Kunlgunda Dirauf v. Lawrence Berger

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1044
______________
KUNLGUNDA DIRAUF; LUDWIG DIRAUF;
BRUNO ECKL; HILDEGARD ECKL; DORIS
FABIAN; ALEXANDER FISCHER; GERHARD
FLAIG; KARIN FLAIG; DANIEL GEBERT; FRITZ
GEBERT; MONIKA GEBERT; THOMAS GEBERT;
HELGA HAAG; MARTIN HAAG; ANNY
HANISCH; ANTON HELL; ALFRED HERRMANN;
IRENE HERRMANN; WALTER HORBER;
CHRISTINA KLENK; HERMANN KLENK,
(Deceased); ALFONS ECKL, (Deceased);
VOLODYMYR KOLTYAROV; ANDREAS LOBER;
ERIKA MARQUARDT; MANFRED MARQUARDT;
DANIEL NEFF; MARLIESE NEFF; WERNER
NEFF; ERWIN PFEIFROTH; DOBERNEK RAINER;
GABRIELE REICHEL; WALTER SCHMIDT;
WALTRAUD SCHMIDT; EDWIN SCHOTT;
INGRID SCHOTT; INGRID SCHOTT (as successor
to Hermann Schott); MELANIE SCHROTH;
FRIEDRICH SCHUMANN; GUDRUN
SCHUMANN; KARL STAHL; HANS STEIN;
CHRISTIAN STROBEL; FRIEDRICH STROBEL;
HILDEGARD STROBEL; TIMO STROBEL;
DIETER VOGT; KARL WECKERT; GEORG
WEYBRECHT; EUGEN WOLZ; GUNTHER
FABIAN
v.
LAWRENCE S. BERGER; BERGER AND
BORNSTEIN LIMITED LIABILITY COMPANY; 18
CENTRAL SHOPPING CENTER, L.P.; SUCCES
THEUHANDGESELLSCHAFT GMBH; 299
JEFFERSON ROAD LIMITED PARTNERSHIP;
BANK BUILDING ASSOCIATES LIMITED
PARTNERSHIP; BLAIR ROAD ASSOCIATES LP;
BRANCHBURG PLAZA INVESTORS LP;
CARLSTADT BUILDING ASSOCIATES, L.P.;
EXPRESS DISTRIBUTION BUILDING
ASSOCIATES, L.P.; HAZELWOOD AVENUE
ASSOCIATES, LIMITED PARTNERSHIP;
INDUSTRIAL AVENUE INVESTORS, LIMITED
PARTNERSHIP; KING SHOPPING CENTER LP;
MACARTHUR PLAZA, LIMITED PARTNERSHIP;
MILIK STREET ASSOCIATES LIMITED
PARTNERSHIP; NEW MILIK STREET PROPERTY
LP; ROUTE 206 SHOPPING CENTER LIMITED
PARTNERSHIP; UNION SHOPPING PLAZA
ASSOCIATES, L.P.; UNITED STATES LAND
RESOURCES LP; UNITED STATES REALTY
RESOURCES, INC.; USLR NEW DURHAM
ROAD ASSOCIATES, L.P.; WASHINGTON
SHOPPING CENTER INC.; WASHINGTON
SHOPPING CENTER INVESTORS, LIMITED
PARTNERSHIP; WATERFORD INVESTORS LP;
ECKART R. STRAUB
2
Eckart R. Straub; Success Theuhandgesellschaft GMBH,
Appellants
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 20-CV-05601)
U.S. District Judge: Honorable Kevin McNulty
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 9, 2022
______________
Before: SHWARTZ, MATEY and FUENTES, Circuit
Judges.
(Filed: December 28, 2022)
Elliot D. Ostrove
Vahbiz P. Karanjia
Epstein Ostrove
200 Metroplex Drive
Suite 304
Edison, NJ 08817
Counsel for Appellants
Alexander G. Benissatto
Shapiro Croland Reiser Apfel & Di Iorio
411 Hackensack Avenue
Sixth Floor
3
Hackensack, NJ 07601
Daniel Schreck
Law Offices of G. Oliver Koppell & Associates
99 Park Avenue
Suite 1100
New York, NY 10016
Counsel for Appellees
______________
OPINION
______________
SHWARTZ, Circuit Judge.
