           United States Court of Appeals
                        For the First Circuit

Nos. 12-1778, 12-1795
                          FRANK MACERA, JR.,

                         Plaintiff, Appellee,

                                  v.

     MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ET AL.,

                              Defendants,

                        PAWTUCKET CREDIT UNION,

                         Defendant, Appellant.


            APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF RHODE ISLAND
         [Hon. John J. McConnell, Jr., U.S. District Judge]


                                Before

                       Howard, Circuit Judge,
                    Souter,* Associate Justice,
                     and Lipez, Circuit Judge.


     Joel J. Votolato, with whom Joel T. Gannon was on brief, for
appellant.
     George E. Babcock for appellee.


                             June 14, 2013




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER, Associate Justice.        This is one of the cases on

the District Court’s Master Foreclosure docket described in In re:

Mortgage   Foreclosure,     decided    today.1    The   appeal   calls   into

question both the injunction held in that case to have been issued

in error and to be addressed on remand, and the district court’s

subject-matter jurisdiction owing to allegedly incomplete diversity

of parties required under 28 U.S.C. § 1332.        A motion to dismiss on

that latter ground was “refused and returned,” by an erroneous

order of the district court, and we remand this case for prompt

adjudication of the motion, if appropriate after the court has

taken the remedial action required by In re: Mortgage Foreclosure.

           Although the case implicates a host of issues deferred or

refused consideration by the district court on the ground of “Case

Management,” the facts and procedural history necessary for our

determination   at   this    point     can   be   stated   briefly.      The

plaintiff-appellee, Frank Macera, Jr., was lent money by Nation One

Mortgage Company, Inc., secured by a first mortgage of Rhode Island

real estate naming Mortgage Electronic Registration Systems, Inc.

(MERS) as mortgagee.        MERS ostensibly assigned its interest to

Federal National Mortgage Association (FNMA) for foreclosure upon

Macera’s default.    The intervenor defendant-appellant, Pawtucket




     1
      For ease of exposition, we will refer to the opinion in Nos.
12-1526, 12-1563, 12-1720, 12-1721, 12-1768, and 12-1839 as In re:
Mortgage Foreclosure.

                                      -2-
Credit Union, purchased the property at foreclosure, presumably to

protect its interest as second mortgagee.

           When Pawtucket took steps to evict Macera, he invoked the

district court’s diversity jurisdiction to entertain a “Complaint

For Declaratory Judgment And Injunctive Relief,” to the effect that

the foreclosure proceedings were ineffective, the foreclosure title

void, and Macera still the owner of the mortgaged property.        The

complaint named as defendants Nation One, MERS and FNMA.        Macera

was described as a Rhode Island resident; the defendants were shown

as having addresses outside the state.

           Pawtucket moved to intervene as a defendant under Federal

Rule of Civil Procedure 24(a)(2), as a party claiming an interest

that might be impaired by the litigation.        Once the motion was

granted, Pawtucket moved to dismiss the action for want of complete

diversity of parties required under 28 U.S.C. § 1332, since

Pawtucket was a Rhode Island resident corporation.       See Picciotto

v. Cont’l Cas. Co., 512 F.3d 9, 21 (1st Cir. 2008) (“Incomplete

diversity destroys original jurisdiction with respect to all claims

. . . .” (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546, 554 (2005)).    As mentioned before, instead of ruling on

the motion, the district court ordered the motion document itself

to be returned to Pawtucket on the ground that “[t]his case is

stayed pursuant to the Case Management order,” described in In re

Mortgage   Foreclosure.     Pawtucket   then   brought   this   appeal,


                                 -3-
objecting to the stay as being an injunction issued in denial of

its due process right to notice and hearing, and challenging the

court’s refusal even to docket the motion to dismiss for lack of

the complete diversity of parties required for subject-matter

jurisdiction.

          Although Macera claims that this court lacks appellate

jurisdiction, the answer is set out in In re Mortgage Foreclosure:

the “stay” from which Pawtucket appeals is an injunction subject to

interlocutory appellate jurisdiction under 28 U.S.C. § 1292(a)(1),

and Pawtucket is an enjoined party entitled to be heard promptly on

its objection, in belated compliance with Fed. R. Civ. P. 65(a)(1),

regardless of any due process consideration. As explained in In re

Mortgage Foreclosure, it is unnecessary to go beyond saying that

Pawtucket’s particular objection to jurisdiction, like the global

claims described in that companion case, will require adjudication,

at the latest, in determining Macera’s likelihood of success on the

merits necessary to support any continued injunction.

          Ultimately, of course, a claim of incomplete diversity

goes to jurisdiction at any federal level, and in theory we would

be free to examine the issue now under a court’s authority and

obligation to review its subject-matter jurisdiction even sua

sponte, if a question about it shows up.    See, e.g., Gonzalez v.

Thaler, 132 S.Ct. 641, 648 (2012) (“When a requirement goes to

subject-matter jurisdiction, courts are obligated to consider sua


                               -4-
sponte   issues    that   the   parties   have   disclaimed   or   have   not

presented.”).     We think it better, however, to remit the issue to

the district court.

           This is not to deny that some of the arguments presented

to us could readily be addressed here.            Macera responds to the

incomplete diversity claim, for example, by saying that Pawtucket

“by voluntarily submitting a motion to intervene self-subjected

themselves [sic] to the jurisdiction and power of the Federal

District Court.”     Appellee’s Br. 8.      The argument is oblivious of

the distinction between personal and subject-matter jurisdiction,

the former being susceptible to voluntary submission, the latter

being beyond the parties’ power to stipulate or confer by waiver of

objection if asleep.      See Ins. Corp. of Ireland, Ltd. v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 702-704 (1982) (comparing the

two   doctrines     and   explaining      that   objections   to   personal

jurisdiction, unlike objections to subject-matter jurisdiction, may

be waived).       And, as noted, a court is not free to wink at a

subject-matter defect.

           But not all issues may be so obviously resolved. Because

we sit as a court of review without benefit in this instance of any

trial court findings or formal stipulation of the parties, we think

it prudent to leave the challenges to subject-matter jurisdiction

and ultimate legitimacy of the injunction to the district court,

which will be in a position to make any fact determination that may


                                    -5-
turn out to be necessary. Pawtucket’s request for a hearing on the

injunction will be expeditiously addressed there in accordance with

the In re Mortgage Foreclosure remand, and its motion to dismiss

for want of subject-matter jurisdiction will be taken up, if need

be, after the court has ruled on the jurisdictional standing issues

described in our opinion in that case. The parties will bear their

own respective costs.

          It is so ordered.




                               -6-
