## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 29 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VIRGINIE GSCHWIND, in her own right and administratrix of the estate of Cyril Gschwind and Alexandra Gschwind, Plaintiff - Appellant, vs. CESSNA AIRCRAFT COMPANY; PRATT & WHITNEY CANADA, INC., Defendants - Appellees. No. 99-3329

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 96-CV-1269-MLB)
Catherine B. Slavin, Wolk & Genter, Philadelphia, P ennsylvania, for Plaintiff - Appellant. John C. Nettels, Jr. (and Thomas E. Nanney, Morriso n & Hecker, L.L.P., Kansas City, Missouri, with him on the briefs), Morrison & Hecker, L.L.P., Wichita, Kansas, for Defendant - Appellee Cessna Aircraft Co mpany. John W. Cowden, Baker, Sterchi, Cowden & Rice, L.L. C., Kansas City, Missouri, for Defendant - Appellee Pratt & Whitney Canada, In c.

Before KELLY , ANDERSON , and HENRY , Circuit Judges.1 Cessna and Pratt & Whitney are the Defendant-Appell ees as Hartzell was

dismissed as a party by the District Court of Kansa s. - 2 - KELLY , Circuit Judge.

Plaintiff-Appellant Virginie Gschwind appeals from the district court’s denial of her F ED
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. P. 60(b)(4) motion for relief from a judgment dismissing an earlier action on forum non convenien s grounds. Our jurisdiction arises under 28 U.S.C. § 1291, and we AFFIRM.

Background Ms. Gschwind, a citizen of Belgium, brought a wron gful death and survival action in Ohio state court against The Ces sna Aircraft Company (“Cessna”), a Kansas citizen, Pratt & Whitney, a Canadian citizen, and Hartzell Propeller, Inc. (“Hartzell”), an Ohio citizen. 1 The action was then removed to the Southern District of Ohio over Ms. Gschwind’s objec tion. She sought remand, arguing that 28 U.S.C. § 1441(b) prohibited removal because Hartzell was an Ohio citizen. In initially ordering remand to stat e court on this basis, the district court concluded that “[s]ince Plaintiff is a foreig n national, a resident of Belgium, there is complete diversity of citizenship among the parties and the federal courts would have subject matter jurisdicti on originally.” Aplt. App. at- 3 -

128. Upon reconsideration, the district court dete rmined that Hartzell was fraudulently joined and denied Ms. Gschwind’s motio n to remand, implicitly relying upon diversity jurisdiction. After removal, the action was transferred to the District of Kansas where Hartzell was dismissed as a party and the district court conditionally granted a forum non conveniens dismissal. Id. at 55-85. On appeal, we affirmed the forum non conveniens dis missal. Ms. Gschwind then petitioned for rehearing and rehearin g en banc, arguing for the first time that the district court lacked diversity jurisdiction over suits between aliens. Id. at 173-77, 328-29. We denied the petition. Id. at 201-02. She then filed a petition for a writ of certiorari with the Supreme Court, again arguing lack of subject matter jurisdiction. Id. at 203-25. The petition was denied. Ms. Gschwind next returned to federal district court and filed a Rule 60(b)(4) motion for relief from judgment, arguing t hat the district court’s order was void for lack of subject matter jurisdiction. Gschwind v. Cessna Aircraft
Co. , 189 F.R.D. 643 (D. Kan. 1999). The district courtdisagreed, concluding that while it may have erroneously assumed jurisdiction, it did not usurp its authority in interpreting the jurisdiction statute. Id. at 649. Accordingly, the district court concluded that the judgment may have been erroneous, but was not void. Id. The district court therefore concluded that the jud gment could not be attacked by a Rule 60(b)(4) motion because the case was no long er pending, as required by- 4 -

