United States Court of Appeals
For the First Circuit
No. 07-1796
CONNECTU LLC,
Plaintiff, Appellant,
v.
MARK ZUCKERBERG ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Lipez, Circuit Judge.
Selya and Siler,* Senior Circuit Judges.
John F. Hornick, with whom Margaret A. Esquenet, Meredith H.
Schoenfeld, Daniel P. Kaufman, Finnegan Henderson Farabow Garrett
& Dunner LLP, Daniel P. Tighe, Scott McConchie, and Griesinger
Tighe & Maffei, LLP were on brief, for appellant.
Daniel K. Hampton, with whom Gordon P. Katz, Holland & Knight,
LLP, Annette L. Hurst, and Heller Ehrman LLP were on brief, for
appellee Saverin.
I. Neel Chatterjee, with whom G. Hopkins Guy, III, Monte M.F.
Cooper, Theresa A. Sutton, Orrick, Herrington & Sutcliffe, LLP,
Steven M. Bauer, Jeremy P. Oczek, and Proskauer Rose LLP were on
brief, for remaining appellees.
*
Of the Sixth Circuit, sitting by designation.
April 3, 2008
SELYA, Senior Circuit Judge. Viewed broadly, this appeal
concerns a bitter dispute about the parties' rights in and to
Facebook, a spectacularly successful creature of the information
age. Viewed more narrowly, however, it presents a jurisdictional
enigma that requires us to decide whether an amended complaint that
switches the basis of the district court's subject matter
jurisdiction from the existence of diversity of citizenship, 28
U.S.C. § 1332(a)(1), to the existence of a federal question, id. §
1331, should be given effect when filed as of right before any
jurisdictional challenge has been mounted. This is a question of
first impression at the federal appellate level — and one that sets
two established legal principles on a collision course.
For the reasons that follow, we hold that the
jurisdictional claim in the amended complaint warrants full
consideration and constitutes a viable hook on which federal
jurisdiction can be hung. Because this holding is at odds with the
conclusions reached by the court below, we reverse the order of
dismissal and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
The relevant facts can be succinctly summarized. We
wrest them from the allegations of the original and amended
complaints (cautioning, however, that many of the substantive
details appear to be hotly disputed).
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The seeds of the global controversy were sown in a
Harvard College dormitory room. Tyler Winklevoss, Cameron
Winklevoss, and Divya Narendra (the Founders), then Harvard
undergraduates, hatched the idea of creating a social networking
website for college students. Lacking the programming expertise
necessary to bring this idea to fruition, the Founders asked
defendant Mark Zuckerberg to help them complete the proposed
website's source code and aid in the development of their embryonic
website. The request, which was made and accepted in November of
2003, yielded an horrific harvest.
According to the Founders, Zuckerberg not only failed to
carry out the assignment but also stole their idea, business plan,
and rudimentary (unfinished) source code in order to launch a
competing social networking website. Zuckerberg acted in secret.
By the time that the Founders learned of his perfidy, completed the
source code through other means, and inaugurated their own social
networking website (originally called harvardconnection.com and
later renamed connectU.com), Zuckerberg's venture (originally
called thefacebook.com and later abbreviated facebook.com) had
gotten an unbeatable head start in user traffic.1
Harvard's traditional school color is crimson but the
Founders saw red. On September 2, 2004, ConnectU LLC, a Delaware
1
As of March 2008, Facebook boasted over 60,000,000 users and
had become the fifth most trafficked website in the United States.
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limited liability company (the LLC) commenced an action in the
federal district court premised on diversity of citizenship and the
existence of a controversy in the requisite amount, 28 U.S.C. §
1332(a)(1), against Zuckerberg and five other defendants associated
with him, namely, Dustin Moskovitz, Eduardo Saverin, Andrew
McCollum, Christopher Hughes, and Facebook itself. The complaint
linked the three Founders with the LLC and asserted a gallimaufry
of state-law claims arising from the alleged misappropriation and
unauthorized use of the LLC's confidential source code and business
plan.
On October 28, 2004 — approximately two weeks after
registering a copyright for its website's source code with the
United States Copyright Office and before any responsive pleading
was filed by the defendants — the LLC served an amended complaint.
See Fed. R. Civ. P. 15(a). The amended complaint added a corporate
affiliate of Facebook as a defendant and introduced two new
statements of claim, including a federal-law claim for copyright
infringement. At the same time, the amended complaint forsook
diversity as the basis for federal subject matter jurisdiction and
premised jurisdiction instead on the existence of a federal
question. See 28 U.S.C. § 1331. That federal question consisted
of the newly asserted copyright infringement claim, see 17 U.S.C.
