     Case: 12-30998       Document: 00512350046         Page: 1     Date Filed: 08/21/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 21, 2013

                                       No. 12-30998                        Lyle W. Cayce
                                                                                Clerk

KEYBANK NATIONAL ASSOCIATION,

                                                  Plaintiff-Appellee
v.

PERKINS ROWE ASSOCIATES, L.L.C.; PERKINS ROWE ASSOCIATES II,
L.L.C.; PERKINS ROWE BLOCK A CONDOMINIUMS, L.L.C.; JOSEPH T.
SPINOSA,

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CV-497


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellee KeyBank National Association (“KeyBank”) provided
Defendants-Appellants, collectively referred to as “Perkins Rowe,” with a loan
for $170 million to construct a mixed-use development in Baton Rouge,
Louisiana. When Perkins Rowe defaulted on its loan obligations, Keybank
began this mortgage foreclosure suit. During the course of the litigation, the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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district court ordered that Perkins Rowe’s counterclaims and defenses to the
foreclosure be dismissed as a sanction for discovery abuses, and it subsequently
granted KeyBank summary judgment. Perkins Rowe appeals both of those
orders and also challenges the district court’s diversity jurisdiction.      We
AFFIRM.
                                       I.
      KeyBank provided the initial loan to Perkins Rowe in July 2006. Perkins
Rowe signed a mortgage and promissory note in KeyBank’s favor for the full
amount of the loan, and individual defendant Joseph “Tommy” Spinosa signed
a personal guaranty. Pursuant to the loan agreement, KeyBank sold and
assigned portions of the loan to eight other banks, none of whom are parties in
this suit, but it retained a $35 million interest in the loan. Although Perkins
Rowe signed separate promissory notes in favor of each of the other banks, the
loan agreement contemplated that KeyBank would act as the agent for all of the
lenders and maintain authority to pursue default remedies as if it were the
holder of all the loans. After Perkins Rowe defaulted on its obligations in 2008,
KeyBank filed the instant suit to foreclose on the loan and to enforce the
guaranty.
                                       II.
      On appeal, Perkins Rowe argues first that the district court lacked
diversity jurisdiction. Although KeyBank, a citizen of Ohio, is diverse from
Perkins Rowe, a citizen of Louisiana, Perkins Rowe contends that the court must
also consider the citizenship of the other non-party banks with interests in the
loan. Because one of those lenders, Bank of New Orleans, is also a Louisiana
citizen, Perkins Rowe asserts that complete diversity is lacking and there is no
federal jurisdiction.
       We review de novo a determination of federal diversity jurisdiction.
McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004). Federal

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jurisdiction extends to controversies between “citizens of different States.” 28
U.S.C. § 1332(a)(1). This statutory provision “require[s] complete diversity
between all plaintiffs and all defendants.” Lincoln Prop. Co. v. Roche, 546 U.S.
81, 89, 126 S. Ct. 606, 613 (2005). When considering whether there is diversity
jurisdiction, “a federal court must disregard nominal or formal parties and rest
jurisdiction only upon the citizenship of real parties to the controversy.”
Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461, 100 S. Ct. 1779, 1782 (1980).
      Perkins Rowe contends that because the other lending banks have an
interest in the loan they are real parties to the controversy and must be
considered for diversity purposes. However, “[t]he ‘real party to the controversy’
test does not require a federal court to consider the citizenship of non-parties
who have an interest in the litigation or might be affected by the judgment.”
Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 865 n.10 (5th Cir. 2003). “The
‘real party to the controversy’ test requires consideration of the citizenship of
non-parties when a party already before the court is found to be a non-stake
holder/agent suing only on behalf of another.” Id. (citing Navarro Sav. Ass’n, 446
U.S. at 458, 100 S. Ct at 1779). That is not the case here.
      KeyBank is the only party plaintiff in this case and is authorized under
the loan agreement to pursue default remedies, which will then bind the other
lenders. The fact that the other banks have an interest in the outcome of the
foreclosure does not affect the diversity analysis because KeyBank has a real
interest in the suit, and it is not acting solely on behalf of others for the purpose
of creating diversity jurisdiction. See id. at 863; cf. Airlines Reporting Corp. v.
S & N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995) (holding there was no
diversity jurisdiction where the named plaintiff was an agent of several
unnamed parties because the plaintiff was “a mere conduit for a remedy owing
to others, advancing no specific interests of its own”).



