Duffy v. Currier

• Decision Date: 29 October 1968
• Docket Number: No. 4-67 Civ. 378.,4-67 Civ. 378.
• Parties: Clyde DUFFY, as Trustee for the heirs of Selma DuBois, Deceased, Plaintiff, v. Jerome J. CURRIER, Defendant.
• Court: U.S. District Court — District of Minnesota

291 F. Supp. 810

Clyde DUFFY, as Trustee for the heirs of Selma DuBois, Deceased, Plaintiff, v. Jerome J. CURRIER, Defendant.

No. 4-67 Civ. 378.

United States District Court D. Minnesota, Fourth Division.

October 29, 1968.

Callinan, Raidt, Haetzen & Ramier, by George Ramier, Minneapolis, Minn., for plaintiff.

Donald A. Hausler, St. Paul, Minn., for defendant.

NEVILLE, District Judge.

This is a wrongful death action brought by a Minnesota court-appointed trustee for the benefit of the survivors of the decedent, Selma DuBois. The trustee so appointed is a resident of the State of North Dakota. The defendant is a resident of the State of Minnesota as was decedent, while decedent's survivors are stated in the complaint to be residents of North Dakota. The automobile accident which gives rise to this action occurred on or about September 10, 1967 in the State of Wisconsin.

Defendant by answer and by separate motion prays for dismissal of the action on the ground (1) that the court lacks jurisdiction over the parties and the subject matter thereof and (2) that plaintiff lacks authority to sue in a representative capacity and hence is not a proper party and so the complaint fails to state a claim upon which relief can be granted.

Plaintiff also has addressed a motion to the court. It appears that upon the taking of defendant's oral discovery deposition defendant, after a few preliminary questions and on the advice of counsel refused to answer questions pertaining to the automobile accident here involved. His refusal was based on the ground that his answers might tend to incriminate him. He thus claimed the protection of the Fifth Amendment to the United States Constitution. Plaintiff requests that defendant be compelled to answer.

The first question raised is lack of jurisdiction in this court. Plaintiff bases his claim of jurisdiction on Title 28 § 1332—diversity of citizenship and more than $10,000 in controversy. It would appear that the requisite amount of $10,000 is involved. The quaere is whether the named plaintiff, a resident of North Dakota, has been appointed trustee solely for the purpose of "manufacturing" a diversity of citizenship which would not otherwise exist; and if so, does such violate 28 U.S.C. § 1359 which prohibits sham diversity techniques. It is uncontested that the named plaintiff-trustee is a bona fide resident of North Dakota. By affidavit he states that he is an attorney who has practiced law more than 50 years in or near Devils Lake, North Dakota adjacent to the Sioux Indian Reservation; that the decedent was an Indian, as are the survivors, and all live in North Dakota; that he was consulted by the father of the decedent relative to the death of decedent, and was asked by him to secure custody of one of the grandchildren; that affiant declined to represent the survivors in the death case "because of possible venue problems" but consented to serve as trustee.

Federal courts are of limited statutory jurisdiction. Absent the statutory requirements the state courts are the proper forum. The burden is upon the one asserting it affirmatively to sustain diversity jurisdiction; yet a party asserting collusive jurisdiction must prove that such is the case. See County of Todd, Minn. v. Loegering, 297 F.2d 470 (8th Cir.1961); Bradbury v. Dennis, 310 F.2d 73 (10th Cir.1962). Under this view, no such evidence of collusion has been adduced here and the motion to dismiss on this ground is denied.

A number of cases in the Eighth Circuit shed light on this subject. In County of Todd, Minn. v. Loegering, 297 F.2d 470 (8th Cir.1961) the state court appointed the named plaintiff, a married daughter of the deceased, as substitute trustee in place of the deceased's widow who had resigned. Notwithstanding the fact that the daughter was a Montana resident while the widow and defendants were Minnesota residents, both the trial court and the circuit court sustained jurisdiction. The Loegering case is controlling on the case at bar. See also Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962); McCoy v. Blakely, 217 F.2d 227 (8th Cir. 1954).

