                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2008

Trustee Gen Assembly v. Patterson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2109




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Recommended Citation
"Trustee Gen Assembly v. Patterson" (2008). 2008 Decisions. Paper 188.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/188


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                                                  NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                       No. 07-2109
                      _____________

     THE TRUSTEES OF THE GENERAL ASSEMBLY
        OF THE CHURCH OF THE LORD JESUS
       CHRIST OF THE APOSTOLIC FAITH, INC.,

                                     Appellant,

                             v.

     ANTHONEE PATTERSON; KENNETH SHELTON


       Consolidated Appeal from the United States
   District Court for the Eastern District of Pennsylvania
                     (Civ. No. 07-0024)
     District Court Judge: Honorable Anita B. Brody

                      _____________

     Nos. 07-2270, 07-2378, 07-2392, 07-2419 & 07-2778
                      _____________

   ANTHONEE PATTERSON, as General Overseer of the
    Minority Faction of TRUSTEES OF THE GENERAL
   ASSEMBLY OF THE CHURCH OF THE LORD JESUS
       CHRIST OF THE APOSTOLIC FAITH, INC.,

                             v.

      KENNETH SHELTON, individually and as the
       General Overseer of the TRUSTEES OF THE
    GENERAL ASSEMBLY OF THE CHURCH OF THE
  LORD JESUS CHRIST OF THE APOSTOLIC FAITH, INC.


TRUSTEES OF THE GENERAL ASSEMBLY OF THE CHURCH
   OF THE LORD JESUS CHRIST AND THE APOSTOLIC
          FAITH, INC.; INDIVIDUAL TRUSTEES OF THE
      TRUSTEES GENERAL ASSEMBLY OF THE CHURCH OF
    THE LORD JESUS CHRIST OF THE APOSTOLIC FAITH, INC.,
      JOHN C. S. THOMAS, J. LEON BLIGEN, ERIK SHELTON,
  A. WOODARD REAGAN, JOHN R. BROWN, JAMES H. BROWN, I,
   AND ANTHONY E. LAMB; THE GENERAL ASSEMBLY OF THE
         CHURCH OF THE LORD JESUS CHRIST OF THE
                       APOSTOLIC FAITH,

                                    Intervenors in District Court


        ANTHONEE PATTERSON, as General Overseer of the
         Minority Faction of TRUSTEES OF THE GENERAL
        ASSEMBLY OF THE CHURCH OF THE LORD JESUS
            CHRIST OF THE APOSTOLIC FAITH, INC.,

                                     Appellant in No. 07-2270

    TRUSTEES OF THE GENERAL ASSEMBLY OF THE CHURCH
   OF THE LORD JESUS CHRIST OF THE APOSTOLIC FAITH, INC.,

                                    Appellants in No. 07-2378

                     KENNETH SHELTON,

                                    Appellant in No. 07-2392

      GENERAL ASSEMBLY OF THE CHURCH OF THE LORD
      JESUS CHRIST OF THE APOSTOLIC FAITH BY CHURCH
        MEMBERS CARLTON MORRISON, DIANE TAYLOR,
        ANDREW SCOTT, AND C. KATHERLINE WILLIAMS,
        TRUSTEES AD LITEM, AND CARLTON MORRISON,
 DIANE TAYLOR, ANDREW SCOTT, AND C. KATHERLINE WILLIAMS
(COLLECTIVELY THE ‘GENERAL ASSEMBLY’ OR ‘INTERVENORS’),

                                    Appellants in No. 07-2419

       INDIVIDUAL TRUSTEES OF THE TRUSTEES OF THE
      GENERAL ASSEMBLY OF THE CHURCH OF THE LORD
         JESUS CHRIST OF THE APOSTOLIC FAITH, INC.;
      SPECIFICALLY, JOHN C. S. THOMAS, J. LEON BLIGEN,
            ERIK SHELTON, A. WOODARD REAGAN,


                             -2-
                     JOHN R. BROWN, JAMES H. BROWN, I, AND
                               ANTHONY E. LAMB,

                                                   Appellants in No. 07-2778


                      Consolidated Appeal from the United States
                  District Court for the Eastern District of Pennsylvania
                                    (Civ. No. 06-5060)
                    District Court Judge: Honorable Anita B. Brody

                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 November 21, 2008
                                    ___________

             Before: FUENTES, HARDIMAN and GARTH, Circuit Judges

                          (Opinion Filed: November 28, 2008)
                                      ___________

                                       OPINION
                                      ___________


GARTH, Circuit Judge:

      Anthonee Patterson (“Patterson”) was a member of the Church of the Lord Jesus

Christ of the Apostolic Faith (“the Church”). In 1995, Patterson sued fellow congregant

and then-head of the Church Kenneth Shelton (“Shelton”)1 and his brother Erik for an

accounting of funds, and for appointment of a receiver, alleging misappropriation.


