           Case: 14-12279   Date Filed: 12/07/2015   Page: 1 of 12


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12279
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-20122-PMH



LANDMARK EQUITY FUND II, LLC,

                                                            Plaintiff-Appellant,


                                  versus


RESIDENTIAL FUND 76, LLC,
REAL ESTATE MORTGAGE INVESTMENT CORPORATION [REMIC],
CITIGROUP GLOBAL MARKETS REALTY CORPORATION,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (December 7, 2015)

Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.
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PER CURIAM:

       Landmark Equity Fund II, LLC (Landmark) filed a lawsuit in federal district

court asserting various contractual claims against Residential Fund 76 (RF76),

Real Estate Mortgage Investment Corporation (REMIC), and Citigroup Global

Markets Realty Corporation (Citigroup). The district court 1 dismissed without

prejudice Landmark’s claims against RF76 and REMIC for lack of subject matter

jurisdiction, but retained jurisdiction over Landmark’s claims against Citigroup.

The court then dismissed with prejudice Landmark’s claims against Citigroup

under Rule 12(b)(6) for failure to state a claim upon which relief could be granted.

Landmark appeals the district court’s Rule 12(b)(6) dismissal with prejudice of its

claims against Citigroup.

                                               I.

       In June 2011, RF76 entered into a contract with Citigroup in which RF76

agreed to purchase a pool of real estate loans from Citigroup. In a separate

transaction, Landmark’s predecessor-in-interest, Landmark Financial Solutions,

LLC (LFS), entered into two contracts with RF76 whereby LFS agreed to purchase

loans from RF76. Some of the loans RF76 was set to acquire from Citigroup were

included in the sale of loans to LFS. Ultimately, RF76 failed to assign some of the


       1
         The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C.
§ 636(c).


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loans to LFS, and later claimed that it was unable to do so because it had not

obtained the appropriate assignments from Citigroup.

       After RF76 failed to deliver the loans, LFS assigned the claims under its

contracts to Landmark. Landmark then filed this lawsuit asserting diversity

jurisdiction. In its operative complaint, Landmark asserted various contractual

claims against RF76, REMIC, and Citigroup. In relevant part, Landmark sought

from Citigroup (i) damages and specific performance under the theory that

Landmark was a third-party beneficiary of the contract between Citigroup and

RF76; and (ii) damages under the theories of implied or quasi contract and unjust

enrichment.

       RF76 and REMIC filed a motion to dismiss under Federal Rule of Civil

Procedure 12(b). Among other things, they argued that the district court lacked

subject matter jurisdiction because LFS had impermissibly manufactured diversity

by assigning its claims to Landmark. 2 Citigroup also filed a motion to dismiss

under Rule 12(b)(6).

       The district court granted the motions to dismiss in two separate orders. In

the first order, the court dismissed without prejudice Landmark’s claims against

RF76 and REMIC for lack of subject matter jurisdiction. Relying on 28 U.S.C.


       2
         LFS, like RF76 and REMIC, is a citizen of California, while Landmark is a citizen of
Florida. Thus, complete diversity of citizenship would not have existed but for LFS’s
assignment of its claims to Landmark.


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§ 1359, the court found that LFS and Landmark had collusively manufactured

diversity through the assignment of the contract claims because LFS retained an

interest in the lawsuit. In the second order, the court dismissed with prejudice

Landmark’s claims against Citigroup for failure to state a claim upon which relief

could be granted. The court later amended the first dismissal order to clarify that

the dismissal of RF76 and REMIC, the non-diverse defendants, had cured any

jurisdictional defects. The amended order also clarified that, under Rule 19, RF76

and REMIC were dispensable parties with respect to Landmark’s claims against

Citigroup and, therefore, the court had retained jurisdiction to adjudicate those

claims on the merits.

                                         II.

