Cathy Cohen v. Burlington, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13222
Non-Argument Calendar
____________________
CATHY COHEN,
Plaintiff-Appellant,
versus
BURLINGTON, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-81420-BB
____________________
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2 Opinion of the Court 22-13222
Before R OSENBAUM , J ILL PRYOR , and NEWSOM , Circuit Judges.
PER CURIAM:
Plaintiff Cathy Cohen appeals the district court’s order deny-
ing her motion to vacate a default judgment entered in her favor
against Burlington, Inc. as well her motion seeking leave to amend
the complaint to name a new defendant. We do not reach the mer-
its of the issues that Cohen raises on appeal. Instead, because the
allegations in Cohen’s complaint failed to establish diversity juris-
diction, we must vacate and remand with instructions for the dis-
trict court to dismiss the case for lack of subject matter jurisdiction.
I.
In 2016, Cohen was shopping at a Burlington Coat Factory
store in Florida when a product display allegedly injured her.
Through her attorney Michael Gulisano, Cohen filed a lawsuit in
district court in the Southern District of Florida, bringing a negli-
gence claim against defendant “Burlington, Inc.”
In the complaint, Cohen alleged that the district court had
subject matter jurisdiction under 28 U.S.C. § 1332 because the mat-
ter was between citizens of different states and the amount in con-
troversy exceeded $75,000. According to the complaint, Cohen was
a citizen of North Carolina, and Burlington, Inc. was a corporation
“formed under the laws of New Jersey.” Doc. 1 at 1.1 The
1 “Doc.” numbers refer to the district court’s docket entries.
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22-13222 Opinion of the Court 3
complaint contained no allegation about Burlington, Inc.’s princi-
pal place of business.
Cohen served CT Corporation System, whom she identified
as Burlington, Inc.’s registered agent, with a summons and a copy
of the complaint. When Burlington, Inc. failed to file an answer or
otherwise timely respond to the complaint, the district court clerk
entered a default. After a hearing, the district court entered a final
default judgment against Burlington, Inc. and awarded Cohen
$677,774.75 in damages. The district court did not address whether
the allegations in Cohen’s complaint were sufficient to establish di-
versity jurisdiction.
When Cohen sought to collect the judgment, she ran into
difficulty because, as it turned out, no entity named “Burlington,
Inc.” existed. Cohen then filed a motion to amend the default judg-
ment so that all references to “Burlington, Inc.” would become
“Burlington, Inc. a/k/a Burlington Stores, Inc. a/k/a Burlington
Coat Factory Warehouse Corporation.” Gulisano, her attorney,
represented to the court that Burlington, Inc. was the same entity
as Burlington Stores, Inc. (“BSI”) and Burlington Coat Factory
Warehouse Corporation (“BCFWC”) because BSI and BCFWC
used the fictitious name Burlington, Inc.
BSI and BCFWC then appeared in the action and opposed
the motion to amend, arguing that they were two “entirely
new . . . entities” that “[had] no relationship to named defendant
‘Burlington, Inc.’” Doc. 41 at 2. They also filed a motion for sanc-
tions against Gulisano.
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4 Opinion of the Court 22-13222
The district court denied the motion to amend and granted
the motion for sanctions. The district court found that there was
no support for the assertion that Burlington, Inc. was the same en-
tity as, or the fictitious name of, BSI or BCFWC. The court con-
cluded that the motion to amend represented an improper “back-
door attempt to correct an improperly named party and recover a
[] default judgment” from entities that had never been named in
the complaint, which amounted to “an abuse of the judicial pro-
cess.” Doc. 50 at 11.
As to the motion for sanctions, the district court found that
Gulisano had made “affirmative misrepresentations in his submis-
sions to the [c]ourt” and acted in “bad faith.” Id. at 15–16. The court
imposed sanctions against Gulisano under Rule 11, ordering him
to pay approximately $19,500 to cover attorney’s fees that BSI and
BCFWC incurred in resisting Cohen’s attempts to collect the judg-
ment. The court also referred Gulisano to the Florida Bar for disci-
plinary action.
After the court imposed the sanctions, Cohen filed a motion
to vacate the default judgment and requested leave to amend her
complaint to name BSI as a defendant. While the motion was pend-
ing, Gulisano filed a notice of appeal challenging the sanctions or-
der. The district court concluded that the notice of appeal divested
it of jurisdiction and denied the motion to vacate as moot.