      1
         Also involved in this case are the Intervenors on appeal: The General Assembly
of the Church, the Individual Trustees of the General Assembly of the Church, and the
Trustees of the General Assembly of the Church (the Church Corporation), who adopt
the arguments set forth in Shelton’s brief.

                                            -3-
Shelton filed a counterclaim for fraud. The parties agreed in 2006 to arbitrate the claims

before retired Magistrate Judge Edwin Naythons.

       Judge Naythons found in favor of Patterson in a series of awards on April 26,

2006, May 8, 2006, May 16, 2006, and October 3, 2006. The April 26, 2006 award was

the principal judgment finding Shelton and his affiliates liable for various acts. Patterson

petitioned to confirm that award in the Philadelphia Court of Common Pleas. That Court

confirmed the award on July 10, 2006.2 Shelton appealed.

       Patterson also sought to confirm the October 3, 2006 award, which awarded

damages. Shelton opposed the confirmation of the October 3, 2006 award.3 On January

31, 2008, the Commonwealth Court of Pennsylvania, in ruling on Shelton’s appeal of July

10, 2006, reversed the Court of Common Pleas’ confirmation of the April 26, 2006

award, and instructed the Court of Common Pleas to vacate all of Judge Naythons’s

awards on the grounds that Judge Naythons had exceeded the scope of his authority. It

thereupon remanded the case to the Court of Common Pleas “to conduct the proper

proceedings consistent with the foregoing opinion to determine whether Anthonee J.

Patterson is entitled to relief pursuant to the Pennsylvania Nonprofit Corporation Law.”

Supp. Appx. 232.


       2
          The record indicates that the May 8, 2006 award was also confirmed. Appx. 51.
It is questionable, however, if the May 16, 2006 award was confirmed. Appx. 51, 58.
       3
        This appeal from the confirmation of the October 3, 2006 award remained
pending at the time Patterson filed his action in the United States District Court for the
Eastern District of Pennsylvania, on November 15, 2006.

                                             -4-
           Patterson filed a Petition for Allowance of Appeal in the Supreme Court of

Pennsylvania. On November 15, 2006, Patterson filed a Petition/Motion to confirm the

awards in the United States District Court for the Eastern District of Pennsylvania

pursuant to the Federal Arbitration Act (“FAA”).4 Shelton and several intervening

Church entities moved to dismiss and/or vacate the petition for lack of subject matter

jurisdiction or, alternatively, for Judge Naythons’s failure to set forth a proper award, for

partiality and misconduct, for exceeding the scope of his powers, and for manifestly

disregarding the law. Supp. Appx. 128.

       On April 6, 2007, the District Court held a telephone conference to discuss

jurisdiction. The parties argued that jurisdiction was based upon diversity since Patterson

was from Florida and Shelton was from Pennsylvania. However, when pressed further,

counsel for Patterson indicated that “the minority trustees” were also plaintiffs – although

not named in the caption – and that counsel, himself, was one of the trustees, and he

resided in Pennsylvania. Appx. 122. The District Court dismissed the case sua sponte for

lack of diversity jurisdiction.

       On April 25, 2007, Patterson filed a timely notice of appeal of the District Court’s

dismissal.5 This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The District


       4
           9 U.S.C. § 1 et seq.
       5
         While Patterson’s federal appeal of the District Court’s order of dismissal was
pending before us, we were notified that the Pennsylvania Supreme Court denied
Patterson’s Petition for Allowance of Appeal, thus leaving undisturbed the
Commonwealth Court’s order vacating the arbitration awards and remanding for further

                                              -5-
Court’s jurisdiction under 28 U.S.C. § 1332 is in question.

       “We review de novo the District Court’s dismissal for lack of [diversity]

jurisdiction.” Metro. Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir. 2007). The FAA

does not create independent federal question jurisdiction. The Supreme Court has held

that an independent basis for jurisdiction must exist, such as diversity. Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 n.32 (1983). We agree with

Shelton that there is insufficient evidence of the residence of the parties to satisfy our

diversity jurisdiction requirements. The petition need not affirmatively allege diversity

jurisdiction if the parties otherwise plead the elements. See Smith Barney, Inc. v. Sarver,

108 F.3d 92, 95 (6th Cir. 1997); Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1019 (3d

Cir. 1987). However, Patterson has not satisfied this standard. We will affirm the

District Court’s holding that the lack of diversity jurisdiction mandated a dismissal of the

action.6

       The motion to expand the record is accordingly denied.




proceedings.
       6
         Shelton had raised the issues of res judicata and collateral estoppel in his brief on
appeal to us. In light of our affirmance of the District Court’s dismissal based on lack of
diversity jurisdiction, we do not address Shelton’s issues.


                                              -6-