      Landmark first contends that the district court erred in retaining jurisdiction

over its claims against Citigroup because the court should have dismissed the

entire case for lack of subject matter jurisdiction. We review de novo questions of

subject matter jurisdiction. SEC v. Mut. Benefits Corp., 408 F.3d 737, 741 (11th

Cir. 2005). However, “[w]e review a district court’s decision regarding

indispensability of parties for abuse of discretion.” United States v. Rigel Ships

Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005).

      It is well settled that a jurisdictional defect may be “cured by the dismissal

of the party that . . . destroyed diversity.” Grupo Dataflux v. Atlas Glob. Grp., LP,



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541 U.S. 567, 572, 124 S. Ct. 1920, 1925 (2004). When the district court intends

to dismiss a nondiverse party to remedy a jurisdictional defect, it must also

determine whether that party is dispensable. See id.; Horn v. Lockhart, 84 U.S.

570, 579 (1873). If the nondiverse party is dispensable, the court may dismiss that

party and the claims against it, and retain jurisdiction over any remaining diverse

parties. Horn, 84 U.S. at 579; see also Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826, 832, 109 S. Ct. 2218, 2223 (1989) (noting that “Rule 21 invests

district courts with authority to allow a dispensable nondiverse party to be dropped

at any time”).

      Rule 19 provides a two-part test for determining whether a person is a

dispensable party. City of Marietta v. CSX Transp., Inc., 196 F.3d 1300, 1305

(11th Cir. 1999). The first step, set forth in Rule 19(a), asks whether the person is

a “required party.” Fed. R. Civ. P. 19(a)(1). The relevant inquiry is “whether

complete relief can be afforded in the present procedural posture, or whether the

nonparty’s absence will impede either the nonparty’s protection of an interest at

stake or subject parties to a risk of inconsistent obligations.” Marietta, 196 F.3d at

1305. We proceed to the second step only if we determine that the person at issue

is a required party. Id. The second step, set forth in Rule 19(b), asks “whether, in

equity and good conscience, the action should proceed among the existing parties

or should be dismissed.” Fed. R. Civ. P. 19(b).



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       Landmark first argues that the district court erred in determining that RF76

and REMIC were dispensable based on its conclusion that they were not required

parties within the meaning of Rule 19(a). 3 Although the district court did not

provide a detailed discussion of the reasoning underlying its conclusion, it did not

abuse its discretion in reaching that conclusion. There is no indication in the

record that the other defendants’ absence diminished the district court’s ability to

“accord complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A).

Even if Landmark had stated a plausible claim against Citigroup, the court could

have granted complete relief in the form of damages. There was also no indication

that RF76 and REMIC’s absence would “impede [their] protection of an interest at

stake or subject [them] to a risk of inconsistent obligations.” Marietta, 196 F.3d at

1305; see also Fed. R. Civ. P. 19(a)(1)(B). As Citigroup correctly points out, RF76

and REMIC have neither asserted an interest in the outcome of Landmark’s claims

against Citigroup nor have they attempted to intervene with respect to those claims.

Under those facts, it was not an abuse of discretion to conclude that RF76 and

REMIC were dispensable parties.

       Landmark next argues that even if RF76 and REMIC were dispensable

parties with respect to the claims against Citigroup, Citigroup was an indispensable

party with respect to the claims against RF76 and REMIC, which Landmark must
       3
         The court found in the alternative that even if RF76 and REMIC were required parties,
the Rule 19(b) factors militated in favor of allowing the case to proceed against Citigroup.


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now pursue in state court. Landmark asserts that the state court will not be able to

afford complete relief in Citigroup’s absence because RF76 cannot deliver the loan

assignments to Landmark until Citigroup first delivers those assignments to RF76.

