07-4514 | Omnilex

Testo completo

07-4514-cv, -4647-CV
Durant, Nichols, Houston,
Hodgson, & Cortese-Costa,
P.C. v. Dupont

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: January 16, 2009
Final submissions: March 13, 2009

Decided: May 6, 2009)

Docket Nos. 07-4514-cv, -4647-CV

DURANT, NICHOLS, HOUSTON, HODGSON, & CORTESE-COSTA, P.C.,

Plaintiff-Appellee-
Cross-Appellant,

\- V. -

RALPH P. DUPONT,

Defendant - Appellant-
Cross-Appellee.

Before: JACOBS, Chief Judge, KEARSE and HALL, Circuit Judges.

Appeal and cross-appeal from a judgment of the United
States District Court for the District of Connecticut, Janet B.
Arterton, Judge, confirming an arbitration award in favor of
plaintiff but denying plaintiff prejudgment interest and
sanctions.

Appeals dismissed; matter remanded for determination of
subject matter jurisdiction.

LORAINE M. CORTESE-COSTA, Bridgeport,
Connecticut (Michel Bayonne, Durant,
Nichols, Houston, Hodgson & Cortese-
Costa, Bridgeport, Connecticut, on the

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brief) , for Plaintiff-Appellee-Cross-
Appellant.

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WILLIAM H. CLENDENEN, Jr., New Haven,
Connecticut (Nancy L. Walker,
Clendenen & Shea, New Haven,
Connecticut, Barbara J. Radlauer,
Ralph P. Dupont pro se, The Dupont Law
Firm, Stamford, Connecticut, on the
brief) , for Defendant-Appellant-Cross-
Appellee.

KEARSE, Circuit Judge:

Defendant Ralph P. Dupont appeals from so much of a
judgment entered in the United States District Court for the
District of Connecticut, Janet B. Arterton, Judge, as confirmed
an arbitration award ("Award") that ordered Dupont to pay
$94,060.80 to plaintiff Durant, Nichols, Houston, Hodgson, &
Cortese-Costa, P.C. ("Durant-Nichols"), based on agreements
between the parties. Durant-Nichols cross-appeals from so much of
the judgment as denied its requests for prejudgment interest on
the amount awarded and for sanctions pursuant to 28 U.S.C. § 1927.

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At oral argument of this appeal, this Court sua sponte raised the
issue of federal subject matter jurisdiction, noting that the
appellate briefs do not contain adequate jurisdictional
statements and that the complaint initiating this action failed to
allege any basis for federal jurisdiction. We have now received
additional submissions from the parties, which reveal that the
existence of federal jurisdiction cannot be determined without the
resolution of factual issues. Accordingly, we dismiss the appeals
as premature and remand to the district court for findings of fact
as to the existence of subject matter jurisdiction.

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Durant-Nichols is a law firm. Dupont is an attorney who
entered into successive "Of Counsel Agreement [s]" with
predecessors of Durant-Nichols in 1992 and 1996. Dupont
terminated the 1996 agreement in January 1997. The present
dispute concerns the claim of Durant-Nichols that it is entitled
to a portion of the approximately $2.75 million in fees collected
by Dupont in 2003 with respect to his work on law suits begun in
1998 with respect to the hijacking of a Kuwait Airways airplane;
the 1998 suits were related to two contingent-fee actions -- arising
out of that same hijacking -- which had been commenced by Dupont in
1985 and were pending while Dupont was of counsel to Durant-
Nichols. In August 2003, Durant-Nichols requested a share of the
fees collected by Dupont. Dupont did not respond.

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# A. Durant-Nichols's First Action

Both of the Of Counsel Agreements between Dupont and
Durant-Nichols provided that any controversy or claim

arising out of, or relating to any provision of this
Agreement or the breach thereof, shall be settled by
mediation with the aid of a mediator who is mutually
acceptable to the parties or by arbitration in
Bridgeport, Connecticut. It is agreed that any party
to any award rendered in any such arbitration
proceeding may seek a judgment upon the award, and
that such judgment may be entered thereon by the
court having jurisdiction.

