                                File Name: 20a0484n.06
                         NOT RECOMMENDED FOR PUBLICATION

                                         Case No. 19-3587

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                            Aug 18, 2020
BEANSTALK INNOVATION, INCORPORATED,                   )
                                                                        DEBORAH S. HUNT, Clerk
                                                      )
        Plaintiff-Appellant,                          )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE SOUTHERN DISTRICT OF
SRG TECHNOLOGY, LLC,                                  )      OHIO
                                                      )
        Defendant-Appellee.                           )
                                                      )
____________________________________/


Before: MERRITT, CLAY, and BUSH, Circuit Judges

        MERRITT, Circuit Judge.          Plaintiff Beanstalk Innovation, Inc., brings this appeal

following the district court’s grant of Defendant SRG Technology’s motion to dismiss the case for

lack of subject-matter jurisdiction. Plaintiff asks that we resolve this dispute under Fed. R. Civ. P.

60(b)(4) and reverse the district court, thereby upholding the district court’s earlier judgment

granting Plaintiff summary judgment. Rule 60(b)(4), however, applies to final judgments, and

because the district court’s order granting Plaintiff summary judgment was not final, we must

decide this case under Fed. R. Civ. P. 12(b)(1) and dismiss the action for lack of subject-matter

jurisdiction.
Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


                                                 I.

       Plaintiff Beanstalk Innovation, Inc. markets and resells technology, content, and media

products and services. Defendant SRG Technology is in the business of developing, licensing,

selling, maintaining, and operating various technology, content, and media products and services.

In 2014, the parties entered into an agreement whereby Plaintiff would provide direct sales services

for Defendant to aid Defendant in securing a contract with the Hamilton County, Ohio Education

Service Center. Defendant was to pay Plaintiff a sales fee of $437,500 in four equal installments

of $109,375. Each payment was due within 30 days of Defendant receiving the scheduled

payments of license fees from Hamilton County. Defendant made the first payment to Plaintiff on

schedule but failed to pay the second payment. Plaintiff then filed suit in the Southern District of

Ohio in October 2015 to recover the amount then owed under the contract.

       In January 2016, the parties entered into a settlement agreement under which Defendant

agreed to make the second payment, plus interest and attorney’s fees, in two payments on dates

specified by the agreement. Defendant also agreed to hold the third and fourth payments in trust

for Plaintiff’s benefit until Defendant paid Plaintiff. Per the settlement agreement, the case filed

in the district court was closed. Defendant then made the second and third payments as required.

Defendant, however, did not hold the fourth payment in trust for Plaintiff but admitted to

comingling the entirety of the license fee from Hamilton County Education Services with its

general funds and spent the money owed to Plaintiff on “operating expenses.”

       In August 2017, Plaintiff filed a second complaint in the district court alleging, among

other things, a breach of contract claim for failing to abide by the settlement agreement and a




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Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


violation of fiduciary duties claim.1 In its complaint, Plaintiff alleged that “Plaintiff is a Delaware

corporation with its principal place of business located in Middleton, Massachusetts.” Plaintiff

also claimed that Defendant “is a limited liability company organized under the laws of the State

of Florida with its principal place of business located in Fort Lauderdale, Florida.” Further,

Plaintiff asserted that the district court had “subject matter jurisdiction under 28 U.S.C. § 1332, as

the amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000, and this

matter is between citizens of different states.”2

         On November 10, 2017, Plaintiff moved for summary judgment on its claims of breach of

contract and breach of fiduciary duty. Plaintiff requested that the district court grant the motion

for summary judgment and order Defendant to pay Plaintiff the amount owed for the fourth

payment. Additionally, Plaintiff requested that the district court award interest, costs, and

attorney’s fees owed to Plaintiff and punitive damages for Defendant’s breach of fiduciary duties,

all of which were to be determined later. On November 21, 2017, Defendant filed an answer to

Plaintiff’s complaint, and admitted that the district court had subject-matter jurisdiction.3




