Iraola & CIA v. Kimberly-Clark

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 99-8127 ELEVENTH CIRCUIT
________________________ NOV 09, 2000
THOMAS K. KAHN
D. C. Docket No. 97-01347-CV-TWT-1 CLERK

IRAOLA & CIA, S.A.,

Plaintiff-Counter-Defendant-
Appellant-Cross-Appellee,

versus

KIMBERLY-CLARK CORPORATION,
J.N. ANDERSON,

Defendants-Counter-Claimants-
Appellees-Cross-Appellants,

GEORGE SEMONES,

Defendant-Appellee-Cross-Appellant.
________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(November 9, 2000)

Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.

*
Honorable Cynthia H. Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
ANDERSON, Chief Judge:

Appellant Iraola & CIA, S.A. (“Iraola”) appeals the district court’s

determination that subject matter jurisdiction in this action existed under 28 U.S.C.

§ 1332. Iraola argues that § 1332 (a)(2) does not permit it, a foreign company, to

bring suit against defendants from different states. Alternatively, it argues that the

inclusion of foreign defendant Geo Med defeated jurisdiction. Appellees Kimberly-

Clark, J.N. Anderson, and George Semones cross-appeal, challenging the district

court’s failure to award attorneys’ fees.

I. FACTS

Iraola is an Argentine company and Kimberly-Clark is a citizen of Delaware

and Texas; Appellees Anderson and Semones, employees of Kimberly-Clark, are

citizens of Georgia. Iraola contracted with Kimberly-Clark to distribute its medical

products in Argentina. After Kimberly-Clark terminated the contract, Iraola sued,

alleging that Kimberly-Clark tortiously interfered with its employee and business

relations by distributing products through former Iraola employee Robert Alpert.

Iraola named Kimberly-Clark, Anderson, and Semones as defendants in this action.

Kimberly-Clark counterclaimed for payment of unsold supplies Iraola retained at

the time of the contract termination.

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 Iraola also named as a defendant Geo Med, the company through which

Kimberly-Clark distributed its products in Argentina before its contract with Iraola

was terminated. Geo Med invoices that Iraola obtained showed a Georgia address

and telephone number that Iraola learned belonged to defendant Semones, a

Kimberly-Clark employee. Thus Iraola thought that Semones owned and operated

Geo Med and that it was based in Georgia. It was unable to serve Geo Med and

learned in discovery that the company was in fact owned by Iraola’s former

employee, Alpert, a citizen of Argentina. The Appellees maintain that Geo Med is

a fictitious company, and that Alpert just used the name as a straw company for

Kimberly-Clark to send its products for shipment to Argentina.

Iraola claims that it only learned in early August that Geo Med was owned

by Alpert and thus arguably an Argentine entity. It claims that it acted promptly,

advising the district court that the addition of Geo Med would destroy subject

matter jurisdiction and suggesting to the Appellees that all of the parties should

jointly dismiss the case so that it could be brought in state court. The Appellees

refused to agree to a voluntary dismissal of the suit and thus Iraola made a motion

to dismiss before the district court. The parties went ahead with the rest of

discovery, and the Appellees filed a motion for summary judgment and default

judgment on the counterclaim because Iraola never responded to it.

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 The district court ruled on the motions for dismissal, summary judgment,

and default judgment at the same time. The court first granted a default judgment

in favor of Kimberly-Clark on its counterclaim for payment for unsold supplies

because Iraola had never responded to the counterclaim. Then the district court

granted Iraola’s motion for voluntary dismissal under Fed. R. Civ. P. 41(a)(2).1

The court did not rule on whether the Appellees were entitled to attorneys’ fees in

light of the voluntary dismissal.

II. DISCUSSION

A. Section 1332(a)(2) Diversity Where the Parties on One Side are
Citizens of Different States and the Party on the Other Side is the
Citizen or Subject of a Foreign State.

As noted above, Iraola, a citizen of a foreign state, sued Kimberly-Clark, a

citizen of Delaware and Texas, and two Georgia citizens, Anderson and Semones.

Iraola’s primary argument on appeal is that there is no diversity jurisdiction here.

Iraola argues that 28 U.S.C. §1332(a)(2) provides diversity jurisdiction, in a case

where the parties on one side are citizens or subjects of a foreign state, only where

the parties on the other side are citizens of a single state. In other words, Iraola

1
Had the district court granted the dismissal first, it would not have had
jurisdiction to grant the default judgment because that claim did not have an independent
jurisdictional basis.