§ 501(b), and carried with it supplemental jurisdiction over the
armada of state-law claims, see 28 U.S.C. § 1367(a).
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Almost one year later, the defendants moved to dismiss
for want of subject matter jurisdiction.2 Fed. R. Civ. P.
12(b)(1). They argued that the parties to the original complaint
were not wholly diverse and that, therefore, the LLC's
jurisdictional allegation did not hold water.
The defendants' argument had to be recalibrated in light
of our ensuing decision in Pramco, LLC v. San Juan Bay Marina,
Inc., 435 F.3d 51 (1st Cir. 2006), in which we held that the
citizenship of a limited liability company is to be determined by
the citizenship of its members. See id. at 54-55. Buoyed by this
recalibration, the defendants continued to assert that complete
diversity was lacking. They predicated this assertion on the
belief that both Zuckerberg and Narendra (a person whom the
defendants claimed was a member of the LLC at the time of suit)
were citizens of New York.
This argument focused on the jurisdictional basis set
forth in the original complaint because, in the defendants' view,
the amended complaint was beside the point. For this proposition,
they cited the time-of-filing rule reiterated in Grupo Dataflux v.
Atlas Global Group L.P., 541 U.S. 567, 570-71 (2004).
2
Although belated, the motion was not untimely. An absence of
subject matter jurisdiction can be raised at any time. See Am.
Fiber & Fin., Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138-
39 (1st Cir. 2004) (explaining that challenges to federal subject
matter jurisdiction can be advanced at any stage of the
proceedings).
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The LLC countered that the existence vel non of diversity
had become a non-issue because the amended complaint, which
premised jurisdiction on the existence of a federal question, had
become the operative pleading. In the alternative, the LLC
maintained that the parties to the original complaint were wholly
diverse at the time of the commencement of the action. In support
of this last proposition, the LLC suggested that Narendra's
citizenship should not figure into the diversity calculus because
he had not been admitted as a member of the LLC and that, at any
rate, Zuckerberg was a citizen of California, not New York.
The district judge referred the dismissal motion to a
magistrate judge for a report and recommendation. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b). After holding a protracted
evidentiary hearing, the magistrate judge recommended that the
motion to dismiss be granted. ConnectU LLC v. Zuckerberg,
(ConnectU I), 482 F. Supp. 2d 3, 32 (D. Mass. 2007). In taking
this position, the magistrate judge concluded that because
ConnectU's original complaint was premised on diversity
jurisdiction, he had no choice but to look to that complaint, as it
stood at the time of filing, in resolving the jurisdictional
inquiry. Id. at 5-8 (citing Grupo Dataflux, 541 U.S. at 570-71).
The magistrate judge further concluded that, under the time-of-
filing rule, the amended complaint could not cure any
jurisdictional defect that might exist in the original complaint.
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Id. at 8. The magistrate judge went on to find that, at the time
of the original filing, no complete diversity existed.3 Id. at 14-
32. A recommendation for dismissal followed. Id. at 32.
The LLC objected to the magistrate judge's report and
recommendation. The district judge summarily overruled these
objections, adopted the recommended decision, and dismissed the
case without prejudice for want of subject matter jurisdiction.4
This timely appeal ensued. Simultaneous with the filing of the
notice of appeal, the LLC's successor-in-interest commenced a new
action in the district court (ConnectU II) asserting materially
identical claims against the same defendants.
II. ANALYSIS
Although the LLC advances multiple claims of error on
appeal, only one of them — its contention that the district court
failed to treat the amended complaint as the operative pleading for
the purpose of determining subject matter jurisdiction — need
concern us. Before addressing the merits of that contention,
however, we must deal with the defendants' plaint that this appeal
should be dismissed as moot.
3
The reasoning of the magistrate judge is intricate and
depends in large measure on a problematic interpretation of
Delaware statutory law. Because we find the jurisdictional
allegations of the amended complaint controlling, see text infra,
no useful purpose would be served by an analysis of that reasoning.
4
To simplify our discussion, we do not hereafter distinguish
between the magistrate judge and the district judge but, rather,
take an institutional view and refer only to "the district court."
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A. Mootness.
The Constitution confines the jurisdiction of the federal
courts to actual cases and controversies. U.S. Const. art. III, §
2, cl. 1. This prerequisite must be satisfied at each and every
stage of the litigation. See Spencer v. Kemna, 523 U.S. 1, 7
(1998); Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974); Cruz v.