Tenth Circuit precedent. Id. The court reviewed three cases– Wilmer v. Board of County Commissioners of Leavenworth County , 69 F.3d 406, 409-10 (10th Cir. 1995) , Depex Reina 9 Partnership v. Texas Int’l Petroleum Corp. , 897 F.2d 461, 464 (10th Cir. 1990) , and Ramey Constr. Co., Inc. v. Apache Tribe of Mescalero Reservation , 673 F.2d 315, 318 (10th Cir. 1982)–in which the Tenth Circui t allowed subject matter jurisdiction to be attacked after appeal. In disti nguishing those cases, the court noted that the “appellate court had remanded the case to the district court and then the district court considered subject matter juris diction pursuant to a Rule 60(b)(4) motion.” Id. at 648 (emphasis in original). By way of contrast , in this case “the Tenth Circuit affirmed this court’s dismissal of the case. The Tenth Circuit denied plaintiff’s motion for rehearing. The United Stat es Supreme Court denied plaintiff’s petition for writ of certiorari. Unli ke the cases mentioned above, the case was never remanded to the district court and at this point the case is no longer pending.” Id. (emphasis in original). The court found an unreported district court decision to be persuasive. See SBKC Service Corp. v. 1111 Prospect Partners, L.P. , No. 95-2540-JWL, 1998 WL 928408 (D. Kan. Oct. 30, 1998). In SBKC , the plaintiff, like Ms. Gschwind, moved to void the district court’s judgment for lac k of diversity jurisdiction after exhausting its appellate remedies. Id. at *1. The district court denied the- 5 -

motion, concluding that the plaintiff’s failure to contest jurisdiction on direct appeal was fatal. Id. at *4. The district court also concluded that its exercise of jurisdiction was not a usurpation of authority, pre sumably because the defendant’s residence was subject to bona fide disp ute. The district court in this action then concluded: “ It follows that a Rule 60(b)(4) motion . . . cannot be used by plaintiff w ho did not succeed on her argument concerning subject matter jurisdiction dur ing the appellate process.” Gschwind , 189 F.R.D. at 649.

Discussion We review the district court’s denial of Ms. Gschw ind’s Rule 60(b)(4) motion de novo. Wilmer , 69 F.3d at 409; King Fisher Marine Service, Inc. v. 21st Phoenix Corp

. , 893 F.2d 1155, 1158 (10th Cir. 1990). A districtcourt has original jurisdiction of all civil actions where th e matter in controversy exceeds the sum or value of $75,000, ex clusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a f oreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a for eign state . . . as plaintiff and citizens of a State or of different S tates. 28 U.S.C. § 1332(a). On its face, § 1332(a) does n ot vest the district court with jurisdiction over actions between parties only of f oreign citizenship. § 1332(a)(3) does, however, permit foreign citizens t o be a party to an action- 6 -

between citizens of different states. § 1332(a)(3) could not have been a basis for jurisdiction in this action, however, because the a ction was not between citizens of different states. Ms. Gschwind, a foreign citiz en, was the lone plaintiff. Therefore, the district court could have exercised jurisdiction pursuant only to § 1332(a)(2), if at all. While the circuits that have considered the issue read § 1332(a)(2) to require United States citizens on bot h sides of an action between foreign citizens, Franceskin v. Credit Suisse , 214 F.3d 253, 258 (2d Cir. 2000); Faysound Ltd. v. United Coconut Chemicals, Inc. , 878 F.2d 290, 295 (9th Cir. 1989); Kuehne & Nagel (AG & Co.) v. Geosource, Inc. , 874 F.2d 283, 290-91 (5th Cir. 1989); Eze v. Yellow Cab Co. of Alexandria, Virginia, Inc. , 782 F.2d 1064, 1065 (D.C. Cir. 1986), Ed & Fred, Inc. v. Puritan Marine Ins. Underwriter s Corp. , 506 F.2d 757, 758 (5th Cir. 1975); M OORE ’ S F EDERAL P RACTICE § 102.77, at 143-44 (3d ed. 1997), we concur with Judge Posne r’s observation that this interpretation is far from apparent from the face of 28 U.S.C. § 1332(a)(2). See Allendale Mutual Ins. Co. v. Bull Data Sys., Inc. , 10 F.3d 425, 428 (7th Cir. 1993) (“Exactly what sense all this makes rather el udes us.”). Nevertheless, the Defendants assume for the sake of argument that the requirements of § 1332(a)(2) were not satisfied because Ms. Gschwind was not joined by a United States citizen. Aplee. Br. (Pratt & Whitney) at 5; Aplee. Br. (Cessna) at 21. We make this same assumption inasmuch as the district court’s views on jurisdiction- 7 -

