The Circuit Rider 53 Home Away from Home: L IVING A BROAD W ITH ( OR W ITHOUT ) D IVERSITy J URISDICTION By Jeff Bowen* D iversity jurisdiction permits federal courts to hear certain disputes “between citizens of different states” and between “citizens of a State and citizens or subjects of a foreign state,” among other categories. But what happens when a citizen of a foreign state permanently resides in the United States, or when a citizen of the United States resides abroad? Under current rules, Congress has eliminated jurisdiction for disputes between permanent residents and citizens of the same State but permitted jurisdiction over disputes between permanent residents and citizens of other States. With respect to United States citizens domiciled abroad, however, diversity jurisdiction simply does not exist, regardless of any other parties to the dispute. In fact, any partnership or similar entity with one of its partners residing abroad may find itself excluded from diversity jurisdiction. Attorneys representing partnerships with international connections, including large law firms, need to consider whether any of those partners live abroad when confronting diversity jurisdiction in federal courts. “Alienage jurisdiction” and Permanent Residents of the United States Jurisdiction over disputes involving foreigners, also known as alienage jurisdiction, appears in Article III of the Constitution, which provides that the “judicial Power shall extend to all Cases, in Law and Equity . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” In the Federalist Papers, Alexander Hamilton specifically argued that national courts should hear disputes involving non-citizens because such cases may have consequences for the conduct of foreign relations. The Federalist No. 80. Other concerns included the ability of state courts to protect noncitizens adequately. Kevin Johnson, Why Alienage Jurisdiction? Continued on page 54 * Jeff Bowen is the Wisconsin Chair of the Circuit Rider and is a Partner at Perkins Coie LLP in the litigation group’s insurance recovery practice. He is a graduate of Boston University, summa cum laude, and a Ph.D candidate in political science from Stanford. He is a 2002 graduate of Yale Law School, where he was an Editor of the Yale Law Journal. He clerked for Judge Barketton on the Eleventh Circuit and Judge Thomason on the Ninth Circuit. He is currently an Adjunct Professor at the University of Wisconsin Law School (LLM Program). The Circuit Rider 54 Home Away from Home Continued from page 53 Historical Foundations and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens, 21 Yale J. Int’l L. 1, 10-12 (1996). Although Congress originally granted federal jurisdiction over any dispute of at least $500 “in which an alien is a party”, the Supreme Court effectively held that Article III did not permit Congress to extend federal jurisdiction to disputes between two non-citizens. Id. at 18-20; Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809). Congress later clarified that any controversy involving a non-citizen must also involve United States citizen in order to trigger federal jurisdiction. Act of Mar. 3, 1875, 18 Stat. 470, 470. In addition, appellate courts generally interpreted the statute to preclude jurisdiction over a lawsuit involving a non-citizen on one side, and a citizen and non-citizen on the other side. Saadeh v. Farouki, 107 F.3d 52, 55 (D.C. Cir. 1997) (collecting cases). The actual domicile of non-citizens played little role in federal jurisdiction for almost two hundred years. Courts routinely upheld jurisdiction over disputes involving non-citizens living permanently in the United States, regardless of where they resided. For example, in 1833, the Supreme Court affirmed jurisdiction over a lawsuit brought by Swiss citizens residing in New Orleans against two citizens of Louisiana to enforce a debt. Breedlove v. Nicolet, 32 U.S. 413 (1833). Justice Marshall wrote that “If originally aliens, they did not cease to be so, nor lose their right to sue in the federal court, by a residence in Louisiana. Neither the constitution nor acts of congress require that aliens should reside abroad, to entitle them to sue in the courts of the United States.” Id. at 431-32. In 1988, however, the Judicial Conference of the Untied States called on Congress to change the rule and remove diversity jurisdiction between a non-citizen permanent resident and a citizen of the same State. The Conference report argued that “[t]here seems to be no reason why actions involving persons who are permanent residents of the United States should be heard by Federal courts merely because one of them remains a citizen or subject of a foreign state or has not yet become a citizen of the United States.” Proceedings of the Judicial Conference of the United States, 76-77 (Sep. 1988). In part, the Judicial Conference appeared motivated by a desire to reduce the federal diversity jurisdiction caseload. In response, Congress added