              Case: 20-10079       Date Filed: 08/18/2020   Page: 1 of 13



                                                                [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 20-10079
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 9:17-cv-80286-RLR



MID-CONTINENT CASUALTY COMPANY,
a foreign corporation,

                                            Plaintiff - Counter Defendant - Appellee,

versus

JWN CONSTRUCTION, INC.,
an inactive Florida corporation,

                                              Defendant - Counter Claimant,

UNDERWRITERS AT LLOYD’S, LONDON,
a foreign corporation,
a.k.a. Dr. Michael Flax,

                                                   Defendant,

MICHAEL D. FLAX,
an individual,

                                                     Defendant - Appellant.
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                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (August 18, 2020)

Before JORDAN, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Defendant Michael D. Flax appeals the district court’s order granting in part

Plaintiff Mid-Continent Casualty Company’s motion to award attorney’s fees and

costs following a grant of summary judgment to Plaintiff. Defendant Flax does not

challenge the correctness of the district court’s summary judgment or fee award

orders or dispute Plaintiff’s status as a prevailing party entitled to be awarded costs

in the district court action. Instead, Flax asserts only that the district court orders

should be vacated because the district court lacked subject matter jurisdiction over

this diversity action.

      As to that assertion, it is undisputed that Plaintiff failed to establish in its

complaint that complete diversity existed between it and all co-defendants. In

particular, Plaintiff concedes it did not sufficiently allege facts establishing the

citizenship of the syndicates of co-defendant Underwriters at Lloyd’s, London

(“Lloyd’s”). Nevertheless, following settlement of all claims asserted by Plaintiff

against Lloyds, the district court dismissed Lloyd’s pursuant to Federal Rule of


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Civil Procedure 21, which permits district courts to dismiss a dispensable,

nondiverse party at any time. After careful review, we find the Rule 21 dismissal

of Lloyd’s cured any jurisdictional defect that existed at inception of this case and

we affirm the district court’s order awarding costs to Plaintiff.

I.    BACKGROUND
      Defendant Flax (hereinafter “defendant Homeowner”) contracted with

Defendant JWN Construction, Inc. (hereinafter “defendant Builder”) to build a

residential home. Defendant Builder had a general commercial liability insurance

policy with Plaintiff; defendant Lloyd’s issued defendant Homeowner a

homeowner’s insurance policy.

      Defendant Homeowner’s home suffered water damage. Lloyd’s made

payments to defendant Homeowner for the damage pursuant to the insurance

policy it had issued to him.

      Defendant Homeowner and Lloyd’s then sued defendant Builder in Florida

state court, alleging faulty workmanship. Given that litigation, and invoking

federal diversity jurisdiction, Plaintiff filed the present declaratory judgment action

to determine whether, as defendant Builder’s commercial liability insurer, it owed

a duty to indemnify and defend its insured in the state court action.

      Plaintiff named Lloyd’s as a defendant in its capacity as subrogee and

property insurer for defendant Homeowner. Plaintiff alleged that “Lloyd’s is a


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foreign insurer authorized to transact business in Florida,” but did not allege the

citizenship of the Lloyd’s syndicates that underwrote the policy issued to defendant

Homeowner. Nevertheless, Defendants litigated Plaintiff’s claim without

articulating any potential jurisdictional issue based on that omission.

       On December 19, 2017, about nine months after initiating this suit, Plaintiff

filed a motion for summary judgment against defendant Homeowner and defendant

Builder. On that same day, Plaintiff filed a Notice of Settlement advising the

district court that it had settled with Lloyd’s and would file a stipulation for

dismissal of all claims against Lloyd’s once the settlement documents were signed.

Thus, Plaintiff did not file for summary judgment against Lloyd’s. 1

       In its summary judgment order, the district court determined that the general

commercial liability insurance policy Plaintiff issued to defendant Builder did not

require it to indemnify or defend defendant Builder in the state court suit brought

by defendant Homeowner alleging negligent construction of his home.

Accordingly, the district court entered final judgment in favor of Plaintiff against

defendant Homeowner and defendant Builder.




1
  Plaintiff stated in its summary judgement papers that it had settled all claims between it and
Lloyd’s. It explained that the settlement pertained to the property damage payment that Lloyd’s
made to the homeowner, and was not payment for any damages caused by alleged defective
construction work, which Lloyd’s maintained was excluded under the policy it issued to
defendant Homeowner.
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      As a prevailing party, Plaintiff moved for fees and costs. Shortly thereafter,

defendant Builder and defendant Homeowner appealed the summary judgment

decision. The district court exercised its discretion to stay Plaintiff’s motion for

fees and costs pending appeal.

