La Capria v. Compagnie Maritime Belge, Docket 31109.

• Decision Date: 27 February 1967
• Docket Number: Docket 31109.
• Citation: 373 F.2d 579
• Parties: Glacomo LA CAPRIA, as Administrator of the Estate of Santo La Capria, Dec., Plaintiff-Appellee, v. COMPAGNIE MARITIME BELGE, Defendant, and William Spencer & Son Corp., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 579 (1967)

Glacomo LA CAPRIA, as Administrator of the Estate of Santo La Capria, Dec., Plaintiff-Appellee, v. COMPAGNIE MARITIME BELGE, Defendant, and William Spencer & Son Corp., Defendant-Appellant.

Docket 31109.

United States Court of Appeals Second Circuit.

Motion Argued February 20, 1967.

Decided February 27, 1967.

Sylvia Miller, New York City (Chester A. Hahn, New York City, of counsel), for plaintiff-appellee.

John Nielsen, New York City, for defendant-appellant Wm. Spencer & Son Corp.

Thomas H. Healey, New York City, for defendant Compagnie Maritime Belge.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

Santo La Capria, a longshoreman employed by Transoceanic Stevedoring Corp., brought this action to recover for personal injuries in the District Court for the Southern District of New York in 1962 against Compagnie Maritime Belge and Wm. Spencer & Son Corporation. Federal jurisdiction was grounded on diverse citizenship, 28 U.S.C. § 1332, plaintiff being allegedly a citizen of New Jersey and the defendants Belgian and New York corporations, respectively, and a jury trial was demanded. In their respective answers Wm. Spencer also demanded a jury trial but Compagnie Maritime Belge did not. Wm. Spencer later impleaded Transoceanic, plaintiff's employer; the latter also demanded a jury trial. Santo La Capria died in 1964, a resident of New York; an alien who was appointed his administrator by the New York courts was substituted as plaintiff, and the complaint was amended to assert a claim for Santo's wrongful death.

After 265 pages of pleadings, motions and memoranda had accumulated in the files of the District Court and discovery had been had, a pre-trial conference was held in June, 1965; here, apparently for the first time, Wm. Spencer challenged the court's jurisdiction on the basis that Santo La Capria had been a resident of New York when the suit was brought. Some fifteen months later the administrator moved for leave to amend the complaint to identify it as in admiralty under F.R.Civ.P. 9(h) and to transfer the action to a non-jury calendar. A rather muddy moving affidavit claimed that although Santo was a resident of New York at the date of the accident and also of his death, he had resided in New Jersey for a short period when the action was brought but expressed apprehension whether there was jurisdiction over the death claim under 28 U.S.C. § 1332. Wm. Spencer's attorney responded with the argument, rather inconsistent with its previous position of lack of jurisdiction under the diversity statute, that all this was a pretense on the part of plaintiff to avoid a jury trial; it relied on the principle that once diversity jurisdiction has attached, a subsequent change in citizenship does not destroy it. See Wright, Federal Courts § 28 (1963). Compagnie Maritime Belge supported plaintiff's motion, stating its belief that plaintiff had some real cause for worry both about Santo's citizenship in 1962 and over the death claim, which it thought would be regarded as a separate claim not cognizable under § 1332(a) (2) because of the presence of aliens on both sides.¹ Finding that "as presented by either side the diversity issue is not factually convincing," Judge Cooper denied the motion "without prejudice to renewal at the proper time." When plaintiff immediately renewed the motion on somewhat fuller papers, which the judge regarded as containing "persuasive evidence that this Court lacks diversity jurisdiction," he granted the motion. Amended pleadings were served, bringing the file to the impressive total of 369 pages; Wm. Spencer appealed; and plaintiff, with the continued assent of Compagnie Maritime Belge, moved to dismiss for want of appellate jurisdiction.

No discussion is required to show that the order appealed from is neither a final decision under 28 U.S.C. § 1291 nor an interlocutory decree "determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed," 28 U.S.C. § 1292(a) (3), see In re Wills Lines, Inc., 227 F.2d 509 (2 Cir. 1955), cert. denied, Tankport Terminals Inc., v. Wills Lines, 351 U.S. 917, 76 S.Ct. 709, 100 L.Ed. 1450 (1956). Hence the only possible basis for jurisdiction in this court is that the district judge enjoined proceedings on the "law side" and directed them on the "admiralty side," thereby making an interlocutory injunctive order within 28 U.S.C. § 1292 (a) (1). So, appellant argues, Modin v. Matson Navigation Co., 128 F.2d 194 (9 Cir. 1942), held, on the authority of Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935). But Enelow, its companion, Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935), decided the same day, and their progeny, notably Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63...