Unpublished Disposition, 930 F.2d 920 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 920 (9th Cir. 1991)

Bobby J. BURNS, Joyce Burns, Plaintiffs-Appellants,v.Carmen CERCIELLO, Lena Cerciello, J. Kenneth Ryan, BarbaraA. Ryan, Sunbelt NCK, Inc., Sunbelt LAC, Inc.,Burton Graubart, Houlihan, Lokey, Howard& Zukin, Inc., Defendants-Appellees.Bobby J. BURNS, Joyce Burns, Plaintiffs-Appellees,v.Carmen CERCIELLO, Lena Cerciello, J. Kenneth Ryan, BarbaraA. Ryan, Sunbelt NCK, Inc., Sunbelt LAC, Inc.,Defendants-Cross-Appellants.

Nos. 90-55029, 90-55152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 1991.Decided April 19, 1991.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.

MEMORANDUM* 

Plaintiffs-appellants and defendants-cross-appellants1  appeal the district court's dismissal of appellants' suit based on lack of federal jurisdiction. We affirm.2 

As a preliminary matter, we hold that the fact that appellants agree with the district court's jurisdictional holding, and urge its affirmance, does not divest this panel of appellate jurisdiction. The fact that cross-appellants disagree with the district court's holding, and urge its reversal, provides the adversarial quality necessary for this to be a case or controversy still alive on appeal.

On the substantive issue, i.e., whether there is federal question jurisdiction, we agree with the district court that there is not.3  The well-pleaded complaint rule means that federal question jurisdiction cannot be based on an affirmative defense to what is otherwise a garden variety creditor's suit on a guaranty. See Franchise Tax Board v. Construction Laborers' Vacation Trust, 463 U.S. 1, 27-28 (1983); see also District Court Order Re Subject Matter Jurisdiction ("Court Order"), reprinted at Excerpts of Record ("ER") Tab 42, at 4.4  The district court also correctly held that federal jurisdiction could not be founded on plaintiffs' alleged status as fiduciaries when they entered into the underlying transaction. While federal courts do indeed have exclusive jurisdiction over suits by ERISA fiduciaries, see 29 U.S.C. § 1132(e), plaintiffs did not sue in their capacity as fiduciaries, but merely as private creditors. See Court Order at ER Tab 42, at 5-7.

We deny the request to impose costs and sanctions on appellants. The appeal is not frivolous.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Not all defendants cross-appealed. The defendants-cross-appellants in this case are Carmen Cerciello, J. Kenneth Ryan, Lena Cerciello, Barbara A. Ryan, Sunbelt NCK, Inc. and Sunbelt LAC, Inc

 2

Our affirmance of the district court's determination of no federal jurisdiction obviates the need to consider whether there was pendent party jurisdiction over Appellee Houlihan, Lokey, Howard & Zukin, Inc

 3

We review de novo the district court's determination of the existence of federal subject matter jurisdiction. Kruso v. International Telephone and Telegraph Co., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990)

 4

We reject as meritless cross-appellants' argument that the district court had federal question jurisdiction because plaintiffs-appellants were required to prove the validity, under ERISA, of the underlying transaction giving rise to the debt for which cross-appellants gave their guaranties. Moreover, even if the argument had merit, there is no basis for believing that plaintiffs engaged in "artful pleading" with the aim of avoiding federal jurisdiction

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