     11-668-cv (L)
     DLJ Mortg. Capital Inc. v. Kontogiannis

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DLJ Mortgage Capital Inc.,
14                Plaintiff-Appellee,
15
16                    -v.-                                        11-668-cv (Lead)
17                                                                11-785-cv (Con)
18
19       Halifax Group, LLC and Plaza Real
20       Estate Holdings Inc.
21                Defendants-Third-Party-
22                Plaintiffs-Appellants
23
24                    and
25
26       Georgia Kontogiannis; Lisa Dipinto
27       a/k/a Lisa Kontogiannis, a/k/a Lisa
28       Pollatos; Annette Apergis; Chloe
29       Kontogiannis; Adam Dipinto; Elias
30       Apergis; Edgewater Development, Inc.;
31       Loring Estates LLC; Parkview Financial
32       Center, Inc., d/b/a Parkview
33       Financial, Inc., d/b/a Parkview

                                                  1
 1   Center, Inc.; Bond & Walsh
 2   Construction Co.; and Interamerican
 3   Mortgage Corp.
 4            Defendants-Appellants
 5
 6            and
 7
 8   Thomas Kontogiannis; John T. Michael;
 9   Jonathan Rubin; Michael A. Gallan,
10   Esq.; Ted Doumazios, Esq.; Thomas F.
11   Cusack III, Esq.; Stephen P. Brown,
12   Esq.; Stephen A. Martini; Carmine
13   Cuomo; Coastal Capital Corp., d/b/a
14   The Mortgage Shop, d/b/a Clearlight
15   Mortgage; Group Kappa Corp.; Clear
16   View Abstract LLC; Triumph Abstract
17   Inc.; Washington Title Ins. Co.,
18   Inc.; Chicago Title Ins. Co., Inc.;
19   United General Title Ins. Co, Inc.;
20   Does 1 through 100
21            Defendants
22
23            -v.-
24
25   Federal Deposit Insurance Corp., as
26   Receiver for Washington Mutual Bank
27            Third-Party Defendant-
28            Appellee.*
29   - - - - - - - - - - - - - - - - - - - -X
30
31   FOR DEFENDANTS-THIRD-PARTY-
32   PLAINTIFFS-APPELLANTS:            Paul B. Bergman, Esq., Paul
33                                     B. Bergman, P.C., New York,
34                                     NY.
35
36   FOR DEFENDANTS-APPELLANTS:        Ronald Edward DePetris,
37                                     DePetris & Bachrach, LLP,
38                                     New York, NY.
39
40   FOR PLAINTIFF-APPELLEE:           John P. Amato, Hahn &
41                                     Hessen LLP, New York, NY.


         *
           The Clerk of Court is directed to amend the official
     caption as shown above.
                                   2
 1   FOR THIRD-PARTY-DEFENDANT-
 2   APPELLEE:                             Alan Todd Gallanty, Gary
 3                                         Hoppe, and Daniel S.
 4                                         Kokhba, Kantor, Davidoff,
 5                                         Wolfe, Mandelker, Twomey &
 6                                         Gallanty, P.C., New York,
 7                                         NY; and Colleen J. Boles,
 8                                         Assistant General Counsel;
 9                                         Lawrence H. Richmond,
10                                         Senior Counsel; Michelle
11                                         Ognibene, Counsel, Federal
12                                         Deposit Insurance
13                                         Corporation, Arlington, VA.
14
15          Appeal from a judgment of the United States District

16   Court for the Southern District of New York (Swain, J.).

17

18          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

19   AND DECREED that this appeal is DISMISSED.

20

21          Defendants-Third-Party-Plaintiffs-Appellants1 and

22   Defendants-Appellants2 (collectively “Appellants”) appeal

23   the District Court’s decision (1) dismissing the

24   interpleader complaint against Third-Party-Defendant-

25   Appellee Federal Deposit Insurance Corporation (“the FDIC”)


            1
                Halifax Group, LLC and Plaza Real Estate Holdings
     Inc.
            2
           Georgia Kontogiannis; Lisa Dipinto a/k/a Lisa
     Kontogiannis, a/k/a Lisa Pollatos; Annette Apergis; Chloe
     Kontogiannis; Adam Dipinto; Elias Apergis; Edgewater
     Development, Inc.; Loring Estates LLC; Parkview Financial
     Center, Inc., d/b/a Parkview Financial, Inc., d/b/a Parkview
     Center, Inc.; Bond & Walsh Constr. Co.; and Interamerican
     Mortgage Corp.
                                       3
1    and (2) remanding the case to the New York Supreme Court.

