United States Court of Appeals

For the First Circuit

No. 10-1397

QUINCY V, LLC; CAMBRIDGE V, LLC,

Plaintiffs.

__________

QUEENS SYNDICATE COMPANY; COMBO STORES COMPANY;

INITIAL REALTY COMPANY; SONS REALTY COMPANY;

P&S REALTY COMPANY; FLATLANDS MANAGEMENT COMPANY,

Plaintiffs, Appellees,

v.

SHELLY HERMAN, as temporary Executrix for the

Estate of STEPHEN COOPERMAN,

Defendant, Third-Party Plaintiff, Appellee.

__________

LISA MINOR,

Interested Party-Appellant.

__________

VICTOR VITLIN; ROBERT FEINERMAN; ZACHARY SCHEINBERG;

JANICE SCHEINBERG; JACK DAVIDOFF; ALAN SHRIRO;

MARTIN BRODY; MARTIN SCHNEIDER,

Third-Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]
Before

Boudin, Circuit Judge,

Souter, Associate Justice, *

and Stahl, Circuit Judge.

Richard J. Montes with whom Matthew W. Naparty and Mauro

Goldberg & Lilling LLP were on brief for interested party,

appellant.

Mark H. Bluver with whom Law Office of Mark H. Bluver was on

brief for plaintiffs, appellees Queens Syndicate Company and Combo

Stores Company. 

Katharine Pacella Costello with whom John J. Egan and Egan,

Flanagan & Cohen, P.C. were on brief for plaintiff, appellees

Initial Realty Company, Sons Realty Company, P&S Realty Company and

Flatlands Management Company.

Andrew M. Hochberg for defendant, third-party plaintiff,

appellee.

July 22, 2011

The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. Lisa Minor appeals from an order

to enforce a settlement agreement against her, which she signed

after mediation of several lawsuits concerning six family-run real

estate partnerships. The procedural history is complex but, in the

end, the central question is whether the district court had

authority to enter the order in question, which helps bring to a

close at least four lawsuits in multiple courts.

The six partnerships own and manage commercial real

estate in and around New York City, and all are organized as

general partnerships under New York law. N.Y. P'ship Law § 10

(McKinney 2005). The partners in each entity largely though not

entirely overlap and comprise a group of natural persons, trusts,

and limited liability companies. Lisa Minor is herself a partner

in all six ventures. 

The six partnerships had been managed by a single

partner, Shirley Cooperman, until her death in 2000 and thereafter

by her son, Stephen Cooperman, almost until his own death in 2008. 

Lisa Minor is Stephen Cooperman's sister and assisted him with the

financial affairs of the partnerships. However, in January 2008,

the partnerships voted to appoint three-member committees to take

over the management, and Lisa Minor was a member of four of them.

In February 2008, Stephen Cooperman died and his estate

was probated in state court in Berkshire County, Massachusetts,

where he had resided. Later that year the partnerships began the

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present federal district court lawsuits in Massachusetts against

Shelly Herman, the beneficiary and executrix of Cooperman's will,

seeking redress for alleged mismanagement of the partnerships by

Stephen Cooperman during his tenure. One lawsuit was by two of the

partnerships, the second by the other four and the same district

judge handled both together.

Both lawsuits prompted counterclaims by the estate

against the plaintiff partnerships, a third party complaint against

the partners of all of the partnerships, and further attempted

claims by individual partners. It also came to light that two of

the partners had separately sued Lisa Minor in the Surrogate's

Court of Nassau County, New York in her capacity as executrix of

the estate of Shirley Cooperman--a position that she acquired in

succession to Stephen Cooperman after his death.

After mediation in February 2009, a settlement agreement

was reached to dispose of the two federal district court actions

and related state court suits in Massachusetts, Minor being a party

to one of the latter. In the mediation, Minor was represented by

the attorney, Paul Rothschild, who was handling her defense in the

latter case. Lisa Minor signed the settlement agreement numerous

times--in her individual capacity, as a partner in all six

partnerships, and as a trustee of one of the other partners.

On March 23, 2009, counsel for the partnerships notified

the district court that the two federal lawsuits had been settled,

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that final documents were being drafted, and that counsel expected

the process to take up to sixty days. Acting without a motion to

dismiss, the district court (following a practice sometimes used to

clear dockets and spur a final disposition) dismissed both cases

the same day. The orders of dismissal were identical and read in

full:

The court, having been advised on March

23, 2009 that the above-entitled action has

been settled;

IT IS ORDERED that this action is

hereby dismissed without costs and without

prejudice to the right of any party, upon good

cause shown, to reopen the action within sixty

(60) days if settlement is not consummated. 

