     13-4243-cv
     Song v. Inhae Corp.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of September, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                              Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DE PING SONG, YANG XU, BAI SONG LI,
14       CHUN SEN ZHU, YAN ZHANG, JIE LI,
15                Plaintiffs-Appellees,
16
17                    -v.-                                               13-4243
18
19       INHAE CORPORATION,
20                Appellant.**
21       - - - - - - - - - - - - - - - - - - - -X

                *
              Judge Lewis A. Kaplan, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                **
               The Clerk of Court is respectfully directed to amend
         the official caption in this case to conform to the caption
         as set forth above.
                                                  1
 1   FOR APPELLANT:             RICHARD H. DOLAN, Schlam Stone &
 2                              Dolan LLP, New York, New York.
 3
 4   FOR APPELLEES:             YOUNG WOO LEE, The Legal Aid
 5                              Society, New York, New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Eastern District of New York (Wexler, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court is
12   VACATED and REMANDED with instructions to DISMISS the
13   complaint without prejudice.
14
15        Inhae Corporation appeals from the judgment of the
16   United States District Court for the Eastern District of New
17   York (Wexler, J.), holding Inhae Corporation liable, on a
18   theory of successor liability, for a judgment entered
19   against the former owners of a nail salon in connection with
20   Fair Labor Standards Act violations. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24        “[E]very federal appellate court has a special
25   obligation to satisfy itself not only of its own
26   jurisdiction, but also that of the lower courts in a cause
27   under review.” Bender v. Williamsport Area Sch. Dist., 475
28   U.S. 534, 541 (1986) (internal quotation marks omitted).
29   “When the lower federal court lacks jurisdiction, we have
30   jurisdiction on appeal, not of the merits but merely for the
31   purpose of correcting the error of the lower court in
32   entertaining the suit.” Id. (internal quotation marks and
33   alterations omitted). “We review the question of subject-
34   matter jurisdiction de novo.” City of New York v. Mickalis
35   Pawn Shop, LLC, 645 F.3d 114, 126 (2d Cir. 2011).
36
37        Where a new substantive theory – here, successor
38   liability – is advanced to establish liability as to a new
39   party, some independent ground is necessary to assume
40   federal jurisdiction over the claim. Epperson v. Entm’t
41   Express, Inc., 242 F.3d 100, 106 (2d Cir. 2001) (recognizing
42   need for independent jurisdictional hook where a claim
43   “raise[s] an independent controversy with a new party in an
44   effort to shift liability”); see also Peacock v. Thomas, 516
45   U.S. 349, 357 (1996). No such independent ground has been

                                  2
 1   established here. See Kokkonen v. Guardian Life Ins. Co. of
 2   Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a
 3   cause lies outside [a federal court’s] limited jurisdiction,
 4   and the burden of establishing the contrary rests upon the
 5   party asserting jurisdiction” (internal citations omitted)).
 6
 7        For the foregoing reasons, the judgment of the district
 8   court is VACATED and the matter is REMANDED so that the
 9   district court may DISMISS the complaint without prejudice.
10   The mandate shall issue forthwith. Because the appeal has
11   been decided, the mandate to issue forthwith, Inhae
12   Corporation’s motion pursuant to Federal Rule of Appellate
13   Procedure 8(a)(2) is moot and denied as such.
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17




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