      At the time the case came to us on appeal of the summary judgment ruling,

Plaintiff still had not filed the promised stipulation dismissing Lloyd’s from the

action. After reviewing the pleadings, we questioned whether subject matter

jurisdiction existed and requested the parties to provide their positions regarding

whether the pleadings sufficiently alleged the citizenship of Lloyd’s. We invited

the parties to address potential remedies to cure any jurisdictional deficiency. In

response, defendant Homeowner, joined by defendant Builder, argued that

Plaintiff’s complaint failed to adequately identify and allege the citizenship of

Lloyd’s’ syndicates, that Plaintiff could not cure that defect, and that we should

therefore dismiss the action for lack of subject matter jurisdiction and vacate all

decisions of the district court.

      Plaintiff responded to our jurisdictional question by acknowledging that the

allegations in the complaint with respect to Lloyd’s were insufficient to establish

subject matter jurisdiction. However, Plaintiff explained that it had settled all

claims with Lloyd’s before the district court granted summary judgment and that

Lloyd’s was “no longer a party with any interest in this litigation.” Plaintiff argued


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the settlement cured any jurisdictional defect. Alternatively, Plaintiff filed a

motion to amend the pleadings and to supplement the record on appeal to cure the

jurisdictional defect in the complaint. Plaintiff proposed that it could either amend

its complaint to drop Lloyd’s as a party because the settlement agreement mooted

any issues between Plaintiff and Lloyd’s or it could amend its complaint and

supplement the record to establish that Lloyd’s was not a citizen of Ohio,

Plaintiff’s state of incorporation, or Oklahoma, Plaintiff’s principal place of

business, meaning that complete diversity would have existed.

      In view of the parties’ submissions, we posed two additional questions to

determine whether we had jurisdiction: (1) whether the district court’s judgment

was final in light of Plaintiff’s notice of anticipated settlement with Lloyd’s, but no

subsequent entry of dismissal of Lloyd’s and (2) whether Lloyd’s is a dispensable

party. We never heard from the parties on those questions because, despite

receiving three extensions, defendants Homeowner and Builder failed to timely file

their opening appeal briefs. Accordingly, we dismissed the appeal for want of

prosecution and deemed Plaintiff’s motion to amend the complaint and supplement

the record moot.

      The case returned to the district court for resolution of Plaintiff’s motion for

fees and costs that the district court had stayed pending appeal. Before the district

court considered Plaintiff’s motion, defendant Homeowner filed a motion to


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dismiss for lack of subject matter jurisdiction, arguing that the complaint describes

Lloyd’s as a necessary party, that the presence of Lloyd’s as a party destroyed

diversity, and, consequently, that the judgment should be vacated and the case

dismissed.

       Plaintiff and Lloyd’s responded by filing a Joint Stipulation of Dismissal

pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), dismissing Lloyd’s from the case with

prejudice. The next day, the district court entered a paperless order denying

defendant Homeowner’s motion to dismiss without prejudice because “a

fundamental premise of the Motion was that [Lloyd’s] was an active party to the

case and [Lloyd’s] has subsequently been dismissed from this case.” Although the

district court stated that defendant Homeowner could file an amended motion to

dismiss, he never did so.

       Instead, defendant Homeowner filed only a response to Plaintiff’s motion to

tax costs against the defendants, 2 challenging only Plaintiff’s calculation of those

costs 3 Defendant Homeowner did not dispute Plaintiff’s status as a prevailing

party. Nor did he raise any jurisdictional challenge in opposing Plaintiff’s

reinstated motion for costs. The Magistrate Judge issued a Report and



2
 Plaintiff informed the district court that it no longer sought attorneys’ fees in its reinstated
motion.
3
  Plaintiff had sought $14,183.27 in costs. Defendant Homeowner argued that Plaintiff should
be awarded only $6306.50 in costs.
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Recommendation (“R&R”) recommending that Plaintiff be reimbursed for

$9,954.30 in costs.

