FILED

United States Court of Appeals

Tenth Circuit

November 22, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AIR CENTURY SA, a Dominican

Republic corporation,

Plaintiff-Appellant,

v.

ATLANTIQUE AIR ASSISTANCE,

a French corporation,

Defendant-Appellee,

and

INSURED AIRCRAFT TITLE

SERVICE, INC., an Oklahoma

corporation,

Defendant.

No. 10-6253

(D.C. No. 5:08-CV-01324-D)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
Air Century, SA (Air Century) relied on diversity jurisdiction, 28 U.S.C.

§ 1332(a)(2), when it sued Atlantique Air Assistance (Atlantique) and Insured

Aircraft Title Services, Inc. (IATS) for breach of contract in the United States

District Court for the Western District of Oklahoma. Unfortunately, § 1332(a)(2)

did not provide jurisdiction; complete diversity is lacking because Air Century

and Atlantique are both foreign corporations with principal places of business

outside the United States, and therefore are both foreign citizens. Nevertheless,

in the district court the parties assumed (and stipulated to) the existence of

diversity jurisdiction. Instead of challenging diversity, Atlantique sought and was

awarded dismissal for lack of personal jurisdiction. Air Century stipulated to the

dismissal with prejudice of its claims against IATS and then appealed the

dismissal of its claims against Atlantique.

Belatedly noticing the diversity issue early in the appeal, Atlantique moved

to dismiss for lack of subject-matter jurisdiction. In response, Air Century

conceded that the district court had never had subject-matter jurisdiction. It

requested that this court (1) vacate the district court’s order dismissing Atlantique

for lack of personal jurisdiction and (2) dismiss this appeal. The dismissal

motion and all related filings were referred to this panel for decision. The parties

reiterated their jurisdictional positions in their merits briefs.

We have jurisdiction to consider this matter under 28 U.S.C. § 1291,

see Cunningham v. BHP Petroleum Gr. Brit. PLC, 427 F.3d 1238, 1243 n.4

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(10th Cir. 2005) (noting, in case where diversity was absent, that the district

court’s orders were final and appealable), as well as the established principle that

a court always has jurisdiction to consider its jurisdiction, see Combs v.

PriceWaterhouse Coopers LLP, 382 F.3d 1196, 1204 (10th Cir. 2004). Thus, we

need not dismiss the appeal, even though the lack of subject-matter jurisdiction

means that we cannot reach the merits of the parties’ dispute, see Gadlin v.

Sybron Int’l Corp., 222 F.3d 797, 800 (10th Cir. 2000).

Atlantique urges us to leave undisturbed the district court’s dismissal for

lack of personal jurisdiction because the Supreme Court has held that there is no

priority between subject-matter jurisdiction and personal jurisdiction. See

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-88 (1999). In following

Ruhrgas AG, however, this court has chosen to address subject-matter jurisdiction

first where resolving that question is the easier route. See Gadlin, 222 F.3d

at 799. In this case, diversity is the easier issue.

Section 1332(a)(2) requires complete diversity. See Depex Reina 9 P’ship

v. Tex. Int’l Petroleum Corp., 897 F.2d 461, 465 (10th Cir. 1990). But “the

presence of foreign parties on both sides of the dispute destroys the complete

diversity required by § 1332(a)(2).” U.S. Motors v. Gen. Motors Eur., 551 F.3d

420, 424 (6th Cir. 2008); see also Grupo Dataflux v. Atlas Global Group, L.P.,

541 U.S. 567, 569 (2004) (stating, in case involving both state and foreign

citizens as plaintiffs and a foreign citizen as defendant, that because “aliens were

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on both sides of the case, . . . the requisite diversity was therefore absent”);

Ruhrgas AG, 526 U.S. at 584 (same); Cunningham, 427 F.3d at 1242, 1244

(noting that the district court never had jurisdiction because a partnership was the

real party-plaintiff in interest; its citizenship rested on its partners, one of whom

was a foreign citizen; and a defendant was also a foreign citizen); Gschwind v.