1
         On the same day, Plaintiff filed a motion for a temporary restraining order requesting the district court to
enjoin Defendant from distributing the funds held in trust for Plaintiff except to the extent that Defendant distributed
the funds to Plaintiff. Alternatively, Plaintiff requested that the district court impose a constructive trust against
Defendant’s assets to protect the res of the trust while the litigation was pending. The district court imposed a
constructive trust and granted Plaintiff’s motion for a temporary restraining order.
2
         28 U.S.C. § 1332(a)(1) states:
         “The district courts shall have original jurisdiction of all civil actions where the matter in
         controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
                  (1) citizens of different States . . . .
         The parties do not dispute the satisfaction of the amount in controversy requirement. Nor do the parties
allege federal question jurisdiction.
3
          On November 24, 2017, Defendant’s local trial counsel moved to withdraw on the basis that Defendant had
not fulfilled its financial obligation. The district court granted the motion, and on December 14, 2018, Defendant’s
new counsel filed a notice of appearance.

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Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


       In September 2018, the district court granted Plaintiff’s motion for summary judgment and

awarded Plaintiff $109,375 in compensatory damages, but left for further briefing (on agreement

by the parties) the amount of prejudgment interest, costs, attorney’s fees, and punitive damages.

The district court entered judgment on September 19, 2018.

       On November 16, 2018, Plaintiff moved the district court to enforce the judgment, claiming

that Defendant refused to release the trust funds until Plaintiff’s counsel signed a “receipt” that

Plaintiff alleged “potentially extinguishe[d] [its] claims for interest, costs, attorney’s fees, and

punitive damages.” In that motion, Plaintiff also briefed the outstanding issues the district court

had left open—interest, costs, attorney’s fees, and punitive damages. Defendant failed to file a

responsive brief, and the district court entered an Order to Show Cause on December 31, 2018, as

to why Plaintiff’s motion should not be granted.

       On January 7, 2019, Defendant’s new counsel filed a response to the district court’s Order

to Show Cause and, within the response, moved the district court under Fed. R. Civ. P. 12(b)(1) to

dismiss the action for lack of subject-matter jurisdiction. The district court then entered a notation

order explaining that Defendant did not file an actual motion and ordered Defendant to file such

motion.

       Defendant then moved the district court to dismiss Plaintiff’s cause of action and vacate all

prior orders pursuant to Fed. R. Civ. P. 12(b)(1), or alternatively, Fed. R. Civ. P. 60(b)(4), claiming

that the parties lacked complete diversity because, according to an affidavit attached to the motion,

two of Defendant’s members have been Massachusetts residents since before the complaint was

filed. Plaintiff filed a response. The district court entered an order on May 29, 2019, granting

Defendant’s motion. This appeal followed.




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Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


                                                          II.

         Plaintiff maintains that we should decide this case under Fed. R. Civ. P. 60(b)(4) and

reverse the district court’s grant of Defendant’s motion to dismiss, thus reinstating the 2018 Order

granting Plaintiff summary judgment.4 Rule 60(b)(4), however, applies to final judgments, and

because the 2018 order was not final for purposes of 28 U.S.C. § 1291, 5 we do not reach a Rule

60(b)(4) analysis.

          “Judgments ‘where assessment of damages or awarding of other relief remains to be

resolved have never been considered to be “final” within the meaning of 28 U.S.C. § 1291.’”

Kovacic v. Cuyahoga Cty. Dep’t of Children and Family Servs., 724 F.3d 687, 693 (6th Cir. 2013)

(quoting Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976)). Plaintiff asserts that the Order

was final because the district court granted Plaintiff summary judgment on its breach of contract

claim and breach of fiduciary duty claim and thus determined all claims before the court; however,

“the requirement of finality has not been met merely because . . . liability has been determined and

all that needs to be adjudicated is the amount of damages[.]” Dowty v. Pioneer Rural Elec. Co-

op, Inc., 770 F.2d 52, 55 (6th Cir. 1985) (quoting Republic Natural Gas Co. v. Oklahoma, 334

U.S. 62, 68 (1948) ). Plaintiff maintains that Ray Haluch Gravel Co. v. Central Pension Fund,

571 U.S. 177 (2014), and Budinich v. Becton Dickinson and Co., 486 U.S. 196 (1988), support its

position. As Plaintiff conceded at oral argument, however, both of those cases hold only that an



4
         Fed. R. Civ. P. 60(b)(4) provides:
         On motion and just terms, the court may relieve a party or its legal representative from a final judgment,
         order, or proceeding for the following reasons:
         ...
         (4) the judgment is void . . .
(Emphasis added).
5
         28 U.S.C. § 1291 provides, in relevant part: “The courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United States . . . .”