are not dispositive to our analysis. Rule 60(b) provides in part: “On motion and upon su ch terms as are just, the court may relieve a party or a party’s legal re presentative from final judgment, order, or proceeding for the following re asons: . . . (4) the judgment is void.” F ED
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. P. 60(b)(4) (2000). “Rule 60(b)(4) . . . is not subject to any time limitation.” Orner v. Shalala , 30 F.3d 1307, 1310 (10th Cir. 1994) (internal quotations and citations omitted). A judgment is void for Rule 60(b)(4) purposes if th e “rendering court was powerless to enter it.” V.T.A., Inc. v. Airco, Inc. , 597 F.2d 220, 224 (10th Cir. 1979). A judgment may in some instances be void for lackof subject matter jurisdiction. E.g. id. ; In re Four Seasons Securities Laws Litigation , 502 F.2d 834, 842 (10th Cir. 1974). “However, this occurs o nly where there is a plain usurpation of power, when a court wrongfully extend s its jurisdiction beyond the scope of its authority.” Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp. , 624 F.2d 822, 825 (8th Cir. 1980) (citations omitted); accord Nemaizer v. Baker , 793 F.2d 58, 65 (2d Cir. 1986) (observing that co llateral attack is permitted under Rule 60(b)(4) where there is “a cle ar usurpation of power by a district court, and not an error of law in determin ing whether it has jurisdiction”) (citations omitted). A court does not usurp its power when it erroneousl y exercises- 8 -

jurisdiction. Kansas City Southern , 624 F.2d at 825. “Since federal courts have ‘jurisdiction to determine jurisdiction,’ that is, ‘power to interpret the language of the jurisdictional instrument and its applicatio n to an issue by the court,’ error in interpreting a statutory grant of jurisdiction i s not equivalent to acting with total want of jurisdiction.” Id . (quoting Stoll v. Gottlieb , 305 U.S. 165, 171 (1938)); see also Lubben v. Selective Serv. Sys. Local Board No. 27 . , 453 F.2d 645, 649 (1st Cir. 1972) (“While absence of subjectmatter jurisdiction may make a judgment void, such total want of jurisdiction mu st be distinguished from an error in the exercise of jurisdiction.”) (footnote omitted). There must be “no arguable basis on which [the court] could have rest ed a finding that it had jurisdiction.” Nemaizer , 793 F.2d at 65. Applying these principles, we hold that the distric t court’s judgment was not void for lack of subject matter jurisdiction. The Ohio federal district court concluded that “[s]ince Plaintiff is a foreign nati onal, a resident of Belgium, there is complete diversity of citizenship among th e parties and the federal courts would have subject matter jurisdiction originally.” Aplt. App. at 128. In doing so, the district court erroneously interpreted § 13 32(a). However, an erroneous interpretation of a jurisdictional statute does notrender the underlying judgment void. Stoll , 305 U.S. at 171-72; Kansas City Southern , 624 F.2d at 825. Moreover, there was at least an arguable basis for jurisdiction, cf. Nemaizer , 793- 9 -