Farquharson, 252 F.3d 530, 533 (1st Cir. 2001). Because the
inquiry into whether an appeal has become moot implicates a
foundational question, sound practice dictates that we give that
inquiry priority and conduct it as a threshold matter. See City of
Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). Accordingly, we
start there.
An appeal becomes moot if an intervening event strips the
parties of any legally cognizable interest in the outcome. See
Murphy v. Hunt, 455 U.S. 478, 481 (1982); Goodwin v. C.N.J., Inc.,
436 F.3d 44, 48 (1st Cir. 2006). The burden of establishing
mootness rests with the party urging dismissal. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979); Ramírez v. Sánchez
Ramos, 438 F.3d 92, 100 (1st Cir. 2006). This burden is a heavy
one. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953);
R.I. Ass'n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 34 (1st
Cir. 1999). Withal, dismissal of an appeal is compulsory once a
court finds that the parties no longer possess a personal stake in
the outcome. See Cruz, 252 F.3d at 533.
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Here, the defendants posit that this appeal no longer
embodies a live case or controversy because the LLC's successor-in-
interest, ConnectU, Inc., has instituted a new, materially
identical action in the district court. In the defendants' view,
this initiative renders the earlier action superfluous and, hence,
destroys the utility of this appeal. We do not agree.
We assume for argument's sake, favorably to the
defendants, that ConnectU, Inc. and the LLC are so closely tied
that they are for present purposes one firm. But although the
virtual firm has chosen to institute a second action asserting
materially identical claims, it retains a legally cognizable
interest in the outcome of this appeal. We explain briefly.
There is a recognized defense to a claim of mootness in
the appellate context when a party can demonstrate that a lower
court's decision, if allowed to stand, may have collateral
consequences adverse to its interests. See Horizon Bank & Trust
Co. v. Massachusetts, 391 F.3d 48, 54 (1st Cir. 2004); Friedman v.
Shalala, 46 F.3d 115, 117 (1st Cir. 1995). That defense is
pertinent here: the district court's decision to dismiss the
original action for want of subject matter jurisdiction has a
concrete (and potentially devastating) impact on the second action.
The key is in the timing. The commencement of ConnectU
I tolled the applicable statutes of limitations approximately two-
and-one-half years earlier than did the commencement of ConnectU
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II. Thus, a reversal of the dismissal order would mitigate the
force of any limitations defenses relied on by the defendants in
ConnectU II. This is a collateral consequence of the type that
suffices to defuse a claim of mootness. See 13A Charles Alan
Wright et al., Federal Practice and Procedure § 3533.3, at 291 (2d
ed. 1984) ("Collateral consequences may be found in the prospect
that a judgment will affect future litigation or administrative
action."); cf. Patriot Cinemas, Inc. v. Gen. Cinema Corp., 834 F.2d
208, 215-16 (1st Cir. 1987) (holding appeal not moot even though
plaintiff was pursuing identical claims in state court because the
federal action "toll[ed] the statute of limitations 11 months
earlier" than did the state court action).
In an effort to coax us away from this result, the
defendants chant a familiar mantra: that collateral consequences
that are remote or speculative will not inoculate an appeal against
a finding of mootness. See In re Burrell, 415 F.3d 994, 999 (9th
Cir. 2005); United States v. Duclos, 382 F.3d 62, 67-68 (1st Cir.
2004). This mantra is correct as an abstract legal proposition,
but it has little traction here. The record in ConnectU II shows
with conspicuous clarity that the defendants have ardently pressed
limitations defenses to a number of the claims asserted. They
cannot now be heard to complain that the date of tolling is of no
consequence. Cf. Alternative Sys. Concepts, Inc. v. Synopsys,
Inc., 374 F.3d 23, 32-33 (1st Cir. 2004) (indicating that estoppel
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principles bar parties from pressing inconsistent claims in
different judicial proceedings).
We also reject the defendants' importunings to the effect
that a case is rendered moot simply because a plaintiff has decided
to pursue two overlapping actions simultaneously. The law is
pellucid that an action is not automatically rendered moot by the
mere existence of a similar pending action.5 See, e.g., Pieczenik
v. Dyax Corp., 265 F.3d 1329, 1332 (Fed. Cir. 2001); Patriot
Cinemas, 834 F.2d at 215-16; see also 13A Wright et al., supra §
3533.2, at 244 ("[T]he mere pendency of parallel actions seeking
the same relief does not of itself moot either action.").
The defendants' final effort to convince us that the
appeal is moot hinges on the notion that the decision to file a new
action constituted an election of remedies.6 We are not persuaded.