4
argues that there is no diversity jurisdiction in a case involving citizens or subjects

of a foreign state on one side where the parties on the other side are citizens of

different states. Thus, Iraola argues that there is no diversity jurisdiction in the

instant case because the parties on the Kimberly-Clark side of the case include

citizens of several different states – Delaware and Texas in the case of Kimberly-

Clark and Georgia in the case of Anderson and Semones. Section 1332(a)(2)

provides, in pertinent part:

(a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between--
...
(2) citizens of a State and citizens or subjects of a foreign state;

(Emphasis added). Iraola argues that the plain meaning of the statute is that all

non-foreign parties must be from a single state. Iraola derives this argument from

the statute’s use of the article “a” in the phrase “citizens of a State.”

This Court recently stated “[i]n construing a statute we must begin, and

often should end as well, with the language of the statute itself.” United States v.

Steele, 147 F.3d 1316, 1318 (11th Cir.1998)(en banc)(internal quotation and

citation omitted). However, we have held that where the language is ambiguous,

resort to legislative history is appropriate. See Lyes v. City of Riviera Beach, Fla.,

166 F.3d 1332, 1337 (11th Cir. 1999)(en banc); United States v. DBB, Inc., 180

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F.3d 1277, 1281 (11th Cir. 1999)(“We will only look beyond the plain language of

the statute at extrinsic materials to determine the congressional intent if: (1) the

statute’s language is ambiguous; (2) applying it according to its plain meaning

would lead to an absurd result; or (3) there is clear evidence of contrary legislative

intent.”); Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999)(“When

interpreting a statute, we look to its plain language, resorting to the legislative

history in an attempt to discern congressional intent only when the language of the

statue is unclear.”).

Thus, we first examine the language of the statute for ambiguity. Certainly

the meaning that Iraola has proffered is one possible reading of the statute.

However, the same language is capable of another plausible interpretation: each

non-foreign party must be the citizen of “a” State and cannot be a citizen of a

foreign state or a stateless expatriate. See, e.g., Sadat v. Mertes, 615 F.2d 1176

(7th Cir. 1980)(holding that jurisdiction under § 1332(a)(2) did not exist over a

stateless expatriate). In other words, in a case involving citizens of several states

as plaintiffs, and citizens of a foreign state as defendants, one has a case fitting

literally within the language of the statute: “citizens of a State and citizens of a

foreign state.” Each plaintiff is a “citizen of a State,” i.e. a citizen of one of these

United States. Because the language of the statute can be read in two plausible

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ways, we conclude that the statute is ambiguous, and thus we examine the structure

and the purpose of the statute as well as its legislative history.

Congress first adopted the language at issue in 1875. See Act of March 3,

1875, ch. 137, 18 Stat. 470 (1875). At that time, the statute was not limited to

diversity jurisdiction and instead defined the original jurisdiction of the federal

circuit courts. The statute only permitted diversity jurisdiction between “citizens

of different States” and between “citizens of a State and foreign states, citizens, or

subjects.” Id. It was not until 1948 that Congress created § 1332, a separate

statute covering only diversity jurisdiction.2

Focusing on the statute as it existed in 1948, it is clear that its structure

indicates that Congress intended to provide a federal forum where the parties were

diverse. For example, § 1332(a)(1) provides a federal forum where the opposing

2
The 1948 version of 28 U.S.C. § 1332 stated, in pertinent part:

(a) The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $10,000, exclusive of interest
and costs, and is between–

(1) citizens of different States;

(2) citizens of a State, and foreign states or citizens or subjects thereof; and

(3) citizens of different States and in which foreign states or citizens or
subjects thereof are additional parties.

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parties are “citizens of different States.” Under this section, there is diversity

jurisdiction where the opposing parties are diverse, regardless of whether the

parties on any given side of the case are citizens of a single state or are citizens of

several states. See, e.g., Glickstein v. Sun Bank/Miami, N.A. 922 F.2d 666, 668

(11th Cir. 1991). The clear intent of Congress was to provide a federal forum

where the parties are diverse. Similarly, § 1332(a)(3)3 reinforces the proposition

that the congressional intent was to provide a federal forum where the parties are

diverse. In subparagraph (3), Congress explicitly indicates that the necessary

diversity is present so long as the opposing parties are citizens of different states,

and that this diversity is not undermined by the mere fact that there are additional

parties who are citizens or subjects of a foreign state. Again, the structure of the

statute reveals the congressional purpose to provide a federal forum where the

opposing parties are diverse.