In the summer of 2004, Durant-Nichols commenced an action in

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Connecticut Superior Court seeking an order compelling Dupont to
submit to arbitration ( "Durant-Nichols I") .

Dupont removed Durant-Nichols I to federal district court,
premising federal jurisdiction on diversity of citizenship.
Citing 28 U.S.C. § 1332, his notice of removal ( "Removal Notice")
stated that Durant-Nichols "is a Connecticut professional
corporation whose only office is in Connecticut, " that Dupont "is
a citizen and resident of the State of Hawaii," and that the
"amount in controversy, exclusive of interest and costs, exceeds
$75,000.00." (Dupont's Removal Notice dated July 7, 2004,
11 4-7.) In addition, Dupont asserted that the case involved a
claim for arbitration under the Federal Arbitration Act ( "FAA" or
the "Act") and that the district court had jurisdiction under
28 U.S.C. § 1331, which confers jurisdiction over cases raising a
federal question. (See Dupont's Removal Notice (1 8-9.) Because
Dupont contended that he had not been properly served with the
complaint and summons, Durant-Nichols voluntarily dismissed
Durant-Nichols I and began the present action.

# B. The Present Action

Durant-Nichols commenced its present action in the
district court on August 16, 2004 ( "Durant-Nichols II"), again
seeking an order compelling arbitration. The complaint alleges
that Durant-Nichols "is a professional corporation engaged in the
rendering of legal services and whose office is located" in
Connecticut, and that Dupont is an attorney "doing business" in

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Connecticut. (Complaint [{ 1-2.) However, the complaint contains
neither a sufficient allegation of Durant-Nichols's citizenship
within the meaning of 28 U.S.C. § 1332 (c) (for purposes of
diversity jurisdiction, a corporation is deemed to be a citizen of
both the state of its incorporation and the state where it has its
principal place of business), nor any allegation as to Dupont's
citizenship. Nor is there any other allegation as to a basis for
federal court jurisdiction.

Dupont defaulted in response to the Durant-Nichols II
complaint, failing to appear or respond. Durant-Nichols moved
successfully for a default order compelling arbitration.

On November 19, 2004, Dupont, proceeding pro se, moved
pursuant to Fed. R. Civ. P. 60 (b) to vacate the default. Stating
that "he is a citizen and resident of the State of Hawaii and has
been for several years" (Dupont Memorandum of Law in Support of
Motion To Open Default Judgment, dated November 17, 2004 ("Dupont
Vacatur Motion Memorandum") at 3), Dupont asserted, inter alia,
that he was not properly served with the Durant-Nichols II papers,
that they had been improperly left on the ground at a dwelling (at
which he was present) in Pound Ridge, New York, on the night of
September 29, 2004 (see Affidavit of Ralph P. Dupont dated
November 17, 2004 ("2004 Affidavit") , [{ 2-4), and that he had
subsequently lost the papers (see id. 11 7-8, 11; Dupont Vacatur
Motion Memorandum at 3). In a reply memorandum dated December 23,
2004 ("Dupont Vacatur Reply Memorandum"), while reiterating that
he "is a citizen and resident of the State of Hawaii" (Dupont

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Vacatur Reply Memorandum at 3, 17), Dupont added the contention
that "the Court has no subject matter jurisdiction over this
action under the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
because the matters [Durant-Nichols] seeks to arbitrate pursuant
to the parties [sic] are nonarbitrable." (Dupont Vacatur Reply
Memorandum at 35) .