5
While we have cautioned that a party should not file
duplicative lawsuits in the same court, Sutcliffe Storage & Ware.
Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947), there are
extenuating circumstances here. This is important because "[t]he
complex problems that can arise from multiple federal filings do
not lend themselves to a rigid test, but require instead that the
[court] consider the equities of the situation when exercising its
discretion." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.
2000).
6
The defendants' argument that the appeal is moot because the
LLC failed to register to do business in Massachusetts prior to
filing suit is not a mootness argument at all. At any rate, our
decision that the district court should have looked to the amended
complaint for the purpose of determining subject matter
jurisdiction, see text infra, makes the purported failure to
register at an earlier date irrelevant.
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The election of remedies doctrine is grounded on
equitable principles. See Far W. Fed. Bank v. Office of Thrift
Superv'n-Dir., 119 F.3d 1358, 1365 (9th Cir. 1997); Gens v.
Resolution Trust Corp., 112 F.3d 569, 572 & n.1 (1st Cir. 1997).
It has no real relevance to the question of mootness. If more were
needed — and we doubt that it is — the election of remedies
doctrine applies only when a party pursues mutually inconsistent
claims for relief. See, e.g., Dopp v. HTP Corp., 947 F.2d 506, 514
(1st Cir. 1991). The purpose of the doctrine is to prevent double
recovery for the same wrong. See, e.g., Gens, 112 F.3d at 573.
None of these concerns are present here.
That ends this aspect of the matter. Concluding, as we
do, that this appeal is not moot, we move to the validity of the
dismissal order.
B. Subject Matter Jurisdiction.
The order of dismissal hinges on the existence vel non of
subject matter jurisdiction. Our inquiry into subject matter
jurisdiction depends, in the first instance, on which pleading —
the original complaint or the amended complaint — controls. At the
outset, however, we pause to comment upon an arcane bit of
nomenclature.
There is an open question as to whether an amended
complaint asserting a cause of action that arose only after the
prior complaint was filed should be regarded as a "supplemental"
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rather than an "amended" complaint. The difference is modest. An
amended complaint filed pursuant to Federal Rule of Civil Procedure
15(a) typically relates to matters that have taken place prior to
the date of the pleading that is being amended. See 6 Wright et
al., supra § 1473 (Supp. 2007). A supplemental complaint typically
allows the pleader to "set[] forth transactions or occurrences or
events which have happened since the date of the pleading sought to
be supplemented." Fed. R. Civ. P. 15(d). An amended complaint
sometimes can be filed "as a matter of course," Fed. R. Civ. P.
15(a); a supplemental complaint cannot.
Here, however, the question of which label applies is
more theoretical than real. The parties and the district court
consistently have treated the neoteric pleading as an amended
complaint. The defendants did not move to strike it, nor have they
presented any developed argumentation either below or on appeal to
the effect that the pleading should be regarded as a supplemental
complaint. Thus, any issue regarding the possible status of the
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pleading as a supplemental complaint is waived.7 See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
This brings the preserved claim of error front and
center. The LLC argues that the district court erroneously
regarded the original complaint as controlling for the purpose of
gauging subject matter jurisdiction. In its view, the amended
complaint, filed as of right under Federal Rule of Civil Procedure
15(a), superseded the original complaint and rendered it functus
officio.
The defendants demur. They argue that an action
originally filed under diversity jurisdiction — like this one —
must, in line with longstanding Supreme Court precedent, live or
die from a jurisdictional standpoint as of the time of filing
regardless of subsequent changes in either the facts or the
underlying jurisdictional allegations.
We begin our formulation of an answer to this conundrum
with a recognition that the parties' competing arguments combine to
pose a pure question of law and, therefore, engender de novo
7
In any case, given that the amended complaint was filed as of
right, the characterization of the pleading is of little moment;
any error is in this instance would appear to be harmless. See,
e.g., 6A Wright et al., supra § 1504, at 184-86. Furthermore, even
though copyright law requires copyright registration as a
prerequisite to instituting a copyright infringement suit in
federal court, 17 U.S.C. § 411(a), "registration is not a condition
for copyright protection," id. § 408(a). Because the alleged
violation of the instant copyright began prior to the filing of the
original complaint, the conclusion of likely harmlessness is
strengthened.
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review. See Young v. Lepone, 305 F.3d 1, 14 (1st Cir. 2002). In
conducting that review, some points are uncontroversial. For
example, it is clear beyond hope of contradiction that the Civil
Rules permit a party to amend its complaint "once as a matter of
course at any time before a responsive pleading is served." Fed.