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      We are unpersuaded by Perkins Rowe’s reliance on the Supreme Court’s
decision in Carden v. Arkoma Assocs., 494 U.S. 185, 195–96, 110 S. Ct. 1015,
1021 (1990), which held that when a single unincorporated association, including
a limited partnership, is a party to a suit the federal court must consider the
citizenship of all the association’s members, i.e. not only the general partner but
also all the limited partners. Perkins Rowe contends that KeyBank’s role in the
financing arrangement is akin to that of a general partner. However, unlike
Carden, there is no artificial entity or association before the court whose
members’ citizenship may be considered. See Carden, 494 U.S. at 187 n.1, 110
S. Ct. at 1017 n.1 (noting that Court there was deciding the question of “how the
citizenship of [a] single artificial entity is to be determined”); see also
BancorpSouth Bank v. Hazelwood Logistics Ctr., LLC, 706 F.3d 888, 893–95 (8th
Cir. 2013) (holding under similar circumstances that there was diversity
jurisdiction in a suit by a bank against the borrower where the bank had sold
undivided interests in the loan to other non-party banks, and the borrower had
not shown that the non-parties were necessary parties to the suit under Rule
19). Here, there is only one opposing party, KeyBank, and that party is diverse
from Perkins Rowe.
      Whether the other non-party banks in this case are necessary parties
whose joinder would defeat diversity is a much different question. See Lincoln
Prop., 546 U.S. at 90, 126 S. Ct. at 614 (“Rule 19 provides for the joinder of
parties who should or must take part in the litigation to achieve a just
adjudication.” (internal quotation marks, alterations, and citation omitted)); see
also 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1607 (noting that under Rule 19(b) if a party should but cannot be joined
because joinder would defeat subject matter jurisdiction, the district court must
determine whether “in equity and good conscious” the case should proceed or be
dismissed). Although the district court determined that the other banks were

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not necessary parties under Rule 19, Perkins Rowe has not briefed that issue,
and we do not consider it. See, e.g., Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994) (holding that an appellant abandons issues not raised and argued in
its initial brief on appeal).
      We hold that because KeyBank is the only party plaintiff and has a real
and substantial interest in the suit, and there is no showing that KeyBank is a
mere nominal party used to manufacture federal jurisdiction, its citizenship is
the only proper consideration. There is no dispute that KeyBank is diverse from
the defendant. The district court therefore had subject matter jurisdiction.
                                       III.
      Perkins Rowe next challenges the district court’s order dismissing its
defenses and counterclaims as a sanction for discovery abuses, claiming that
there was no willful or contumacious conduct on its part. We review the district
court’s imposition of sanctions for an abuse of discretion. See Brown v. Oil States
Skagit Smatco, 664 F.3d 71, 76 (5th Cir. 2011); Topalian v. Ehrman, 3 F.3d 931,
934 (5th Cir. 1993) (“[T]he question we address is not whether this Court, in its
own judgment and as an original matter, would have imposed any of these
sanctions. Rather, we only ask whether the district court abused its discretion
in doing so.”). We review the district court’s factual findings underlying its
sanctions order for clear error. Brown, 664 F.3d at 77.
      District courts may impose sanctions on a party who fails to obey a
discovery order, including striking pleadings or dismissing an action in whole or
in part. See Fed. R. Civ. P. 37(b)(2)(A)(iii) & (v). The sanction of dismissal is
“authorized only when the failure to comply with the court’s order results from
willfulness or bad faith . . . [and] where the deterrent value of Rule 37 cannot be
substantially achieved by the use of less drastic sanctions.” Smith v. Smith, 145
F.3d 335, 344 (5th Cir. 1998) (internal quotation marks and citation omitted).
“The reviewing court may also consider whether the discovery violation