      It was only in his objections to the Magistrate Judge’s R&R that defendant

Homeowner, joined by defendant Builder, argued that “Plaintiff did not properly

dismiss Lloyd’s, and, since there was no jurisdiction at the time of filing of the

Complaint, an award of costs is inappropriate, and this Court must vacate any

orders and decisions and dismiss this action, for want of subject matter

jurisdiction.” Plaintiff asserted that the Lloyd’s dismissal came after he raised the

lack of subject matter jurisdiction and that it failed to comply with the requirement

of Fed. R. Civ. P. 41(a)(1)(A)(ii) that the stipulation of dismissal be “signed by all

parties who have appeared” because neither defendant Homeowner nor defendant

Builder had signed the dismissal.

      Plaintiff responded to defendant Homeowner’s jurisdictional objection,

noting that Rule 41(a) applies to dismissals of the entire action and that nothing in

the Federal Rules required Plaintiff to obtain defendant Homeowner’s signature to

dismiss its claims against Lloyd’s. Plaintiff also noted that Rule 21 permitted a

district court to drop a dispensable nondiverse party at any time.

      The district court adopted the Magistrate Judge’s R&R over defendant

Homeowner’s objections, awarding Plaintiff $9,954.30 in costs against defendant




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Homeowner and defendant Builder. As to the jurisdictional issue, the district court

stated:

       Plaintiff and Defendant [Lloyd’s] previously stipulated to the dismissal
       with prejudice of Lloyd’s. DE 126. The Court construes that
       Stipulation as a Motion to dismiss Lloyd’s as a party to this matter and
       grants the Motion nunc pro tunc. See Fed. R. Civ. P. 21; Newman-
       Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (explaining
       that Rule 21 permits a court to dismiss a dispensable, nondiverse party
       at any time, including after judgment has been rendered). This
       dismissal removes the question of whether complete diversity exists.
Defendant Homeowner now appeals the district court’s award of costs, raising only

the issue of whether subject matter jurisdiction exists in this case.

II.    DISCUSSION

       A.     Standard of Review
       Defendant Homeowner requests that we vacate all rulings of the district

court and dismiss this case for lack of subject matter jurisdiction. “The district

court’s subject matter jurisdiction is a question of law that we review de novo.”

United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016). As explained

below, we find that the district court’s dismissal of Lloyd’s pursuant to Federal

Rule of Civil Procedure 21 cured any jurisdictional defect that existed at the time

Plaintiff filed suit.




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      B.     The District Court Had Subject Matter Jurisdiction to Decide
             Plaintiff’s Claims Against Defendant Homeowner and Defendant
             Builder
      Defendant Homeowner contends that the district court lacked subject matter

jurisdiction from the inception of this action because the complaint described

Lloyd’s as a “necessary party” and failed to sufficiently allege Lloyd’s’

citizenship, a requirement to establish compete diversity. District courts have

subject matter jurisdiction based on diversity of citizenship if the amount in

controversy exceeds $75,000 and the case is between citizens of different states.

28 U.S.C. § 1332(a). “It is axiomatic that lack of complete diversity between the

parties deprives federal courts of jurisdiction over a lawsuit.” Ingram v. CSX

Transp., Inc., 146 F.3d 858, 861 (11th Cir. 1998). Complete diversity requires

“every plaintiff [to] be diverse from every defendant.” Triggs v. John Crump

Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). “The existence of federal

jurisdiction ordinarily depends on the facts as they exist when the complaint is

filed.” Newman-Green, 490 U.S. at 830.

      Here, Plaintiff concedes that allegations in its complaint with respect to the

citizenship of Lloyd’s were insufficient to establish complete diversity and provide

subject matter jurisdiction. But that does not end our inquiry. Federal Rule of

Civil Procedure 21 provides an exception to the general rule that jurisdiction

depends on the facts as they exist when the complaint is filed. Newman-Green,


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490 U.S. 826 at 830–32. Rule 21 states that “[o]n motion or on its own, the court

may at any time, on just terms, add or drop a party.” Fed R. Civ. P. 21. “[I]t is

well settled that Rule 21 invests district courts with authority to allow a

dispensable nondiverse party to be dropped at any time, even after judgment has

been rendered.” Id. at 832. The district court applied that well recognized

authority in construing the Joint Stipulation of Dismissal as a motion to dismiss

and dismissing Lloyd’s nunc pro tunc pursuant to Rule 21. 4

       We find defendant Homeowner’s assertion that the district court failed to

examine whether Lloyd’s was a necessary nondiverse party at the time of filing of

this action unpersuasive. This argument ignores the court’s authority to

retroactively restore complete diversity through a Rule 21 dismissal of a

dispensable party. Newman-Green, 490 U.S. at 832–33; Ingram, 146 F.3d at 862–

63. It is clear from the court’s ruling that it deemed Lloyd’s a dispensable party

following settlement of all claims Plaintiff asserted against Lloyd’s.5 Moreover,


