communications, Inc., 251 F.3d 315 (2d Cir. 2001), that a party's "pre-trial admission that diversity jurisdiction existed" is insufficient to establish the existence of diversity jurisdiction where an opposing party later comes forward with evidence of "long-term residence . . . abroad." Id. at 324. Accordingly, in view of the conflicting positions on jurisdiction taken by the parties to the instant case, and the absence of any findings on this matter by the District Court, we conclude that the record is insufficiently clear for us to be confident about where Hal Hughes was domiciled (1) when this action was commenced and (2) when the District Court issued its judgment. We are likewise in a poor position to evaluate defendants' arguments about the applicability of CAFA, in light of the fact that the record is devoid of evidence establishing the amount in controversy in this case, let alone whether it exceeds the five-million-dollar threshold established by CAFA. Cf. Blockbuster, Inc. v. Galeno, 472 F.3d 53, 59 (2d Cir. 2006) (noting that, "[u]nder CAFA . . . the party asserting subject matter jurisdiction has the burden of proving it" and, further, that this burden includes "prov[ing] to a reasonable probability that . . . the amount in controversy exceeds $5 million").
Accordingly, we remand to the District Court, under the procedure set out in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), so that the District Court can hold an evidentiary hearing on these issues. On remand, the District Court may also wish to consider whether plaintiffs' amended complaint of June 25, 2005 is sufficiently similar to their original complaint of June 2002 to permit "relation back" under Federal Rule of Civil Procedure 15(c)(2).
The District Court's orders of March 13, 2006, dismissing the complaint, and of July 14, 2006, denying plaintiffs' motion for reconsideration, are hereby VACATED and the cause is REMANDED to the District Court for further proceedings consistent with this order.
We direct that the mandate be issued forthwith, providing for an evidentiary hearing to be held and completed within sixty days of this order, and an order to be entered responding to the concerns stated herein. Plaintiffs will then have twenty-one days from the date of the entry of the District Court's order on remand to (1) inform the Clerk of this Court of the restoration of this case to the docket of this Court and (2) simultaneously file and serve on the counsel of record a supplemental brief to this Court. Defendants will have twenty-one days from the date of the filing and service of plaintiffs' supplemental brief to submit any response brief. Plaintiffs may submit a reply thereto no later than ten days after the filing and service of defendants' response supplemental brief. The matter will then be deemed resubmitted to this panel, which will decide the matter without further oral argument unless otherwise ordered.