The district court denied Dupont's motion to vacate the
default judgment, finding that Dupont had failed to demonstrate
excusable neglect or improper service, and implicitly rejecting
his arbitrability-based challenge to subject matter jurisdiction.
In an appeal that was timely as to the order denying Dupont's Rule
60 (b) motion but not as to the underlying order of default (the
"2005 Appeal") , Dupont challenged the district court's rejections
of his contentions that his default was excusable, that he was not
properly served, and that the matters as to which arbitration was
sought were "not . . . within the scope of the FAA" (Dupont's
brief in 2005 Appeal at 1-2). In addition, Dupont made a new
attack on federal subject matter jurisdiction on the ground that
the amount in controversy was less than $75,000. He stated that
"the basis for jurisdiction is presumably [] diversity, 28 U.S.C.
§ 1332, because the Defendant is a citizen of Hawaii" (Dupont's
brief in 2005 Appeal at 39; see also id. at 26 (" [Dupont] is a
citizen of Hawaii, with a home at 6770 Hawaii Kai Drive,

Honolulu.
For brief periods of time, and from time to time,
Attorney Dupont is present at 14 Peters Lane, Pound Ridge, New
York, a short distance from his Stamford[, Connecticut] law

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office. ") ) ; but he argued that "the jurisdictional amount cannot
be satisfied" (id. at 39 (emphasis added) ) . This Court rejected
all of Dupont's contentions and affirmed the district court's
denial of his motion to vacate the default.

The parties proceeded to arbitration, and the arbitrator
ruled in favor of Durant-Nichols, awarding it $94,060.80. Durant-
Nichols moved to confirm the Award; Dupont moved to vacate it.
The district court granted the motion to confirm, describing the
action as a "28 U.S.C. § 1331 federal question fee dispute" that
the court had "ordered to be arbitrated
under the Federal
Arbitration Act, 9 U.S.C. § 1, et seq. " Ruling on Plaintiff's
Motion To Confirm Arbitration Award, dated September 13, 2007
("Confirmation Order"), at 1. Although Durant-Nichols also moved
for prejudgment interest and the imposition of sanctions against
Dupont, the district court denied those motions.

Dupont has appealed the judgment confirming the Award, and
Durant-Nichols has cross-appealed the denial of its motions for
prejudgment interest and sanctions. At oral argument of these
appeals, this Court pointed out that the FAA does not confer
federal jurisdiction and that Durant-Nichols's complaint contained
no adequate allegation of diversity jurisdiction; we asked whether
there was evidence in the record to show that diversity
jurisdiction existed. Both sides conceded that diversity had
never been properly pleaded, and they proceeded to submit
additional papers.

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C. The Post-Oral-Argument Submissions on this Appeal

Following oral argument, Durant-Nichols moved to amend its
complaint pursuant to 28 U.S.C. § 1653 (authorizing the courts to
permit amendment of " [d]efective allegations" of jurisdiction), in
order to make proper allegations as to the diverse citizenship of
the parties and the amount in controversy. (See Durant-Nichols
Motion To Amend Pleadings dated January 27, 2009 ("Motion To
Amend"), at 1.) In support of its motion, Durant-Nichols stated,
inter alia, that it is, and always has been, a Connecticut
corporation (see Affidavit of Loraine M. Cortese-Costa sworn to
January 26, 2009, 1 3); that it has a single office, which is in
Bridgeport, Connecticut (see id.) ; and that on both July 7, 2004,
and November 17, 2004 -- i.e., shortly before and shortly after the
August 16, 2004 commencement of this action -- Dupont stated that he
was a citizen of Hawaii, and on November 17, 2004, stated that he
had been a citizen of Hawaii for several years (see id. 11 2, 5) .
Durant-Nichols also stated that it was seeking confirmation of an
Award of more than $94, 000, that Dupont sought to have the Award
vacated, and thus that the amount in controversy is in excess of
$75,000. (See Motion To Amend at 3-4) .

Dupont opposed Durant-Nichols's motion to amend the
complaint, arguing that § 1653 does not authorize such an
amendment because the complaint did not contain "defective"
jurisdictional allegations but rather contained "no allegations of
jurisdiction" (Dupont Response in Opposition to Motion To Amend
Pleadings Under § 1653, dated February 3, 2009, at 2 (emphasis in

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original) . ) He argued that " [n]othing in the Complaint's
allegations sets out either the domicile of the parties or the
requisite amount in controversy, and therefore subject matter
jurisdiction based on diversity is not available." (Id. at 3.)
He asserted that "there are no jurisdictional facts anywhere in
the record that unequivocally establish [Dupont's] domicile as of
August 13 [sic], 2004, the date the complaint was filed
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(Id.)