4
  When dismissing Lloyd’s to cure the jurisdictional defect, the district court cited Rule 21 and
Newman-Green, complete with a parenthetical description of the relevant exception.
Nevertheless, defendant Homeowner never addressed Rule 21 or Newman-Green in his opening
brief. Instead, defendant Homeowner asserted without explanation that Lloyd’s “appears to still
be a party of record” and therefore “it is unnecessary to address the effect of their dismissal upon
diversity jurisdiction.” Compounding that error, defendant Homeowner incorrectly asserts in his
reply brief that the district court never mentioned the Rule 21 exception articulated in Newman-
Green. Defendant Homeowner’s assertion is clearly contradicted by the record.
5
  Defendant Homeowner belatedly argues in his reply brief that the district court never
determined that Lloyd’s was a dispensable party. Although the district court did not expressly
state that Lloyd’s was a dispensable party, the court’s invocation of Rule 21 and the citation of
Newman-Green for the proposition that “Rule 21 permits a court to dismiss a dispensable,
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defendant Homeowner makes no argument here, or below, that Lloyd’s was a

necessary or indispensable party following settlement of the claims against it and

we see nothing in the record to suggest that defendant Homeowner was prejudiced

by the dismissal of Lloyd’s.

        The district court need not engage in the pointless exercise of dismissing the

entire suit, only to have Plaintiff refile in the district court against only defendants

Homeowner and Builder. Newman-Green, 490 U.S. at 837. The district court

properly exercised its authority under Rule 21 to avoid that impracticality and cure

the admitted jurisdictional deficiency by dismissing Lloyd’s nunc pro tunc.

Therefore, we conclude that we have subject matter jurisdiction and we affirm the

district court’s order awarding costs incurred in the district court action to

Plaintiff. 6


nondiverse party at any time” clearly reflects a determination that Lloyd’s was a dispensable
party following settlement of all claims brought against Lloyd’s. Docket Entry 163 at 2
(emphasis added). In any event, we find Lloyd’s a dispensable party. “[C]ourts of appeals have
the authority to dismiss a dispensable nondiverse party” and retroactively restore complete
diversity. Newman-Green, 490 U.S. at 837; Ingram, 146 F.3d at 862–63. In its complaint,
Plaintiff described Lloyd’s as a “necessary” party because its “rights, if any, may be impacted by
the Court’s decision.” That is no longer true because Plaintiff settled all claims against Lloyd’s.
Moreover, the absence of Lloyd’s has no effect on whether complete relief could be afforded the
remaining parties on the question of coverage under the commercial general liabilities policy
issued by Plaintiff to defendant Builder. Accordingly, “it is evident that none of the parties will
be harmed by [Lloyd’s’] dismissal.” Newman-Green, 490 U.S. at 838.
6
   Plaintiff requests that we impose sanctions against defendant Homeowner under Federal Rule
of Appellate Procedure 38 for pursuing a frivolous appeal. In other words, Plaintiff seeks not
just the costs it has incurred in litigating the present appeal, which it will be awarded, but also its
attorney’s fees and expenses. “Rule 38 sanctions are appropriately imposed against appellants
who raise ‘clearly frivolous claims in the face of established law and clear facts.’” Parker v. Am.
Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016), quoting Farese v. Scherer, 342 F.3d
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III.     CONCLUSION

         For the reasons explained above, we AFFIRM the decision of the district

court.




1223, 1232 (11th Cir. 2003) (internal quotation marks omitted). “For purposes of Rule 38, a
claim is clearly frivolous if it is ‘utterly devoid of merit.’” Id., quoting Bonfiglio v. Nugent, 986
F.2d 1391, 1393 (11th Cir. 1993).
   Certainly defendant Homeowner’s appeal here is without merit, and it is a close call whether
one might also deem it to be a frivolous appeal. Yet, while we find defendant Homeowner’s
argument unpersuasive, we do not find it so utterly devoid of merit as to compel the awarding of
sanctions.
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