17-966-cv
Benihana of Tokyo, LLC v. Angelo, Gordon & Co., et al.


                                 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of February, two thousand eighteen.

PRESENT: BARRINGTON D. PARKER
         PETER W. HALL,
         RAYMOND J. LOHIER, JR.,

                                 Circuit Judges.
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BENIHANA OF TOKYO, LLC,

                                          Plaintiff-Appellant,

                               v.                                                No. 17-966-cv

ANGELO, GORDON & CO., L.P.,

BENIHANA, INC.,

                                 Defendants-Appellees.
----------------------------------------------------------------------
FOR APPELLANT:                                    Joseph L. Manson III, Law Offices of Joseph L.
                                                  Manson III, Alexandria, Virginia.

FOR APPELLEES:                                           Nicole Gueron, Clarick Gueron Reisbaum LLP,
                                                         New York, New York.



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                                                Alan H. Fein, Joshua A. Munn, Jenea M. Reed,
                                                Stearns Weaver Miller Weissler Alhadeff &
                                                Sitterson, P.A., Miami, Florida.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Paul A. Engelmayer, J.).

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

DECREED that the judgment entered by the district court on March 27, 2017, is AFFIRMED.

       The district court found that Appellee Angelo, Gordon & Co., L.P. (“AGC”) had been

fraudulently joined as a defendant in the action to defeat diversity jurisdiction, denied Appellant’s

motion to remand this case to New York state court, and dismissed the case in its entirety.

Appellant argues the case should have been remanded.          We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on appeal, which we recite here only to the

extent necessary to explain our reasoning.

       We examine a district court’s decision on a motion to remand de novo. Bounds v. Pine

Belt Mental Health Care Res., 593 F.3d 209, 214 (2d Cir. 2010).

       Federal district courts have original jurisdiction over civil actions between “citizens of

different States” where the amount in controversy exceeds $75,000.               28 U.S.C. § 1332(a).

“[E]ach plaintiff’s citizenship must be different from the citizenship of each defendant” for the

district court to have diversity jurisdiction. Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373

F.3d 296, 302 (2d Cir. 2004).

       It is well established in this Circuit that “a plaintiff may not defeat a federal court’s diversity

jurisdiction and a defendant’s right of removal by merely joining as [a] defendant[] [a] part[y] with

no real connection with the controversy.”     Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460–

61 (2d Cir. 1998).   Under the doctrine of fraudulent joinder, courts overlook the presence of a


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non-diverse defendant if “there is no possibility, based on the pleadings, that [the] plaintiff can

state a cause of action against the non-diverse defendant in state court.” Id. at 461.       “The

defendant seeking removal bears a heavy burden of proving fraudulent joinder” by clear and

convincing evidence. Id.

       Here, Appellant claims tortious interference with contract against AGC.         Appellant’s

complaint itself, however, pleads the elements of the affirmative defense of economic interest

under New York law.     See White Plains Coat & Apron Co. v. Cintas Corp., 867 N.E.2d 381, 383–

84 (N.Y. 2007); Foster v. Churchill, 665 N.E.2d 153, 154 (N.Y. 1996).            It is thus legally

impossible for Appellant to assert its claim against AGC in state court.

       We have considered all of Appellant’s arguments and conclude that they are without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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