UNIT ED S TAT ES COU RT OF A PP EALS 1 FOR THE SE CON D CIR CUIT 2 3 August Term, 2002 4 5 6 (Argued: February 4, 2003 Decided: July 16, 2003) 7 8 9 Docket No. 02-7744 10

_____________________________________ 11 12 13 CORRESPONDENT SERVICES CORPORATION, 14 15 Plaintiff- Counter-Defendant , 16 17 18 — v. — 19 20 FIRST EQUITIES CORPORATION OF FLORI

DA, 21 22 Defenda nt-Cross- Defenda nt, 23 24 J.V.W. INVESTMENTS LTD., 25 26 Defenda nt-Cross- Claimant-C ounter-Cl aimant-Cr

oss-Defe ndant-Ap pellant, 27 28 J.V. WAGGON ER, 29 30 Defenda nt-Cross- Claimant-C ross-Def endant-A ppellant, 31 32 DONAL KELL EHER, 33 34 Defenda nt-Cross- Defenda nt, 35 36 SUISSE SECURITY BA NK AND TRUST, LTD., 37 38 Cross-Defendant-Appellee, 39

_______________________________________ 40 41 Before: JACOBS, POOLER, and SOTOMAYOR, Circuit Judges

. 42

_______________________________________ 43 441 Erroneously sued as J.V.W. Investments, Ltd. 2 Appellants J.V.W. Investment, Ltd. and J. Virgil Waggoner, two of the several 1 original defendants below, appeal fr om an order of the United States District Court for the 2 Southern District of New York (Sweet, J. ), dismissing an action in the nature of interpleader 3 brought by Corr

espondent Services Corporation, declining to exercise supplemental jurisdiction 4 over appellants’ state law cross-claims ag ainst appellee Suisse Security B ank & Trust, Ltd., and 5 vacating an attachment of assets ente red in conjunction with these cross-claims. We vacate and 6 remand to the district court for clarification of its ruling on subject matter jurisdiction and, 7 presuming proper jurisdiction exists, for reconsideration of its conclusions leading to its dec ision 8

to vacat

e the atta chment. 9
10 VACATED and REMANDED. 11

_____________________________________ 12 13 KENNETH A. CARUSO, Chadbour

ne & Par ke LL P (Marvin

R. 14 Lange, Jeffre y I . Wasserman, on the brief), New York, New Yor k, 15 for Appell ants. 16 17 ANDREW E. TOMBACK, Of Counsel , Milbank, Tweed, Hadley 18 & McCloy (Char les W. Westland, Jonathan W. Wolfe, on the 19 brief), New York, New York, for Cross-Defendant-Appellee. 20

______________________________________ 21 22 23 SOTOMAYOR, Circuit Judge : 24 25 Appellants J.V.W. Investment, Ltd. (“JVW”) 1 and J. Virgil Waggoner, two of the 26 several original defendants below, a ppeal from an order of the United States District Court for 27 the Southern District of New York (Sweet, J. ), dismissing an action in the nature of interpleader 28 brought by Corr

espondent Services Corporation (“CSC”). With CSC’s action no longer before 293

it, the district court declined to exercise supplemental jurisdiction over appellants’ state law 1 cross-claims against appellee Suisse Security Bank & Trust, Ltd. ( “SSBT”), and therefore 2

vacate d an atta

chment of assets be longing

to SSBT tha

t had bee n entere d in conjun

ction with 3 these cross-claims. Although the substance of these c ross-claims apparently

remains viable for 4 litigation in state court, the attachment, and especially its current priority in SSBT’s ongoing 5 liquidation proceedings, might not be restored if this feder al action were to be dismissed. 6 The district court dismissed CSC’s claims after both granting CSC’s Rule 41(a)(2) 7 motion for voluntary dismissal and determining that it lacked subject matter jurisdiction over 8 CSC’s original complaint, without considering CSC’s amended complaint. We vacate the 9 dismissal and remand to the district court for the following proceeding s: first, to clarify whe ther 10 jurisdiction existed under CSC’s amended complaint and, if it did, whether the allegations 11 establishing jurisdiction related back to the original complaint; and sec ond, if the allegations 12 sufficient to establish jurisdiction relate back to the original complaint, to consider whe ther the 13 prejudice to appellants flowing from the vaca ting of the attachment precludes dismissal of either 14 CSC’s action under Rule 41(a)(2) or the appellants’ cross-c laim for lack of supplemental 15 jurisdiction. 16
BACKGROUND 17 While the facts of this case illustrate one of the my riad ways in whic

