713 F.2d 1261 (7th Cir. 1983), 82-2982, Fidelity and Deposit Co. of Maryland v. City of Sheboygan Falls

Docket Nº:82-2982.
Citation:713 F.2d 1261
Party Name:FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation, Plaintiff-Appellee, v. CITY OF SHEBOYGAN FALLS and the Village of Kohler, Defendants-Appellants, and Scotty Smith Construction Company, Inc., Midwesco Enterprises, Inc., and Krebs Engineers, Defendants-Appellees.
Case Date:July 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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713 F.2d 1261 (7th Cir. 1983)


corporation, Plaintiff-Appellee,


CITY OF SHEBOYGAN FALLS and the Village of Kohler,



Scotty Smith Construction Company, Inc., Midwesco

Enterprises, Inc., and Krebs Engineers,


No. 82-2982.

United States Court of Appeals, Seventh Circuit

July 19, 1983

Argued May 9, 1983.

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Paul H. Ten Pas, Robert H. Halvorsen, Halvorsen & Ten Pas, Sheboygan, Wis., for appellant.

Cornelius F. Riordan, McNeela & Griffin, Ltd., Aram A. Hartunian, Hartunian, Futterman & Howard, Chicago, Ill., for appellee.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and ROSENN, Senior Circuit Judge. [*]

POSNER, Circuit Judge.

For a case to be within the diversity jurisdiction of the federal courts, diversity of citizenship must be "complete," meaning that no plaintiff may be a citizen of the same state as any defendant. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). The formal designation of a party in the complaint as plaintiff or defendant is not controlling; "the court will look beyond the pleadings, and arrange the parties according to their sides in the dispute." City of Dawson v. Columbia Avenue Saving Fund, Safe Deposit, Title, & Trust Co., 197 U.S. 178, 180, 25 S.Ct. 420, 421, 49 L.Ed. 713 (1905). Though the issue has not

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been raised, we must consider on our own initiative whether one of the nominal defendants in this case, Scotty Smith Construction Company ("Scotty"), should be realigned on the side of the plaintiff, the Fidelity and Deposit Company of Maryland, thus destroying complete diversity. Only if we decide that realignment is not required may we proceed to the substantive issues on this appeal, which are issues of Wisconsin contract law.

Two Wisconsin towns got together and hired Scotty, a Wisconsin corporation, to build for $710,000 an incinerator for burning their garbage. The towns required Scotty to post a performance bond in that amount. Fidelity, a citizen of Maryland for diversity purposes, see 28 U.S.C. § 1332(c), was the surety on the bond, and required Scotty to agree to indemnify it should it be forced to make good on the bond. Scotty built the incinerator, but the incinerator's air pollution control device--a gas scrubber that had been supplied by one subcontractor, Krebs Engineers, a California corporation, and installed by another, Midwesco, Inc., an Illinois corporation--did not perform up to the standard required by law and the incinerator had to be shut down. The towns took the position that the scrubber's failure to perform up to standard was a breach of contract by Scotty, and as they had paid all but $38,000 of the purchase price for a facility they could not use at all, they notified Fidelity that it must make good the difference in accordance with the bond.

Fidelity responded, several months later, by bringing this diversity action against the towns, Scotty, and the subcontractors. The complaint sought a declaration that Fidelity was not liable to the towns on the bond, because Scotty had not committed a breach of contract, but that if the court held otherwise, Scotty was liable to Fidelity under the indemnity agreement. The towns counterclaimed against Fidelity for payment of the bond and cross-claimed for breach of contract against Scotty and the subcontractors. Other cross-claims were also filed but are not before us. The district court, on motions for summary judgment, held that Scotty had not broken its contract with the towns, and the court entered judgment for Fidelity on its main claim and the towns' counterclaim and for Scotty and the subcontractors on the towns' crossclaims. Although these orders did not dispose of the entire litigation, the district court certified them for immediate appeal under Rule 54(b) of the Federal Rules of Civil Procedure, so we have appellate jurisdiction. There are other parties below but they are irrelevant to this appeal.

In the normal course this lawsuit would have been kicked off by the towns' suing Scotty for breach of contract and Fidelity for breach of its obligations under the bond. Such a suit would have had to be brought in state court with no possibility of removal to federal court, since the plaintiffs and one of the defendants, Scotty, would have been residents of the same state. Instead Fidelity precipitated the towns' suit by bringing a declaratory judgment action against them and Scotty, an action in which the plaintiff was a resident of Maryland and all the defendants were Wisconsin residents. Fidelity's invocation of the Declaratory Judgment Act, 28 U.S.C. § 2201, was wholly proper. The indemnity agreement gave it a potential claim of some magnitude against Scotty, but a claim on which Fidelity could not realize unless and until it was found to have defaulted on its obligations under the performance bond. Fidelity may have been concerned lest passage of time prevent its recouping from Scotty any money it might have to pay the towns. Only by forcing the towns to bring their action on the bond could Fidelity crystallize its own rights under the indemnity agreement. This is the kind of interest that the Declaratory Judgment Act was intended to protect. See, e.g., Illinois ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935, 939-40 (7th Cir.1983). Joining Scotty as a defendant obviated any need to bring a separate suit to enforce the indemnity agreement in the event that Fidelity lost its suit against the towns.

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So far there is nothing to suggest that Fidelity and Scotty were not genuine adversaries. But Scotty's answer, filed eight months after Fidelity's complaint, admitted the principal allegations of the complaint and appears, though with something less than 100 percent clarity, to concede that if Scotty is found to have broken its contract with the towns it will be liable to Fidelity for any money that Fidelity has to pay on the performance bond though not necessarily for Fidelity's attorney's fees and other expenses of its litigation with the towns, which Fidelity's complaint against Scotty also claims. But City of Indianapolis v. Chase National Bank, 314 U.S. 63, 73 n. 3, 62 S.Ct. 15, 18 n. 3, 86 L.Ed. 47 (1941), holds that a dispute over costs and attorney's fees is too flimsy a basis for preventing a realignment that will defeat the assertion of diversity jurisdiction.

Scotty's answer denies that it broke its contract with the towns, but this is not a defense against Fidelity, which also denies Scotty's breach, but against the towns. The potential conflict between Fidelity and Scotty over the latter's contingent liability under the indemnity agreement was eliminated (except for costs and attorney's fees) when the answer conceded liability, leaving Scotty with the defense that it had not broken the contract that Fidelity had insured. By staking its all on this defense, Scotty (of Wisconsin) aligned itself with Fidelity (of Maryland) on one side of the lawsuit against the towns on the other, thus putting Wisconsin residents on both sides.

Jurisdiction, however, depends on the facts as they exist when the complaint is filed rather than when the answer is filed, which in this case was months later. See, with specific reference to realignment, American Motorists Insurance Co. v. Trane Co., 657 F.2d 146, 151 n. 3 (7th Cir.1981); 3A...

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