Judge Selya and Gallimaufry

Senior Judge Bruce Selya of the First Circuit Court of Appeals is famous for his colorful language in his opinions. See this article in Boston.com. His latest opinion involves the well-known dispute between the three founders of ConnectU against Mark Zuckerberg, (opinion here, or at 2008 WL 902185 (1st Cir. April 3, 2008)), the founder of Facebook. The Alley Insider blog reported yesterday the case was settled.

Among other unusual words, Judge Selya employs “gallimaufry,” as in

The complaint linked the three Founders with the LLC and asserted a gallimaufry of state-law claims arising from the alleged misappropriation and unauthorized use of the LLC's confidential source code and business plan.

Merriam-Webster online defines the term as a hodgepodge, derived from a Middle French (circa 1556) word “galimafree,” meaning stew. Judge Selya was referring to a messy jurisdictional issue: plaintiffs had originally sued under diversity jurisdiction – for a gallimaufry of state claims – rather than under the Copyright Act – which would have given the trial court federal question jurisdiction – because they didn’t have a certificate of registration and thus didn’t comply with 17 USC 411(a). Before defendants filed a responsive pleading, though, plaintiffs received the certificate, and then filed – as a matter of right – an amended pleading including the copyright claim, and basing jurisdiction solely on federal question jurisdiction, with the state claims alleged as supplemental. Defendants (a year later!) filed a motion to dismiss for lack for subject matter jurisdiction asserting that because the parties were not allegedly diverse, there was no jurisdiction in the original complaint, and therefore (they claimed), the suit should be dismissed. The issue was important for statute of limitations reasons. Oddly, this was apparently a case of first impression at the appellate level. The district court granted defendants’ motion, but the court of appeals reversed.

Plaintiffs argued

that the district court erroneously regarded the original complaint as controlling for the purpose of gauging subject matter jurisdiction. In its view, the amended complaint, filed as of right under Federal Rule of Civil Procedure 15(a), superseded the original complaint and rendered it functus officio. The[y] argue[] that the district court erroneously regarded the original complaint as controlling for the purpose of gauging subject matter jurisdiction. In its view, the amended complaint, filed as of right under Federal Rule of Civil Procedure 15(a), superseded the original complaint and rendered it functus officio.

Defendants argued

that an action originally filed under diversity jurisdiction-like this one-must, in line with longstanding Supreme Court precedent, live or die from a jurisdictional standpoint as of the time of filing regardless of subsequent changes in either the facts or the underlying jurisdictional allegations.

The court of appeals sided with plaintiffs, bases on a statement in Rockwell International Corp. v. United States, 127 S.Ct. 1397 (2007), that “when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.” This conclusion was no doubt aided by the fact that plaintiffs had a cause of action for infringement at the time the original complaint was filed, but didn’t plead it because they hadn’t received the certificate yet.

Lest one think all this to be mere technicalities, can it be a coincidence that a settlement was announced three days after the opinion came down? and what would Judge Selya say?