Additionally, the legislative history bolsters this interpretation that Congress

intended to provide a federal forum for diverse parties. In 1948, when Congress

reorganized and modified the existing statute on original jurisdiction, it clarified

and broadened diversity jurisdiction. Previously, the statute had clearly covered

3
28 U.S.C. § 1332(a)(3) permits diversity jurisdiction between “citizens of
different States and in which citizens or subjects of a foreign state are additional parties.”

8
actions between aliens and citizens as well as actions between citizens of different

states. See 28 U.S.C. § 41 (1940 ed.). However, the courts were split over

whether the statute permitted actions where there was a citizen of one state on one

side, and, on the other side, there was both a citizen of a state and an alien. See 1

James Wm. Moore et al., Moore’s Federal Practice, ¶ 0.75 [1-1], at 709.2 (3d. ed.

1999). Through the enactment of 1332 (a)(3), the 1948 revisions clarified that

such jurisdiction did exist and thus satisfied the aim of replacing confusing

language, which led to circuit splits, with a “[c]oncise, clear, and direct

expression[].” H.R. Rep. No. 308, 80th Cong., 1st Sess. 5 (1947), reprinted in

1948 U.S. Code Cong. Serv. 1696.

When Congress amended § 1332 in 1976, it added an additional paragraph,

i.e. subparagraph (4), which provided for suits between “a foreign state ... as

plaintiff and citizens of a State or of different States.” At the same time, the

amendment removed the term “foreign states” from subparagraph (2).

Subparagraph (4) provides jurisdiction for foreign states as plaintiffs; 28 U.S.C.

§1330 provides the jurisdictional basis for cases in which a foreign state is a

defendant. Subparagraph (4) was part of a larger act, which defined the

circumstances when a foreign state could sue or be sued in federal courts. See

Foreign Sovereign Immunities Act, Pub.L. 94-583, 90 Stat. 2891 (1976).

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 To support its interpretation of § 1332 (a)(2), Iraola cites the canon of

statutory interpretation that “identical words used in the same act are intended to

have the same meaning.” This canon of interpretation is based upon the

presumption that in drafting provisions of the same statute, when Congress uses

different language in similar sections, it intends different meanings. See United

States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997). Iraola points to

the inclusive language in § 1332(a)(4), which permits suits against “citizens of a

State or of different States,” and argues that the presence of that language in the

newer paragraph demonstrates that Congress did not intend to include parties from

multiple states under subparagraph (2). However, there is nothing in the legislative

history of the act that added (4) and amended (2) that suggests Congress intended a

different treatment for foreign states (subparagraph (4)) and foreign subjects or

citizens (subparagraph (2)). See generally H.R. Rep. No. 94-1487 (1976),

reprinted in 1976 U.S.C.C.A.N. 6604. Indeed, there is nothing in the legislative

history that discusses the meaning of § 1332(a)(2) after the language regarding

foreign states was removed. See id. Given that the relevant language in

§1332(a)(2) and (4) was written at different times, and that the emphasis of the

Congress at the time of the 1976 amendment was clearly upon foreign states in

federal courts and not upon jurisdiction in general, we do not believe that the

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identical-words-in-the-same-act canon supports Iraola’s interpretation in this case.

Indeed, an equally plausible interpretation is that Congress was just making

explicit in subparagraph (4) the central and well-established concept of providing

the federal forum where the opposing parties are diverse.

Since the time of the adoption of the language at issue, no court has

interpreted it in the manner in which Iraola suggests. In fact, the courts that have

specifically addressed this interpretation have rejected it. See De Korwin v. First

National Bank of Chicago, 156 F.2d 858 (7th Cir. 1946); Jaffe v. Boyles, 616 F.

Supp. 1371, 1374-75 (W.D.N.Y.1985); Niccum v. Northern Assurance Co., 17

F.2d 160 (D. Ind. 1927). Furthermore, there are many cases that have permitted

citizens of different states to sue or be sued by a foreign citizen but have not

specifically addressed the interpretation offered by Iraola. See, e.g., Mutuelles

Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir. 1992); Dullard v. Berkeley

Assoc. Co., 606 F.2d 890, 893 (2d Cir. 1979); Jackson v. Heiser, 111 F.2d 310, 312

(9th Cir. 1940); China Nuclear Energy Industry Corp. v. Arthur Andersen, LLP, 11

F. Supp.2d 1256, 1258 (D.Colo. 1998); Galaxy Investment Fund v. Fenchurch

Capital Management, Ltd., No. 96 C 8098, 1997 U.S. Dist. LEXIS 13207, at *15

(N.D. Ill. Aug. 29, 1997); Diatronics, Inc. v. Elbit Computers, Ltd., 649 F. Supp.

