GABRIEL v. PREBLE

No. 04-1744.

396 F.3d 10 (2005)

Anne GABRIEL, Plaintiff, Appellant, v. Edward G. PREBLE, et al., Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided January 19, 2005.


Attorney(s) appearing for the Case

Cornelius J. Moynihan, Jr., with whom Nixon Peabody LLP was on brief, for appellant.

Allen V. Farber, with whom Robert D. Hillman, Deutsch Williams, Brooks, DeRensis & Holland, P.C., and Gardner, Carton & Douglas, LLP were on brief, for appellee Edward G. Preble.

George A. Berman, with whom Marjunette deMagistris and Peabody & Arnold LLP were on brief, for appellee James L. Ackerman.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.


SELYA, Circuit Judge.

In this diversity case, we are called upon to determine the proper alignment of the parties to a shareholder's derivative action. We conclude that the corporation must be aligned as a defendant. Because that alignment destroys complete diversity, we affirm the dismissal of the action for want of federal subject matter jurisdiction.

When an appeal turns on the existence vel non of subject matter jurisdiction and there has been no evidentiary...

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