R. Civ. P. 15(a). An amended complaint, once filed, normally
supersedes the antecedent complaint. See InterGen N.V. v. Grina,
344 F.3d 134, 145 (1st Cir. 2003); 6 Wright et al., supra § 1476,
at 556-57. Thereafter, the earlier complaint is a dead letter and
"no longer performs any function in the case." Kolling v. Am.
Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003).
For aught that appears, this is precisely what happened
here. The LLC amended its complaint before the defendants filed a
responsive pleading and, thus, the amendment was effective as a
matter of right pursuant to Rule 15(a). Consequently, under
ordinary rules of pleading and practice, the amended complaint
would have replaced the original complaint lock, stock, and barrel.
See id.; InterGen, 344 F.3d at 145. And because the amended
complaint dropped any allusion to diversity as a jurisdictional
predicate for the action, a conventional application of the rules
of pleading and practice would seem to have required the district
court to direct its jurisdictional inquiry not toward diversity
but, rather, toward federal question jurisdiction (specified in the
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amended complaint as the sole basis for federal court
jurisdiction).
This result draws substantial support from a recent
Supreme Court decision. In Rockwell International Corp. v. United
States, 127 S. Ct. 1397 (2007), the Justices stated unequivocally
that "when a plaintiff files a complaint in federal court and then
voluntarily amends the complaint, courts look to the amended
complaint to determine jurisdiction." Id. at 1409. The case law
in the courts of appeals is to the same effect. See, e.g.,
Wellness Cmty.-Nat. v. Wellness House, 70 F.3d 46, 49 (7th Cir.
1995); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.
1985).
The matter is complicated, however, by the existence of
a different line of authority, headed by Grupo Dataflux. In the
district court's view, Grupo Dataflux reaffirmed the time-of-filing
rule and required it to turn a blind eye to any attempt to change
the jurisdictional basis of the action. As we explain below, we
believe that the district court misconceived the reach of the time-
of-filing rule.
Historically, diversity jurisdiction requires complete
diversity of citizenship as between all plaintiffs and all
defendants. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267
(1806); Am. Fiber & Fin., Inc. v. Tyco Healthcare Group, L.P., 362
F.3d 136, 139 (1st Cir. 2004). Citizenship is determined as of the
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date of commencement of an action and, therefore, in cases premised
on diversity, jurisdiction "depends upon the state of things at the
time of the action brought." Mullen v. Torrance, 22 U.S. (9
Wheat.) 537, 539 (1824). The Court hewed to this time-of-filing
rule in Grupo Dataflux, in which it held that attaining diversity
during the pendency of litigation could not save jurisdiction if
the parties had not been diverse at the outset. 541 U.S. at 570-
72.
Notwithstanding the impressive pedigree of the time-of-
filing rule, it is inapposite here. The letter and spirit of the
rule apply most obviously in diversity cases, where the rule
originated, see Mullen, 22 U.S. at 537-39, and where heightened
concerns about forum-shopping and strategic behavior offer special
justifications for it, see, e.g., New Rock Asset Partners, L.P. v.
Preferred Entity Advancements, Inc., 101 F.3d 1492, 1503 (3d Cir.
1996); Shaw v. Gwatney, 795 F.2d 1351, 1354 (8th Cir. 1986); In re
Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 510 F.
Supp. 2d 299, 316 n.77 (S.D.N.Y. 2007); see also 13B Wright et al.,
supra § 3608, at 452. These concerns are not present in the mine-
run of federal question cases, and courts have been careful not to
import the time-of-filing rule indiscriminately into the federal
question realm.8 See New Rock, 101 F.3d at 1503.
8
While there are outliers, see, e.g., Rosa v. Resolution Trust
Corp., 938 F.2d 383, 392 n.12 (3d Cir. 1991), those few decisions
allude to the time-of-filing rule reflexively and without any
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More importantly, no court has ever read the time-of-
filing rule to bar a plaintiff from switching jurisdictional horses
before any jurisdictional issue has been raised, abandoning a
claimed entitlement to diversity jurisdiction, and substituting a
claimed entitlement to federal question jurisdiction. Certainly,
the decision in Grupo Dataflux does not adumbrate such a result.
While the Court there relied upon the time-of-filing rule to thwart
an effort to manufacture diversity jurisdiction during the pendency
of an action, 541 U.S. at 571, the decision operates exclusively in
the realm of diversity jurisdiction.
