Capitol Indemnity Corp. v. Russellville Steel Co.

367 F.3d 831, 2004 WL 840241

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 21, 2004
• Docket: 03-2246
• Status: Published

Opinions

MELLOY, Circuit Judge.

Plaintiff-Appellant Capitol Indemnity Corp (“Capitol”) appeals the district court’s dismissal of this contract action for Capitol’s failure to demonstrate diversity of citizenship. We reverse.

I.

Capitol sued Defendants-Appellees Rus-sellville Steel Company, et al. (collectively “Russellville”), to collect over $75,000 pursuant to a general indemnity agreement. Defendants were citizens of Arkansas. In the complaint, Capitol alleged that it was a Wisconsin corporation, but did not allege that it maintained its primary place of business somewhere outside of Arkansas. Russellville moved to dismiss under F.R.C.P. 12(b)(1) for lack of subject matter jurisdiction, claiming that Capitol failed to plead diversity jurisdiction. Capitol responded to the motions and moved for leave to amend its complaint to specifically allege that “[Capitol] is an insurance corporation organized pursuant to the laws of the State of Wisconsin, with its principal place of business in Madison, Wisconsin...."

The district court granted Capitol leave to amend. In addition, the district court set forth a procedure to address the outstanding Rule 12(b)(1) motions. The district court instructed Capitol to provide proof of Wisconsin citizenship with the amended complaint. The district court further stated that Russellville would have ten days after the filing of the amended complaint to submit evidence to the contrary and that, “at that time the Court will resolve the diversity issue and, if necessary, the other issues raised in [the defendants’] motions to dismiss.”

With its amended complaint, Capitol submitted a certified copy of its Wisconsin articles of incorporation as well as the affidavit of Andy L. Anderson, Senior Claims Examiner for Capitol. Mr. Anderson averred as fact that Capitol was incorporated in Wisconsin, maintained its principal place of business in Madison, Wisconsin, did not maintain a place of business in Arkansas, and conducted its business of writing insurance policies and surety bonds in Arkansas exclusively through the use of independent agents who were not employees of Capitol.

Within ten days of Capitol’s filing of the amended complaint, Russellville submitted affidavits. These affidavits averred that Russellville had conducted business with Capitol for over twenty years exclusively through one particular attorney-in-fact for Capitol, Charles Allen, who maintained an office in Arkansas.

Capitol did not request an evidentiary hearing nor object to the procedure set out by the district court in the order granting leave to amend. Three weeks after Rus-sellville submitted its affidavits, the district court ruled that Capitol failed to prove that it maintained its principal place of business in Wisconsin. The district court held that, because Capitol failed to prove that its principal place of business was somewhere other than Arkansas, Arkansas had to be considered the principal place of business. Accordingly, the district court found diversity of citizenship lacking and granted the defendants’ Rule 12(b)(1) motions. The district court stated:

The only assertion in Anderson’s affidavit that somewhere other than Arkansas is Capitol’s principal place of business is the bald assertion that Wisconsin is. In fact, Capitol has not submitted any proof that it writes insurance policies and surety bonds in any state other than Arkansas.

It is not enough that Capitol might be able to easily prove that Wisconsin is its principal place of business; it has not done so. Neither is it enough that the Court could discover the information on its own through Capitol’s website or by other means; the Court, limited to reviewing the evidence submitted by the parties, may not do so. In short, Capitol has failed to prove by a preponderance of the evidence that its principal place of business is in Wisconsin. Although diversity jurisdiction is often easily proven and frequently is a “bump in the road” on the way to more substantive and, some may believe, more interesting issues, this Court refuses to shirk its duty of protecting the jurisdiction of the federal courts.

In a motion to reconsider filed under Rule 59(e), Capitol challenged the district court’s findings and, for the first time, challenged the district court’s procedure for submitting evidence on the diversity issue. Because Capitol had not previously challenged the procedure, and because Capitol and the defendants all complied with the procedure without objection, the district court rejected this challenge as an impermissible attempt to raise new issues after judgment and denied Capitol’s motion.

On appeal, Capitol raises two issues. First, Capitol argues that the procedure used by the district court was not a “rational mode of inquiry” and therefore failed to afford Capitol adequate due process protection. See Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990). (“As no statute or rule prescribes a format for evidentiary hearings on jurisdiction, ‘any rational mode of inquiry will do.’ ”) (quoting Crawford v. United States, 796 F.2d 924, 929 (7th Cir.1986)). Second, Capitol argues that the district court clearly erred when it determined that Capitol’s principal place of business was in Arkansas.

As to the first issue, Russellville argues that the district court did not abuse its discretion when it denied Capitol’s Rule 59(e) motion to reconsider. Further, Rus-sellville argues that Capitol is entirely foreclosed from presenting its procedural challenge argument to the appellate court due the fact that Capitol did not raise this issue until the motion for reconsideration. As to the second issue, Russellville argues that Capitol’s failure to provide evidence of business activities outside Arkansas mandates a finding that Arkansas is the principal place of business.