Settlement was not in fact consummated because Minor

refused to execute mutual releases called for by the settlement

agreement. She was represented by another lawyer in the Nassau

Surrogate's Court action in New York and that lawyer apparently

wanted changes in the mutual release to clarify its relationship to

that action. The partnerships balked at accepting her suggestions,

and she refused to sign the release.

The sixty-day window following the orders of dismissal

ended on Friday, May 22, 2009, the following Monday being Memorial

Day. On Tuesday, May 26, counsel for the partnerships requested by

phone call to the court clerk a thirty-day extension of the sixtyday dismissal period. On Thursday, May 28, the same attorney filed

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a motion to enforce the settlement agreement against Minor on

behalf of all the partnerships and the estate.

Minor filed no objection within the fourteen-day period

required under the local rules, D. Mass. R. 7.1(b). On June 12,

2009, the district court granted the motion to enforce the

settlement. Two months later, on August 7, 2009, Minor,

represented by Rothschild, filed a motion to vacate the district

court's enforcement order, claiming a lack of jurisdiction over

both the settlement agreement and over Minor herself. Following a

November 2009 hearing, the district court ordered that a new motion

to enforce be filed, giving Minor a fresh opportunity to object.

Thereafter, the partnerships and Cooperman estate filed

a new motion to enforce the settlement against Minor, and Minor

responded. In March 2010 the district court rejected Minor's

motion to vacate and ordered Minor to execute the release. Queens

Syndicate Co. v. Herman, 691 F. Supp. 2d 283, 290 (D. Mass. 2010). 

The court found that it had properly reinstated the litigation and

that Minor was present in the cases as a plaintiff by virtue of her

status as partner in all six partnerships. Id. at 286-87. 

Minor then filed a motion to dismiss the case claiming

that the court never had subject-matter jurisdiction because the

parties in the case were not completely diverse. The district

court denied Minor's motion in an unpublished order entered in both

cases. Minor then filed the present appeal, raising the objections

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already noted along with a separate attack on the validity and the

interpretation of the original mediated settlement agreement that

she had signed in her various capacities.

 Minor's first subject matter claim is that the parties

in the district court were not of diverse citizenship. The

defendant in the district court throughout has been Shelley Herman

as executrix of Stephen Cooperman's estate. Because at the time of

his death Stephen Cooperman was domiciled in Massachusetts, by

statute his executrix was similarly designated. 28 U.S.C. §

1332(c)(2). Diversity jurisdiction thus depends, absent some

realignment of parties, on no plaintiff being domiciled in

Massachusetts.

The six plaintiff partnerships were organized under New

York law, N.Y. P'ship Law § 10 (McKinney 2005), but for diversity

purposes, a partnership has attributed to it the citizenship of all

its members, Carden v. Arkoma Assocs., 494 U.S. 185, 188-90 (1990). 

Minor's claim is that Stephen Cooperman was also a partner in each

of the six plaintiff partnerships, thereby destroying diversity,

even though neither Lisa Minor nor any other partner is domiciled

in Massachusetts. The district court held that Cooperman's estate

was not a member of the partnerships and we agree.

Under New York law, a general partnership dissolves upon

the death of a partner absent specific agreement to the contrary,

N.Y. P'ship Law § 62(4), and if the survivors continue to operate

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the business as a partnership, they create a new partnership at

will, see, e.g., Burger, Kurzman, Kaplan & Stuchin v. Kurzman, 527

N.Y.S.2d 15, 16-17 (App. Div. 1988). Minor says that Stephen

Cooperman's estate did continue to receive payments from the

partnerships and was listed as a partner on state and federal tax

forms filed by the partnerships. This is an incomplete picture.

Following Stephen Cooperman's death, the estate never

exercised any joint control over the partnerships, nor contributed 

to the ventures, see Kyle v. Brenton, 584 N.Y.S.2d 698, 699 (App.

Div. 1992), and Herman expressly disclaimed "an intent to become a

partner in the partnerships." The payments to the estate--however

labeled in tax forms--appear to be the distributions that the

estate is entitled to recover as a sort of creditor, N.Y. P'ship

Law §§ 72(3), 73; see also Birnbaum v. Birnbaum, 555 N.Y.S.2d 982,

987-88 (App. Div. 1990), and not as a current partner.

