23-7921-cv Shelomentseva v. Computools LLC

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 17th day of October, two thousand twenty-four. Present: GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges, PAUL A. ENGELMAYER, District Judge. * _____________________________________ GALINA SHELOMENTSEVA and IN CHILD CARE AURA, LLC, Plaintiffs-Appellants, v. 23-7921-cv COMPUTOOLS LLC, Defendant-Appellee. † _____________________________________

For Plaintiffs-Appellants: ROBERT L. GREENER, Law Office of Robert L. Greener, New York, NY

For Defendant-Appellee: DIMITRY JOFFE, Joffe Law P.C., New York, NY

* Judge Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of Court is respectfully directed to amend the case caption as indicated above.

1 Appeal from a judgment of the United States District Court for the Eastern District of New

York (William F. Kuntz, II, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants Galina Shelomentseva and In Child Care Aura, LLC (“In Child Care

Aura,” and collectively, “Plaintiffs”) appeal from a judgment of the United States District Court

for the Eastern District of New York (William F. Kuntz, II, District Judge), entered on November

14, 2023, dismissing their claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The district

court held that the Plaintiffs did not plausibly allege that Defendant-Appellee Computools LLC

(“Computools”) breached the parties’ Service Agreement by failing to provide the Plaintiffs with

a “unique” software prototype. “We review de novo a district court’s dismissal of a complaint

under Federal Rule of Civil Procedure 12(b)(6).” Orchard Hill Master Fund Ltd. v. SBA

Commc’ns Corp.,

(2d Cir. 2016). 1 We assume the parties’ familiarity with the

case.

As an initial matter, we must confirm that the district court had subject matter jurisdiction

over this action because, although the Plaintiffs’ Amended Complaint asserted that the district

court had diversity jurisdiction under

, the Plaintiffs did not adequately allege the

citizenship of the parties. See Cohen v. Postal Holdings, LLC,

(2d Cir. 2017)

(“Every federal appellate court has a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under review.”). As pertinent here, when

a party is a limited liability company (“LLC”), diversity jurisdiction depends on the citizenship of

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

2 each of the LLC’s members. Windward Bora LLC v. Browne,

, 127 (2d Cir. 2024).

In response to our request for supplemental briefing, the Plaintiffs represented that In Child Care

Aura’s sole member is Shelomentseva, a citizen of New York, and Computools represented that

its sole member is Sergii Tymchuck, a citizen of Ukraine. Computools’s counsel confirmed at oral

argument that Tymchuck is not a lawful permanent resident of the United States, which would

have been relevant to Computools’s citizenship under § 1332(a)(2). See Windward Bora LLC, 110

F.4th at 129. The Court grants the Plaintiffs’ request to amend their Amended Complaint on appeal

pursuant to

to assert these undisputed jurisdictional allegations, which firmly

establish diversity jurisdiction in this action.

Turning to the merits, the four corners of the parties’ agreement encompass the text of the

Service Agreement itself and a two-page attachment titled “Specification #1.” The Service

Agreement states that “[a] detailed description” of Computools’s services under the agreement

“shall be determined by the Specifications which are the respective Additional Agreements to the

Service Agreement as its integral parts.” App’x at 63 ¶ 1.1. The Service Agreement further states

that “[t]he scope of services is strictly limited to the content of respective Additional Agreement.”

Specification #1 is labeled “Additional Agreement #1,”

at 70–71, and the record includes

no other such “Additional Agreements.” The Court therefore rejects the Plaintiffs’ argument that

a “Vision Document”—which Computools provided to the Plaintiffs after completing

performance under the Service Agreement, and which is not labeled as an “Additional

Agreement”—constituted part of the parties’ contract.

Having determined the scope of the parties’ agreement, we turn next to the Plaintiffs’

contention that Computools’s obligation to perform “software development” services, including

“[b]usiness analysis and UX [user experience] prototyping,” required it to produce a unique

3 software product for the Plaintiffs. As the district court explained, the Plaintiffs have not pointed

to any term in the Service Agreement setting forth such a requirement. The Amended Complaint,

as counsel for the Plaintiffs confirmed at oral argument, did not allege that Computools performed

no software development services for In Child Care Aura; rather, it alleged that Computools

developed software that was too similar to software already in use by another company. Because

the Service Agreement did not require Computools to produce a novel product, this ends the

Court’s inquiry. Simply put, the Plaintiffs have not adequately alleged that Computools failed to

perform its obligations under the plain terms of the Service Agreement.

* * *

We have considered the Plaintiffs’ remaining arguments and find them to be unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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