II.

The district court did not abuse its broad discretion when it denied Capitol’s Rule 59(e) Motion to Reconsider. District courts enjoy broad discretion in ruling on such motions. See Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993) (“The District Court did not abuse its broad discretion in concluding that Concordia was improperly attempting to raise, via a motion to alter or amend, arguments that it could have raised in response to W.R. Grace’s motion for summary judgment.”). We have repeatedly held that Rule 59(e) motions are not proper vehicles for raising new arguments. See id. (“... nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.”) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988)); Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998) (“Rule 59(e) motions serve a limited function of correcting” ‘manifest errors of law or fact or to present newly discovered evidence.’) (citations omitted). Capitol impermissibly attempted to raise its procedural challenge for the first time in its Rule 59 motion. We therefore affirm the district court’s judgment regarding dismissal of the Rule 59(e) motion.

We find, however, that the underlying decision regarding diversity of citizenship was clear error. See Blakemore v. Missouri Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir.1986) (applying clear error standard to a diversity of citizenship determination and stating “[a] determination of citizenship for the purpose of diversity is a mixed question of law and fact, but mainly fact.”). Capitol was not required to prove specifically that its principal place of business was in Wisconsin. Rather, to establish complete diversity of citizenship with the defendants, all that Capitol was required to prove was that it was not a citizen of Arkansas. Because the evidence before the district court, and all the reasonable inferences that could be drawn from that evidence, precluded a finding that Capitol was a citizen of Arkansas, Capitol met its burden.

Diversity jurisdiction exists where the amount in controversy is greater than $75,000 and where there is complete diversity of citizenship. 28 U.S.C. § 1332(a). Complete diversity of citizenship exists where no defendants hold citizenship in a state where any plaintiff holds citizenship. Owen Equipment & Erection v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). For diversity purposes, a corporation may be the citizen of two states. First, a corporation is a citizen of the state in which it is incorporated. 28 U.S.C. § 1332(c)(1). Second a corporation is a citizen of the state in which it maintains its principal place of business. Id. A corporation can have only one principal place of business for the purposes of diversity citizenship. See 28 U.S.C. § 1332(c)(1) (“a corporation shall be deemed a citizen of the State where it has its principal place of business”) (emphasis added); Gafford v. Gen. Elec. Co., 997 F.2d 150, 161 (6th Cir.1993) (“By common sense and by law, a corporation can have only one principal place of business for purposes of establishing its state of citizenship.”). Congress made this clear in 1958 when it expanded the definition of corporate citizenship for diversity purposes to include not only the state of incorporation, but also the state of a corporation’s principal place of business:

The Judicial Conference of the United States has recommended that the law be amended so that a corporation shall be regarded not only as a citizen of the state of its incorporation, but also as a citizen of the state in which it maintains its principal place of business. This will eliminate those corporations doing a local business with a foreign charter but will not eliminate those corporations which do business over a large number of states, such as the railroads, insurance companies, and other corporations whose businesses are not localized in one particular state. Even such a corporation, however, would be regarded as a citizen of that one of the states in which was located its principal place of business.

S. Rep. 85-1830, U.S.Code Cong. & Admin.News at 3099 at 3102 (1958).

Here the undisputed evidence showed that Capitol was incorporated in Wisconsin and that all defendants were citizens of Arkansas. Accordingly, the only issue before the district court was whether Capitol maintained its principal place of business in Arkansas. Because a corporation can have only one principal place of business, and because Capitol believed its principal place of business to be in Wisconsin, submission of a simple description of Capitol’s activities in Wisconsin would have been the most straightforward and preferred method of responding to Russellville’s jurisdictional attack. We conclude, however, that in this case, a showing that Arkansas is not Capitol’s principal place of business is sufficient to establish diversity of citizenship.

The Eighth Circuit has not adopted a test for determining a corporation’s “principal place of business.” However, other circuits have applied three different tests. The first test, the “nerve center” or “locus of operations” test, considers the principal place of business to be the location of corporate decision-makers and the location of overall control. See Buethe v. Britt Airlines, Inc., 787 F.2d 1194, 1196 (7th Cir.1986); Lugo-Vina v. Pueblo Intern., Inc., 574 F.2d 41, 43 (1st Cir.1978). The second test, the “corporate activities” test, considers the principal place of business to be the location of the corporation’s production and service activities. Kelly v. United States Steel Corp., 284 F.2d 850, 854 (3d Cir.1960). The final test, the “total activity” test, is actually a hybrid of the other two. The total activity test recognizes that the nature of a corporation’s activities will impact the relative importance of production activities, service activities, and corporate decision making. Accordingly, the total activity test looks at all corporate activities. See, J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401, 411 (5th Cir.1987); Vareka Invs., N.V. v. American Inv. Props., Inc., 724 F.2d 907, 910 (11th Cir.1984).