h complicated 18 investment transactions can turn sour, the question that confronts us is much less complicated: 19 whether

the distri ct court

had juris diction ov er this ac tion, and, if so, whe

ther it ab used its 20 discretion by allowing CSC to withdraw the action or by dec lining to exercise supplemental 21 jurisdiction over the remaining claims amongst the interpleade r and third-party

defendants. 224

Although the specifics of the investment scheme are neither uncontested nor necessary to resolve 1 this case, in abbreviated form they serve the alternate purpose of introducing the relationships 2 between the parties in this action. 3
I. Th e Inve stment Scheme 4 In 1998, Donald Kelleher, a United Kingdom citizen, undertook for a commission 5 to realize enormous financial returns by investing $10 million belonging to J. Virgil Waggoner, a 6 Texas businessman. A Joint Partic ipation Ag

reemen t memoria

lizing this investmen

t scheme 7 implied that the investment would achieve a 500% profit within three to five months, and that 8 Kellehe

r was to r eceive betwee n twenty and twen ty- five per

cent of t hese pro fits. 9 Kelleher and Waggoner established JVW, an alien corporation organized under 10 the laws of the Republic of Dominica, with Waggoner as the sole shareholder and Kelleher as the 11 director. Through JVW, Kelleher entered into an ag reement with British Trade & Commerce 12 Bank (“BTCB”) , a Dominic a bank, to invest the

$10 million i

n a CD. BT CB issued

the CD to 13 JVW, and the CD was transferred to First Equities Corp. of Florida (“First Equity”), a Flor ida 14 subsidiary of BT CB, which in turn placed the unfunded CD into the custody of CSC, a company 15 that provided custodial services for First Equity . CSC is a citizen of New York and Delaware. 16 Meanwhile, Kelleher, through JVW, created a ba nk account at SSBT, an offshore 17 bank organized under the laws of the Ba hamas, and caused Waggone r’s $10 million to be 18 deposited into this account. After several unsuccessful attempts to transfe r this money from 19
JVW’s SSBT ac count into BTCB’s SSBT acc ount and th

us to fund t

he CD, only

approxima

tely 20 $7.7 million was transferred to BTCB/First Equity, leaving $2.3 million unaccounted for. Even 21 after the CD was funded, however, CSC possessed only the physical CD document, a nd it never 222 By t hi s t im e, Wa ggo ne r’ s c la im to th e p ro ce ed s o f t he CD ha d b ee n a cc ep te d b y Fi rs t E qu it y,

and he had received those procee ds; Kelleher was the only potential claimant still making demands. Waggoner’s and Ke lleher’s claims were still conflicting, however, in the se nse that only one of them was e

ntitled to the proceeds of the CD. 5 co nt ro ll ed an y of

th e f un ds re ce iv ed by B TC B/ Fi rs t E qu it y. 1 Waggoner and Kelleher then had a disagreement, and Waggoner dissolved the 2 Joint Partic ipation Ag reemen t, remove d Kellehe

r as dire ctor of JVW, and appo inted himse lf 3 JVW’s sole director. Waggoner receive d the proceeds of the $7.7 million investment when the 4 CD matured in June 1999. Kelleher, in turn, demanded from CSC, BTCB and First Equity not 5 merely that sum but the entire $10.6 million that a fully funded $10 million CD would have 6 yie lded upon

maturity . Kellehe

r continued to make

this deman

d even after Fi

rst Equity 7 determined that its transfer of the CD proceeds to Waggoner was proper. 8 II. The Interpleader Action 9 In August 1999, still with custody of the physical CD and f acing Waggoner’ s and 10 Kellehe

r’s appa rently conflicting cla

ims to it, 2 CSC commenced a statutory interplea der action 11 under 28 U.S.C. § 1335, naming Waggoner, Ke lleher, JVW, BTCB and First Equity a s potential 12 claimants. CSC’s complaint made clear that it believed the stake was the CD itself, rather than 13 proceeds from the CD. 14 A flurry of state-law cross-claims followed, contesting owner ship of the CD, 15 liability and responsibility for the $2.3 million loss. In one of these cross-cla ims, Waggoner and 16 JVW brough

t a claim a

gainst K elleher , added SSB T as a thir d-party defenda nt, and moved to 17 attach approximately $3 million of SSBT’s assets located in Ne w York. Based upon evidence 18 that SSBT may have f orged documents to conceal its potential wrong doing, the district court 193 A Bahamanian liquidator is akin to a bankruptcy trustee in the United States, and SSBT’s li qu id at or ac te d o n b eh al f o f S SB T i n t he li ti ga ti on on ce SS BT de cl ar ed ba nk ru pt cy. 6 found tha t Waggoner and JV

