14-4058-bk
ANZ Sales, Inc. v. Bank of Baroda

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of November, two thousand and fifteen.

Present:
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
            CHRISTINA REISS,
                        District Judge.
____________________________________________________

IN RE: INDU CRAFT, INC.,
                              Debtor.
____________________________________________________
ANZ SALES, INC.,
                              Appellant,
             v.                                                                          No. 14-4058-bk

BANK OF BARODA,
                              Appellee.
____________________________________________________

For Appellant:           Serhiy Hoshovsky, Hoshovsky Law Firm LLC, New York, New York.

For Appellee:     William J. Hanlon, Seyfarth Shaw LLP, Boston, Massachusetts.
____________________________________________________


       Hon. Christina Reiss, United States District Court for the District of Vermont, sitting by designation.

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         Appeal from a judgment of the United States District Court for the Southern District of

New York (Batts, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         ANZ Sales, Inc. (“ANZ”) attempts here to revive the long-running litigation that is In re

Indu Craft, Inc. We assume the parties’ familiarity with the facts and procedural history of this

and related matters. This latest appeal presents two narrow issues. ANZ contends that (1) the

district court erred in not affording ANZ the opportunity to be heard on the issue of its standing

to appeal two bankruptcy court orders before dismissing that appeal, and (2) the district court did

not have jurisdiction to determine the issue of standing because another Indu Craft creditor’s

motion for reconsideration was still pending before the bankruptcy court.1

         In determining whether the district court lacked subject matter jurisdiction, we review its

factual findings for clear error and its legal conclusions de novo. Viacom Int’l, Inc. v. Kearney,

, 725-26 (2d Cir. 2000).

         It is well-established that a district court may raise the issue of standing sua sponte, as it

did here. United States v. Hays, 

, 742 (1995); see also In re Gucci, 

,

387-88 (2d Cir. 1997) (“Whether a claimant has standing is the threshold question in every

federal case, determining the power of the court to entertain the suit.” (quotation marks

omitted)). It is generally good practice, nevertheless, for courts to give a party an opportunity to

oppose a contemplated sua sponte dismissal for lack of standing because “[i]t gives the adversely

affected party a chance to develop the record to show why dismissal is improper; it facilitates de

novo review of legal conclusions by ensuring the presence of a fully-developed record before an


1
         ANZ raises this argument for the first time in its Reply Brief on appeal, but because the question of subject
matter jurisdiction may be raised at any time during litigation, we consider the argument.

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appellate court; and, it helps the trial court avoid the risk that it may have overlooked valid

answers to what it perceives as defects in plaintiff’s case.” McGinty v. New York, 

,

90 (2d Cir. 2001) (citations omitted). Indeed, we have reversed dismissals for failure to afford

such an opportunity. See 

v. New York, 

, 5-6 & n.4 (2d Cir. 1976)). It

is proper, however, for a district court to dismiss an action for lack of subject matter jurisdiction

without providing notice and an opportunity to be heard where “it is unmistakably clear that the

court lacks jurisdiction, or that the [appeal] lacks merit or is otherwise defective.” Mojias v.

Johnson, 

, 610-11 (2d Cir. 2003); see also Snider v. Melindez, 

, 113

(2d Cir. 1999); Baker v. Dir., U.S. Parole Comm’n, 

, 726 (D.C. Cir. 1990) (“[A]

trial court may dismiss a claim sua sponte without notice where the claimant cannot possibly win

relief . . . . [I]t is practical and fully consistent with plaintiffs’ rights and the efficient use of

judicial resources.” (quotation omitted)).

        Where, as here, a district court is acting not as a trial court but as an appellate court and

has before it a fully developed record, there is little benefit in requesting briefing or conducting a

hearing to discuss standing. Dismissal without notice and on the basis of the existing record

under such circumstances may well be appropriate. Because the district court’s decision was

based on the nature and content of prior court orders, all of which were part of the record before

it, the court properly addressed the issue of standing without asking the parties to brief or argue

that issue. Cf. 

(explaining policy reasons for giving parties the

opportunity to respond to a contemplated dismissal, which focus on developing a full record).

        Finally, ANZ’s contention that the district court lacked subject matter jurisdiction to

consider its own subject matter jurisdiction is nonsensical. See Floyd v. City of New York, 

, 115-16 (S.D.N.Y. 2014) (“Standing is jurisdictional, and courts always have



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jurisdiction to decide their own jurisdiction.” (citing In re Dairy Mart Convenience Stores, Inc.,

, 374 (2d Cir. 2005)).

       We have carefully considered ANZ’s other arguments and find them to be without merit.

For the reasons described above, the judgment of the district court is AFFIRMED.




                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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