a provision to the diversity jurisdiction statue providing that, for the purposes of federal jurisdiction, “an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.” Pub.L. No. 100–702, 102 Stat. 4642 (1988), codified at 28 U.S.C. § 1332 (a). Everyone agreed that the new law removed jurisdiction between a noncitizen permanently residing in a State and a citizen of that same State. Once the permanent resident was treated as a citizen, diversity jurisdiction rested on § 1332(a)(1), which only applied to “citizens of different States.” The new law created a significant anomaly, however. If a non-citizen permanent resident were “deemed” a citizen of a State for all jurisdictional purposes, she could sue a non-citizen in a different state under § 1332(a)(2), which covered ‘citizens of a State and citizens or subjects of a foreign state.” This appeared to many observers to violate the constitutional prohibition on cases involving only non-citizens and as well as to undermine the traditional rule barring suits between a non-citizen and both a citizen and non-citizen. Continued on page 55 The Circuit Rider 55 Home Away from Home Continued from page 54 Three appellate courts considered the 1988 law, and each reached a different conclusion. The Third Circuit upheld jurisdiction over a lawsuit brought by an Indian citizen permanently residing in the U.S. against both an German company and its American subsidiary. Singh v. Daimler-Benz AG, 9 F.3d 303, 304-05 (3d Cir. 1993). The court concluded that the plain language of the 1988 law “deemed” Singh a citizen for diversity purposes and declined to defer to the somewhat ambiguous legislative history. Id. at 308-10. In Saadeh, by contrast, the D.C. Circuit vacated a judgment in favor of a non-citizen against a non-citizen permanent resident based on lack of diversity jurisdiction. 107 F.3d 52. The court concluded that the legislative history of the 1988 act indicated a clear intent to constrict diversity jurisdiction, rather than to expand it, and noted that a literal reading of the statute would conflict with Supreme Court precedent on suits involving only non-citizens. Id. at 58-60. The court therefore held that the law “did not confer diversity jurisdiction over a lawsuit between an alien on one side, and an alien and a citizen on the other side, regardless of the residence status of the aliens.” Id. at 61. Finally, the Seventh Circuit held that the 1998 law “deemed” a permanent resident to be a citizen of her State but only in addition to her foreign citizenship. Intec USA, LLC v. Engle, 467 F.3d 1038, 1042-43 (7th Cir. 2006). Consequently, the court dismissed a suit brought by a limited liability company with one non-citizen member. Because the permanent resident member of the plaintiff carried New Zealand citizenship as well as the “deemed” United States citizenship, the case lacked the necessary complete diversity. Id. In December 2011, Congress changed the statute again and resolved this dispute. Congress eliminated the language deeming a permanent resident to be a citizen of her state of residence, instead providing that “the district courts shall not have original jurisdiction… of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” Pub. L. No. 112-63 (H.R. 394), 125 Stat. 758 (2011). The new language still precludes lawsuits between permanent residents and citizens living in the same State. In light of prior case law, however, it effectively restores the ban on lawsuits between a non-citizen on one side and a citizen and a non-citizen on the other. At the same time, Congress placed the non-citizen residence restriction solely within § 1332(a)(2). Thus, under § 1332(a)(3), a citizen of one state may add a non-citizen from the same State as an additional party, so long as the primary suit involves a citizen from another state. That would not have been possible under the 1988 provision. See Wright & Miller, Federal Practice and Procedure § 3604 (2012). United States Citizens Residing Abroad Unlike diversity jurisdiction involving non-citizen permanent residents, diversity jurisdiction over United States citizens residing abroad has remained completely consistent — it simply doesn’t exist. Federal courts have uniformly held that the statutory grant of diversity jurisdiction does not extend to citizens domiciled outside of the country, and Congress has never responded by changing the law. This result may seem surprising, but courts have consistently held that the specific language of § 1332(a) compels this conclusion. The four subsections of that section grant jurisdiction over disputes between “citizens of different States” or between “citizens of a State” and another category of person or party. 