W were lik

ely to succe ed on the merits of t heir cla ims aga inst 1 SSBT, and ordered the attachment. 2 After some litiga tion and si gnific ant discovery on the mer

its of the various cross3 claims, SSBT went into bankruptcy. SSBT’ s liquidator in the Bahamas 3 then move d to dismiss 4 CSC’s interpleader action for lack of subject matter jurisdiction beca use the CD upon which the 5 action was based had no value, and to vacate the attachment of SSBT’s assets. Dissolving the 6 attachme

nt, which had bee n gran ted prior to SSBT’s i

nitiation o f bankru

ptcy procee dings, would 7 effect a subord

ination of JVW’s and Wag

goner ’s claim t

o the $3 mill ion and mig

ht result i n their 8 receiving a smaller share of SSBT’s total assets than they would re ceive if the attachment 9 remained in place. I n response to SSBT’s motion, CSC initially argued that subject matter 10 jurisdiction was proper and filed an amended complaint rea sserting jurisdiction under § 1335 and 11 also inclu

ding a d eclara tory judgmen t claim, a lleged ly w ith divers ity j urisdicti on under 28 U.S.C. 12 § 1332. After obtaining a release of a ll claims from Kelleher, however, CSC subsequently filed a 13 notice of voluntary dismissal with the court. 14 The distr ict cour t dismissed

the action as well a s all of the cross-c laims. I

t held 15 that it did not have subject matter jurisdiction based on the original complaint, vacated the 16 attachment because it had no jurisdiction at the time it was granted, a nd held that SSBT was 17 entitled to attorney’s fe es incurred defending against the wrongful attachment. The district court 18 then granted CSC voluntary dismissal under Fed. R. Civ. P. 41(a)(2) and declined supplemental 19 jurisdict

ion over d

efenda nts’ state -law cr

oss-cla ims, withou

t conside ring in e ither of t

hese 204 We also have a duty to investig ate our jurisdiction when there is any question as to its validity. See Endicott Johnson Corp. v. Liberty Mut. Ins. Co. , 116 F.3d 53, 58 (2d Cir. 1997). While no party objects to

our jurisd

iction, given the c avalier

nature i n which the partie s have de alt with jurisdictional issues thus far, we deem it prudent to mention that appellate jurisdiction is proper. Our jurisdiction under 28 U.S.C. § 1291 is limited to final judgments. The pending motion for attorney’s f

ees in the district court is collateral to the merits of the underly ing action and does not affect the finality

of the district court’s judgment or, therefore, our jurisdiction. See Budinich v. Becton Dickinson &

Co. , 486 U.S. 196, 202 (1988) (adopting "a uniform rule that an unr esolved issue of attorney' s fees for the litigation in question does not prevent judgment on the merits fr om being final"). Similarly, the delay ed entry of

final judgment, coming after oral a rgument on appeal, does not divest us of jurisdiction to hear the appeal. See Cooper v. Salomon Bros. Inc. , 1 F.3d 82, 84, 85 (2d Cir. 1993). Because the order on which the appeal was taken disposed of the merits of the action, appellate jurisdiction is proper. 7 decisions the potential prejudice to JVW and Waggoner that losing their attac hment of SSBT’s 1 assets would create. Furthermore, to make these decisions in the first place, the district court 2 must have implicitly determined that it had subject matter jurisdiction over the amended 3 complaint at least as of the time of SSBT’s motions; it did not, however, articulate its basis for 4 jurisdiction under the amended complaint, or consider whether the a mended complaint related 5 back to the original filing date to cure the jurisdictional defect inherent in CSC’s original 6 complaint. 7 JVW and Wag goner appeale d, and SSB T, the only other pa rty with an int

erest in 8 this appeal, responded. 9
DISCUSSION 10
I. Standard of Review 4 11 On appeal from a dismissal for lack of subject matter jurisdiction, we re view a 12 district c ourt’s fa ctual fin dings for clear

error a nd its leg al concl

usions de novo

. See Luckett v. 13
Bure , 290 F.3d 493, 496 (2d Cir. 2002). A district court’s voluntary dismissal of claims under 14 Rule 41(a)(2) and its decision not to exercise supplemental jurisdiction are reviewe d for abuse of 155 Had CSC retained possession of the proceeds of the CD, the amount in controversy might be measured by