Federal appellate courts have limited authority to
review remand orders. We may not, for example, review
remand orders where remand is based upon a lack of subject
matter jurisdiction or a defect in the removal procedure. 28
U.S.C. § 1447(c)-(d). Here, Plaintiffs dismissed their sole
federal claim, and the District Court thereafter sua sponte
remanded the case to state court, stating that its remand was
based upon both a lack of subject matter jurisdiction and a
removal defect. The order was silent, however, as to whether
the Court declined to exercise its discretion to consider the state
law claims under 28 U.S.C. § 1367(c). For the reasons set forth
below, we conclude that the District Court declined to exercise
supplemental jurisdiction in ordering remand, and it thus had
jurisdiction to issue the vacatur order now on appeal, and we
have jurisdiction to review that order. Because remand was
4
proper and vacatur of the remand order is not warranted, we
will affirm.
I
Plaintiffs filed a lawsuit in New Jersey state court
against Defendants, who are German citizens, and certain New
Jersey-based individuals and entities, alleging, among other
things, fraud arising from a real estate investment venture.1
The complaint included one federal claim under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1962, 1964, and 120 state law claims.
Defendant Eckart Straub removed the case to federal
district court with the consent of the other defendants,
including Defendant Success Theuhandgesellschaft GMBH.2
Straub cited 28 U.S.C. §§ 1441 and 1446 as the bases for
removal, asserting that the District Court had jurisdiction under
28 U.S.C. §§ 1331 and 1332.
Five days later, the New Jersey-based defendants
sought permission to file a motion to dismiss. The next day,
Plaintiffs voluntarily dismissed their RICO claim, leaving only
the state-law claims. In the hours that followed, the New
1
We refer to the appealing parties as “Defendants” for
simplicity, understanding that Plaintiffs sued others as well.
2
At the time of removal, Plaintiffs, all allegedly
Germany- or Ukraine-based, had not filed proof of service as
to Defendant Success Theuhandgesellschaft GMBH, but it
consented to removal “[i]n the event that [it] ha[d] been
served.” JA 219.
5
Jersey- and Germany-based defendants filed motions to
dismiss.
Plaintiffs then filed a letter requesting, among other
things, a “prompt remand to the state Superior Court.” JA 229-
31. Later that day, the District Court issued an order
remanding the case back to state court (“Remand Order”),
which explained among other things, that (1) a court must
“examine its own subject matter jurisdiction,” (2) the “basis for
federal-question removal . . . ha[d] been mooted” by Plaintiffs’
dismissal of their federal claim, (3) diversity jurisdiction was
lacking, and (4) one of the defendants was precluded by 28
U.S.C. § 1441(b)(2) from removing the case as a forum-
defendant. JA 45-46. The District Court mailed a certified
copy of the Remand Order the same day.
Approximately two weeks later, Defendants moved
pursuant to Federal Rule of Civil Procedure 60(b) to vacate the
Remand Order. The District Court denied the Rule 60(b)
motion, Dirauf v. Berger, 506 F. Supp. 3d 254 (D.N.J. 2020)
(“Vacatur Order”), concluding that remand was proper and
explaining, among other things, that (1) § 1332(a)(2) does not
“confer[] diversity jurisdiction over suits between alien
plaintiffs and a group of defendants consisting of both citizens
of a state and aliens,” id. at 264 (citing Field v.
Volkswagenwerk AG, 626 F.2d 293, 296 (3d Cir. 1980),
disagreed with on other grounds by Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 833 n.7 (1989)); (2) it was not
required to explain why it was declining to exercise
supplemental jurisdiction, id. at 265-66 (citing Figueroa v.
Buccaneer Hotel, 188 F.3d 172, 181 (3d Cir. 1999), though its
“rationale should have been clear from the surrounding
circumstances,” id. at 266; and (3) its decision was correct
6
because, among other things, the case had been in federal court
for only seven days, no discovery had occurred, the state court
was equally able to decide the motions to dismiss, there was
“no strong reason of federal policy or judicial economy
favoring retention of [the] state claims,” and there was no
apparent forum manipulation, which is only one factor in the
remand analysis in any event, id. at 266-67 (citing Trans Penn
Wax Corp. v. McCandless, 50 F.3d 217, 233 (3d Cir. 1995)).
Defendants appealed. This Court initially dismissed the
appeal for lack of jurisdiction but we thereafter vacated the
dismissal order and referred the case to a merits panel.
Meanwhile, the state court proceeding recommenced, and the
court granted Defendants’ motion to dismiss for lack of
personal jurisdiction without prejudice. Dirauf v. Berger, No.