In Gulisano’s appeal, we affirmed the district court’s sanc-
tions order. See Gulisano v. Burlington, Inc., 34 F.4th 935 (11th Cir.
2022). We described Gulisano’s argument that Burlington, Inc. was
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22-13222 Opinion of the Court 5
the fictitious name of BSI and BCFWC as “frivolous,” noting that
“there were no facts to support it” and that Gulisano eventually
admitted to the district court that Burlington, Inc. did not exist. Id.
at 943. We explained that “even the most minimal investigation
would have alerted” Gulisano “that there was no such entity as
‘Burlington, Inc.’” Id. at 944.
After Gulisano’s sanctions appeal was complete, Cohen filed
in the district court a second motion to vacate the default judgment
and for leave to file an amended complaint. Relying on Rule 60 of
the Federal Rules of Civil Procedure, she asked the district court to
vacate the default judgment entered in the action and to permit her
to file an amended complaint. She attached to her motion a copy
of her proposed amended complaint. In the proposed amended
complaint, Cohen named BSI alone as a defendant and alleged that
there was diversity jurisdiction because BSI was “a New Jersey cor-
poration registered to do business in Florida.” Doc. 84-1 at 2. Co-
hen did not identify BSI’s state of incorporation or where its prin-
cipal place of business was located.
BSI and BCFWC opposed Cohen’s motion, arguing that the
court should deny it in its entirety. Cohen attached to her reply in
support of her motion a revised proposed amended complaint,
which named both BSI and BCFWC as defendants. In the revised
proposed amended complaint, Cohen alleged that there was diver-
sity jurisdiction because BSI was a “New Jersey corporation” and
BCFWC was a “Florida corporation.” Doc. 86-1 at 2. The revised
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6 Opinion of the Court 22-13222
proposed amended complaint included no allegations about either
entity’s principal place of business or state of incorporation.
The district court denied Cohen’s motion. It refused to va-
cate the judgment against Burlington, Inc. or to allow Cohen to
amend her complaint. The court declined to vacate the judgment
against Burlington, Inc. because, it reasoned, the judgment did not
“prejudice any entity,” since Burlington, Inc. did not exist. Doc. 87
at 9. And because the court had entered final judgment, which had
not been vacated, the court denied the request for leave to amend.
The court’s order did not address whether the allegations in the
original complaint or either of the proposed amended complaints
were sufficient to establish subject matter jurisdiction.
Cohen appealed. On appeal, after examining Cohen’s origi-
nal complaint, we issued a jurisdictional question asking the parties
to address whether the district court had subject matter jurisdiction
at the outset of the case. We noted that the original complaint’s
allegations about the citizenship of Burlington, Inc. appeared to be
deficient. We also asked the parties whether, if the allegations were
inadequate, Cohen could amend the complaint to cure the defi-
ciency given that Burlington, Inc. apparently did not exist.
In response to the jurisdictional question, Cohen admitted
that the jurisdictional allegations in the complaint were inade-
quate. She asked for permission to correct the defect by filing one
of the proposed amended complaints she had attempted to file in
the district court.
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22-13222 Opinion of the Court 7
BSI and BCFWC also responded to the jurisdictional ques-
tion. They argued that the district court lacked subject matter ju-
risdiction from the start because the original complaint contained
no allegation about Burlington, Inc.’s principal place of business.
This defect could not be cured, they argued, because it was now
known that Burlington, Inc. was a non-existent entity, so there was
no way for Cohen to make a plausible allegation about Burlington,
Inc.’s principal place of business.
II.
We conclude that subject matter jurisdiction is lacking in
this case. “When a plaintiff files suit in federal court, she must allege
facts that, if true, show federal subject matter jurisdiction over her
case exists.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir.
2013). When a federal court’s jurisdiction is based upon diversity,
the allegations “must include the citizenship of each party, so that
the court is satisfied that no plaintiff is a citizen of the same state as
any defendant.” Id.; see 28 U.S.C. § 1332(a). For diversity jurisdic-
tion purposes, a corporation is deemed a citizen of its state of in-
corporation and the state where it has its principal place of busi-
ness. 28 U.S.C. § 1332(c)(1).2 “[I]f a complaint’s factual allegations
do not assure the court it has subject matter jurisdiction, then the
court is without power to do anything in the case.” Travaglio, 735
F.3d at 1269; see also Belleri v. United States, 712 F.3d 543, 547 (11th
2 A corporation’s principal place of business is “the place where the corpora-
tion’s high level officers direct, control, and coordinate the corporation’s ac-
tivities.” Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010).
