Johnson v. Columbia Properties Anchorage, Lp

• Decision Date: 10 February 2006
• Docket Number: No. 04-35671.,No. 04-35592.,04-35592.,04-35671.
• Citation: 437 F.3d 894
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Morris JOHNSON, Jr., Plaintiff-Appellant, v. COLUMBIA PROPERTIES ANCHORAGE, LP, Defendant-Appellee. Morris Johnson, Jr., Plaintiff-Appellee, v. Columbia Properties Anchorage, LP, Defendant-Appellant.

437 F.3d 894

Morris JOHNSON, Jr., Plaintiff-Appellant, v. COLUMBIA PROPERTIES ANCHORAGE, LP, Defendant-Appellee.

Morris Johnson, Jr., Plaintiff-Appellee, v. Columbia Properties Anchorage, LP, Defendant-Appellant.

No. 04-35592.

No. 04-35671.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2005.

Filed February 10, 2006.

Hugh G. Wade, Wade, Kelly & Sullivan, Anchorage, AK, for the plaintiff-appellant/appellee.

Douglas J. Serdahely and Michael A. Grisham, Patton Boggs, Anchorage, AK, for the defendant-appellee/appellant.

Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. Nos. CV-03-00054-A-RRB, CV-03-00054-RRB.

Before ALFRED T. GOODWIN, MELVIN BRUNETTI, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Morris Johnson sued Columbia Properties Anchorage LP ("Columbia") for breach of contract in an Alaska state court, alleging, inter alia, that Columbia failed to pay for crane services he provided in connection with the construction of the Marriott Hotel in Anchorage. After Columbia removed the case, the federal district court denied Johnson's motion to remand and granted Columbia's motion for partial summary judgment. We hold that the district court properly exercised jurisdiction over this case, and that it correctly held that Johnson's claim for payment for the crane services is time-barred. Finally, we hold that the district court did not abuse its discretion in denying attorneys' fees to Columbia.

I. Background

Johnson is a citizen of Alaska. Columbia is a limited partnership organized in Ohio. Its two partners, CP Anchorage, GP, LLC, and CSC Holdings, LLC, are limited liability companies (LLCs), also organized in Ohio. The two LLCs are owned by a Kentucky corporation; by an Ohio corporation and by a trust whose sole trustee is a bank incorporated in Delaware with its principal place of business in Minnesota.

Columbia managed the construction of the Marriott Hotel in Anchorage between 1998 and 2000. In August 1998, Dave Mueller, Columbia's project manager, entered into a contract with Johnson, an independent contractor, under which Johnson agreed to provide crane services. On August 17, 1998, Johnson sent a proposal to Mueller for rental of a 125-ton crane, as well as for wages for a crane operator and an oiler. Brian Prince, a project engineer for Columbia, replied on August 25th, accepting the proposal and summarizing the agreement between Johnson and Columbia. Prince's one-paragraph letter stated that Johnson would provide the "125 ton truck crane" to Columbia "per your proposal of 8/17/98 to Dave Mueller." Also, "[t]he crane will be required probably sometime in mid-September and be required probably through the end of the year, and periodically after that." The letter further noted that "no other agreements (such as Purchase Orders, Contracts, etc.) will be sent unless you specifically request one." The letter concluded that, unless Prince heard back from Johnson to the contrary, "I will assume that we have reached an agreement for your services to be provided as we need them." The letter did not mention any billing arrangements or any other equipment or services.

Johnson states in his affidavit that in August and September of 1998 he and Mueller discussed other lifting and hoisting services Johnson could contribute to the Marriott Hotel project, and that he sent Mueller his rates for the rental and operation of 50- and 25-ton cranes and a forklift. Johnson states that, based on these discussions, the parties made oral modifications to the agreement summarized in Prince's August 25th letter, expanding the range of services that Johnson would provide to Columbia. Johnson's affidavit summarizes what he contends were the final terms of the agreement, concluded in late September 1998:

1) When requested, Johnson would provide the appropriate crane or hoist to satisfy Columbia's requirements; 2) both parties would maintain ordinary job records, time cards and daily logs, but there was to be no contemporaneous exchange of such records, nor any requirement for signatures or written acknowledgment of receipt of services; 3) at the conclusion of the project [Johnson] would invoice Columbia for [his] services; 4) Columbia would review [his] notice and [the parties] would attempt to resolve any question or discrepancy if there was a conflict between [his] invoice and Columbia's job records ... [and] 5) the invoice or invoices would be due and payable promptly after submittal, and if unpaid, would draw interest from the invoice date.