Complete relief, as Landmark envisions it, would appear to involve an order

requiring Citigroup to deliver the assignments to RF76. That argument fails for

several reasons. Landmark can obtain injunctive relief against Citigroup only if

Landmark first states a plausible claim for relief against it. As we will explain,

Landmark has failed to do that. Even if Landmark were entitled to equitable relief

against RF76 and REMIC and could not obtain it in Citigroup’s absence, it has

failed to show why a remedy at law would not be adequate. See Rosen v. Cascade

Int’l, Inc., 21 F.3d 1520, 1527 (11th Cir. 1994) (“It is axiomatic that equitable

relief is only available where there is no adequate remedy at law[.]”). There is no

indication that an award of damages from RF76 and REMIC would be insufficient

to vindicate Landmark’s contractual rights. See id.

      Landmark also argues that the district court should not have retained

jurisdiction over the claims against Citigroup because LFS was an indispensable

plaintiff. In concluding that LFS and Landmark had colluded to manufacture

diversity within the meaning of 28 U.S.C. § 1359, the district court found that LFS

had retained an interest in the lawsuit because it would ultimately receive the

proceeds of the case. Landmark now maintains that because LFS had an interest in



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the lawsuit, LFS was an indispensable party and the court could not finally

adjudicate the claims against Citigroup in LFS’s absence. Landmark misinterprets

the implications of the district court’s order. In determining whether a person has

impermissibly manufactured diversity by assigning its rights to another, the

relevant inquiry is “whether, absent the assignment, the [person] would be an

indispensable party to the case,” not whether the person is an indispensable party.

Gibert v. Willis, 834 F.2d 935, 937 (11th Cir. 1987) (emphasis added). The district

court’s reasoning implies only that LFS would have been an indispensable party

absent the assignment. See id. Because LFS in fact assigned its rights under its

contracts to Landmark, it is not an indispensable party. 4

       For these reasons, the district court did not err in retaining jurisdiction over

Landmark’s claims against Citigroup after it dismissed the claims against RF76

and REMIC for lack of subject matter jurisdiction.

                                                 III.


       4
          Landmark additionally argues that 28 U.S.C. § 1359 required the district court to
dismiss the entire case for lack of subject matter jurisdiction instead of retaining jurisdiction over
the claims against Citigroup. It also appears to argue that the district court should not have
retained jurisdiction over those claims because none of the parties requested that in their motions
to dismiss. As previously noted, however, it is well settled that a court may, on its own
initiative, dismiss a dispensable and nondiverse party to cure a jurisdictional defect, and retain
jurisdiction over the claims involving the remaining diverse parties. See Grupo Dataflux, 541
U.S. at 572–73, 124 S. Ct. at 1925; Newman-Green, Inc., 490 U.S. at 832, 109 S. Ct. at 2223;
Horn, 84 U.S. at 579. Landmark cites no precedent which suggests that § 1359 undermines the
district court’s independent authority to cure jurisdictional defects in that manner, and the court
properly exercised that authority when it retained jurisdiction over Landmark’s claims against
Citigroup even though none of the parties specifically requested that it do so.


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       Landmark next contends that even if the district court correctly retained

jurisdiction over the claims against Citigroup, it erred in dismissing those claims

with prejudice under Rule 12(b)(6). We review de novo the district court’s grant

of a motion to dismiss. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP,

634 F.3d 1352, 1359 (11th Cir. 2011). We “accept[ ] the allegations in the

complaint as true and constru[e] them in the light most favorable to the plaintiff.”

Id. (quotation marks omitted). We also consider attachments to the complaint as

part of the pleadings. Fed. R. Civ. P. 10(c) (“A copy of a copy of a written

instrument that is an exhibit to a pleading is a part of the pleading for all

purposes.”).

       In its first claim against Citigroup, Landmark sought damages and specific

performance on the ground that Landmark was a third-party beneficiary of

Citigroup’s contract with RF76, a copy of which was attached to the complaint.

