DLJ Mortgage Capital Inc. v. Halifax Group, LLC , 456 F. App'x 30 ( 2012 )

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