17-1216-cv Banerjee v. Sadis & Goldberg, LLP

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 ELECTRON IC 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

22 nd day of March, two thousand eighteen.

Present: ROSEMARY S. POOLER, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges

.

_____________________________________________________

SUMANTA BANERJEE,

Defendant-Appellant

,

v. 17-1216-cv

SADIS & GOLDBERG, LLP,

Plaintiff-Appellee

.

_____________________________________________________

Appearing for Appellant: Theodore J. Fo lkman, Murphy & King, P.C., Boston, MA.

Appearing for Appellee: Ben Hutman, Sa dis & Goldberg, LLP (Douglas R. Hirsch, on the brief ), New York, N.Y.

Appeal from the United States Di strict Court for the Southern District of New York (Swain, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said Dist rict Court be and it hereby is VACATED and
REMANDED

.2 Sumanta Banerjee appeals from the Ma rch 30, 2017 memorandum order of the United
States District Court for the Southe rn District of New York (Swain, J .) denying his motion to vacate the default judgment entered against him on the ground that email service was improper. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Sadis & Goldberg represented Banerjee in litigation between Bane rjee and his employer and business partner. Sadis & Goldberg sued Bane rjee for unpaid legal fees. It alleged diversity jurisdiction based on Sadis & Goldberg’s citi zenship in New York and New Jersey and Banerjee’s alleged citizenship in India. After several uns uccessful attempts to serve Banerjee in India, Sadis & Goldberg moved for permission to serve Banerjee by email. The district court granted the motion, and Sadis & Goldberg serv ed Banerjee by email on July 7, 2014. Banerjee neither answered nor otherwise responded to the summons and complaint, and on February 6, 2015 the district court granted Sa dis & Goldberg’s motion for a de fault judgment. Judgment in the amount of $383,448.90 was entered on April 28, 2015.

In April 2016, acting pro se, Banerjee brought a motion pursuant to Federal Rule of Civil Procedure 60(b) to vacate the default as void, pr imarily arguing that Indi a’s objection to Hague Convention Article 10 precludes email as a valid form of service. The district court denied the motion, concluding that “the weight of authority on this point is that methods are not precluded unless specifically enumerated and a signatory nation has specifically objected to them.” Sadis & Goldberg, LLP v. Banerjee , No. 14-cv-913, 2017 WL 1194476, at *2 (S.D.N.Y. March 30, 2017). This appeal followed.

After filing his opening brief, Banerjee move d in this Court to vacate the judgment and
remand with instructions to dismiss for lack of subject matter ju risdiction. Banerjee argued that he is a U.S. citizen domiciled in India, elimina ting the basis for diversit y jurisdiction. By order of December 12, 2017, that motion was referred to this panel for consideration together with Banerjee’s appeal from the denial of vacatur.

We review the denial of a motion to v acate a default under Fede ral Rule of Civil Procedure 60(b)(4) de novo, see Burda Media, Inc. v. Viertel , 417 F.3d 292, 298 (2d Cir. 2005), mindful that it is the party m oving for relief from judgment w ho bears the burden of showing that such relief is warranted, see id. at 299; see also Central Vt. Pub. Serv. Corp. v. Herbert , 341 F.3d 186, 190 (2d Cir. 2003) (distinguishing between jurisdictional challenge on direct appeal and challenge “[i]n the context of a Rule 60(b)(4) motion, [where ] a judgment may be declared void for want of jurisdiction only when the court plainly usurped jurisdiction, [ i.e. ], when there is a total want of jurisdiction and no arguable basis on which it could have re sted a finding that it had jurisdiction.” (internal quot ation marks omitted)).

It is well settled that “a suit by or against United States citizens domiciled abroad may not be premised on diversity.” Cresswell v. Sullivan & Cromwell , 922 F.2d 60, 68 (2d Cir. 1990). Despite Banerjee’s failure to assert his U.S. c itizenship and Indian domicile as a challenge to jurisdiction until well into the appeal process, “[a] federal court’s lack of subject matter jurisdiction is not waivable by the parties.” Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc ., 87 F.3d 44, 47 (2d Cir. 1996).3 Banerjee’s U.S. citizenship appears undi sputed. Sadis & Goldberg challenges only Banerjee’s foreign domicile. Bane rjee argues that Sadis & Goldberg is judicially estopped from asserting he was domiciled anywhe re other than India, because Indian domicile was the position
that Sadis took in al l the papers below. 1 Judicial estoppel applies where “1) a party’s later position is clearly inconsistent with its earlier pos ition; 2) the party’s former position has been adopted in some way by the cour t in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel.” In re Adelphia Recovery Trust , 634 F.3d 678, 695-96 (2d Cir. 2011) (int ernal citation and quotation marks omitted). The purpose is to avoid “prejudice of the party who has acquiesced in the position formerly taken.” Id . at 695 (citation omitted). Banerjee fails to show that these conditions are satisfied here. Accordingly, we declin e to apply judicial estoppel.

“‘[D]efective allegations of jurisdiction ma y be amended, upon terms, in the trial or appellate courts[.]’” Jacobs v. Patent Enf’t Fund, Inc ., 230 F.3d 565, 567 (2d Cir. 2000) (quoting 28 U.S.C. § 1653); see also Durant, Nichols, Houst on, Hodgson & Cortese-Costa P.C. v. Dupont , 565 F.3d 56, 64 (2d Cir. 2009). We do not here go further, however, because Banerjee’s domicile at the time the complaint was filed cannot be determined on the current record. We therefore vacate the challenged order of Marc h 30, 2017, and remand for the district court to determine, in the first instance, where Banerjee was domiciled when the complaint was filed and whether subject matter jurisdiction exists. The district court is free to conduct this inquiry in whatever manner it sees fit, including allo wing discovery on the i ssue if appropriate.

If diversity jurisdiction is established by Bane rjee’s domicile in the U.S. at the relevant time, no further inquiry as to service is necessa ry. The record sufficiently demonstrates that Banerjee received notice of the underlying action despite his and hi s relatives’ efforts to avoid service. In these circumstances, any defect in the form of serv ice would not warrant vacatur of the default judgment. See United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 272 (2010) (concluding party not entitled to Rule 60(b)(4) relief because party’s due process rights not
violated where it “received actual notice” (emphasis in original)); accord Shefner v. Beraudiere

, 582 F. App’x 9, 12 (2d Cir. 2014) (summary orde r) (“[D]eprivation of ‘a right granted by a procedural rule’ does not require Rule 60(b) vacatur as long as th e defendant ‘received actual notice of the filing and contents of the pleadings,’ thus satisfyi ng the constitutional standard for due process.” (quoting 559 U.S. at 272) (alternation omitted)).

Accordingly, the March 30, 2017 order is vacat ed, and the case is remanded for further proceedings consistent with this order. Each side is to bear its own costs.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 Although Banerjee insists that he was domiciled in In dia when the complaint was filed, at oral argument his attorney represented that he is currently domiciled in the U.S.