A lightning tour of Grupo Dataflux illustrates why we
find that opinion unhelpful to the defendants' cause. There, a
Texas limited partnership invoked diversity jurisdiction and filed
a breach of contract action in federal district court against a
Mexican corporation. Id. at 568. After an adverse verdict, the
meaningful analysis. See New Rock, 101 F.3d at 1503. The only
consistent use of the time-of-filing rule in federal question cases
occurs in the area of removal — an area in which the danger of
manipulation is high. When a defendant removes a case to federal
court based on the existence of a federal question, an amendment
eliminating the claim giving rise to federal jurisdiction typically
does not defeat jurisdiction. See, e.g., Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988). This is of scant solace to the
defendants here, as removal cases raise forum-manipulation concerns
that are totally absent when it is the plaintiff who chooses the
federal forum and voluntarily amends his complaint to strengthen
his claim of entitlement to that forum. See Rockwell Int'l, 127 S.
Ct. at 1409 n.6 (suggesting that removal cases raise "forum-
manipulation concerns that simply do not exist" in cases in which
a plaintiff chooses a federal forum and then alters the action's
jurisdictional basis through amendment).
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defendant moved to dismiss for want of subject matter jurisdiction,
alleging that the parties were not wholly diverse at the time of
suit. Id. at 569. The district court determined that, on the
filing date, the plaintiff, a limited partnership, included two
Mexican nationals among its members. Id. For diversity purposes,
it was thus a citizen of, inter alia, Mexico, and complete
diversity was lacking. Id.
On appeal, the plaintiff argued that the two Mexican
nationals had been dropped from the partnership prior to trial and,
thus, should be disregarded for purposes of a diversity analysis.
The court of appeals agreed. Id. at 569-70 (citing Atlas Global
Group, L.P. v. Grupo Dataflux, 312 F.3d 168, 174 (5th Cir. 2002)).
The Supreme Court reversed, holding that the time-of-filing rule
"measures all challenges to subject-matter jurisdiction premised
upon diversity of citizenship against the state of facts that
existed at the time-of-filing — whether the challenge be brought
shortly after filing, after the trial, or even for the first time
on appeal." Id. at 571 (emphasis supplied).
As this account makes manifest, the Grupo Dataflux Court
explicitly restricted the time-of-filing rule to diversity cases.
Nothing in the opinion intimates that the Court meant to extend the
rule wholesale beyond the frontiers of the diversity context.
Doing so would have represented a major innovation, and a lower
federal court should be slow to assume that the Supreme Court has
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taken a significant doctrinal step by indirection or innuendo. Cf.
Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001)
("Congress . . . does not, one might say, hide elephants in
mouseholes."). We are unwilling to indulge so rash an assumption
here.
The case at hand is at a considerable remove from Grupo
Dataflux. Here, unlike the plaintiff in that case, the LLC claims
an entitlement to federal question jurisdiction. That claim does
not depend on a manipulation of its business membership in order to
fabricate complete diversity. Rather, the LLC amended its
complaint in response to its copyright registration and altered the
jurisdictional foundation of its action. At that point — that is,
once the amended complaint superseded the original complaint — this
case became a federal question case, not a diversity case. Nothing
in Grupo Dataflux bars a legitimate shifting of the jurisdictional
underpinnings of an action; and nothing in Grupo Dataflux demands
the extension of the time-of-filing rule to a run-of-the-mill
federal question case.
We add, moreover, that we can see no policy-based reason
for elongating the reach of the time-of-filing rule and applying it
to a case in which a plaintiff forsakes a claimed entitlement to
diversity jurisdiction in favor of a claimed entitlement to federal
question jurisdiction. After all, the plaintiff is both the author
and the master of its complaint. See Holmes Group, Inc. v. Vornado
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Air Circ'n Sys., Inc., 535 U.S. 826, 831 (2002). As such, it has
the power to "decide what law [it] will rely upon." The Fair v.
Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). We think that
principle extends to a plaintiff's decision as to which causes of
action to bring and what jurisdictional arguments to press.
It bears emphasis that the time-of-filing rule is a
judge-made construct: it does not owe its existence to any
interpretation of constitutional or statutory text that demands our
allegiance. See Grupo Dataflux, 541 U.S. at 583 (Ginsburg, J.,
dissenting); Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959). In
the last analysis, this rule is the product of a policy decision
that aims to promote certainty in diversity cases while at the same
time minimizing the risk of unwholesome strategic behavior arising
from the temptation to manufacture diversity through manipulation
of the applicable constitutional and statutory requirements. See
New Rock, 101 F.3d at 1504; In re MTBE, 510 F. Supp. 2d at 316
n.77; 13B Wright et al., supra § 3608, at 452.