The choice-of-law provision in that contract provides that New York law governs.5

To succeed on a third-party beneficiary claim under New York law, Landmark

must show, among other things, “that the contract was intended for [its] benefit.”
       5
            Because Landmark brought this diversity case in Florida, that state’s “choice-of-law
rules . . . determine what law governs.” Interface Kanner, LLC v. JPMorgan Chase Bank, N.A.,
704 F.3d 927, 932 (11th Cir. 2013) (citation omitted). “[U]nder Florida law, courts enforce
choice-of-law provisions unless the law of the chosen forum contravenes strong public policy.”
Id. (quotation marks omitted). As a result, we will enforce the choice-of-law provision in the
contract between Citigroup and RF76. Although Landmark does not appear to directly challenge
the enforceability of the choice-of-law provision, it inexplicably cites Florida law to support its
claims against Citigroup. To the extent Landmark’s arguments depend on Florida contract law,
we do not consider them.


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Cal. Pub. Emps. Ret. Sys. v. Shearman & Sterling, 741 N.E.2d 101, 104 (N.Y.

2000). “A third-party beneficiary cannot enforce a contract in [its] favor unless the

contract clearly expresses an intention to benefit that third-party.” Cerullo v.

Aetna Cas. & Sur. Co., 341 N.Y.S.2d 767, 770 (N.Y. App. Div. 1973).

       Even accepting Landmark’s allegations as true and construing them in the

light most favorable to it, as we must at the motion to dismiss stage, Landmark

cannot establish that it was an intended third-party beneficiary. Cal. Pub. Emps.

Ret. Sys., 741 N.E.2d at 104. Not only does the contract fail to mention

Landmark, but its unambiguous terms do not express an intention to benefit anyone

other than the contracting parties. The contract states: “This agreement shall inure

to the benefit of and be binding upon [Citigroup] and [RF76] and the[ir] respective

successors and assigns.” Those terms do not “clearly express[ ] an intention to

benefit” Landmark. Cerullo, 341 N.Y.S.2d at 770. As a result, Landmark has

failed to state a third-party beneficiary claim under New York law and amendment

would be futile. 6

       Landmark’s second claim against Citigroup was for the breach of implied

contract or quasi contract and unjust enrichment. New York law recognizes two
       6
         Landmark now argues that the district court’s order dismissing the claims against
Citigroup was contradictory because it found that Landmark was not an intended third-party
beneficiary, but also found that a contract existed between Landmark and Citigroup. That
argument misreads the district court’s order. What the orders actually says is that Landmark has
an adequate remedy at law under a breach of contract claim against RF76 and REMIC, not
Citigroup. Nothing in the district court’s order can be fairly read to suggest that there was a
contract between Landmark and Citigroup.


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types of implied contracts: contracts implied in fact and contracts implied in law.

See Parsa v. State, 474 N.E.2d 235, 237 (N.Y. 1984). An unjust enrichment claim

“lies as a quasi-contract claim,” Goldman v. Metro. Life Ins. Co., 841 N.E.2d 742,

746 (N.Y. 2005), and “quasi contract denotes a contract implied in law,” Bradkin

v. Leverton, 257 N.E.2d 643, 646 (N.Y. 1970). As the district court correctly

noted, “[a] contract cannot be implied in fact . . . where there is an express contract

covering the subject-matter involved.” Miller v. Schloss, 113 N.E. 337, 339 (N.Y.

1916). Similarly, when “a valid and enforceable written contract governing a

particular subject matter” exists, then “recovery on a theory of unjust enrichment

for events arising out of that subject matter is ordinarily precluded.” IDT Corp. v.

Morgan Stanley Dean Witter & Co., 907 N.E.2d 268, 274 (N.Y. 2009).

      To support its implied or quasi contract and unjust enrichment claims,

Landmark attached the contract between Citigroup and RF76, and the two

contracts between Landmark and RF76. Those contracts cover the subject matter

involved, namely, the disputed pool of real estate loans. Landmark has therefore

failed to state a plausible claim for relief under theories of implied or quasi

contract or unjust enrichment, and amendment would be futile. See Miller, 113

N.E. at 339; IDT Corp., 907 N.E.2d at 274.

      For these reasons, the district court did not err in dismissing with prejudice

Landmark’s claims against Citigroup.



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AFFIRMED.




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