MRS-L-001953-19, slip op. at 11 (N.J. Super. Ct. Law. Div.
Oct. 27, 2022).
II3
A
We first address whether we have appellate jurisdiction
to review the Vacatur Order. See, e.g., Bumberger v. Ins. Co.
of N. Am., 952 F.2d 764, 766 (3d Cir. 1991). Appellate
jurisdiction turns on whether the District Court remanded
under 28 U.S.C. § 1447(c) and (d) or consistent with 28 U.S.C.
§ 1367(c). Remands under § 1447(c) and (d) are predicated on
a lack of subject matter jurisdiction or a defect in the removal
procedure. Remands that occur consistent with § 1367(c) are
3
The District Court had jurisdiction under 28 U.S.C.
§§ 1441 and 1367.
7
based upon a court’s decision not to exercise supplemental
jurisdiction over state law claims. If a case is remanded under
§ 1447(d) for a reason set forth in § 1447(c), then appellate
review is barred. Powerex Corp. v. Reliant Energy Servs., Inc.,
551 U.S. 224, 229-30 (2007) (citation omitted). If a case is
remanded consistent with § 1367(c) as an exercise of
discretion, then this Court has appellate jurisdiction to review
the remand order. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 640 (2009).
Here, to determine whether the remand was based on §
1447(c) or consistent with § 1367, we consider both the
Remand and Vacatur Orders. Cf. Powerex Corp., 551 U.S. at
235 (looking to, among other things, the district court’s “order
denying petitioner’s motion to stay the remand pending
appeal” that was issued after the at-issue remand order).
Together with the District Court’s actions, those orders make
clear that the Remand Order cannot be characterized as a
remand based on either of the grounds set forth in § 1447(c),
but that it was instead an exercise of the Court’s discretion
under § 1367(c). First, the Vacatur Order expressly states that
the District Court had, in fact, declined to exercise
supplemental jurisdiction and that it “should have been clear
from the surrounding circumstances” that it had done so.
Dirauf, 506 F. Supp. 3d at 266. Second, the complaint contains
over one hundred state-law claims, and the case had been in the
federal court for only a few days before it was remanded, thus
making the decision not to exercise supplemental jurisdiction
facially warranted. Third, the purported forum-defendant
defect does not make it arguable that the District Court’s
ground for remand was the absence of subject matter
jurisdiction because a ruling regarding a removal defect would
not have been required if the Court remanded solely based
8
upon the lack of subject matter jurisdiction. Remand based
upon a defect in the removal process is also not a jurisdictional
defect, and there is no indication the District Court thought it
was. Cf. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 614
(3d Cir. 2003). Fourth, just as an exercise of discretion under
§ 1367 cannot be characterized as a subject matter jurisdiction
remand, see Carlsbad, 556 U.S. at 640, a sua sponte remand
based on a removal defect, which is beyond a court’s authority,
cannot be characterized as a remand for a procedural defect
contemplated by § 1447(c). Finally, issuing the Vacatur Order
was inconsistent with remanding under § 1447(c) because if
the District Court remanded based on § 1447(c) and (d), it
would have lacked jurisdiction to take any action in the case
after a certified copy of the Remand Order was sent to the state
court. See, e.g., Agostini v. Piper Aircraft Corp., 729 F.3d 350,
355 (3d Cir. 2013). The same is not true for a remand under
§ 1367. See Hudson United Bank v. LiTenda Mortg. Corp.,
142 F.3d 151, 159 (3d Cir. 1998). In short, by taking action
after the certified copy had been sent to the state court, the
District Court showed that it issued an order that did not
deprive it of jurisdiction. Accordingly, the Remand Order
cannot be characterized as occurring under § 1447(c) and (d)
but rather was an exercise of discretion under § 1367(c).4
4
Cf. Figueroa, 188 F.3d at 181 (“deduc[ing]” from
district court’s language “that the court was aware that it had
the discretion to exercise supplemental jurisdiction over
[certain] claims under section 1367, but declined to do so based
on the consideration set forth in section 1367(c)(3), namely,
the dismissal of all claims over which the court had original
jurisdiction,” even though “[t]he District Court made no
reference to section 1367 in its order dismissing [plaintiff’s]
9
Because the remand occurred under § 1367(c), the
District Court had jurisdiction to issue the Vacatur Order.