By order dated February 4, 2009, this Court ordered Dupont
to file a statement under oath "disclosing the State of which he
was a citizen on the date the present action was commenced. "
Dupont responded with an affidavit, stating, inter alia, that
" [o]n August 16, 2004, the date this action was commenced, I
believe I was still domiciled in Connecticut and had not changed
my domicile to Hawaii or New York" (Affidavit of Ralph P. Dupont
dated February 12, 2009 ("Dupont 2009 Aff. "), ( 1), and that
" [a]]though at various times from 2001 through early 2005, I
considered moving permanently to Hawaii, my work, my family and
other circumstances always drew me back to my Connecticut law
practice, and I never formed a final fixed intention to reside
permanently in Hawaii" (id. | 19). Dupont stated that he owned
real property in Connecticut "as a partner in two Connecticut
partnerships." (Id. [ 7.) As to his residences, Dupont stated as
follows :

2\. From 1957 until the early summer of 2001, I
lived exclusively in New London, Stonington and
Mystic, Connecticut, except for vacations and for

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brief periods of time in 1977-1978 and 1992-1994,
when I taught at law schools in Massachusetts.

3\. Except for the time when I taught in
Massachusetts, I have practiced law and/or taught law
in Connecticut from 1957 through the present. At all
times from 1957 through the present, I have practiced
law at offices in the State of Connecticut. . . . I
have never practiced law in any other state except
for a brief period in 1956-57, when I was an
associate in a New York City law firm. I have no
current plans to retire from my Connecticut practice.

4\. Since 2001 through the present, I have lived
in the following places at approximately the
following times :

a. From January through late spring of
2001, I lived in Mystic, CT.

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b. From the early summer 2001 through
December 2001, I resided in various rented,
furnished homes or apartments on the Hawaiian
Islands of Kauai, Oahu and Molokai. At the end
of 2001, I left Hawaii and returned to
Connecticut.

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c. From early 2002 through early 2003, I
lived in rented, furnished homes in Guilford,
and Mystic, Connecticut.

d. In early 2003 through the late spring
of 2003, I lived in various rented, furnished
homes and hotels on the Islands of Molokai and
Oahu in Hawaii.

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e. From the late spring through the end of
2003, I lived at 14 Peter's Lane, Pound Ridge,
New York in a home owned and furnished by my
wife. During this period, I traveled
periodically to Hawaii and stayed in the home I
rented on Molokai.

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f. From January through December 2004, I
lived periodically in Pound Ridge, New York, and
periodically in a rented, furnished apartment on
Hawaii Kai Drive in Honolulu, Hawaii (on the
Island of Oahu) .

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5\. At all times during the periods described in
paragraph 4, I continued to work at my Connecticut
law offices whenever I was living in either

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Connecticut or Pound Ridge, New York. When I was
living in Hawaii, I continued to work with and
through my Connecticut law office by communicating
almost daily with my staff there.

6\. I was living at 14 Peter's Lane in Pound
Ridge, New York, and working at my Stamford,
Connecticut law office both when this action was
commenced on August 16, 2004, and in October [sic]
2004, when the defendant attempted to serve process
on me in this action. During this same period, I
also continued to rent the Hawaii Kai apartment.

(Dupont 2009 Aff. 11 2-6.)

Dupont stated that at the time he filed his November 17,
2004 affidavit, proposed answer to the complaint, and memorandum
stating that he was a citizen of Hawaii (and had been for several
years) , he "did not analyze the various elements that comprise
citizenship, and [he] did not have domicile in mind." (Id. [ 13.)

