UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
December 17, 1990
THE BANK OF NOVA SCOTIA, Plaintiff,
S & W BERISFORD, INC., et al., Defendants
Milton I. Shadur, United States District Judge.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Bank of Nova Scotia ("Bank") has just sued S & W Berisford, Inc. ("SWB") and its parent corporation Berisford International, plc ("Berisford"), purporting to ground federal jurisdiction in diversity of citizenship under 28 U.S.C. § 1332(a).
Based upon its threshold review of Bank's Complaint,
this Court sua sponte dismisses this action for lack of subject matter jurisdiction.
Complaint para. 2 identifies Bank as a Canadian chartered bank -- and hence as an "alien" for diversity purposes. In the terms prescribed by Section 1332(c), Complaint para. 3 identifies SWB as a citizen of both Delaware (where it is incorporated) and New York (where it has its principal place of business). Complaint para. 5 says "Berisford is a corporation organized under the laws of the United Kingdom with its principal place of business in London, England" -- and is hence another "alien" in citizenship parlance.
What we have, then, is one alien suing both (1) another alien (it seems as the principal target of the litigation, though that is not really vital to the discussion)
and (2) a citizen of more than one state of this country. Although Complaint para. 8 asserts that there is "complete diversity between the defendants and the plaintiff," Complaint para. 7 does not identify which subsection of Section 1332(a) confers such jurisdiction under those circumstances -- another illustration of the fact that even able counsel all too frequently miss the federal jurisdictional forest while paying meticulous attention to the trees (the substantive dispute).
It takes only a quick look at Section 1332(a) to see that only two of its provisions could possibly qualify to authorize the present action in a federal court -- those conferring district court jurisdiction where the action is between:
(2) citizens of a State and citizens or subjects of a foreign state; [or]
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties.
Because there are no United States citizens on both sides of the dispute, the latter provision clearly does not apply, while a bit more discussion is needed to explain why the former does not either.
If Berisford -- the alien defendant -- could simply be ignored, Section 1332(a)(2) would describe this action. But that possible (though strained) reading of the statutory provision is not how jurisdictional jurisprudence has developed, for as Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S. Ct. 2218, 2221, 104 L. Ed. 2d 893 (1989) (emphasis in original, footnote omitted) has put it succinctly:
When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal. Strawbridge v. Curtiss, (3 Cranch) 267, 7 U.S. 267, 2 L. Ed. 435 (1806).
For that reason the authorities uniformly reject federal jurisdiction in the situation this case presents. Thus the per curiam opinion in Eze v. Yellow Cab Co. of Alexandria, Va., 251 U.S. App. D.C. 206, 782 F.2d 1064, 1065 (D.C. Cir. 1986) (citations omitted, emphasis added) has said:
Federal jurisdiction is authorized where there is a suit between a citizen of a state and citizens or subjects of a foreign state. Congress has also authorized federal jurisdiction in suits between citizens of different states in which citizens of foreign countries are additional parties. But under long-held precedent, diversity must be "complete." A diversity suit, in line with the Strawbridge rule, may not be maintained in federal court by an alien against a citizen of a state and a citizen of some other foreign country.4
Accord, such cases as IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975); Ed & Fred, Inc. v. Puritan Marine Insurance Underwriters Corp., 506 F.2d 757, 758 (5th Cir. 1975); Philan Insurance Ltd. v. Frank B. Hall & Co., 712 F. Supp. 339, 345 (S.D. N.Y. 1989); L'Europeenne de Banque v. La Republica de Venezuela, 700 F. Supp. 114, 126 (S.D. N.Y. 1988); and see 1 Moore's Federal Practice para. 0.75[1.-2], at 709.7 (2d ed. 1990) (footnote and citations omitted) ("Likewise, a lack of complete diversity will defeat jurisdiction if an alien is opposed to a citizen of a state and another alien").
Federal courts are courts of limited jurisdiction, constrained by the limits of what Congress has chosen to vest in them. Newman-Green, 109 S. Ct. at 2221 n. 1 is but the most recent of the cases teaching that the complete diversity requirement defined by Strawbridge is a function of the diversity statute and not the Article III constitutional limitations. In those statutory terms Bank has failed to bring itself within the confines of Section 1332(a). This action is dismissed for lack of subject matter jurisdiction.