DLJ Mortgage Capital Inc. v. Halifax Group, LLC

11-668-cv (L) DLJ Mortg. Capital Inc. v. Kontogiannis UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 18th day of January, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 PIERRE N. LEVAL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 DLJ Mortgage Capital Inc., 14 Plaintiff-Appellee, 15 16 -v.- 11-668-cv (Lead) 17 11-785-cv (Con) 18 19 Halifax Group, LLC and Plaza Real 20 Estate Holdings Inc. 21 Defendants-Third-Party- 22 Plaintiffs-Appellants 23 24 and 25 26 Georgia Kontogiannis; Lisa Dipinto 27 a/k/a Lisa Kontogiannis, a/k/a Lisa 28 Pollatos; Annette Apergis; Chloe 29 Kontogiannis; Adam Dipinto; Elias 30 Apergis; Edgewater Development, Inc.; 31 Loring Estates LLC; Parkview Financial 32 Center, Inc., d/b/a Parkview 33 Financial, Inc., d/b/a Parkview 1 1 Center, Inc.; Bond & Walsh 2 Construction Co.; and Interamerican 3 Mortgage Corp. 4 Defendants-Appellants 5 6 and 7 8 Thomas Kontogiannis; John T. Michael; 9 Jonathan Rubin; Michael A. Gallan, 10 Esq.; Ted Doumazios, Esq.; Thomas F. 11 Cusack III, Esq.; Stephen P. Brown, 12 Esq.; Stephen A. Martini; Carmine 13 Cuomo; Coastal Capital Corp., d/b/a 14 The Mortgage Shop, d/b/a Clearlight 15 Mortgage; Group Kappa Corp.; Clear 16 View Abstract LLC; Triumph Abstract 17 Inc.; Washington Title Ins. Co., 18 Inc.; Chicago Title Ins. Co., Inc.; 19 United General Title Ins. Co, Inc.; 20 Does 1 through 100 21 Defendants 22 23 -v.- 24 25 Federal Deposit Insurance Corp., as 26 Receiver for Washington Mutual Bank 27 Third-Party Defendant- 28 Appellee.* 29 - - - - - - - - - - - - - - - - - - - -X 30 31 FOR DEFENDANTS-THIRD-PARTY- 32 PLAINTIFFS-APPELLANTS: Paul B. Bergman, Esq., Paul 33 B. Bergman, P.C., New York, 34 NY. 35 36 FOR DEFENDANTS-APPELLANTS: Ronald Edward DePetris, 37 DePetris & Bachrach, LLP, 38 New York, NY. 39 40 FOR PLAINTIFF-APPELLEE: John P. Amato, Hahn & 41 Hessen LLP, New York, NY. * The Clerk of Court is directed to amend the official caption as shown above. 2 1 FOR THIRD-PARTY-DEFENDANT- 2 APPELLEE: Alan Todd Gallanty, Gary 3 Hoppe, and Daniel S. 4 Kokhba, Kantor, Davidoff, 5 Wolfe, Mandelker, Twomey & 6 Gallanty, P.C., New York, 7 NY; and Colleen J. Boles, 8 Assistant General Counsel; 9 Lawrence H. Richmond, 10 Senior Counsel; Michelle 11 Ognibene, Counsel, Federal 12 Deposit Insurance 13 Corporation, Arlington, VA. 14 15 Appeal from a judgment of the United States District 16 Court for the Southern District of New York (Swain, J.). 17 18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 19 AND DECREED that this appeal is DISMISSED. 20 21 Defendants-Third-Party-Plaintiffs-Appellants1 and 22 Defendants-Appellants2 (collectively “Appellants”) appeal 23 the District Court’s decision (1) dismissing the 24 interpleader complaint against Third-Party-Defendant- 25 Appellee Federal Deposit Insurance Corporation (“the FDIC”) 1 Halifax Group, LLC and Plaza Real Estate Holdings Inc. 2 Georgia Kontogiannis; Lisa Dipinto a/k/a Lisa Kontogiannis, a/k/a Lisa Pollatos; Annette Apergis; Chloe Kontogiannis; Adam Dipinto; Elias Apergis; Edgewater Development, Inc.; Loring Estates LLC; Parkview Financial Center, Inc., d/b/a Parkview Financial, Inc., d/b/a Parkview Center, Inc.; Bond & Walsh Constr. Co.; and Interamerican Mortgage Corp. 3 1 and (2) remanding the case to the New York Supreme Court. 2 We assume the parties’ familiarity with the underlying 3 facts, the procedural history of the case, and the issues on 4 appeal. 