the value of the proceeds, rather than the valueless CD itself. As it is undisputed that CSC did not retain the proceeds of the CD (the potential “stake” in an interplea der action), we do not reach this issue. 8 discretion. See Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990) (voluntary dismissal); 1 Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994) (supplemental jurisdiction). 2 II. Potential Jurisdiction over an Interpleader Action 3 Appellants first contend that the district court erred in deciding tha t jurisdiction 4 under the interpleader statute, 28 U.S.C. § 1335, was improper. To obtain jurisdiction under the 5 interpleader statute, two of the interpleader de fendants must be of different citizenship and the 6 stake at issue must be worth at least $500. See28 U.S.C. § 1335(a). As it is undisputed that 7 CSC possessed only the physical CD, which had no value when CSC brought suit, statutory 8 interpleader did not provide a basis for jurisdiction over this action. 5 9 Appellan ts also re ly on their ru

le interp leader

claim, ba sed upon F ed. R. Civ. P

. 10 22. Rule 22 allows a stakeholder to interplead multiple defendants “when their c laims are such 11 that the plaintiff is or may be e xposed to double or multiple liability.” Fed. R. Civ. P. 22(1). As 12 appella

nts reco gnize, r

ule inter pleader does not pr

ovide an i ndepend ent basis for juris diction; in 13 this case, jurisdiction could only be pre mised on the diversity statute, 28 U.S.C. § 1332. See 14
Frances

kin v. Cre dit Suisse , 214 F.3d 253, 259 (2d Cir. 2000). This requires that the plaintiff, 15 CSC, be of diverse citizenship to all defendants, and that the amount in controversy be greater 16 than $75, 000. Ag ain, bec ause CSC ow ned nothin

g of va lue to be i nterple aded re lating to 17 defendants’ claims, CSC’s claim based upon rule interpleader c annot provide the basis for 18 diversity jurisdiction. 199 We therefore agree

with the district court’s conclusion that neither a statutory 1 interpleader action under § 1335 nor a rule inter pleader action based upon diversity provide 2 jurisdiction over CSC’s action. 3
III. Potent ial J uris dicti on ov er Kell eher’s Cross -Clai ms 4 Waggoner and JVW argue in the alter native that diversity jurisdiction is proper 5 over at least some of the remaining state-law claims, after CSC’s dismissal, even if jurisdiction 6 did not exist before CSC’s discharge of liability on De cember 5, 2000. Their argument involves 7 treating Kelleher as a plaintiff, suing Waggoner and First Equity (but not JVW), and then treating 8 JVW as an intervenor. They provide , however, no caselaw to support their contention that the 9 parties should be rearrange d, without thought to the plaintiff, CSC. In genera l, a defendant or 10 third party may

only be rea

ligned with the plaintiff if its real interests coincide with those of the 11 plaintiff. See, e.g., Smith v. Sperling , 354 U.S. 91, 96 (1957) (holding that the determinative 12 factors are “the issue of antagonism on the face of the pleadings and . . . the nature of the 13 controversy”). Kelleher plainly does not qualify as a pla

intiff under this standard. 14 Waggoner and JVW also argue that the district cour t had independent jurisdiction 15 over at least some of the cross-claims without realigning parties. Appellants argue that this Court 16 should look only to Kelleher’s cla ims in determining whether complete diversity exists, ignoring 17 JVW and Waggoner’s cross-claims, which would destroy complete diversity. Even if this Court 18

were to a

ccept th is novel a rgumen t, howeve r, we must

look to all o f Kelleher’s cla ims after CSC 19 was discharged, including Kellehe r’s claims against SSBT, which destroy complete diversity. 20
See 28 U.S.C. § 1 332 (req uiring a ll of plain tiff’s c laims to be

against defend

ants of di verse 21 citizenship from plaintiff); 28 U.S.C. § 1367 (denying suppleme ntal jurisdiction over plaintiff’s 226 Appellants made this argument in district court in a letter dated July 13, 2001 (requesting leave to amend t

he compla

int to asse rt divers ity j urisdicti on), in the ir sur-r eply to SSBT’s motion to dismiss, an

d, appar ently , in their o

pposition to

SSBT’s mot

ion to dismis s. Beca

use appe llants’ opposition to SSBT’s motion to dismiss was not docketed, however, it is not a part of the record on appea l and we d

