                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
            _____________

            No. 96-3829WA
            _____________

Associated Insurance Management      *
Corporation; Colonia Insurance       *
Company,                             *
                                     *
            Plaintiffs-Appellees,    *
                                     *
      v.                             *
                                     *
Arkansas General Agency, Inc.;       *
                                     *
            Defendant-Appellant,     *
                                     *
Rick W. Welch,                       *   Appeals from the United States
                                     *   District Court for the Western
          Defendant.                 *   District of Arkansas.
____________________                 *
                                     *
Arkansas General Agency, Inc.,       *
                                     *
            Third Party Plaintiff-   *
            Appellant,               *
                                     *
      v.                             *
                                     *
Colonia Underwriters Insurance       *
Company,                             *
                                     *
            Third Party Defendant-   *
            Appellee.                *
            _____________

            No. 96-3861WA
            ______________

Associated Insurance Management      *
Corporation; Colonia Insurance       *
Company,                             *
                                     *
            Plaintiffs-Appellees,    *
                                     *
      v.                             *
                                     *
Arkansas General Agency, Inc.;       *
                                     *
            Defendant,               *
                                     *
Rick W. Welch,                       *
                                     *
          Defendant-Appellant.       *
_____________________                *
                                     *
Rick W. Welch,                       *
                                     *
            Third Party Plaintiff-   *
            Appellant,               *
                                     *
      v.                             *
                                     *
Colonia Underwriters Insurance       *
Company,                             *
                                     *
            Third Party Defendant-   *
            Appellee.                *




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                                     _____________

                             Submitted: March 12, 1998
                                 Filed: July 9, 1998
                                   _____________

Before FAGG, ROSS, and BOWMAN,* Circuit Judges.
                           _____________

FAGG, Circuit Judge.

       New York citizen Associated Insurance Management Corporation (Management
Corporation of New York), acting under powers of attorney as a collection agent for
New York citizen Colonia Insurance Company (Colonia of New York) and Arkansas
citizen Colonia Underwriters Insurance Company (Colonia of Arkansas), brought this
diversity-based action against Arkansas citizens Arkansas General Agency, Inc. and
Rick W. Welch (collectively the Arkansas defendants) to recover premiums owed to the
insurance companies. The Arkansas defendants moved to dismiss for lack of subject
matter jurisdiction, contending there was not complete diversity of citizenship between
the real parties to the controversy. The district court denied the motion, and a substantial
judgment was entered against the Arkansas defendants after a trial on the merits. The
Arkansas defendants now appeal, raising jurisdictional and trial-related issues. Because
we conclude the district court lacked subject matter jurisdiction, we do not consider the
other issues raised on appeal. We remand for vacation of the judgment entered against
the Arkansas defendants and for dismissal of the action.

       Initially, we summarize the well-established rules of federal diversity jurisdiction
that control our decision in this case. First, we determine diversity of citizenship at the
time an action is filed. See Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir.


      *
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.

                                           -3-
1992). Second, complete diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a)
is tested by the citizenship of the real parties to the controversy, and the citizenship of
an agent who merely sues on behalf of the real parties must be ignored. See Navarro
Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980); Iowa Pub. Serv. Co. v. Medicine Bow
Coal Co., 556 F.2d 400, 404 (8th Cir. 1977); Airlines Reporting Corp. v. S & N Travel,
Inc., 58 F.3d 857, 861-62 (2d Cir. 1995). Third, the Federal Rules of Civil Procedure
have no bearing on the requirements of federal diversity jurisdiction. See Navarro Sav.
Ass’n, 446 U.S. at 462 n.9; Iowa Pub. Serv. Co., 556 F.2d at 404 n.5; Airlines
Reporting Corp., 58 F.3d at 861 n.4; Fed. R. Civ. P. 82. Finally, the district court cannot
retroactively create diversity jurisdiction if it did not exist when the complaint was filed.
See Sta-Rite Indus., Inc. v. Allstate Ins. Co., 96 F.3d 281, 285 (7th Cir. 1996); Aetna
Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 775-76 (5th Cir. 1986). Instead, the district
court must dismiss the action. See Aetna Cas. & Sur. Co., 796 F.2d at 776.

        In their motion to dismiss, the Arkansas defendants contended that rather than the
named plaintiff, Management Corporation of New York, absent parties Colonia of New
York and Colonia of Arkansas were the real parties in interest to enforce their premium-
based claims, and thus the district court lacked jurisdiction because the citizenship of
Colonia of Arkansas and the Arkansas defendants was not diverse. The district court
rejected the Management Corporation of New York’s contention that it was a real party
in interest because its representative role was akin to that of an assignee instead of a
collection agent representing the interests of others, and ruled the insurance companies
it represented were “the real parties in interest as to [their] claims.” The district court
recognized that because “the citizenship of the [insurance companies] counts for
purposes of diversity jurisdiction,” the presence of Colonia of Arkansas in the lawsuit
“would destroy diversity jurisdiction.” Rather than dismissing the case, however, the
district court was persuaded the diversity problem could be cured if instead of entering
the lawsuit, Colonia of Arkansas merely ratified it by authorizing continuation of the
lawsuit in its absence and agreeing to be bound by the


                                            -4-
result. See Fed. R. Civ. P. 17(a) (providing for continuation of lawsuit not brought by
real party in interest when real party in interest ratifies, joins, or is substituted in lawsuit).
Once Colonia of Arkansas filed its Rule 17(a) ratification and Colonia of New York
joined the action as a party plaintiff, the district court concluded it had removed the
obstacle to diversity jurisdiction and thus denied the Arkansas defendants’ motion to
dismiss.