5 [1] We lack jurisdiction to consider the appeal of the 6 remand order. Except in specified civil rights cases, “[a]n 7 order remanding a case to the State court from which it was 8 removed is not reviewable on appeal or otherwise.” 28 9 U.S.C. § 1447(d). Thus, Section 1447(d) generally precludes 10 appellate jurisdiction of a remand order when the remand is 11 for lack of subject-matter jurisdiction or for defects in 12 the removal procedure. Powerex Corp. v. Reliant Energy 13 Servs., Inc., 551 U.S. 224, 229 (2007). 14 The remand in this case was for lack of subject-matter 15 jurisdiction. The District Court explained that once it 16 dismissed the interpleader complaint against the FDIC 17 (because the FDIC had been improperly made a party to the 18 litigation), the statutory provision that supported federal 19 jurisdiction was no longer satisfied and “should not be 20 construed to support continued federal subject matter 21 jurisdiction of the remaining parties’ state law claims 22 inter se.” DLJ Mortg. Capital, Inc. v. Kontogiannis, No. 10 23 Civ. 9092(LTS), 2011 WL 611836, *3 (S.D.N.Y. Feb. 17, 2011). 4 1 Appellants argue that the remand was pursuant to the 2 District Court’s election to forgo supplemental jurisdiction 3 and that a remand based on such a decision is reviewable. 4 See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 5 S. Ct. 1862, 1866-67 (2009). They rely on the following 6 statement in the District Court opinion: “In that the 7 remaining claims arise under state law and there is no 8 independent basis for federal jurisdiction, the Court also 9 declines pursuant to 28 U.S.C. § 1367(c) to exercise any 10 supplemental jurisdiction it may have of those claims.” DLJ 11 Mortg. Capital, Inc., 2011 WL 611836 at *3. This sentence 12 signifies only that the District Court would not have 13 exercised “any supplemental jurisdiction it may have [had] 14 of those claims,” id. (emphasis added), not that it had 15 supplemental jurisdiction and was declining to exercise it. 16 Evidently for that reason, the District Court undertook no 17 analysis to determine whether it had supplemental 18 jurisdiction. See 28 U.S.C. § 1367(c). 19 In any event, the District Court’s remand could be 20 “colorably characterized” as for lack of subject-matter 21 jurisdiction. Powerex Corp., 551 U.S. at 234. Accordingly, 22 “appellate review is barred by § 1447(d).” Id. 23 [2] We also lack jurisdiction over the dismissal of the 24 interpleader complaint against the FDIC. In Powerex Corp., 5 1 the Supreme Court concluded the court of appeals lacked 2 jurisdiction of an appeal from a decision denying sovereign 3 immunity and remanding the case, including jurisdiction to 4 decide merely “the substantive issues of law that preceded 5 the remand order.” 551 U.S. at 228; accord id. at 227-228, 6 232-34, 237-39. 7 Here too, Appellants appeal the District Court’s 8 substantive decision that the case was not properly in 9 federal court (and the resulting remand). Under Powerex 10 Corp., however, we lack jurisdiction to review that 11 decision. See id. at 238-39 (cautioning courts of appeals 12 that they “must take that jurisdictional prescription 13 seriously, however pressing the merits of the appeal might 14 seem.”) 15 16 We have considered all of the additional arguments and 17 find them to be without merit. Accordingly, we DISMISS this 18 appeal for lack of subject-matter jurisdiction. 19 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 6