Hoskie v. Prudential Ins. Co. of America, 1719.
| Decision Date | 24 May 1941 |
| Docket Number | No. 1719.,1719. |
| Citation | 39 F. Supp. 305 |
| Parties | HOSKIE v. PRUDENTIAL INS. CO. OF AMERICA (LORRAC REAL ESTATE CORPORATION, Third Party Defendant). |
| Court | U.S. District Court — Eastern District of New York |
William A. Blank, of Brooklyn, N. Y., for plaintiff.
Clark & Reynolds, of New York City, for Prudential Ins. Co. of America.
Arthur I. Goldstein, of New York City, for Lorrac Real Estate Corporation.
This is a motion made by Lorrac Real Estate Corporation, third party defendant, to dismiss this action because of lack of jurisdiction.
This is an action for personal injuries originally brought by the plaintiff, a citizen of New York, against the Prudential Insurance Company of America, a New Jersey corporation. Pursuant to order of this Court, the Prudential Insurance Company of America was granted an order permitting it to serve a summons on Lorrac Real Estate Corporation, a New York corporation, and asserting a claim against it by way of indemnity. Subsequently, the plaintiff was permitted to amend his complaint to assert a claim against the third party defendant as well as against the third party plaintiff.
The third party defendant then made this motion to dismiss the amended complaint because of lack of jurisdiction. Had the plaintiff originally brought his action against both parties defendant this Court would have lacked jurisdiction in view of the well established rule that where jurisdiction of a Federal Court is based upon diversity of citizenship, that diversity must exist as between the plaintiff and all parties defendant. The identity of citizenship between the plaintiff and Lorrac Real Estate Corporation would have prevented this Court from taking jurisdiction. It remains, therefore, to be seen whether the circumstances under which the present amended complaint is before the Court ought to alter that rule.
It has become reasonably well established that diversity of citizenship is not necessary to support the claim of a defendant against a third party defendant. That jurisdiction has been held to rest upon the jurisdiction of the main action, the third party proceeding being regarded as ancillary to the main action. Bossard v. McGwinn, D.C., 27 F.Supp. 412.
Here, however, we are not concerned with the jurisdiction of the third party action, but that as between the plaintiff and the third party. Admittedly the plaintiff could have joined Lorrac Real Estate Corporation as a party defendant in his original complaint. That he chose not to do, probably because he sought the jurisdiction of the Federal Courts, and the joinder of Lorrac Real Estate Corporation would have made that impossible, there being no federal...
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