# II. DISCUSSION

"It is a fundamental precept that federal courts are
courts of limited jurisdiction" and lack the power to disregard
such limits as have been imposed by the Constitution or Congress.
Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) .
If subject matter jurisdiction is lacking and no party has called
the matter to the court's attention, the court has the duty to
dismiss the action sua sponte. See, e.g., Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 152 (1908).

Although the district court's Confirmation Order in the
present case described this action as raising a federal question
under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., that Act

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costs, " id. § 1332 (a) .

in fact does not independently confer subject matter jurisdiction
on the federal courts. See, e.g., Perpetual Securities, Inc. v.
Tang, 290 F.3d 132, 136 (2d Cir. 2002); see generally Moses H.
Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1,
25 n. 32 (1983) ("The Arbitration Act is something of an anomaly in
the field of federal-court jurisdiction. It creates a body of
federal substantive law establishing and regulating the duty to
honor an agreement to arbitrate, yet it does not create any
independent federal-question jurisdiction under 28 U.S.C. § 1331
. . . or otherwise. ") . Thus, " [t]here must be an independent
basis of jurisdiction before a district court may entertain
petitions under the Act. " Harry Hoffman Printing, Inc. v. Graphic
Communications, International Union, Local 261, 912 F.2d 608, 611
(2d Cir. 1990) . Accordingly, it must be determined whether at the
time the present action was commenced there was diversity
jurisdiction, that is, whether Dupont was a citizen of -- i.e.,
domiciled in, see, e.q., Gilbert v. David, 235 U.S. 561, 569
(1915) ; Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) -- a
state other than the state in which Durant-Nichols was
incorporated and the state in which it had its principal place of
business, see 28 U.S.C. § 1332 (c) (1), and whether the amount in
controversy "exceeds
$75,000, exclusive of interest and

Durant-Nichols suggests that the issue of subject matter
jurisdiction in this case has already been resolved, stating that
"this Court specifically considered and accepted the district

court's exercise of subject matter jurisdiction in its decision on
the [2005] appeal" (Durant-Nichols's reply memorandum in support
of its Motion To Amend at 1), as our summary order disposing of
that appeal "state [d] that ' [w]e find no error in the district
court's disposition of Dupont's challenge to its subject matter
jurisdiction over the underlying action'" (Durant-Nichols's Motion
To Amend at 3). This suggestion, however, ignores the nature of
the jurisdictional challenges that had been made by Dupont, both
in the district court and in this Court. The jurisdictional
contentions we rejected in the 2005 Appeal were, as described in
Part I.B. above, (a) Dupont's argument in the district court that
there was no federal question jurisdiction because the dispute was
not arbitrable -- an argument that the district court denied sub
silentio, making no statement as to any ground of subject matter
jurisdiction -- and (b) Dupont's new argument in this Court that
there was no diversity jurisdiction because the amount in
controversy was below the requisite jurisdictional amount. The
question we have raised in the present appeal, in contrast, is
whether the parties were citizens of different states. During the
2005 appeal, no party raised that question; and indeed that issue
was masked, as Dupont repeatedly stated that he "is a citizen of
Hawaii" (Dupont's brief in 2005 Appeal at 26, 39) and referred to
his "conceded Hawaii citizenship" (id. at 17; see also id. at 2
("It is conceded that [Dupont] is a non-resident of

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Connecticut . ") ) .

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Notwithstanding any prior proceedings, it is our
obligation to raise the matter of subject matter jurisdiction
"whenever it appears from the pleadings or otherwise that
jurisdiction is lacking." John Birch Society v. National
Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967) (emphasis
added); see, e.g., Fed. R. Civ. P. 12 (h) (3) ("If the court
determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action." (emphasis added) ) .
Accordingly, because the complaint contains no allegation as to
Durant-Nichols's state of incorporation or as to Dupont's
citizenship, we raised the question of diversity at oral argument
of these appeals.