Carlsbad, 556 U.S. at 640; see also Hudson United Bank, 142
F.3d at 159 (“Because the remand . . . was authorized by
§ 1367(c), the mailing of the remand order to state court did
not divest the district court of jurisdiction to entertain [a]
motion for reconsideration.”). Because the District Court
remanded pursuant to § 1367(c), we have jurisdiction to review
the Vacatur Order under 28 U.S.C. § 1291. See id. at 155.
B
Having concluded that we have appellate jurisdiction,
another threshold issue remains—namely, whether this appeal
has been mooted by the state court’s order dismissing the
claims against Defendants without prejudice for lack of
personal jurisdiction. The answer is no.
“The mootness doctrine imposes two requirements: (1)
that the underlying dispute presents ‘live’ issues, and (2) that
the parties have ‘a legally cognizable interest in the
outcome’—that is, a personal stake in the dispute.” Gayle v.
Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297, 303 (3d
Cir. 2016) (quoting Chafin v. Chafin, 568 U.S. 165, 172
(2013)). Concomitantly, “an appeal is moot in the
constitutional sense only if events have taken place during the
pendency of the appeal that make it impossible for the court to
grant any effectual relief whatsoever.” In re World Imps. Ltd.,
remaining . . . claims” and stated only that “th[e] case will be
dismissed with prejudice for lack of subject matter
jurisdiction” because “the remaining counts state no federal
cause of action.”).
10
820 F.3d 576, 582 (3d Cir. 2016) (citation omitted). “If the
defendant (or any party) claims that some development has
mooted the case, it bears ‘[t]he heavy burden of persua[ding]
the court’ that there is no longer a live controversy.” Hartnett
v. Pa. State Educ. Ass’n, 963 F.3d 301, 305-06 (3d Cir. 2020)
(alterations in original) (quoting Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
The state court order dismissing Defendants from the
case for lack of personal jurisdiction does not moot this appeal.
First, the complaint against Defendants was dismissed without
prejudice. Dirauf, slip op. at 11-14. Second, although the time
to file an interlocutory appeal of the state court judgment has
passed, the possibility of appeal after final judgment remains,
and Plaintiffs have not indicated that they will not challenge
the personal jurisdiction ruling. Thus, a live controversy
between the parties remains, and this appeal is therefore not
moot. Cf. Fairview Park Excavating Co., Inc. v. Al Monzo
Constr. Co., 560 F.2d 1122, 1126-27 (3d Cir. 1977)
(concluding that appeal challenging dismissal of the
appellants’ cross-claim was moot because a state court action
where the appellant sought “the precise relief” as the federal
claim “ha[d] proceeded to judgment, and the time to appeal
th[e] judgment” had “expired”); Dudley-Barton v. Serv. Corp.
Int’l, 653 F.3d 1151, 1151-52 (10th Cir. 2011) (concluding
appeal was moot where, while the defendants’ appeal of the
district court’s remand order was pending, plaintiffs
voluntarily dismissed the state case against the defendants
without prejudice and thus there was “no meaningful dispute
remaining between the parties”).
Accordingly, the appeal is justiciable, and we will next
examine the merits.
11
C5
Defendants contend that the District Court erred by
failing to: (1) explain why it declined to exercise supplemental
jurisdiction; (2) properly account for Plaintiffs’ forum
manipulation when declining to exercise supplemental
jurisdiction; and (3) “give special consideration to the German
Appellants’ status as aliens,” Appellants’ Br. at 26-28. We
address each argument in turn.
1
The District Court did not err by failing to explain why
it declined to exercise supplemental jurisdiction in the Remand
Order. Although it is “prefer[able for] [a] district court to set
forth its basis for dismissing state claims . . . , failure to do so
is not a grounds for reversal when the court’s dismissal is
clearly based on a statutorily enumerated basis for declination
5
In general, “[w]e review grants or denials of relief
under Rule 60(b), aside from those raised under Rule 60(b)(4),
under an abuse of discretion standard.” Sovereign Bank v.
REMI Cap., Inc, 49 F.4th 360, 364 (3d Cir. 2022) (quoting
Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.
2008)). “[A] court abuses its discretion when its ruling is
founded on an error of law or a misapplication of law to the
facts.” Advanced Fluid Sys., Inc. v. Huber, 958 F.3d 168, 180
n.13 (3d Cir. 2020) (alteration in original) (quoting Montrose
Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773, 780
(3d Cir. 2001) (quotation marks and citation omitted)).
