John M. Peters Construction Co. v. Marmar Corporation, 15344.

Decision Date31 March 1964
Docket NumberNo. 15344.,15344.
Citation329 F.2d 421
PartiesJOHN M. PETERS CONSTRUCTION CO., Plaintiff-Appellant, v. MARMAR CORPORATION, a Wisconsin corporation, Gateway Transportation Company, a Wisconsin corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

David A. Thomas, Cleveland Heights, Ohio, for appellant.

David A. Nelson, Cleveland, Ohio, for appellees; Squire, Sanders & Dempsey, Jon R. Waltz, Cleveland, Ohio, on brief.

Before MILLER, Circuit Judge, and LEVIN and KENT, District Judges.

PER CURIAM.

This matter is before the court on the plaintiff's appeal from a dismissal of the cause by the District Court for failure to allege the requisite jurisdictional facts as to diversity of citizenship, and jurisdictional amount. The complaint alleges that the plaintiff is a corporation "duly organized and existing under the laws of the State of Ohio," and that the defendants "are have been corporations duly organized and existing under the laws of the State of Wisconsin." The complaint further alleges that the defendants are indebted to the plaintiff in the amount of $10,000.

After answer the defendants moved jointly to dismiss for lack of jurisdiction. Before hearing on the motion plaintiff filed a "motion for instanter leave to file an amended petition," citing in its brief, which was a part of the motion, Title 28 U.S.C. § 1653. The motion to dismiss was granted, the motion for leave to amend was denied.

It appears that plaintiff's counsel attempted to offer an amended complaint in which he set forth an alternative ground for recovery and plaintiff's counsel claims that he was prevented from doing so by the court's refusal to receive the proposed amended complaint.

Plaintiff's counsel relies upon Title 28, U.S.C. § 1653, which provides:

"Amendment of pleadings to show jurisdiction
"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

He also relies upon Rule 15(a) of the Federal Rules of Civil Procedure, which provides, in part, that leave to amend "shall be freely given when justice so requires."

In a recent opinion, Foman v. Davis, Ex'x., 371 U.S. 178, at page 181, 83 S.Ct. 227, at page 230, 9 L.Ed.2d 222, the United States Supreme Court speaking through Mr. Justice Goldberg in making reference to the Rules of Civil Procedure, stated:

"It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities."

The Court then reversed and remanded the case after finding, "the Court of Appeals also erred in affirming the District Court's denial of petitioner's ...

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11 cases
  • Russoli v. Salisbury Tp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 20, 2000
    ...that no such prohibition exists." See id. at 887 (citing Miller v. Stanmore, 636 F.2d 986 (5th Cir. 1981); John M. Peters Constr. Co. v. Marmar Corp., 329 F.2d 421 (6th Cir.1964); United Steelworkers of America, AFL-CIO v. Mesker Bros. Industries, Inc., 457 F.2d 91 (8th Cir.1972); Local 179......
  • Berkshire Fashions, Inc. v. M.V. Hakusan II
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 23, 1992
    ...circuits have held that no such prohibition exists. See Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981); John M. Peters Constr. Co. v. Marmar Corp., 329 F.2d 421 (6th Cir.1964); United Steelworkers of America, AFL-CIO v. Mesker Bros. Industries, Inc., 457 F.2d 91 (7th Cir.1972); Local 179, ......
  • In re Justice, Bankruptcy No. 94-14310
    • United States
    • U.S. Bankruptcy Court — Southern District of Ohio
    • April 3, 1998
    ...based upon the original complaint without first considering the motion to amend was an abuse of discretion); John M. Peters Constr. Co. v. Marmar Corp., 329 F.2d 421 (6th Cir.1964) (reversing dismissal of action on basis of lack of jurisdiction and remanding to permit plaintiff to amend com......
  • Moore v. City of Paducah
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 16, 1986
    ...is especially important when, as here, denial of the amendment has resulted in dismissal of the action. John M. Peters Construction Co. v. Marmar Corp., 329 F.2d 421 (6th Cir.1964). * * * * * * The amended cause of action is not so different as to cause prejudice to the defendants, nor do w......
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