Although a plaintiff premising federal jurisdiction on
diversity of citizenship is required to include in its complaint
adequate allegations to show that the district court has subject
matter jurisdiction, see, e.g., Fed. R. Civ. P. 8 (a) (1), its
failure to do so does not always require that the action be
dismissed, for "the actual existence of diversity jurisdiction, ab
initio, does not depend on the complaint's compliance with these
procedural requirements."
Jacobs v. Patent Enforcement Fund,
Inc., 230 F.3d 565, 568 (2d Cir. 2000) (emphasis in original) .
Thus, "where the facts necessary to the establishment of diversity
jurisdiction are subsequently determined to have obtained all
along, a federal court may . . . allow a complaint to be amended
to assert those necessary facts, " Herrick Co. , Inc. v. SCS
Communications, Inc., 251 F.3d 315, 329 (2d Cir. 2001) ; see, e.q.,

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28 U.S.C. § 1653 ( " [d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts"). Or, when
the record as a whole, as supplemented, establishes the existence
of the requisite diversity of citizenship between the parties, we
may simply "deem the pleadings amended so as to properly allege
diversity jurisdiction. " Canedy v. Liberty Mutual Insurance Co.,
126 F.3d 100, 103 (2d Cir. 1997) (holding diversity established in
light of affidavits submitted to this Court, where "the affidavits
[we]re contested by neither party, and there [wa]s nothing in the
record to suggest lack of jurisdiction"); see, e.g., Jacobs v.
Patent Enforcement Fund, Inc., 230 F.3d at 567-68 (upholding
default judgment despite the complaint's failure to allege the
parties' citizenship, rather than merely their residence, where
supplementation of the record before this Court revealed diversity
of citizenship) .

As described in Part I.C. above, Durant-Nichols has now
submitted -- in support of its postargument motion to amend its
complaint -- an affidavit stating that it is incorporated in, and
has its principal place of business in, Connecticut. Dupont does
not dispute these assertions; and as nothing in the record appears
to contradict them, we regard the record as sufficient to
establish that Durant-Nichols is, for diversity purposes, a
citizen only of Connecticut. Moreover, given that Durant-Nichols
sought arbitration to obtain a share of Dupont's $2.75 million fee
and was awarded more than $94,000, there is no question that the

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amount-in-controversy requirement is satisfied. Dupont has not
renewed the contrary contention he advanced in the 2005 Appeal.

As to the citizenship of Dupont, however, the parties'
submissions are in conflict. Durant-Nichols, which, as the
plaintiff, has the burden of proving subject matter jurisdiction,
seeks to amend its complaint to allege that Dupont is a citizen of
Hawaii. Its motion points out that Dupont stated many times that
he was a citizen of Hawaii, making that assertion both shortly
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Dupont, however, in response to this Court's order that he declare
under oath the state of his citizenship at the time this action
was commenced, has submitted an affidavit stating, " [o]n August
16, 2004, the date this action was commenced, I believe I was
still domiciled in Connecticut and had not changed my domicile to
Hawaii or New York" (Dupont 2009 Aff. [ 1). As quoted at length
in Part I.C. above, Dupont sought to support this professed belief
by describing, inter alia, the various places he lived from 2001
through 2004 -- Hawaii and Connecticut in 2001-2003, and Hawaii and
New York in 2003-2004 (see id. [1 4-6) -- and his membership in two
partnerships that owned real property in Connecticut (see id.
21 1 7).

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In addition, Dupont described the location of his books
and research papers (see id. | 18 (Connecticut) ) ; the location of
his bank accounts (see id. 1 8 (Connecticut, New York, and
Hawaii) ) ; the states in which he has had driver's licenses (see
id. [ 11 (Connecticut until May 2003; since May 2003, Hawaii) ) ;

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where he voted (see id. | 10 (Connecticut "before 2004"; New York
in 2008; no votes in Hawaii) ); and where he filed his tax returns
(see id. | 17 ("non-resident Connecticut and New York income tax
returns for 2003 and 2004"; "resident Hawaii income tax returns in
2003 and 2004") ).