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Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


undetermined amount of attorney’s fees does not prevent a judgment from being final. See Haluch,

571 U.S. at 179 (holding that a decision on the merits is a “final decision” under 28 U.S.C. § 1291

although the amount of attorney’s fees, provided by contract, remains to be determined); Budinich,

486 U.S. at 201–02 (holding the same for attorney’s fees authorized by statute). This has long

been the rule in this Circuit as well. See Morgan v. Union Metal Mfg., 757 F.2d 792, 794 (6th Cir.

1985) (“‘[A] judgment is final for purposes of appeal although the amount of attorney[’s] fees has

not been determined.’”) (quoting Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131, 133 (6th Cir.

1980)). Plaintiff asks that we extend this rule to apply to a decision on the merits that leaves

undetermined an amount of punitive damages. We decline to do so.

       Plaintiff sought punitive damages under Florida law, which permits punitive damages to

remedy “gross misconduct or willful and wanton disregard of a plaintiff’s rights.” See Alamo

Rent-A-Car, Inc., v. Mancusi, 632 So. 2d 1352, 1357 (Fla. 1994). The award therefore depends

on the conduct which forms the basis for the lawsuit, not a party’s litigation conduct. Unlike an

award of fees or costs, punitive damages are bound up in the merits of the claim. The situation is

therefore more analogous to cases in which the court enters summary judgment as to liability but

not damages—a paradigmatic nonfinal order. See Kovacic, 724 F.3d at 693; Dowty, 770 F.2d at

55; see also Nexus Gas Transmission, LLC v. City of Green, No. 18-3113, 2018 WL 2072606 at

*2 (6th Cir. April 3, 2018) (order) (“A summary judgment ruling as to liability that does not resolve

damages is not immediately appealable.”) (citing Wetzel, 424 U.S. at 744)).

       Because the September 2018 Order is not final, Fed. R. Civ. P. 12(b)(1) 6 governs

Defendant’s motion. When reviewing a district court’s dismissal of a case for lack of subject-

matter jurisdiction, we must accept the district court’s factual findings unless they are clearly



6
       Fed. R. Civ. P. 12(b)(1) provides as a defense to a claim a “lack of subject matter jurisdiction[.]”

                                                       -6-
Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


erroneous, but we review the district court’s application of the law to the facts de novo. Wayside

v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017).

        “The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by

a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the

entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). Generally, “diversity is

determined at the time of the filing of a lawsuit.” Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536,

540 (6th Cir. 2006) (citing Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957)). But “‘[w]henever it

appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.’” Arbaugh, 546 U.S. at 506 (quoting Fed. R. Civ. P.

12(h)(3) (2005) (revised 2007)). The plaintiff has the burden of proving jurisdiction to survive a

motion to dismiss. Wayside, 847 F.3d at 817.

       Plaintiff alleged complete diversity under 28 U.S.C. § 1332(a)(1), which requires that “no

plaintiff is a citizen of the same state as any defendant.” V & M Star, LP v. Centimark Corp., 596

F.3d 354, 355 (6th Cir. 2010). A corporation is a citizen of both the state in which it is incorporated

and the state in which the corporation’s principal place of business is located. Franzel v. Kerr

Mfg. Co., 959 F.2d 628, 629 (6th Cir. 1992). The citizenship of a limited liability company,

however, is determined by the citizenship of each member. Delay v. Rosenthal Collins Grp., LLC,

585 F.3d 1003, 1005 (6th Cir. 2009). Plaintiff is a Delaware corporation with its principal place

of business in Massachusetts. Defendant is a limited liability company organized under Florida

law, and according to an affidavit filed after the Order, two of its members have been

Massachusetts residents since before the complaint was filed.           The evidence contained in

Defendant’s affidavit thus destroys complete diversity between the parties, as it shows that the




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Case No. 19-3587, Beanstalk Innovation, Incorporated v. SRG Technology, LLC


parties have been citizens of the same state, Massachusetts, at all times relevant to this litigation.

Accordingly, the district court lacked subject-matter jurisdiction, and the case must be dismissed.

       For the foregoing reasons, we AFFIRM the district court’s grant of Defendant’s motion to

dismiss.




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