2    We assume the parties’ familiarity with the underlying

3    facts, the procedural history of the case, and the issues on

4    appeal.

5    [1] We lack jurisdiction to consider the appeal of the

6    remand order. Except in specified civil rights cases, “[a]n

7    order remanding a case to the State court from which it was

8    removed is not reviewable on appeal or otherwise.”   28

9    U.S.C. § 1447(d).   Thus, Section 1447(d) generally precludes

10   appellate jurisdiction of a remand order when the remand is

11   for lack of subject-matter jurisdiction or for defects in

12   the removal procedure.   Powerex Corp. v. Reliant Energy

13   Servs., Inc., 551 U.S. 224, 229 (2007).

14       The remand in this case was for lack of subject-matter

15   jurisdiction.   The District Court explained that once it

16   dismissed the interpleader complaint against the FDIC

17   (because the FDIC had been improperly made a party to the

18   litigation), the statutory provision that supported federal

19   jurisdiction was no longer satisfied and “should not be

20   construed to support continued federal subject matter

21   jurisdiction of the remaining parties’ state law claims

22   inter se.”   DLJ Mortg. Capital, Inc. v. Kontogiannis, No. 10

23   Civ. 9092(LTS), 2011 WL 611836, *3 (S.D.N.Y. Feb. 17, 2011).



                                   4
1        Appellants argue that the remand was pursuant to the

2    District Court’s election to forgo supplemental jurisdiction

3    and that a remand based on such a decision is reviewable.

4    See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129

5    S. Ct. 1862, 1866-67 (2009).   They rely on the following

6    statement in the District Court opinion: “In that the

7    remaining claims arise under state law and there is no

8    independent basis for federal jurisdiction, the Court also

9    declines pursuant to 28 U.S.C. § 1367(c) to exercise any

10   supplemental jurisdiction it may have of those claims.”     DLJ

11   Mortg. Capital, Inc., 2011 WL 611836 at *3.     This sentence

12   signifies only that the District Court would not have

13   exercised “any supplemental jurisdiction it may have [had]

14   of those claims,” id. (emphasis added), not that it had

15   supplemental jurisdiction and was declining to exercise it.

16   Evidently for that reason, the District Court undertook no

17   analysis to determine whether it had supplemental

18   jurisdiction.   See 28 U.S.C. § 1367(c).

19       In any event, the District Court’s remand could be

20   “colorably characterized” as for lack of subject-matter

21   jurisdiction.   Powerex Corp., 551 U.S. at 234.     Accordingly,

22   “appellate review is barred by § 1447(d).”    Id.

23   [2] We also lack jurisdiction over the dismissal of the

24   interpleader complaint against the FDIC.     In Powerex Corp.,

                                    5
1    the Supreme Court concluded the court of appeals lacked

2    jurisdiction of an appeal from a decision denying sovereign

3    immunity and remanding the case, including jurisdiction to

4    decide merely “the substantive issues of law that preceded

5    the remand order.”   551 U.S. at 228; accord id. at 227-228,

6    232-34, 237-39.

7        Here too, Appellants appeal the District Court’s

8    substantive decision that the case was not properly in

9    federal court (and the resulting remand).   Under Powerex

10   Corp., however, we lack jurisdiction to review that

11   decision.   See id. at 238-39 (cautioning courts of appeals

12   that they “must take that jurisdictional prescription

13   seriously, however pressing the merits of the appeal might

14   seem.”)

15

16       We have considered all of the additional arguments and

17   find them to be without merit.    Accordingly, we DISMISS this

18   appeal for lack of subject-matter jurisdiction.

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22




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