Blair Holdings Corp. v. Rubinstein

• Citation: 122 F. Supp. 602
• Parties: BLAIR HOLDINGS CORP. v. RUBINSTEIN et al.
• Decision Date: 24 June 1954
• Court: U.S. District Court — Southern District of New York

122 F. Supp. 602

BLAIR HOLDINGS CORP. v. RUBINSTEIN et al.

United States District Court, S. D. New York.

June 24, 1954.

Cahill, Gordon, Reindel & Ohl, New York City, John F. Sonnett, Asa D. Sokolow, Sheldon Oliensis, New York City, of counsel, for plaintiff.

Barron, Rice & Rockmore, New York City, George P. Halperin, Eugene V. Weissman, New York City, of counsel, for defendant Rubinstein.

Rosenman, Goldmark, Colin & Kaye, New York City, Godfrey Goldmark, New York City, of counsel, for defendant Dardi.

EDELSTEIN, District Judge.

In an action for recission of contract and damages, the plaintiff brought on an order to show cause why an order should not be entered directing it, within the twenty day period of Rule 26(a), 28 U.S.C.A., to take depositions of defendants, and granting certain injunctive relief pendente lite. The defendant Rubinstein then moved to dismiss, under Rule 12(b) (1), on the ground that diversity of citizenship, or more properly, alienage, is not set forth and in fact does not exist. The defendant Norfolk Insurance Company, Inc., simultaneously moved to dismiss under Rule 12(b) (1), on the ground that it is a Panamanian corporation, not doing business in New York, and therefore not subject to service of process in this district.

The complaint describes the plaintiff as a corporation organized and existing under the laws of the State of New York, and alleges that the defendant Rubinstein "is not a citizen of the United States of America or of the State of New York." This negative characterization of Rubinstein's status is inadequate to support the alienage jurisdiction of the federal court. "In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record. In Brown v. Keene, 8 Pet. 112, 115, 8 L.Ed. 885, Mr. Chief Justice Marshall said: `The decisions of this court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.'" Robertson v. Cease, 97 U.S. 646, 649-650, 24 L.Ed. 1057. A reading of the alienage cases, since Stuart v. City of Easton, 156 U.S. 46, 15 S.Ct. 268, 39 L.Ed. 341, leaves no doubt that it is not the mere averment of alienage which is significant — indeed the averment of alienage is unnecessary, Hennessy v. Richardson Drug Co., 189 U.S. 25, 34, 23 S.Ct. 532, 47 L.Ed. 697, but it is the averment that a party is a subject or a citizen of some foreign power which is crucial. See, for example: Nichols Lumber Co. v. Franson, 203 U.S. 278, 27 S.Ct. 102, 51 L.Ed. 181; Bishop v. Averill, C. C., 76 F. 386; Rondot v. Township of Rogers, 6 Cir., 79 F. 676 (but see Mahoning Valley Ry. Co. v. O'Hara, 6 Cir., 196 F. 945); Betancourt v. Mutual Reserve Fund Life Ass'n, C.C., 101 F. 305: Von Voight v. Michigan Cent. R. Co., C.C., 130 F. 398; International Bank & Trust Co. v. Scott, 5 Cir., 159 F. 58. The absence of a positive averment of Rubinstein's citizenship renders the complaint jurisdictionally defective.

However, "the whole record * * * may be looked to, for the purpose of curing a defective averment of citizenship * * * and if the requisite citizenship is anywhere expressly averred in the record, or facts are therein stated which, in legal intendment, constitute such allegation, that is sufficient." Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 697, 48 L.Ed. 1027. In affidavits opposing the motion to dismiss, it is alleged that Rubinstein is a citizen of the U.S. S.R. or of Portugal. These allegations are denied by Rubinstein, who contends that ...