Factor v. Pennington Press, Inc., 59 C 1961.

• Decision Date: 23 December 1964
• Docket Number: No. 59 C 1961.,59 C 1961.
• Citation: 238 F. Supp. 630
• Parties: John FACTOR, Plaintiff, v. PENNINGTON PRESS, INC., an Ohio corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

238 F. Supp. 630

John FACTOR, Plaintiff, v. PENNINGTON PRESS, INC., an Ohio corporation, et al., Defendants.

No. 59 C 1961.

United States District Court N. D. Illinois, E. D.

December 23, 1964.

Frank J. McGarr, Chicago, Ill., for plaintiff.

Julius S. Cordell, Bernard H. Sokol, Charles J. Barnhill, Narcisse A. Brown and Wm. F. McNally, Howard P. Robinson and George W. McBurney, Sidley, Austin, Burgess & Smith, John Edward Dwork, Chicago, Ill., for defendants.

DECKER, District Judge.

This cause having come on for hearing on the defendants' motion to dismiss for want of jurisdiction over the subject matter of this case, on the ground that there is no diversity of citizenship between the plaintiff and the defendants, as required by 28 U.S.C. § 1332, and the Court, having considered the complaint, the motion to dismiss, affidavits submitted by the parties, briefs on the law and having heard evidence produced in open court by both parties and allowed oral argument by both parties, being fully informed in the premises, now finds as follows:

Findings of Fact

1. The issue in this case is whether John Factor, the plaintiff, was, as he alleges in the complaint, a citizen of the United Kingdom and a resident of the

State of California as of the date of filing the complaint. The plaintiff claims to be a citizen of the United Kingdom, and the Court finds that the defendants are all individual citizens of Illinois or corporations of Illinois or corporations with their principal places of business, or doing business, in Illinois.

2. Testimony was received in open court on this jurisdictional issue by the Court, sitting without a jury.

3. The plaintiff's sole claim, and the evidence he introduced in support of the claim, is that he was a citizen of the United Kingdom by virtue of the fact that he was born in Hull, England. The plaintiff never was naturalized a citizen of England or the United Kingdom or of any other country than the United States. (His naturalization in the United States occurred July 15, 1963, which was subsequent to the date of filing of the complaint herein.) The plaintiff's only claim to citizenship in the United Kingdom is that he was born in the United Kingdom.

4. The plaintiff introduced in evidence the following documentary evidence to sustain his claim that he was born in Hull, England:

A photostatic copy of a British passport which the plaintiff obtained in Canada in 1920;

An affidavit of one Solomon Schultz, allegedly made in 1926, in Britain, stating that Solomon Schultz knew of the plaintiff's birth in Hull, England;

An affidavit of the plaintiff's mother, Leah Factor, certified to by one Rose Factor in 1928, also stating that the plaintiff was born in Hull, England;

A non-contemporaneous certificate of the birth of one Jerome Factor, the plaintiff's oldest son, which is dated November 27, 1942, and purports to certify to the birth of Jerome Factor on November 16, 1913; which later certificate of birth states that the father's place of birth was Hull, England.

The plaintiff also offered in evidence certified copies of a petition for naturalization and of findings of fact and conclusions of law and recommendations of a naturalization examiner which became orders of the United States District Court of the Southern District of California when they were entered in 1963. These documents contain statements by the plaintiff that he was born in Hull, England, but they were not received in evidence.

5. The plaintiff testified that he was born in Hull, England, on October 8, 1892, and first entered the United States in 1905 or 1906 at the Port of Philadelphia. His last entry into the United States for naturalization purposes was at El Paso, Texas, December 3, 1930. The plaintiff further testified that his first application for first citizenship papers was made in 1917, and in this the plaintiff admitted he stated that he was born in Russia. Subsequently, the plaintiff testified he learned from his parents and brothers that he had been born in Hull, England, and he did not pursue his first application for naturalization because, he testified, he learned that he had misstated the place of his birth. On testimony as an adverse witness called by the defendants in this case, the plaintiff testified that he has been known by other names and that he has signed these names to the various official documents mentioned below. These names, in addition to John Factor, are: J. Factor, Jake Factor, Jacob John Factor, Yanko Factor, Jack Factor and John Jacob Factor. The plaintiff testified that he was one of nine or ten children born of his father's second marriage to his mother, Leah Factor. Plaintiff admitted that all eight of his full brothers and sisters were born in Russia, most of them being born in Lodz. The plaintiff testified that his father was as itinerant rabbi, who spent six or eight months in England where the plaintiff claims that he was born. The plaintiff admitted that in a prior sworn deposition he had stated that his father's sojourn in England was only for two or three months.

6. The plaintiff admitted making an application for a marriage license to one Bessie Schatz on August 7, 1911. He admitted signing the application in the name of Jack Factor. This application, made under oath, stated his birth date as 1889 or 1890 and did not state the place of his birth. The plaintiff admitted making an application for a barber's license in the State of Illinois in 1912, which he signed as Jack Factor and in which he stated, under oath, that his birth date was 1889 or 1890 in Russia. Factor stated that, "I merely took it for granted where I was born," at the time he filed and signed this application.

7. The plaintiff stated that he had never signed nor had ever given anyone the information necessary to fill out a certificate of his son Jerome's birth in the State of Illinois. This certificate, which was admitted in evidence, bore the signature "Jack Factor," stated his birth date was 1891 or 1892 and his birth place Russia, but it was not made under oath. The certificate is dated November 16, 1913, and the plaintiff admitted that at that time he was under the impression that he was born in Russia and probably told that to his wife, Bessie Schatz.

8. The plaintiff admitted signing a declaration of intention to become a United States citizen under oath on February 27, 1917. The plaintiff signed this declaration in the name of Jacob Factor and stated that his birth date was December 15, 1892, in Zdunska, Russia. In this declaration, which was sworn to before the Clerk of the United States District Court for the Northern District of Illinois, he stated it was his intention to renounce allegiance to the Czar of Russia of whom he was then a subject.

9. The plaintiff admitted signing in the name of J. Factor a draft card for the United States Selective Service System during the First World War, under oath, on June 5, 1917. On this draft card, he stated his birth date was October 8, 1890, in Lodz, Russian Poland.

10. The plaintiff admitted signing under oath an application for a second marriage license in the State of New York in the name of Jacob Factor on February 6, 1925. In this application he stated that he was born in 1892 or 1893 in Chicago, Illinois. When he was asked what he hoped to accomplish by stating that he was born in Chicago, Illinois, in this application, he stated, "Well, I was here on a visa, a short time visa, and I was hoping to get married immediately, and I was afraid that if I put down that I was born in England, I might have to wait a week or two weeks, or longer, I did not know."

11. A birth certificate of Alvin J. Factor, the youngest son of the plaintiff, was also received in...