o not consi der it. SSB T had amp le opport unity to respon d to this ar

gument i n its reply and sur-sur-reply. We therefore find that appellants did not waive this argument by failing to raise it below. 10 claims that destroy diversity ). Thus, the district court correctly found that it could not assert 1 diversity jurisdiction based upon Kellehe r’s cross-claims alone. 2 IV. Potential Jurisdiction over a Declaratory Judgme nt Action 3 In its order di smissing t

he action, the dist

rict cou rt did not a

ddress a ppellant s’ 4 argument that CSC’s amended complaint alleges, inter alia , that juri sdiction is proper i n this cas e 5 under 28 U.S.C. § 1332, the diversity statute. 6 In its amended complaint, filed on Aug ust 20, 6 2001, CSC as serts a d eclara tory judgmen t claim pursuant to 28 U.S.C. § 220 1 with res pect to its 7 potential liability for $10 million to Kelleher. 8 Although CSC’s original complaint did not assert a declaratory judgment claim or 9 jurisdiction pursuant to 28 U.S.C. § 1332, if both the assertion of jurisdiction under § 1332 and 10 the declaratory

judgment claim relate back to the commenceme nt of the action, the amended 11 complaint cures the jurisdictional defect, assuming for the moment that the a mended complaint 12 satisfies the requirements of § 1332. The assertion of diversity jurisdiction relates back to the 13 commencement of the action when the underly ing facts, if properly

pled, would have supported 14 jurisdiction at the time the action commenced. See LeBlanc v. Cleveland , 248 F.3d 95, 99-100 15 (2d Cir. 20 01) (per curiam) ; see also Herrick Co. v. SCS Communications, Inc. , 251 F.3d 315, 16 329 (2d Cir. 2001) (“[A] federal court may simply allow a complaint to be amended to a ssert 17 those necessary

facts and then treat diversity jurisdiction as having existed from the beginning.”). 1811

Similarly, a new claim re lates back to the commencement of the action if “the c laim . . . arose out 1 of the conduct, transaction, or occurrenc e set forth or attempted to be set forth in the original 2 pleading.” Fed. R. Civ. P. 15(c)(2). Be cause the district court did not address whether the 3 amended

complain t relate d back to t

he orig inal comp laint and the part ies do not f

ocus on thi s 4 question in this appeal, we leave the issue for the district court to address in the first instance on 5 remand. See Sch onfeld v. Hilliard , 218 F.3d 164, 184 (2d Cir. 200 0) (find ing remand appr

opriate 6 where issues on appeal “have bee n briefed and argued only cursorily”)

. 7 Assuming arguendo that CSC’s amended complaint does relate back to the 8

commenc ement of the action, the re

maining question i s whethe

r the ame nded comp laint supp orts 9 diversity jurisdiction. The district court did not explicitly determine this issue. CSC, a New 10 York and Delaware citizen, is diverse from all def endants (aliens, Floridians and Texans alike). 11 Appellan

ts argu e that CSC’ s declar

atory judgmen t claim sa tisfies the amount i

n controversy 12 requirement. As the citizenship of each party is not at issue, the only question is whether the 13 amount in controversy may be measured by

Kelleher’s demand ($10.6 million) or must be 14 measured by

the value of the CD (zero). CSC’s declaratory judgment claim, which is based upon 15 Kelleher’s demand for $10.6 million, requests the following re lief: 16 [A] declaration . . . that CSC has no liability to Kelleher and that CSC, having 17 acted in

accord ance wi th the ter ms of the CD

and/or ha ving de posited the CD with 18 the Clerk of the Court, has no further liability to any party

in connection with the 19 CD or its role as custodian of the CD, that it is discharged from liability , and 20 awardin

g CSC its co sts and at

torney s’ fees

. 21 22 Appellants focus on CSC’s request for a declaration that it owes no liability to Kelleher and 23 argue that the value of the dec laratory judg ment should be measured by Kelleher’s demand. See 24 Beacon Constr. Co. v. Matco Elec. Co. , 521 F.2d 392, 399 (2d Cir. 197 5) (“[T]he amount in 257 Again, if subject matter jurisdiction is lacking, these deter minations carry no we ight; the district court should have dismissed the entire action without reaching these issues. 12 controversy is not nec essarily the money judgment sought or recovered, but ra ther the value of 1 the conse quence s which ma y r esult from the litig ation.”) . Appelle e argu es that CSC’ s request is 2 based solely on the CD, and tha t although “the amount in controversy is measured by the va

lue of 3 the object of the litigation,” Hunt v. Wash. State Apple Adver. Comm’n , 432 U.S. 333, 347 4 (1977), the “object of the litigation” in this case is the CD. Bec ause the district court did not 5 discuss this issue in its order, and the parties’ argument to this court on the issue is somewhat 6
cursory

