Meyerson, Norman v. Showboat Marina ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2427
NORMAN MEYERSON,
Plaintiff-Appellant,
v.
SHOWBOAT MARINA CASINO PARTNERSHIP, doing
business as Harrah’s East Chicago Casino,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01 CV 163JM—James T. Moody, Judge.
____________
SUBMITTED NOVEMBER 20, 2002—DECIDED DECEMBER 5, 2002
____________
Before COFFEY, EASTERBROOK, and MANION, Circuit
Judges.
PER CURIAM. Three years ago Harrah’s East Chicago
Casino (the trade name of Showboat Marina Casino Part-
nership) fired Norman Meyerson. He filed two suits in
response: one in federal court alleging defamation, and the
other in state court alleging wrongful discharge. Showboat
removed the second, invoking the diversity jurisdiction. See
28 U.S.C. §§ 1332(a)(1), 1441(a). The district court entered
judgment against Meyerson in each case, and he filed two
appeals.
2 No. 02-2427
Meyerson’s appeal in the defamation suit was decided last
July, and we did not reach the merits because the parties
had not established diversity of citizenship. See Meyerson
v. Harrah’s East Chicago Casino, 299 F.3d 616 (7th Cir.
2002) (Meyerson I). Meyerson’s papers, filed pro se, ignored
the issue. Showboat, despite the benefit of counsel, did little
better. Although Circuit Rule 28(a)(1) requires any unin-
corporated association to identify the citizenship of every
member, Showboat did nothing more than assert that
diversity existed, without supplying details. We not only
vacated the judgment but also required Showboat’s lawyers
to show cause why they should not be sanctioned for vio-
lating Circuit Rule 28(a). Our opinion reminded counsel
that
the citizenship of unincorporated associations must
be traced through however many layers of partners
or members there may be. E.g., Carden v. Arkoma
Associates, 494 U.S. 185 (1990); Wild v. Subscrip-
tion Plus, Inc., [292 F.3d 526 (7th Cir. 2002)] at
528; Indiana Gas Co. v. Home Insurance Co., 141
F.3d 314 (7th Cir. 1998), rehearing denied, 141 F.3d
314, 320 (1998). Failure to go through all the layers
can result in dismissal for want of jurisdiction. E.g.,
Guaranty National Title Co. v. J.E.G. Associates,
101 F.3d 57 (7th Cir. 1996).
299 F.3d at 617. The appeal of the discharge suit took
longer to reach us, because the district court had directed
the parties to supply jurisdictional information. Meyerson
claims to be a citizen of Indiana, which would spoil diversity
because Showboat concedes that it too is a citizen of that
state. The district court found that Meyerson is a citizen of
Michigan but did not determine Showboat’s citizenships; it
relied on Showboat’s assertion that none of its partners is
a citizen of Michigan.
No. 02-2427 3
In this court the parties have repeated their sorry per-
formance of the first appeal. Meyerson’s brief, filed on July
24 (two weeks after our opinion in Meyerson I) once again
ignores subject-matter jurisdiction. We said in Meyerson I
that the court should not accept for filing any brief, even
one tendered by a pro se litigant, lacking the jurisdictional
statement required by Circuit Rule 28. That Meyerson
swiftly tendered another such brief, which the court again
accepted, is disappointing. But the performance of Show-
boat’s legal team was worse.
In response to the order issued in Meyerson I, the
lawyers—Nicholas Anaclerio and David E. Neumeister of
Querrey & Harrow, Ltd.—acknowledged their failure to
comply with Rule 28 and promised that it would never
happen again. They contended that sanctions beyond the
public rebuke they had received in our opinion “are not
necessary to further impress upon them the significance of
the error they committed or the importance that it never
recur.”
Anaclerio and Neumeister filed that response on July 19,
2002. Relying on their representations we discharged the
order to show cause on August 5, imposing no further
penalty. On September 11 Anaclerio and Neumeister, joined
by Jennifer Medenwald, filed Showboat’s brief in the dis-
charge appeal. This brief describes Showboat’s citizenship
as follows (citations to the record omitted):
Showboat . . . is an Indiana general partnership
whose partners/members are two additional Indi-
ana general partnerships, Showboat Marina Part-
nership and Showboat Marina Investment Partner-
ship. Neither Showboat nor any of its aforemen-
tioned constituent members are citizens of the state
of Michigan. . . . Showboat’s citizenship is in no
other state but Indiana. Thus, diversity is complete.
4 No. 02-2427
Counsel seem not to have read the opinion in Meyerson I,
because although “the citizenship of unincorporated asso-
ciations must be traced through however many layers of
partners or members there may be” (299 F.3d at 617), their
statement does not tell us the identity and citizenship of the
partners in the two entities that own Showboat. Far from
showing jurisdiction, this statement multiplies the ques-
tions by increasing from one to two the number of partner-
ships whose partners’ citizenship matters. What is more,
counsel seem not to have read Guaranty National Title,
which Meyerson I cited. The jurisdictional statement de-
scribes Showboat and each of its constituent partnerships
as “an Indiana general partnership”, while Guaranty
National Title observes: “There is no such thing as ‘a [state
name] limited partnership’ for purposes of the diversity
jurisdiction. There are only partners, each of which has one
or more citizenships. To determine the citizenship . . . we
need to know the name and citizenship(s) of its general and
limited partners.” 101 F.3d at 59.
Counsel’s representation that “[n]either Showboat nor any
of its aforementioned constituent members are citizens of
the state of Michigan” (emphasis added) treats the three
partnerships as having state citizenships, although Carden
and Guaranty National Title hold that partnerships are not
citizens of any state and that only the partners’ citizenship
matters. This legal error—unfathomable given the observa-
tions in Meyerson I addressed to these very lawyers—
coupled with the lack of any factual detail about the part-
ners, makes it impossible for us to accept the brief’s state-
ment that “Showboat’s citizenship is in no other state but
Indiana.” Indeed, the record shows that this statement is
false. An affidavit filed in the district court supplies a few
details about Showboat’s ownership structure. We learn, for
example, that one partner of Showboat Marina Investment
Partnership is Showboat Indiana Investment Limited
Partnership, and one partner of that partnership is Show-
No. 02-2427 5
boat Operating Co., which according to the affidavit is in-
corporated in Nevada and has its principal place of busi-
ness there. So Showboat is a citizen of at least one state
other than Indiana. How many more partners there may be,
and of what state or states they may be citizens, the record
does not reveal.
Anaclerio and Neumeister made to this court a promise
that they broke at their very first opportunity, a few weeks
later. As we stressed in Meyerson I, all members of our bar
must assist the court in enforcing the limits of federal
subject-matter jurisdiction. Showboat’s lawyers have failed
miserably. We see no reason to remand this case for further
proceedings to establish all details of Showboat’s ownership
structure. Showboat removed the case; it bore the burden of
establishing diversity of citizenship, but despite multiple
opportunities in the district court, the benefit of Meyerson
I, and the vows in response to the order to show cause, that
has not been accomplished. We gather that Showboat wants
to keep its ownership secret. That is its owners’ right, but
one consequence is lack of access to federal courts under the
diversity jurisdiction.
The judgment in this case therefore is vacated, and the
case is remanded to the district court with instructions to
remand to the state court in which the suit began. As for
Anaclerio and Neumeister: we grant them 14 days to show
cause why sanctions (not only fines but also suspension
from practice) should not be imposed for their egregious
disregard of obligations to the court—obligations that stem
in part from Rule 28, in part from the statutes limiting the
subject-matter jurisdiction of the federal courts, and in part
from the promises made last July. This time we will not be
so credulous.
6 No. 02-2427
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-02