Johnson stated in his affidavit that he provided crane services during four periods beginning in late September 1998:(1) he provided a 50-ton crane on four different occasions from September 28, 1998, through December 5, 1998; (2) he provided the 125-ton crane described in the August 28 letter for one month beginning on December 4, 1998; (3) he provided a 20-ton crane from January 15, 1999, through August 8, 1999; and (4) he provided the 50-ton crane from July 29, 1999, to August 3, 1999.

According to Johnson's affidavit, he submitted a handwritten summary of his work logs to Mueller shortly after he finished providing the crane services on August 8, 1999. Johnson states that he provided the summary "so that I could prepare an invoice" once Columbia looked over the logs for "any problems or questions with my summary." Johnson stated that Mueller never got back to him about the summary. As described below, Johnson did not send an invoice to Columbia until sometime in January 2002.

According to Johnson's affidavit, Mueller was replaced by Andy King as project manager sometime in mid to late 1999. In February 2000, King contacted Johnson and asked him to perform cleanup work in a storage yard at Ship Creek, a location near the Port of Anchorage and some distance from the Marriott Hotel. Johnson states in his affidavit that King "understood" his earlier agreement with Columbia, and he implies that King intended the Marriott crane services contract to cover the Ship Creek cleanup work as well. King remembers the transaction differently. He states in his affidavit that the cleanup project was covered by a "stand-alone contract," and that he and Johnson "did not discuss any terms of any sort from any preexisting or ongoing agreement." Johnson used a forklift and a crew of manual laborers to perform the cleanup work at Ship Creek. He used no cranes. Johnson completed this work on February 24, 2000.

Johnson sent Columbia an invoice totaling $105,328 in January 2002. This invoice covered all the services he had provided to Columbia, including the crane services at the Marriott Hotel and the cleanup at Ship Creek. On February 14, King responded by expressing surprise at the size and the lateness of the bill. He asked for back-up documentation for the Ship Creek job. There is no indication in the record whether Johnson responded to the request for documentation. On February 13, 2003, over a year after submitting the invoice, Johnson filed this suit for breach of contract in Alaska state court.

Columbia removed the suit to federal court based on diversity of citizenship. Columbia then moved for partial summary judgment on all claims for payment for crane services provided at the Marriott Hotel, contending that they were barred by Alaska's three-year statute of limitations. The district court granted Columbia's motion. Johnson then moved to remand the suit to state court for lack of diversity jurisdiction, contending that Columbia was owned in part by an Alaska citizen. The district court denied the motion. Johnson then successfully moved for summary judgment on his remaining claim for payment for the cleanup at Ship Creek. Finally, although the district court determined that Columbia was the "prevailing party," it declined to award attorneys' fees.

Johnson appeals the partial summary judgment in favor of Columbia on the crane services at the Marriott Hotel, and the denial of his motion to remand to state court. Columbia cross-appeals the district court's refusal to award attorneys' fees.

II. Standard of Review

The existence of subject matter jurisdiction is a question of law which we review de novo. Chang v. United States, 327 F.3d 911, 922 (2003). We also review the district court's grant of summary judgment de novo. Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). We review for abuse of discretion an award or denial of attorneys' fees made pursuant to state law. Vess v Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003).

III. Subject Matter Jurisdiction

Columbia is a limited partnership in which the two partners are limited liability companies, or LLCs. Because a partnership is a citizen of all of the states of which its partners are citizens, Johnson's motion to remand to state court for lack of diversity jurisdiction turns on the citizenship of the two LLCs. The citizenship of an LLC for purposes of diversity jurisdiction poses a question of first impression in this circuit.

The federal court's basic diversity jurisdiction extends to "all civil actions where the matter in controversy exceeds ... $75,000 ... and is between ... [c]itizens of different States." 28 U.S.C. § 1332(a)(1). In cases where entities rather than individuals are litigants, diversity jurisdiction depends on the form of the entity. For example, an unincorporated association such as a partnership has the citizenships of all of its members. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). By contrast, a corporation is a...