“However, we review questions of law de novo.” Anariba v.
Dir. Hudson Cnty. Corr. Ctr., 17 F.4th 434, 439 (3d Cir. 2021).
12
of jurisdiction.” Figueroa, 188 F.3d at 181 (citing Sparks v.
Hershey, 661 F.2d 30, 33 (3d Cir. 1981) (per curiam)). As the
District Court explained, see Dirauf, 506 F. Supp. 3d at 266, it
clearly “declined” to exercise supplemental jurisdiction “based
on the consideration set forth in section 1367(c)(3), namely,
the dismissal of all claims over which the court had original
jurisdiction.” Figueroa, 188 F.3d at 181. Thus, because “we
[could have] readily determine[d] that the District Court
dismissed [the] . . . remaining claims based on a consideration
enumerated in section 1367(c),” it was neither “reversible error
for the court to not state its reasons for” declining to exercise
supplemental jurisdiction in the Remand Order nor an abuse of
discretion to not vacate the Remand Order as a result.6 Id.
6 Defendants’ complaints about two of the District
Court’s comments do not change the result. First, the Court’s
statement that there is a presumption in favor of remand when
the federal issues are dismissed accurately paraphrases our
precedents. See, e.g., Hedges v. Musco, 204 F.3d 109, 123 (3d
Cir. 2000) (recognizing “that, ‘where the claim over which the
district court has original jurisdiction is dismissed before trial,
the district court must decline to decide the pendent state
claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative
justification for doing so.’” (emphasis omitted) (quoting
Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d
Cir.1995))); see also North Sound Capital LLC v. Merck &
Co., Inc., 938 F.3d 482, 494 n.11 (3d Cir. 2019) (citing with
approval the following language: “the presumption that a
district court should decline to exercise supplemental
jurisdiction if it has dismissed all original-jurisdiction claims
‘is just that—a presumption and not a rule.’” (citing 13D
13
2
Defendants’ arguments that the District Court erred by
not explaining how it weighed forum manipulation and
equating forum manipulation with bad faith lack merit. As we
have explained, the District Court was not required to provide
a more detailed discussion of its reasons for remanding and, by
extension, it did not need to specify how it weighed Plaintiffs’
alleged forum manipulation. Cf. Annulli v. Panikkar, 200 F.3d
189, 202 (3d Cir. 1999) (noting a remand “decision is left to
the sound discretion of the district court”), overruled on other
grounds by Rotella v. Wood, 528 U.S. 549 (2000). Moreover,
a decision remanding despite a finding of forum manipulation
Charles Alan Wright & Arthur D. Miller, Federal Practice and
Procedure § 3567.3 (3d ed. 2019))); Talley v. Wetzel, 15 F.4th
275, 281 (3d Cir. 2021) (same).
Second, Defendants take issue with the District Court’s
statement that “[b]ecause the claim of federal subject matter
jurisdiction was so insubstantial as to require dismissal at the
very outset, there is no strong reason of federal policy or
judicial economy favoring retention of state claims.” Dirauf,
506 F. Supp. 3d at 266. This sentence was not an evaluation
of Plaintiffs’ RICO claim. Rather, the District Court was
explaining that certain factors that might favor retaining the
state law claims were absent, particularly given the early
excision of the sole federal claim, the 120 state law claims, the
lack of activity in federal court, and the significant activity in
state court. See, e.g., IntegraNet Physician Res., Inc. v. Tex.
Indep. Providers, L.L.C., 945 F.3d 232, 241-42 (5th Cir. 2019),
overruled on other grounds by Latiolais v. Huntington Ingalls,
Inc., 951 F.3d 286 (5th Cir. 2020).
14
would not be an abuse of discretion, particularly where, as
here, Defendants do not (and could not) argue that other factors
like judicial economy, convenience, or comity favored
exercising supplemental jurisdiction.7 See Enochs v.
Lampasas Cnty., 641 F.3d 155, 161 (5th Cir. 2011) (“If there
was any forum manipulation . . . , it was not so improper as to
override the balance of the statutory and common law factors
weighing heavily in favor of remand.”); Gamel v. City of
Cincinnati, 625 F.3d 949, 953 (6th Cir. 2010) (concluding no
abuse of discretion in remanding where the only factor
favoring the exercise of supplement jurisdiction was forum
manipulation); see also Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of
factors to be considered . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.”);
Trans Penn Wax Corp., 50 F.3d at 232-33 (concluding no
abuse of discretion in remanding where plaintiff “delet[ed]” its
RICO claim).8 Accordingly, the District Court did not err by
7
Defendants also suggest that we should provide
guidance as to how a District Court should weigh various
factors—e.g., judicial economy, convenience, fairness, comity,
forum manipulation—when considering whether to exercise
supplemental jurisdiction. We do not need to do so because
the weight accorded these factors in a given case should be left
to district courts’ sound discretion.