Two recent Third Circuit cases, McSparran v. Weist, 402 F.2d 867 (3rd Cir. Oct. 2, 1968) and Esposito v. Emery, 402 F.2d 878 (3rd Cir. Oct. 2, 1968), expressly overruled that circuit's prior decision of Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3rd Cir. 1959) and held that artificially creating diversity by choosing a guardian in another state is violative (at least prospectively) of 28 U.S.C. § 1359. Perhaps since the Eighth Circuit in Loegering, supra, as well as the Second Circuit in Lang v. Elm City Construction Co., 324 F.2d 235 (2d Cir. 1963) and others have relied on Corabi, supra, there may be room for doubt ultimately that Loegering will be followed. To this court, the Third Circuit opinion is persuasive. It is recognized, however, that this court is governed by existing Eighth Circuit cases until, if at all, such are overruled. In any event, in the case at bar plaintiff has made a showing that no collusion or sham was intended and that he has and has had a substantial relationship to the decedent's survivors other than one of mere convenience for the bringing of suit. Further, if the prohibition of McSparran and Esposito is to prevail, it should be prospective and not retroactive. The court therefore rules that it has jurisdiction over the parties and the subject matter of this litigation.

The second issue relates to defendant's argument that since there was no so-called wrongful death action at common law and the action is solely a creation of statute, plaintiff must bring himself within the statute in the state where the death occurred, i.e., Wisconsin, which he has failed to do. Defendant claims the rule of lex loci requires that the wrongful death statute of Wisconsin governs this case; that under that law the action may be brought only by the personal representative of the deceased person or by the person to whom the amount of recovery belongs and not by a trustee such as is appointed in Minnesota. Wis.Stat. § 895.04(1). Defendant thus claims that the action must be dismissed on the grounds that the plaintiff is not a proper party plaintiff and the complaint thus fails to state a claim upon which relief can be granted.

Plaintiff alleges that Minnesota law must be applied and that under Minn. Stat. § 573.02 (as amended Laws 1967 c. 158) the action may be brought by a trustee appointed for that purpose. The inquiry is thus into conflict of laws.

It is too clear to refute that in diversity cases, this court applies the law of the appropriate state. This means that this court must begin with the Minnesota conflict of laws rules as stated by the highest court of the state. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477 (1941).

Minnesota has rejected the rule of lex loci and has adopted the rule that its courts will apply the law of the state having the most significant contacts with the parties and the subject matter of the lawsuit. Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966); Kopp v. Rechtzigel, 273 Minn. 441, 141 N.W.2d 526 (1966); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). It is noted that the Wisconsin law of conflicts is substantially the same. Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965). Other jurisdictions have similar holdings. Watts v. Pioneer Corn Co., 342 F.2d 617 (7th Cir. 1965) (Indiana law); Merchants Nat. Bank and Trust Co of Fargo v. United States, 272 F.Supp. 409, 420 (D.N.D. 1967) (South Dakota law); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967).

While this rule does not require an arithmetic counting of the number of contacts each state has had with the parties and the subject matter at issue, it does require a weighing of the interests and contacts involved. Acting as this court believes a Minnesota court would, it seems clear that Minnesota law should and does apply. The defendant is a resident of Minnesota as was the decedent. The trip during which the accident involved occurred began and was intended to terminate in Minnesota. The named plaintiff while not a resident of Minnesota likewise is not a resident of Wisconsin. Indeed the only contact with Wisconsin is the fortuitous happening of the accident there. Under the current trend of conflict of laws, this fact alone is no longer sufficient to require application of Wisconsin law.

From the above it follows that such wrongful death right of action as plaintiff has arises from the Minnesota statute, Minn.Stat. § 573.02 and not from the Wisconsin statute. The case is properly brought in this court.

A somewhat troublesome question arises on plaintiff's motion for an order pursuant to Rule 37(a) of the Federal Rules of Civil Procedure compelling the defendant to answer questions proffered to him at his oral deposition relating to the automobile accident which is the subject matter of this lawsuit. Defendant refused to answer under the Fifth Amendment of the United States Constitution, asserting his right against self-incrimination "upon advice of counsel." Defendant in his answers to written interrogatories posed pursuant to Rule 33 has admitted the driving of the car, the use of "four or five beers" and some other matters. He answered that he did not know or did not recall as to many other questions such as the speed at which he was driving, how the accident happened, et cetera. Presumably there are scene of the accident reports of the police officers or highway patrolmen available. If defendant is required to answer further questions during his oral deposition, assuming he answers honestly, conceivably he might have to admit to an excessive rate of speed, to intoxication or to other facts which possibly could lay him open to a criminal prosecution for negligent homicide or...