Cessna Aircraft Co., 232 F.3d 1342, 1345 (10th Cir. 2000) (assuming without

deciding that § 1332(a)(2) was not satisfied where a foreign citizen sued a foreign

citizen and a state citizen). Because Air Century and Atlantique are undisputedly

both foreign citizens, complete diversity never existed.

Under these circumstances, the district court “had no power to rule on any

substantive motions or to enter judgment in the case,” and all of its orders must

be vacated. Cunningham, 427 F.3d at 1245. In light of the lack of subject-matter

jurisdiction, “we need not address the district court’s rulings on personal

jurisdiction.” Gadlin, 222 F.3d at 800. 

The motion to dismiss the appeal is DENIED. The district court’s orders

are VACATED, and this matter is REMANDED with instructions for the district

court to DISMISS the case for lack of subject-matter jurisdiction.

Entered for the Court

Stephen H. Anderson

Circuit Judge

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10-6253, Air Century SA v. Atlantique Air Assistance 

LUCERO, J., dissenting.

The district court dismissed this action for lack of jurisdiction, and all of us

agree that the district court lacked jurisdiction. Rather than affirming, however,

the majority vacates the district court’s dismissal and orders it to re-dismiss the

case on other grounds. Because this curious disposition contravenes an age-old

principle of appellate review, I respectfully dissent. 

Our court articulated this rule a half-century ago:

[I]t is consistently held that an order or judgment which is correct in

ultimate effect will not be disturbed on appeal even though the lower

tribunal relied upon a wrong ground or gave an untenable reason for

its action. The issue on appeal is the correctness in ultimate effect of

an order or judgment, not the reason or reasons given therefor by the

trial court. And if an order or judgment is sustainable upon any legal

basis, it will be upheld on appeal despite the erroneous or untenable

reasons given by the trial court or lower tribunal for its entry. 

First Nat’l Bank v. Luther, 217 F.2d 262, 266 (10th Cir. 1954) (citations omitted);

see also Helvering v. Gowran, 302 U.S. 238, 245 (1937) (“In the review of

judicial proceedings the rule is settled that if the decision below is correct, it must

be affirmed, although the lower court relied upon a wrong ground or gave a

wrong reason.”); Williams v. Norris, 25 U.S. (12 Wheat.) 117, 120 (1827)

(Marshall, C.J.) (“If the judgment [of the lower court] should be correct, although

the reasoning, by which the mind of the Judge was conducted to it, should be
deemed unsound, that judgment would certainly be affirmed in the superior

Court.”). 

We have uniformly applied this principle when reviewing dismissals for

lack of jurisdiction. See, e.g., Robert Gay Energy Enters., Inc. v. State Corp.

Comm’n, 753 F.2d 857, 862 n.5 (10th Cir. 1985); see also Tast v. Dean, 182 F.

App’x. 748, 748-49 (10th Cir. 2006) (unpublished); Muchnick v. Colorado, 106 F.

App’x 659, 660 (10th Cir. 2004) (unpublished); United States ex rel. Schwartz v.

Coastal Healthcare Group, Inc., 232 F.3d 902 (10th Cir. 2000) (unpublished table

decision). 

The majority offers no justification for its departure from this well-settled

rule. It cites Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238,

1245 (10th Cir. 2005), for the proposition that a court without subject matter

jurisdiction has “no power to rule on any substantive motions,” but the district

court did not do that here—it merely dismissed for lack of jurisdiction. Nor does

Gadlin v. Sybron International Corp., 222 F.3d 797 (10th Cir. 2000), justify the

majority’s break from established principle. Our vacatur in that case was justified

by the district court’s ultra-jurisdictional consideration of the statute of

limitations. See id. at 798.

Seeing no reason to stray from the well-established rule, I would simply

affirm the district court’s dismissal on other grounds. 

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