These policy concerns, indigenous to diversity cases, are
largely absent in federal question cases. Diversity depends in
material part on citizenship, and citizenship is a matter of choice
that easily can be influenced, in a mobile society, by the simple
expedient of moving from place to place as a case progresses. See,
e.g., Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 699-701
(1st Cir. 1979). In contrast, federal question jurisdiction
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derives from the existence of particular causes of action and,
thus, is not subject to the same vagaries. The risks of forum-
shopping and jurisdictional manipulation are relatively
insignificant. See In re MTBE, 510 F. Supp. 2d at 316 n.77 ("A
plaintiff cannot add a federal claim to defeat federal question
jurisdiction, only to solidify it.") (emphasis in original).
It follows that whereas a uniform, easily administered
test is a practical necessity in diversity cases, no comparable
need exists in federal question cases. See Boelens, 759 F.2d at
507-08 (indicating that concerns of jurisdictional manipulation
"are not present . . . in a case of original federal question
jurisdiction in which the plaintiff . . . is invoking the
jurisdiction of the federal court"); cf. Rockwell Int'l, 127 S. Ct.
at 1409 n.6 (noting that, in contrast to removed cases, "forum-
manipulation concerns . . . simply do not exist" in cases brought
in federal court and premised on federal question jurisdiction).
We therefore reject the proposed application of the time-of-filing
rule in what has become a federal question case.
The defendants have a fallback position. They asseverate
that, even if the time-of-filing rule does not pertain, an amended
complaint cannot relate back to an earlier pleading over which the
court had no jurisdiction. This asseveration rests on the
assumption that the district court did not have diversity
jurisdiction over the action at the time of filing. Even if that
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were so — a matter on which we take no view — the argument mixes
plums with pomegranates. Rule 15(c)'s language about the relation
back of amendments has no bearing here.
The purpose of Rule 15(c) is to allow a plaintiff to
avoid the preclusive effect of a statute of limitations so long as
certain conditions are satisfied. See, e.g., Leonard v. Parry, 219
F.3d 25, 27-28 (1st Cir. 2000); 6A Wright et al., supra § 1496, at
64-65; see also Fed. R. Civ. P. 15(c) advisory committee notes
(stating that the relation back doctrine "is intimately connected
with the policy of the statute of limitations"). The relation back
doctrine has nothing to do with the curing of jurisdictional
defects in an earlier pleading. See USM Corp. v. GKN Fasteners
Ltd., 578 F.2d 21, 23 (1st Cir. 1978); Cicchetti v. Lucey, 514 F.2d
362, 367-68 (1st Cir. 1975).
In all events, the LLC's amended complaint did not "cure"
a jurisdictional defect by engaging the gears of Rule 15(c)'s
relation back mechanism.9 Instead, it replaced the original
complaint in its entirety — and it did so at a point when the
district court's jurisdiction had not yet been questioned.
The defendants attempt to analogize this case to our
decisions in USM Corp. and Cicchetti. That proffered analogy is
9
In fairness to the defendants, the LLC did proffer a
"relation back" argument — but that argument was both ill-conceived
and unnecessary to our conception of the way in which this appeal
should be resolved.
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flawed. In USM Corp., we dismissed an appeal from a stay order for
lack of appellate jurisdiction because the underlying claim was
predominantly equitable in nature; therefore, the claim was not
arbitrable and the stay could not be appealed. 578 F.2d at 21-22.
The plaintiff then amended its complaint to drop its prayers for
equitable relief and sought to use this restructuring to resurrect
appellate jurisdiction. Id. We held that an amended complaint
could not relate back to repair the jurisdictional defect
retroactively. Id. at 23. Cicchetti dealt with a similar attempt
retroactively to manufacture jurisdiction and, thus, revivify an
action. See 514 F.2d at 367-68.
The case before us is a horse of a markedly different
hue. In contrast to the plaintiffs in USM Corp. and Cicchetti, the
LLC did not resort to the relation back mechanism in order to
resurrect jurisdiction that already had been found wanting (indeed,
the LLC's claim of entitlement to federal question jurisdiction, as
we see it, does not depend upon the relation back mechanism at
all). Rather, the LLC's amended complaint became the operative
pleading by operation of law before any jurisdictional challenge
was mounted. For present purposes, the new pleading did no more
than memorialize the LLC's decision to rely on federal question
jurisdiction in lieu of diversity jurisdiction.