8
Removing a federal claim often merits little weight in
the analysis. Enochs, 641 F.3d at 160 (amending a “complaint
to delete the federal claims is not a particularly egregious form
of forum manipulation, if it is manipulation at all”); Baddie v.
Berkeley Farms, Inc., 64 F.3d 487, 491 (9th Cir. 1995)
15
not specifying the weight it gave to the purported forum
manipulation.
The District Court’s mention of bad faith in connection
with Plaintiffs’ dismissal of their RICO claim was not error.
Parties are the masters of their pleadings, and a party can seek
to drop a federal claim for any number of reasons, some of
which may be manipulative while others are not. See, e.g.,
Payne v. Parkchester N. Condos., 134 F. Supp. 2d 582, 586
(S.D.N.Y. 2001) (noting there are “innocent,” “[l]ess
innocent[] but still relatively acceptabl[e],” and “manifestly”
improper reasons for removing a federal claim and collecting
cases). In context, the District Court appears to have been
expressing that reality when it stated that to find forum
manipulation it would look for indications of manipulation
beyond the fact that a party “select[ed] causes of action that
can only be heard in one forum or the other.” Dirauf, 506 F.
Supp. 3d at 266. In other words, bad faith is not required, but
a court in its discretion may look for “indic[ia] of bad faith,”
id., as one factor in deciding whether to remand. Accordingly,
we cannot conclude that the District Court’s statements,
reflecting reality, were in error.9
(dismissing a federal claim “with all due speed after removal”
viewed as “tactical decision”).
9
Defendants also argue that allowing the “Remand
Order to stand will . . . encourage others to plead federal causes
of action . . . as scare tactics . . . only to have those claims
‘withdrawn’ when faced with the prospect of having to litigate
in a Federal Court.” Appellants’ Br. at 25. While sensitive to
forum manipulation concerns, see, e.g., Rockwell Int’l Corp.
v. United States, 549 U.S. 457, 474 n.6 (2007), we recognize
16
3
Last, Defendants forfeited their argument that the
District Court committed error by failing to give special
consideration to Defendants’ alien status. “‘[F]orfeiture is the
failure to make the timely assertion of a right,’ an example of
which is an inadvertent failure to raise an argument.” Barna v.
Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136,
147 (3d Cir. 2017) (alteration in original and citation omitted).
Before the District Court, Defendants argued that the complete
diversity requirement should not apply to aliens such as
themselves, not that their status as aliens should affect the
remand analysis. As Defendants identified no “truly
exceptional” circumstances, id. (citation omitted), that support
forgiving the forfeiture, we will not address this argument.
To the extent Defendants are arguing that the complete
diversity requirement does not apply here because they are
aliens, our precedent forecloses this argument. Field, 626 F.2d
at 296 (complete diversity requirement “den[ies] jurisdiction in
an action by an alien against citizens of a state and another
alien”). The District Court therefore did not abuse its
discretion in concluding it lacked subject matter jurisdiction
based on the alien diversity requirement.
III
that district courts are well-placed to police such behavior and
to weigh its possibility against the other remand
considerations.
17
For the foregoing reasons, we will affirm.10
10
Plaintiffs’ motion for sanctions under Federal Rule of
Appellate Procedure 38 is denied. Rule 38 permits sanctions
“[i]f a court of appeals determines that an appeal is frivolous.”
To determine whether an appeal is frivolous, we “employ[] an
objective standard,” which “focuses on the merits of the appeal
regardless of good or bad faith.” Kerchner v. Obama, 612 F.3d
204, 209 (3d Cir. 2010) (quoting Hilmon Co. (V.I.) v. Hyatt
Int’l, 899 F.2d 250, 253 (3d Cir. 1990)). An appeal is
considered frivolous when it is without merit or colorable
arguments in support of the appeal. Hilmon, 899 F.2d at 251.
Because some of Defendants’ arguments are at least colorable,
we cannot say their appeal was so frivolous that sanctions are
warranted.
18