CONNECTU LLC v. Zuckerberg

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

-11-
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.

-12-
 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.

-15-
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

-16-
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

-21-
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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