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prejudiced the opposing party’s preparation for trial, and whether the client was
blameless in the violation.” United States v. $49,000 Currency, 330 F.3d 371,
376 (5th Cir. 2003).
      In the instant case, we need not recite in great detail the contentious
history and numerous discovery issues, which are well known to the parties.
Suffice it to say that there were multiple discovery disputes, resulting in
numerous motions to compel filed by both sides and requiring in our view
inordinate intervention by the magistrate judge and the district court, who
together issued some fifteen orders related to discovery. Briefly, the history in
this case included the following motions and findings by the court.
      First, Perkins Rowe sought to depose three KeyBank witnesses on the eve
of expiration of the first discovery deadline by seeking information that the
magistrate judge found was irrelevant. The magistrate judge also found that
Perkins Rowe gave inadequate notice of the depositions, improperly served the
notices, and unjustifiably sought an extension of the discovery deadlines. The
magistrate judge quashed the depositions and assessed costs against Perkins
Rowe.
      Perkins Rowe subsequently produced a redacted expert report, which the
magistrate judge found was improper. The court held that Perkins Rowe’s
production of the report was “not substantially justified,” “not harmless,” and
lacked a “good faith basis for the redactions.” The court again assessed costs
against Perkins Rowe on KeyBank’s motion to strike.
      Perkins Rowe next improperly sought to quash subpoenas issued by
KeyBank for documents from third-parties. The magistrate judge found that
Defendant Spinosa had ducked service of the notices and that the defendants
were attempting to delay the case. Then, with respect to a subsequent motion
to compel filed by Perkins Rowe, the magistrate judge found that the motion was
not substantially justified and that Perkins Rowe failed in good faith to seek

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resolution of the matter with KeyBank prior to seeking court intervention. The
court once again assessed costs against Perkins Rowe.
      Next, the magistrate judge’s February 25, 2011 order found that Perkins
Rowe’s responses to KeyBank’s discovery requests had asserted “blanket”
objections that were “meritless,” “legally unsupported,” and “baseless.” The
court required Perkins Rowe to re-serve complete answers. It also ordered that
“no objections” based on attorney-client privilege would be allowed unless
previously asserted. For the fourth time, the court ordered costs as a sanction.
In reviewing this order, the district court held that Perkins Rowe had
consistently “stonewalled” KeyBank in the discovery process. Despite these
findings by the court, Perkins Rowe violated the February 25 order by
continuing to assert a privilege objection and by withholding approximately
fifteen hundred documents from its production, prompting KeyBank to file a
motion for contempt.
      It was against this backdrop that the district court ordered Perkins Rowe’s
defenses and counterclaims dismissed.        We have carefully reviewed the
voluminous record and conclude that the district court did not abuse its
discretion. The court’s finding that the defendants repeatedly delayed and
thwarted the discovery process is not clearly erroneous.
      Although Perkins Rowe contends that its conduct was not willful and that
lesser sanctions should have been considered by the district court before
dismissal, we conclude that the continuing nature of Perkins Rowe’s discovery
conduct supported the willfulness finding. See, e.g., Bell v. Texaco, Inc., 493
F. App’x 587, 593 (5th Cir. 2012) (holding that willfulness may be found by
repeated failures to comply with discovery orders); see also Smith, 145 F.3d at
344 (holding that in finding willfulness or bad faith, the district court “was
entitled to rely on its complete understanding of the parties’ motivations”).
Furthermore, because the district court had imposed costs on four prior