F.2d at 65, because the scope of the district court’s jurisdiction ove r a case with foreign parties on both sides of an action is far f rom clear from the face of the statute. The express language of § 1332(a)(2) does not require a United States citizen on both sides of an action between foreign citizens. The requirement only begins to become vaguely apparent when (a)(2) is re ad together with (a)(3) and even then it is not absolutely clear. Allendale , 10 F.3d at 428. Ms. Gschwind argues that the district court mischar acterized its exercise of jurisdiction as quasi-jurisdictional, i.e., that ju risdiction was premised upon the finding of jurisdictional facts. Ms. Gschwind argu es that the district court instead exercised jurisdiction upon a general findi ng of jurisdiction over cases between a foreign citizen and a foreign and United States citizen and that this exercise of jurisdiction rendered the underlying judgment void. Aplt. Brief at 16. Ms. Gschwind correctly observes that the district c ourt’s jurisdiction was not based upon quasi-jurisdictional facts. The citizen ship of the parties was not in dispute. But this is not dispositive. As we expla ined, an “error in interpreting a statutory grant of jurisdiction is not equivalent t o acting with total want of jurisdiction.” Kansas City Southern , 624 F.2d at 825. Ms. Gschwind also asserts that the district court i mpermissibly extended its jurisdiction in ordering the forum non conveniens dismissal. Aplt. Br. at 17. Ms. Gschwind relies upon a distinction drawn in M OORE ’ S F EDERAL P RACTICE- 10 -

between the exercise of jurisdiction over an entire category of cases over which the court does not have jurisdiction (e.g., cases o n interlocutory appeal) and the erroneous exercise of jurisdiction over a particular case that falls within a category of cases over which a court generally does have jurisdiction (e.g., diversity cases). Id. (quoting M OORE ’ S F EDERAL P RACTICE 3 D § 60.44[2][a-b] (3d 1997) (“[A] lack of subject matter jurisdiction means a court’s lack of jurisdiction over an entire category of cases, not whether the court makes a proper or improper determination of subject-matter jurisdiction in a particular case.”). Ms. Gschwind argues that the district court in this case exercised jurisdiction over an entire category of cases over which it lacked jurisdiction: cases brought by a foreign citizen against a foreig n citizen and a United States citizen. Aplt. Br. at 16; Aplt. Reply Br. at 3. Assuming this approach is appropriate in distinguis hing void, as opposed to voidable, judgments, we disagree with Ms. Gschwi nd’s characterization of the district court’s decision. The district court did not exercise jurisdiction over an entire category of cases over which it lacked juris diction. The district court had jurisdiction over cases between diverse parties and assumed that the parties before it satisfied the requirements of 28 U.S.C. § 1332. It did nothing more than erroneously exercise its diversity jurisdictio n in this particular case. Finally, Ms. Gschwind asserts that the Supreme Court’s decision in Vallely- 11 -

v. Northern Fire & Marine Ins. Co. , 254 U.S. 348 (1920), requires the conclusion that the district court’s judgment was void. Aplt. Reply Br. at 5. In Vallely , the district court entertained involuntary bankru ptcy proceedings against an insurance company. At the time, the Ban kruptcy Act expressly provided that insurance companies were not subject to the district court’s bankruptcy jurisdiction. Vallely , 254 U.S. at 351-52. The district court entered judgment and the time for appeal lapsed, at which t ime the insurance company contested jurisdiction by filing a motion to vacate the judgment. Id. at 351. The Court held that “[c]ourts are constituted by author ity and they cannot [act] beyond the power delegated to them. If they act be yond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities.” Id . at 353. The Court distinguished the case from th ose in which the exercise of jurisdiction was held to be merely erro neous. “[In those cases] the courts had jurisdiction of their subject-matter and necessarily power to pass upon the fact (diversity of citizenship) upon which thatjurisdiction depended in the given case. The subject-matter of the suit was notwithheld from them by explicit provision of the law which was their sole warrant of power.” Id. at 354. Because the jurisdictional statute in question clearly excluded insurance companies from jurisdiction, the Court concluded th at there was “no power in the District Court to include them . . . For a court to extend the act to corporations of- 12 -

either kind is to enact a law, not to execute one.” Id. at 355-56. Vallely is distinguishable. While the jurisdictional statute in Vallely plainly excluded insurance companies from jurisdict ion, § 1332 does not on its face exclude actions brought by a foreign citizen a gainst a foreign and United States citizen. Thus, unlike the district court’s actions in Vallely , the district court’s exercise of jurisdiction in this instance d oes not amount to a total usurpation or extension of jurisdiction. In light of our holding that the district court’s j udgment was not void, we need not address whether Ms. Gschwind was barred fr om attacking subject matter jurisdiction on principles of res judicata.
AFFIRMED.