District courts within the Eighth Circuit have applied the most open-ended of these tests-the “total activity” test. White v. Halstead Indus., Inc., 750 F.Supp. 395, 398 (E.D.Ark.1990); North Star Hotels Corp. v. Mid-City Hotel Assocs., 696 F.Supp. 1265, 1270 (D.Minn.1988); Associated Petro. Producers, Inc. v. Treco 3 Rivers Energy Corp., 692 F.Supp. 1070, 1074 (E.D.Mo.1988). The district court in the present case purported to apply the “total activity” test. Neither party disputes the use of this test, and we find this test to be the most appropriate and least limiting of the tests other circuits have applied.

Applying the total activity test to the present case, we look first at the claims made in Capitol’s affidavits. We give no weight to the direct claim that Capitol maintained its principal place of business in Wisconsin. The ultimate determination of where a corporation maintains its principal place of business is a mixed question of law and fact and not appropriate subject matter for an affidavit. We give great weight, however, to Capitol’s undisputed allegations of fact where the balance of the evidence offers no grounds for rejection. In this regard, we find that Capitol, an insurance company that writes indemnity policies and surety bonds, maintained no offices in Arkansas. Further, Capitol conducted business in Arkansas only through independent sales agents. Finally, because the affiant, Senior Claims Examiner Andy L. Anderson, presumably was an employee and not an independent agent, it is clear that Capitol maintained employees and offices outside of Arkansas. Russellville disputed none of these facts, and the evidence before the district court provided no basis for rejection of these assertions. In fact, Russell-ville’s own affidavits supported Capitol’s claim that it conducted business in Arkansas solely through sales agents.

We also look to the reasonable inferences that necessarily flow from the undisputed facts. In making these inferences, we may look beyond the evidence and draw on our general knowledge of commonly known information even without a request that we take judicial notice of particular facts. See, e.g., United States v. Fousek, 912 F.2d 979, 981 (8th Cir.1990) (“We conclude that no such evidence was necessary, for when a person in a position of public trust ... embezzles money from those he is bound to aid, it stands to reason that there will be some resulting loss of public confidence in that institution.”); United States v. Slone, 405 F.2d 1033, 1036 (8th Cir.1969) (“It is common knowledge that the movements of a child hardly 11 months old are unpredictable.”); St. Paul Hotel Co. v. Lohm, 196 F.2d 233, 235 (8th Cir.1952) (“But it is equally common knowledge that such seats hinged on the brittle porcelain parts are not meant to resist the pressure of weights thrust against them from the side as plaintiff admits he did in this instance.”); Waldheim Realty & Inv. Co. v. Comm’r of Internal Rev., 245 F.2d 823, 825 (8th Cir.1957) (“It is common knowledge that the surrender value of a policy cancelled by the insured is upon a short term rate basis, and considerably less than the pro-rata return of the premium for the unexpired term.”); Noland v. Pastor, 191 F.2d 1009, 1013 (8th Cir.1951) (“That a driver going thirty miles an hour can make a swerve of more than ten inches and can sound a horn, or even apply brakes and stop within a much shorter distance than 100 feet, is a matter of such common knowledge as to be obvious. The court must take judicial notice of it.”); Gardner v. Mid-Continent Grain Co., 168 F.2d 819, 821 (8th Cir.1948) (“It is a matter of common knowledge, of course, of which we may take judicial notice, that ordinary soybeans are not perishable goods and that they will not rot and spoil from being in a grain car for such a period as was here consumed in their transportation from Decatur to Kansas City.”).

Even without an offer of proof, then, we may take notice of the fact that insurance companies cannot exist through sales agents alone. Insurance companies are regulated entities that require a home office to produce the policies that agents (or employees) sell and manage the assets that stand behind the policies. Insurance companies require accountants, actuaries, claim examiners (like the affiant, Senior Claims Examiner Andy L. Anderson), and other support personnel as well as managers and directors. It cannot reasonably be disputed that such employees exist, and it follows from the claims in Mr. Anderson’s affidavits that the offices and activities of such employees, managers, and directors were located outside of Arkansas.

With no office in Arkansas, no employees in Arkansas, and only sales agents in Arkansas, the evidence does not support an inference that Capitol’s principal place of business was in Arkansas. Rather, it supports the inference that all underwriting, claims examination, asset management, and corporate governance occurred elsewhere. Although Capitol failed to demonstrate that it sold policies anywhere but Arkansas, we do not find that policy sales alone are sufficient to satisfy the total activity test and define an insurance company’s principal place of business. Capitol sufficiently, albeit inefficiently, demonstrated that it was not a citizen of Arkansas.

The judgment of the district court is reversed.