, we dee m it pruden

t to allow the district court to a ddress these arg

uments in the first 7 instance. See Sch onfeld , 218 F.3d at 184. 8 The distr ict cour t dissolved

the attac hment of SSB T’s asse

ts becau se it belie

ved it 9 lacked jurisdiction over the action at the time the attachment was g ranted. If the district cour t 10 determines that jur isdiction over the a

ction was proper u nder the diversity statute, i t should 11 reconsider its ruling with respect to the attachment as well. We therefore vacate the district 12
court’s

order di ssolving

the attac hment and

remand f or further proc eeding s. 13 V. Supplemental Jurisdiction and Voluntary Dismissal 14 The district court also granted CSC’s motion for voluntary dismissal under Fed. 15 R. Civ. P. 41(a)(2) and determined that exercising supplemental jurisdiction in this case would be 16 unwise. 7 Rule 41(a )(2) pr ovides tha

t, except w

here al l parties

agree to a stipula

tion of dism

issal, 17 "an action shall not be dismissed at the plaintiff's instance save upon or der of the court and upon 18 such ter

ms and con

ditions as t

he court deems pr oper." A district court ma y a llow a pla intiff to 19 dismiss an action “if the defendant will not be prejudiced thereby .” Wakefield v. N. Telecom, 2013

Inc. , 769 F.2d 109, 114 (2d Cir. 1985). In exercising its discretion with respect to retaining 1 supplemental jurisdiction, the district court balances several factors “ including considerations of 2 judicial economy, conve nience, and fairness to litigants.” Purgess , 33 F.3d at 138. 3 In making these ruling s, the district court did not weigh the prejudice that JVW 4 and Waggoner would suffer if they lost their attachment of SSBT’ s assets. Because of SSBT’s 5 bankruptcy, the loss of a ppellants’ pre-bankruptcy attachment of SSBT’s assets would destroy 6 appellants’ preferential claim to a portion of SSBT’s bankr uptcy estate. Ha

ving a preferential 7 claim is not a windfall to appellants; it is simply the structure of the bankr uptcy code, w

hich 8 rewards creditors that protect their interests ea rly. Under both Rule 41(a )(2) and § 1367, the 9 district court should consider whether the litigants will be prejudiced by the voluntary dismissal 10 or decision not to exercise supplemental jurisdiction. See W akefield , 769 F.2d at 114; Purgess , 11 33 F.3d at 138 (holding “fairness to litigants” is one fa ctor to consider in determining whether 12 suppleme

ntal juris diction is a

ppropria te); see also Fed. R. Civ. P. 41(a)(2) ("an action shall not 13 be dismissed at the plaintiff's instance save upon order of the court and upon such terms and 14 conditions as the court deems proper."). I f the district court determines that subject matter 15 jurisdiction is proper over CSC’s amended complaint and relates back to the commenc ement of 16 the action, the district court should evaluate the extent to which losing the attachment prejudice s 17 JVW and Waggoner, and weigh this prejudice in its determination whe ther CSC’s voluntary 18 dismissal a

nd the exer

cise of s upplemen t jurisdiction are

appropr iate. We therefor

e vacat e 19 CSC’s dismissal and the decision not to exercise supplemental jurisdiction and remand for 20 possible reconsideration of these rulings after the district court addresses the question of subject 21 matter ju

risdiction based u

pon CSC’s amended c omplaint. 2214 CONCLUSION 1 For the reasons stated above, we vac ate the decision of the district court below 2 and remand for the district court to address appellants’ a rgument that subject matter jurisdiction 3 is proper

pursuant to CSC’s ame

nded comp laint. Ba sed on its c onclusion regar ding this 4 question, the district court should also, if appropriate, reconsider its rulings with respe ct to CSC’s 5 voluntary dismissal motion, the exercise of supplemental jurisdiction, and the dissolution of the 6 attachment of SSBT’s assets. As noted, we also deny as moot appellee’s motion to strike a 7 portion of

the rec ord on ap

peal, an d appella nts’ cro ss-motion t

o suppleme

nt the re cord on a

ppeal. 8