It is clear that if the Gordons are proper parties plaintiff, there is no diversity jurisdiction. The Pearl Buck Foundation moved for the joinder of the Gordons as indispensable parties plaintiff and all other parties either affirmatively agreed to the joinder or filed a pleading of "no objection." The record does not show that the Gordons were ever served. It is clear that they were notified. Immediately before trial, they filed, through local counsel who attended the trial, a motion for a continuance and a motion to dismiss that raised, inter alia, lack of diversity jurisdiction. Although the Gordons might well have been able to question personal jurisdiction, they did not do so. By filing the pleadings and arguing the motion to continue and to dismiss on grounds other than lack of personal jurisdiction, they submitted to personal jurisdiction and therefore are presently parties plaintiff.
Richard E. Gordon, Jr., and Katherine K. Gordon are--or were, prior to the death of Richard E. Gordon, Jr.--and were at the time of their joinder as involuntary plaintiffs citizens of Florida. Defendants Solaris and Highland Realty were both corporations incorporated in the State of Florida and, are, therefore, citizens of Florida for the purposes of diversity jurisdiction. The joinder of the Gordons by motion and acquiescence of all parties destroyed diversity jurisdiction.
Furthermore, no diversity is present between plaintiff Omni and defendant Magnacard. According to the complaint, Omni's place of incorporation is the State of Massachusetts and its principal place of business is in the State of California. (Filed Doc. No. 1 at P 3.) According to the second amended complaint filed by Artes-Roy, Magnacard's principal place of business is in Los Angeles, California. (Filed Doc. No. 24 at P 6.) Therefore, the joinder of Magnacard as a defendant would also destroy diversity jurisdiction.
This action must and will be dismissed for lack of subject-matter jurisdiction.
Plaintiffs Omni and Artes-Roy have not carried their burden of proof by a preponderance of the evidence that diversity of citizenship exists. If this Court had jurisdiction, however, it is clear that the plaintiffs have not proved their case by a preponderance of the evidence. Indeed, the stipulation to which Artes-Roy and Omni have subscribed belies all allegations of any fraudulent conveyance, suggesting an absence of a live controversy between the parties, if not an outright collusive case. On the other hand, the relief that Pearl Buck Foundation apparently now seeks, a declaratory judgment, is not available to it.
A declaratory judgment would not be appropriate unless all parties claiming an interest in the properties at issue are parties to the action. See Fed. R. Civ. P. 57 advisory committee's note (stating that "all parties having an interest therein or adversely affected must be made parties or be cited."). As established by the evidence, the Gordons lack diversity of citizenship from all parties defendants and therefore cannot be a party to this action, though they clearly maintain an interest in the Florida property at issue, and are therefore essential parties to the controversy.
The following chart may be helpful in analyzing the respective citizenship of the parties. Final Determination of Citizenship
omni Equities, Inc. Massachusetts/California
Edward Artes-Roy Nevada
Richard & Katherine Gordon Florida
Pearl Buck Foundation Pennsylvania/Delaware
Solaris Foundation, Inc. Florida
Magnacard, Inc. New Jersey/California
Highland Realty Florida
For the reasons set forth in the foregoing opinion, there being a lack of complete diversify of citizenship between all parties plaintiff and all parties defendant, Civil Action No. 93-68 is DISMISSED.
Any and all outstanding motions in Civil Action No. 93-68, other than the motion to dismiss for lack of subject-matter jurisdiction, are DENIED as MOOT.
BY THE COURT:
Donald W. VanArtsdalen, S.J.
March 17, 1994