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occasions, it was not required to impose lesser sanctions before ordering
dismissal. See Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir.
1984) (“When lesser sanctions have proved futile, a district court may properly
dismiss a suit with prejudice.”); Bell, 493 F. App’x at 593 (holding that a Rule 37
dismissal was not erroneous where the district court had ordered monetary
reimbursement prior to dismissing the case). In light of its findings that Perkins
Rowe had filed numerous meritless or unsupported motions and objections and
then violated a court order, which we do not find to be clearly erroneous, the
district court’s sanction order was not an abuse of discretion.
      Perkins Rowe contends, however, that it did not receive adequate warning
that the district court might dismiss its defenses and counterclaims as a sanction
because the district court never expressly mentioned dismissal as a possible
outcome. KeyBank’s motion for contempt, however, expressly asked that the
defenses and counterclaims be dismissed. At a subsequent status conference,
the district judge specifically discussed the imposition of sanctions, and even
mentioned possibly placing Spinosa in jail. Moreover, Perkins Rowe had already
been sanctioned on four occasions with the lesser penalty of costs. Under these
circumstances, we conclude that Perkins Rowe had sufficient notice that severe
sanctions could be forthcoming, including the dismissal of its defenses and
counterclaims, for continued discovery abuses, and its claim of lack of notice is
without merit.
      Perkins Rowe’s claim that the dismissal sanction was a violation of due
process is similarly without merit. A district court’s Rule 37(b)(2) sanction order
generally must meet two standards: “[f]irst, any sanction must be ‘just’; second,
the sanction must be specifically related to the particular ‘claim’ which was at
issue in the order to provide discovery.” Ins. Corp. of Ireland, Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 707, 102 S. Ct. 2099, 2107 (1982). Perkins
Rowe characterizes the sanction order as unjust and resulting solely from the

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failure to obey the magistrate judge’s February 25 order. But the district court
dismissed the counterclaims and defenses because of Perkins Rowe’s history and
pattern of dilatory tactics, filing frivolous discovery motions and meritless
objections, and then, as a final straw, failing to follow the clear directive of the
February 25 order. We conclude that the district court properly exercised its
discretion under Rule 37, and we find no due process violation.
                                        IV.
      Finally, Perkins Rowe argues that the district court erroneously granted
KeyBank summary judgment. It contends that even after the dismissal of its
defenses and counterclaims, factual issues remained. We review the district
court’s grant of summary judgment de novo, applying the same standards as the
district court. ACE Am. Ins. Co. v. M-I, L.L.C., 699 F.3d 826, 830 (5th Cir. 2012).
      Perkins Rowe’s brief is largely conclusory, and the only real dispute that
we discern concerns the amount of the debt owed on the loan. Perkins Rowe’s
argument essentially comes down to its assertion that it was entitled to a lower
interest rate than the rate used by KeyBank and that KeyBank failed to account
adequately for revenue and apply the net positive cash flow from the property
to the debt. We are unpersuaded. A comparison of the expert affidavits shows
no dispute concerning the principal amount due on the loan or the late charges
applied to the debt but does show a difference as to the interest rate to be
applied. Perkins Rowe contends that because it met certain equity benchmarks,
the loan agreement allowed for a reduction in the interest rate. The district
court correctly concluded, however, that the reduction was permitted only if
Perkins Rowe did not default. Perkins Rowe’s default necessarily meant that it
was not entitled to the reduction. Thus, there is no genuine issue of fact as to
the proper interest rate.
      Perkins Rowe also fails to show an issue of fact with respect to the net
cash flow. The evidence showed that revenue generated from the project was

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maintained in a reserve holding account and made available to the Keeper to
cover costs and expenses for the operation, maintenance, and preservation of the
property. As noted by the district court, this procedure was consistent with the
terms of the loan agreement. To the extent Perkins Rowe argues that the
revenue generated from the project should have been applied to the debt, or that
KeyBank or the Keeper failed to account for the revenue, its argument is
unavailing because KeyBank was not contractually required to apply the funds
to the debt first.
      Perkins Rowe also argues that the district court erroneously denied it the
opportunity for further discovery on the amount of the debt by deposing various
witnesses. Its four-sentence argument is inadequately briefed and improperly
attempts to incorporate by reference an affidavit filed in the district court. See,
e.g., Perillo v. Johnson, 79 F.3d 441, 443 n.1 (5th Cir. 1996) (holding that
appellant may not incorporate by reference arguments made in district court
pleadings). We conclude that the district court did not err in granting KeyBank
summary judgment.
      AFFIRMED.




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