122, 125 (S.D.N.Y. 1986); Lavan Petroleum Co. v. Underwriters at Lloyds, 334 F.

11
Supp. 1069, 1071 (S.D.N.Y. 1971). These cases finding jurisdiction have both

preceded and followed the 1976 amendment upon which Iraola relies.

We concluded above that the identical-words-in-the-same-act canon does

not support Iraola’s interpretation. Moreover, a different canon of statutory

interpretation supports the interpretation that § 1332(a)(2) permits jurisdiction in

cases with aliens on one side and citizens of different states on the other. Congress

is presumed to know the federal courts’ interpretation of a statute that it intends to

amend. See Ankenbrandt v. Richards, 504 U.S. 689, 700, 112 S. Ct. 2206, 2214

(1992). Thus Congress is presumed to know that all of the courts that interpreted

the language in § 1332 (a) before the 1976 amendment and its precursors had

interpreted the language in (2) to include suits involving aliens on one side and

citizens of different states on the other. Where there is no indication that Congress

intended to change the meaning courts have given to the statute, we are to presume

that it did not intend any such change. See id.; see also Fourco Glass Co. v.

Transmirra Products Corp., 353 U.S. 222, 227, 77 S. Ct. 787, 790-791, 1 L.Ed.2d

786 (1957)(holding that ,with respect to the 1948 remodification of the Judicial

Code, "no changes of law or policy are to be presumed from changes of language

in the revision unless an intent to make such changes is clearly expressed.").

While one possible interpretation of the language in § 1332(a)(2) does

12
support Iraola’s position, we decline to adopt it in light of the more reasonable

meaning that the same language sustains, a meaning consistent with courts’

interpretation of the statute both before and after the 1976 amendment. Adopting

Iraola’s interpretation would result in incongruous results. For example, a

corporation which is a citizen of two states would not be able to bring suit against

citizens of a foreign state in federal court while corporations with one citizenship

could. We do not believe that Congress intended such a result. In rejecting the

interpretation Iraola proffers, we join all of the courts that have specifically

decided this issue and those that have assumed that the statute encompassed actions

between citizens of a foreign state on one side and citizens from different states on

the other.

B. Diversity Jurisdiction where Subjects or Citizens of Foreign States are
on Opposite Sides of the Lawsuit.

Next we turn to Iraola’s argument that the inclusion of defendant Geo Med

also divests the court of subject matter jurisdiction. Iraola named Geo Med as a

defendant, believing that it was a Georgia corporation, based on invoices that listed

a Georgia address. However, after several failed attempts to serve Geo Med at that

address, Iraola learned at a deposition that Geo Med was instead a creation of

Argentine citizen Robert Alpert. Iraola thus argues that Geo Med is a citizen of

Argentina and that the existence of foreign entities on both sides of the lawsuit

13
defeats jurisdiction. The Appellees respond by stating that Geo Med is a fictitious

entity and thus cannot be a party to the suit.

It is a standard rule that federal courts do not have diversity jurisdiction over

cases where there are foreign entities on both sides of the action, without the

presence of citizens of a state on both sides. See Cabalceta v. Standard Fruit Co.,

883 F.2d 1553, 1558 (11th Cir. 1989). And because unincorporated entities are

attributed the citizenship of their owners, see Bass v. International Brotherhood of

Boilermakers, 630 F.2d 1058, 1067 n.17 (5th Cir. 1980),4 that rule would mean

that Geo Med is an Argentinian entity because its owner, Alpert, is Argentinian.

Diversity of the parties is determined at the time that the complaint is filed, see

Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428, 111 S. Ct. 858,

860 (1991), and two circuits have determined that an unserved party’s citizenship

is considered in the calculus for assessing diversity, see Howell v. Tribune

Entertainment, 106 F.3d 215, 217-18 (7th Cir. 1997); Oppenheim v. Sterling, 368

F.2d 516, 518 (10th Cir. 1966). We assume arguendo, without deciding, that the

diversity analysis would include an unserved defendant whose foreign citizenship

was not known until after discovery had begun. Accordingly, if Geo Med, an

4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc),
this Court adopted as binding precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.