Minor's second subject matter objection is that the

district court relinquished its jurisdiction when it dismissed the

complaint sua sponte and could not thereafter reclaim it. Under

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994), a federal

court may enforce a settlement if it maintains jurisdiction or

embeds the settlement in a judgment, but otherwise a suit to

enforce a settlement is a contract dispute which requires a new

jurisdictional basis to be heard in federal court. Lipman v. Dye,

294 F.3d 17, 21 (1st Cir. 2002).

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The March 2009 dismissal was premised on the

representation that a settlement had been reached; and when Minor

declined to sign the releases, the other parties sought relief in

late May 2009 and received it in early June. The request occurred

only a few days after the sixty-day period had expired; and the

grant of relief was within ninety days of the original dismissal--

well within the one year period for a motion to reopen a judgment

for excusable neglect. Fed. R. Civ. P. 60(b)(1).

This court has held the use of a Rule 60(b)(1) motion to

be compatible with Kokkonen. Pratt v. Philbrook, 109 F.3d 18, 22

& n.7 (1st Cir. 1997); F.A.C., Inc. v. Cooperativa de Seguros de

Vida de Puerto Rico (COSVI), 449 F.3d 185, 190-191 (1st Cir. 2006). 

Minor does not complain of an abuse of discretion but rather that

the district court lacked power to act sua sponte under Rule 

60(b). This issue has divided other circuits, Dr. José S. Belaval,

Inc. v. Peréz-Perdomo, 465 F.3d 33, 37 (1st Cir. 2006), but we need

not take a position because the district court reasonably construed

the motion to enforce as an implicit Rule 60(b) motion to reopen.

Minor further objects that the district court failed to

afford her notice and an opportunity to respond to the motion. The

motion to enforce had been sent to Rothschild who had represented

Minor in the Massachusetts state court suit and in the mediation. 

At the time, he denied that he could accept service on Minor's

behalf in the federal actions. Any lack of notice was cured when

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the district court, in the November 2009 hearing on Minor's motion

to reconsider, ordered plaintiffs to file a proposed order and

afforded Minor two weeks to respond to it.

Separately, Minor argues that the district court lacked

authority to enforce the settlement because its original sua sponte 

dismissal of the case was necessarily predicated on the parties'

imputed consent, Fed. R. Civ. P. 41(a)(1)(A)(ii); by implication,

she argues, the court also lacked authority to enforce the

settlement absent consent of all parties. The dismissal here is

better viewed as falling instead under Fed. R. Civ. P. 41(a)(2)

because there was no stipulation to dismissal from the defendants. 

In any event, the dismissal is not the source of the

court's power to enforce the settlement. Rather, the dismissal--

whatever its character--was withdrawn pursuant to Rule 60(b)(1). 

And, once the district court re-established jurisdiction, it had

ancillary jurisdiction to enforce the settlement agreement by the

parties. See Baella-Silva v. Hulsey, 454 F.3d 5, 10-11 (1st Cir.

2006), COSVI, 449 F.3d at 189-190. Thus, the court's order to

Minor to sign the release was within its power.

Minor next attacks the court's authority over her person

which, for defendants, requires both personal jurisdiction and

service of process. In rejecting this challenge, the district

court relied on Minor's status as a partner in each of the six

plaintiff partnerships. Queens Syndicate, 691 F. Supp. 2d at 286-

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87. New York law provides that personal jurisdiction over the

partnership also confers personal jurisdiction over the general

partners, U.S. Bank Nat'l Ass'n v. Ables & Hall Builders, 582 F.

Supp. 2d 605, 616 (S.D.N.Y. 2008).

Minor claims that New York law would distinguish between

her presence as a partner and her presence in an individual

capacity, Ruzicka v. Rager, 111 N.E.2d 878, 879-81 (N.Y. 1953), 

and that she was a plaintiff only in her capacity as a partner and

was never served in her individual capacity in either federal

lawsuit. We need not pursue the interesting choice of law issues

implicated by this dual capacity argument. See Roberts-Haverhill

Assocs. v. City Council, 319 N.E.2d 916, 920 (Mass. App. Ct. 1974.)

While the present lawsuits were pending in the district

court, Minor--both as an individual and as a partner--entered into

a single settlement agreement covering both federal lawsuits (as

well as other lawsuits); and this constituted a waiver--in both

capacities--of objections to personal jurisdiction. Cf. Meetings

& Expositions, Inc. v. Tandy Corp., 490 F.2d 714 (2d Cir. 1974)

(per curiam). Any claim by Minor of lack of notice was cured by

the November 2010 hearing and opportunity to respond to the

proposed order.

Minor now argues to us that the settlement agreement was

ambiguous and so unenforceable, and that the releases go beyond

what the settlement agreement contemplated. The record contains

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only brief references to such substantive objections in Minor's

written submissions to the district court (in August and December

2009) and her attorney's oral argument (in November 2009). Even

now, these objections are summarily presented. These arguments

come too late. Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 40 (1st

Cir. 2010).

Affirmed.

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