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8 Opinion of the Court 22-13222
Cir.2013) (“We may not consider the merits of [a] complaint unless
and until we are assured of our subject matter jurisdiction.”).
Usually, when a complaint’s allegations regarding diversity
jurisdiction are insufficient, the plaintiff will be able to amend her
complaint, even on appeal, to correct the deficiency. See 28 U.S.C.
§ 1653 (providing that “[d]efective allegations of jurisdiction may
be amended . . . in the trial or appellate courts”); see also Morales v.
Zenith Ins. Co., 714 F.3d 1220, 1226 n.12 (11th Cir. 2013) (treating
pleadings as amended on appeal to correct jurisdictional defect).
Although § 1653 permits a party to amend a complaint on appeal
to correct “inadequate jurisdictional allegations,” the statute “does
not provide a remedy for defective jurisdiction itself.” Pressroom Un-
ions-Printers League Income Sec. Fund v. Cont’l Assurance Co., 700 F.2d
889, 893 (2d Cir. 1983); see Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 832 (1989) (explaining that § 1653 allows “appellate
courts to remedy” only “inadequate jurisdictional allegations, but
not defective jurisdictional facts”). Put another way, § 1653 “cannot
be used to create jurisdiction retroactively where it did not previ-
ously exist.” Arena v. Graybar Elec. Co., 669 F.3d 214, 224 (5th Cir.
2012) (internal quotation marks omitted). We have thus explained
that Ҥ 1653 would be an inappropriate vehicle by which to amend
[a] complaint to add new parties” on appeal to create diversity ju-
risdiction. Laborers Local 938 Joint Health & Welfare Tr. Fund v. B.R.
Starnes Co., 827 F.2d 1454, 1457 n.4. (11th Cir. 1987).
Here, the allegations in Cohen’s original complaint about
Burlington, Inc.’s citizenship were fatally defective. The complaint
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22-13222 Opinion of the Court 9
alleged nothing about Burlington, Inc.’s principal place of business
and thus failed to establish diversity of citizenship. See 28 U.S.C.
§ 1332(c)(1). Because the complaint’s allegations were insufficient
to establish subject matter jurisdiction, the district court was with-
out power to do anything in the case. See Travaglio, 735 F.3d at
1268. It is true that § 1653 permits amendment to correct defective
allegations of jurisdiction. But given Cohen’s admission that Bur-
lington, Inc. does not exist, it would be impossible for her to correct
the defect with new allegations about Burlington, Inc.’s principal
place of business.
Cohen argues that we should allow her to amend her com-
plaint in a different way: to change the defendant identified in the
complaint from Burlington, Inc. to BSI (and possibly BCFWC). But
§ 1653 does not authorize a plaintiff to amend her complaint on
appeal to add a new defendant. See Laborers Local 938, 827 F.2d at
1457 n.4.3
3 In arguing that we should permit her to amend the complaint to name BSI
(and possibly BCFWC), Cohen relies on our unpublished decision in A.W. v.
Tuscaloosa City School Board of Education, 744 F. App’x 668 (11th Cir. 2018) (un-
published). But we are not bound by unpublished decisions. See S.-Owners Ins.
v. Easdon Rhodes & Assocs., 872 F.3d 1161, 1165 n.4 (11th Cir. 2017).
In any event, we fail to see how A.W. helps Cohen because that case addressed
a different question. In A.W., we explained that under Federal Rule of Civil
Procedure 15 a district court may permit a plaintiff to amend her complaint to
correct a defect related to subject matter jurisdiction. Id. at 673. But nothing
in our opinion addressed whether § 1653 authorizes a plaintiff to amend her
complaint by adding an entirely new party to the case to correct a jurisdic-
tional defect identified on appeal.
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10 Opinion of the Court 22-13222
After reviewing the allegations in the original complaint, we
are not assured of our subject matter jurisdiction. Accordingly, we
vacate the district court’s default judgment as to Burlington, Inc.
and remand with instructions that the district court dismiss for
want of subject matter jurisdiction.
VACATED and REMANDED.
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