The defendants have a final shot in their sling. They
note, uncontroversially, that federal courts do not possess and
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should not presume to exercise hypothetical jurisdiction. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998);
see also U.S. Const. art. III. Building on this foundation, they
suggest that allowing a plaintiff to amend its complaint to add a
newly-acquired federal cause of action capable of triggering the
existence of federal jurisdiction that otherwise would be lacking
is tantamount to sanctioning a form of hypothetical jurisdiction.
We think that this suggestion is composed of more cry than wool.
As an initial matter, the case law indicates that a court
sometimes may constitutionally exercise jurisdiction over a case
even though it does not secure solid jurisdictional footing until
after the case has been brought. See, e.g., Caterpillar, Inc. v.
Lewis, 519 U.S. 61, 73 (1996) (curing a wrongful exercise of
removal jurisdiction); Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 837 (1989) (involving the dropping of a party); see also
Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 185 (7th Cir. 1984)
(Posner, J.) (holding erroneous exercise of removal jurisdiction
cured by subsequent amendment of complaint to include federal
causes of action); In re MTBE, 510 F. Supp. 2d at 307-08 & nn.39-42
(outlining criteria used to determine whether a jurisdictional
defect is curable).
Perhaps more important, by looking to the amended rather
than the original complaint, a court does not "'assume[]'
jurisdiction for the purpose of deciding the merits." Steel Co.,
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523 U.S. at 94. Amendments as of right under Rule 15(a) operate
"as a matter of course," and do not require a judicial imprimatur.
Seen in this light, Rule 15(a)'s allowance of amendments as of
right does not ask a court to make an end run around the
requirement that jurisdiction be established as a threshold matter.
The Rule simply creates a roadmap; where the time-of-filing rule
does not obtain, it directs an inquiring court to evaluate an
action (including its jurisdictional predicate) by reference to the
amended complaint instead of the original complaint.
The golconda of cases cited by the defendants are not to
the contrary. In each of them, the plaintiff asked the district
court to grant them leave to amend their complaint after a
jurisdictional challenge had been lodged (or, in some instances,
adjudicated). See, e.g., Boelens, 759 F.2d at 511-12; Asset Value
Fund Ltd. P'ship v. Care Group, Inc., 179 F.R.D. 117, 118-19
(S.D.N.Y. 1998); Broad v. DKP Corp., 1998 WL 516113, at *1, 4
(S.D.N.Y. Aug. 19, 1998). That is not what occurred here; as we
have said, the LLC's amended complaint was filed as of right and
became the operative complaint without judicial intervention and
before any jurisdictional challenge had surfaced.
These are salient differences. A motion for leave to
file an amended complaint necessarily implicates a district court's
authority to grant or deny the motion. See Falise v. Am. Tobacco
Co., 241 B.R. 63, 67 (E.D.N.Y. 1999); Broad, 1998 WL 516113, at *4.
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When confronted with such a motion, there is a strong argument that
a court ordinarily should consider any threshold jurisdictional
concerns raised by the parties before ruling on the motion.
Although we leave the question open, taking some other course might
be thought an exercise of hypothetical jurisdiction. See
Integrated Tech. & Dev., Inc. v. Rosenfield, 103 F. Supp. 2d 574,
578-79 (E.D.N.Y. 2000); Am. Charities for Reas. Fundr. Reg., Inc.
v. Shiffrin, 46 F. Supp. 2d 143, 154 (D. Conn. 1999).
But where, as here, a plaintiff amends its complaint as
of right, the Civil Rules operate mechanically, and the judge's
authority over the case is not brought to bear. In that event, the
absence of federal subject matter jurisdiction in the original
complaint will pose no obstacle to the consideration of an amended
complaint. See Integrated Tech., 103 F. Supp. 2d at 579.
To sum up, we hold that the instant appeal is not moot;
that the amended complaint, filed as of right, superseded and
replaced the original complaint; that the action was at that point
transformed into a federal question case (at least in the
circumstances at hand); that the time-of-filing rule does not apply
to such a case; and that the district court erred in looking to the
original complaint and applying the time-of-filing rule. The
district court therefore mistakenly granted the defendants' motion
to dismiss; the court had, and should have exercised, federal
question jurisdiction over the action.
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III. CONCLUSION
We need go no further. Although the defendants have
advanced other arguments, those arguments are either unavailing, or
inadequately developed, or both. We reject them out of hand and,
for the reasons elucidated above, we reverse the order of
dismissal. We remand the matter to the district court for further
proceedings consistent with this opinion (including reinstatement
of the previously dismissed state-law counts). The district court
should consider, among other things, whether ConnectU I and
ConnectU II should be consolidated pursuant to Fed. R. Civ. P.
42(a).
Reversed and Remanded.
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