28 U.S.C. §§ 1332(a)(1)-(4). For a citizen to fall within this language, the individual “must be both (1) a citizen of the United States and (2) a citizen of a particular state.” Sadat v. Mertes, 615 F.2d 1176, 1180 (7th Cir. 1980). A citizen domiciled abroad is no longer a citizen of a particular state under the statute and cannot invoke diversity jurisdiction. Smith v. Carter, 545 F.2d 909, 911 (5th Cir. 1977) (holding that a United States citizen living in Canada cannot invoke diversity jurisdiction because he is neither a citizen of a particular State nor a foreign subject). See also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (“In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State.”). Some courts have recognized scholarly criticism of the rule excluding citizens living abroad from diversity jurisdiction. See, e.g., Sadat, 615 F.2d at 1180 n.4. Other courts have expressed surprise that Congress has not addressed this gap in federal diversity jurisdiction. For example, the Fifth Circuit “recognize[d] the anomaly of the existing rule” but insisted that Continued on page 56 The Circuit Rider 56 Home Away from Home Continued from page 55 “Congress is the appropriate body to make such a change.” Smith, 945 F.2d at 912. Similarly, the Second Circuit noted “we are unclear as to Congress’s rationale for not granting United States citizens domiciled abroad rights parallel to those it accords to foreign nationals” but concluded that “the language of § 1332(a) is specific and requires the conclusion that a suit by or against United States citizens domiciled abroad may not be premised on diversity.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d. Cir. 1990). As a result, no court has found any reason for “upsetting settled law.” Sadat, 615 F.2d at 1180. Courts have consistently applied this diversity rule in a wide variety of settings, focusing on a party’s domicile at the time the complaint was filed. The Seventh Circuit recently ordered supplemental briefing on the domicile of a United States citizen plaintiff apparently residing in Greece. Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, 867 (7th Cir. 2012). Although the court noted that “a United States citizen who establishes domicile in a foreign country is no longer a citizen of any State of the United States and destroys complete diversity under 28 U.S.C. § 1332,” the court determined that the plaintiff had moved to Greece two years after the complaint had been filed and had therefore satisfied diversity requirements. Id. at 867-68. By contrast, in Sadat, 615 F.2d 1176, a naturalized American citizen filed claims arising out of a car accident he experienced in 1973 on the way to the airport to relocate to Beirut as part of a new job. He left Beirut in 1975, filed a lawsuit in 1976 while living in Egypt, and returned to the United States in 1978. Although he claimed he intended to return to the United States in 1975 and never intended to stay in Egypt, the Seventh Circuit concluded that he had not reestablished domicile in the United States at the time of the lawsuit and affirmed dismissal for lack of diversity jurisdiction. Id. at 1181. Thus, any attorney representing a United States citizen residing abroad for significant periods should consider how that individual’s domicile affects potential diversity jurisdiction. Moreover, attorneys representing partnerships or limited liability companies should realize that any citizen partners or members of those entities residing abroad could preclude diversity jurisdiction. For diversity purposes, a partnership assumes on the citizenship of each of its partners, and any partner domiciled abroad precludes diversity jurisdiction over the partnership as a whole. Cresswell, 922 F.2d at 69. In Herrick Co. v. SCS Communications, 251 F.3d 315 (2d. Cir. 2001), plaintiffs sued over a failed joint venture and added the attorneys, Skadden Aarps as defendants. After an adverse verdict, the defendants pointed to the number of Skadden attorneys working overseas, leading the Second Circuit to vacate the judgment and remand for further consideration of jurisdictional issues. Similarly, in Swiger v. Allegheny Energy, Inc., 540 F.3d 179 (3d Cir. 2008), the plaintiff brought a diversity action against his former employer and the employer’s law firm, Morgan Lewis. The Third Circuit affirmed dismissal for lack of jurisdiction because one partner in the defendant law firm had dual United States/United Kingdom citizenship and was domiciled in the United Kingdom. Id. at 184-85. The court noted that “Morgan Lewis has a stateless partner, and thus, all partners of Morgan Lewis are not diverse from all parties on the opposing side.” Id. at 185. See also Coudert Bros. v. Easyfind Intern., Inc., 601 F.Supp. 525 (S.D.N.y. 1985) (remanding to state court for lack of diversity jurisdiction because the plaintiff law firm had citizen partners domiciled abroad). At first glance, the absence of diversity jurisdiction for United States citizens living abroad appears to be a quirky, somewhat obscure rule of federal jurisdiction. Because every partnership or limited liability company assumes the citizenship of each of its members, however, this seemingly minor rule may have a much larger impact than it first appears.