14
Argentine entity, is considered in the diversity analysis, this court would not have

jurisdiction.

However, this court can dismiss a dispensable party in order to retain

jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larran, 490 U.S. 826, 833, 109

S. Ct. 2218, 2223 (1989); Ingram v. CSX Transportation, Inc., 146 F.3d 858, 863

(11th Cir. 1998). Such power is to be used sparingly, and the court should carefully

consider whether one of the parties will be prejudiced by the dismissal. See id. at

837-38, 109 S. Ct. at 2225.

Here, Iraola’s only claim of prejudice is that it will suffer a tactical

disadvantage if Geo Med is dismissed from the action. Specifically, Iraola asserts

that prosecuting its claims against both Kimberly-Clark and Geo Med in the same

court provides a tactical advantage. The problem with this argument is that Iraola

sought, and obtained from the district court, permission to voluntarily dismiss this

action so that it could sue all of the defendants in state court. The district court

granted Iraola’s request for voluntary dismissal without prejudice pursuant to Fed.

R. Civ. P. 41(a)(2), but only after ruling on Kimberly-Clark’s counterclaim which

had no independent jurisdictional basis. Thus Iraola is now free to pursue its claim

against Kimberly-Clark and Geo Med in state court; Iraola’s sole assertion of

prejudice is nonexistent. We readily conclude that dismissing Geo Med as a

15
dispensable party will not prejudice Iraola, and thus that Geo Med should be

dismissed pursuant to Newman-Green and Ingram.

Iraola also argues that Geo Med is an indispensable party. Because Iraola’s

claims were not adjudicated below and only Kimberly-Clark’s counterclaim

against Iraola was adjudicated before the court ordered the dismissal, only that

counterclaim figures into the analysis of whether Geo Med is an indispensable

party. Geo Med had no relation to that counterclaim and thus, under the factors

enumerated in Fed. R. Civ. P. 19(b),5 it cannot be considered an indispensable

party. Therefore, because Iraola will not be prejudiced and Geo Med is not an

indispensable party, we dismiss Geo Med as a party.

C. Attorneys’ Fees Pursuant to the District Court’s Grant of Iraola’s
Motion for Voluntary Dismissal under Fed. R. Civ. P. 41(a)(2).

When Iraola filed for voluntary dismissal, the Appellees opposed the motion

and asked the court to impose certain conditions if it granted the motion.

5
Rule 19(b) provides:

Determination by Court Whenever Joinder not Feasible. . . . The factors to be
considered by the court include: first, to what extent a judgment rendered in the
person's absence might be prejudicial to the person or those already parties;
second, the extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or avoided;
third, whether a judgment rendered in the person's absence will be adequate;
fourth, whether the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.

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Specifically, the Appellees sought an award of attorneys’ fees that would cover the

expenses they incurred in pursuing matters that would be useless in subsequent

litigation. The district court did not address the Appellees’ request and denied it by

implication.

Rule 41(a)(2)6 allows a plaintiff to dismiss an action voluntarily once he

receives approval of the district court. The rule also permits the court to attach

certain conditions to its order, such as those requested by the Appellees.

In McCants v. Ford Motor Co., 781 F.2d 855 (11th Cir. 1986), the plaintiff

sought and received a Rule 41(a)(2) dismissal so that she could bring suit against

the defendants in another court. Although the defendants sought attorneys’ fees for

the work done in that case that would not be applicable in the new case, the court

denied the request by implication. We held that we could not determine if the

court abused its discretion because the court did not list any of the factors that it

used in making the determination. See id. at 861. Thus we remanded the case,

6
Rule 41(a)(2) provides:

By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an
action shall not be dismissed at the plaintiff's instance save upon order of the court and
upon such terms and conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to
dismiss, the action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court. Unless
otherwise specified in the order, a dismissal under this paragraph is without prejudice.

17
with instructions for the district court to state its findings and conclusions. See id.

This is precisely what occurred in this case and thus we remand with instructions to

the court to state its findings and conclusions.

III. CONCLUSION

We reject Iraola’s two jurisdictional challenges for the reasons above stated,

and thus we affirm in part. However, the district court was required to state its

findings and conclusions regarding its failure to award attorneys’ fees, and thus we

vacate in part and remand.

AFFIRMED IN PART, VACATED IN PART and REMANDED.

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