Dupont also stated that, in repeatedly saying that he was
a citizen of Hawaii, he "did not have domicile in mind" (Dupont
2009 Aff. ( 13) -- this despite the fact that, as discussed in Parts
I.A. and B. above, several of his claims of Hawaiian citizenship
were made in the course of discussing diversity jurisdiction or,
indeed, in support of his own invocation of diversity jurisdiction
when he removed Durant-Nichols I to federal court. (When the
jurisdictional issue is neglected until after a decision has been
rendered on the merits, agreement as to the facts of diversity
sometimes becomes harder to achieve.)

As we will "generally afford an opportunity for amendment"
of the pleadings to cure defective jurisdictional allegations
unless "the record clearly indicates that the complaint could not
be saved by any truthful amendment, " Canedy v. Liberty Mutual
Insurance Co., 126 F.3d at 103, and as Dupont himself has provided
Durant-Nichols with ample basis for believing that Dupont was a
citizen of Hawaii on August 16, 2004, given his claims that he was
a Hawaiian citizen on, inter alia, July 7, 2004 (see Dupont's
Removal Notice in Durant-Nichols I), and November 17, 2004 (see
Dupont's 2004 Affidavit and his Vacatur Motion Memorandum in
Durant-Nichols II, and his proposed answer to the Durant-

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Nichols II complaint if his motion to vacate the default were
successful), we grant Durant-Nichols's motion to amend its
complaint.

However, Dupont's 2009 Affidavit expressly denies that he
was a citizen of Hawaii for purposes of diversity jurisdiction in
the present action. Although revealing, inter alia, that he had
not lived in Connecticut since early 2003, and that he thereafter
lived in Hawaii in rented homes and in New York with his wife in
the home she owned, Dupont states that he believes he was still
domiciled in Connecticut in August 2004 and had not changed his
domicile to Hawaii or New York. Accordingly, the factual issue as
to where Dupont was domiciled on August 16, 2004, remains to be
resolved. We therefore remand this matter to the district court
to supplement the record with factual findings on that issue.

# CONCLUSION

For the reasons discussed above, we grant Durant-Nichols's
motion to amend the complaint to allege that Durant-Nichols is
incorporated in Connecticut and has its principal place of
business in Connecticut, that Dupont was a citizen of Hawaii as of
the time of commencement of this action, and that the amount in
controversy, exclusive of interest and costs, exceeds $75,000. We
deem Dupont's answer to have been amended to deny the allegation
that he was a citizen of Hawaii. In light of the factual dispute
as to where Dupont was domiciled on August 16, 2004, and hence as

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to whether the district court had subject matter jurisdiction of
the action, we dismiss the appeal and cross-appeal as premature,
and we remand to the district court for supplementation of the
record with findings as to the citizenship of Dupont, for
diversity purposes, at the time this action was commenced.

In allowing Durant-Nichols to amend its complaint to
allege that Dupont was a citizen of Hawaii, and remanding to the
district court for factual findings, we do not mean to imply that
the district court could not find that, at the time this action
was commenced, Dupont's domicile was in fact New York, where he
lived with his wife in the home owned by her.

If the district court determines that it has diversity
jurisdiction, i.e., that Dupont was domiciled in Hawaii or New
York when the action was commenced, the present appeals will be
reinstated -- without need for new notices of appeal -- upon notice,
by either party to this Court by letter within 14 days after such
determination, that the district court has supplemented the record
with jurisdictional findings. In that event, the parties may
file supplemental briefs, not to exceed 10 double-spaced pages, on
the jurisdictional decision and any intervening authorities
concerning the merits, according to a schedule to be established
by this Court's Staff Counsel.

In the event that the district court determines that it
lacks diversity jurisdiction and dismisses the action, a new
notice or notices of appeal will be required in order to obtain
appellate review.

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In either event, the matter shall be referred to this
panel.

The mandate shall issue forthwith. No costs.

August Term, 2008 Argued: January 16, 2009 Final submissions: March 13, 2009… v. - Ralph P. Dupont

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