       Applying the law to the facts in this case, we conclude the case must be dismissed
because there is not diversity of citizenship between Colonia of Arkansas and the
Arkansas defendants, real parties to the controversy on the original premium-based
claims. Although the district court correctly recognized diversity was flawed from the
outset, the district court went astray when it tried to finesse the overarching rule that
diversity jurisdiction depends on the citizenship of the real parties to the controversy
when the complaint is filed. Thus, the district court’s undertaking procedurally to cure
the defect in its diversity jurisdiction was nothing more than the meaningless act of a
court having no adjudicative jurisdictional power. See Aetna Cas. & Sur. Co., 796 F.2d
at 776. Although ratification of the lawsuit under Rule 17(a) by Colonia of Arkansas,
a nondiverse real party, satisfied the requirement that every action be prosecuted in the
name of the real party in interest, the ratification did not retroactively confer diversity
jurisdiction. See id.; Iowa Pub. Serv. Co., 556 F.2d 404 n.5; Fed. R. Civ. P. 82 (the
Federal Rules of Civil Procedure do not extend the jurisdiction of the federal district
courts). Rather than addressing jurisdiction, Federal Rule of Civil Procedure 17(a)
relates only to the proper parties. See Navarro Sav. Ass’n, 446 U.S. at 462 n.9; Iowa
Pub. Serv. Co., 556 F.2d at 404 n.5; Airlines Reporting Corp., 58 F.3d at 861 n.4;
Certain Interested Underwriters v. Layne, 26 F.3d 39, 42 n.1 (6th Cir. 1994).

     In a last ditch effort to save the judgment entered on the jury's verdict against the
Arkansas defendants, the Management Corporation of New York and the insurance
companies contend “the [Management Corporation of New York] could have


                                              -5-
prosecuted [Colonia of Arkansas’s] claims as a real party in interest.” We disagree.
Having reviewed the powers of attorney and the underlying agreements between the
Management Corporation of New York and the insurance companies, and guided by the
"governing substantive law," Iowa Pub. Serv. Co., 556 F.2d at 404, we agree with the
district court "that Arkansas law does not support such a [contention], and that [the
Management Corporation of New York] is not a real party in interest as to [the] claims
belonging to . . . Colonia Underwriters [of Arkansas]." The Management Corporation
of New York brought this action merely as a collection agent representing the interests
of the insurance companies, so "the citizenship of the represented individuals controls
for diversity purposes [because] they are the real and substantial parties to the dispute."
Airlines Reporting Corp., 58 F.3d at 862; see also 6A Charles Alan Wright et al.,
Federal Practice and Procedure § 1545, at 349 (2d ed. 1990).

        The Management Corporation of New York and the insurance companies also
argue for the first time on appeal that the district court should have dismissed the claims
asserted by the Management Corporation of New York for Colonia of Arkansas, which
created the diversity problem, and permitted the Management Corporation of New York
and Colonia of New York to proceed alone on the claims they asserted against the
Arkansas defendants in an amended complaint. Although the district court could have
entertained a request for the voluntary dismissal of Colonia of Arkansas’s claims to
preserve diversity, neither the Management Corporation of New York nor the insurance
companies asked the district court for this kind of relief. To the contrary, they persuaded
the district court to use Rule 17(a) to keep Colonia of Arkansas’s claims in the lawsuit.
In this circumstance, the district court had no obligation to dismiss the nondiverse claims
on its own motion. See Walker v. Norwest Corp., 108 F.3d 158, 162 (8th Cir. 1997).
The Management Corporation of New York and the insurance companies also contend
that even if they were mistaken about the effectiveness of the Rule 17(a) remedy, the
Arkansas defendants cured the diversity problem when they brought Colonia of
Arkansas into the case as a third-party defendant on their counterclaim and Colonia of
Arkansas then asserted its claim for

                                           -6-
premiums against the Arkansas defendants. We disagree. If diversity jurisdiction is
lacking when a lawsuit is started--and that is the situation here--it cannot be created later
when defendants use third-party practice to sue a nondiverse real party on their
counterclaim. See Lewis v. Windsor Door Co., 926 F.2d 729, 732 (8th Cir. 1991).

       Finally, the Management Corporation of New York and the insurance companies
belatedly ask this court to drop Colonia of Arkansas’s claims and vacate its judgment
because there were “two easily divisible lawsuits” and “any error in the entry of
judgment relating to [Colonia of Arkansas] does not infect the judgment relating to
[Colonia of New York].” Even if we have the power to erase a nondiverse real party’s
claims and judgment on appeal, we decline to recast the cause of action to create
diversity jurisdiction that was neither pleaded nor requested in the district court. See
United States ex rel. Gen. Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491,
1495-96 (10th Cir. 1995). “[T]his is not a case in which [the parties were] surprised by
factual or legal developments undermining diversity jurisdiction [about] a party initially
pleaded as diverse.” Id. at 1496. Instead, this is a case in which the named plaintiff, the
Management Corporation of New York, meant to litigate both insurance companies’
claims in federal court. When the Arkansas defendants raised the issue of subject matter
jurisdiction, the named plaintiff and the insurance companies opted for a remedy aimed
at keeping the nondiverse claims in federal court rather than asking the district court to
dismiss them to preserve diversity. As we see it, the parties have only themselves to
blame for a diversity problem of their own making.

       We thus reverse the district court and remand for vacation of the judgment entered
against the Arkansas defendants and for dismissal of the action for lack of subject matter
jurisdiction. We also deny the Management Corporation of New York’s and Colonia
of New York’s motion to supplement the appendix on appeal.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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