Kansas City, Mo., ex rel. Gemco, Inc. v. AMERICAN CONCR. FORMS, INC., Civ. A. No. 18656-3.
| Decision Date | 16 September 1970 |
| Docket Number | Civ. A. No. 18656-3. |
| Citation | 318 F. Supp. 567 |
| Parties | City of KANSAS CITY, MISSOURI, ex rel. GEMCO, INC., a corporation, Plaintiff, v. AMERICAN CONCRETE FORMS, INC., National Surety Company, Fireman's Fund Insurance Company, and Del E. Webb Corporation, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Jim Tom Reid, of Shockley, Reid & Koger, Kansas City, Mo., for plaintiff.
Donald W. Giffin, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for defendants.
ORDER AND JUDGMENT DISMISSING CAUSE FOR LACK OF DIVERSITY JURISDICTION
This is an action in which the relator is alleged to have entered into a contract on July 23, 1968, with defendants "Del E. Webb Corporation as principal and National Surety Corporation and Fireman's Fund Insurance Company as sureties for the construction of terminal buildings A, B & C, and apron transition paving utilities and incidental and related work from entrance loop road to aircraft positions, at Kansas City International Airport"; that "on the dates set forth in the bill of items hereunto attached the said Gemco, Inc., at the special instance and request of defendant American Concrete Forms, Inc., furnished, sold and delivered to American Concrete Forms, Inc., as a subcontractor of defendant Del E. Webb Corporation for the performance of said contract of July 23, 1968, certain goods, wares and merchandise, the items of which now remaining unpaid for, the prices charged therefor and the dates of each sale of same, are specifically set out in the attached bill of items and account, which said attached documents are incorporated herein and made a part hereof as fully as if set out verbatim hereat"; that "the Said Gemco, Inc. has made demand upon defendants American Concrete Forms Inc. and Del E. Webb Corporation for the payment of the balance due upon said account above described; but that defendant and each of them wholly fails and refuses to pay same or any part thereof." Plaintiff therefore prays judgment in the sum of $16,054.80, "together with interest at the rate of six percent (6%) per annum from the date of the filing of this complaint."
Plaintiff expressly invokes federal jurisdiction under Section 1332, Title 28, United States Code, on the principle of diversity of citizenship in the following language of the complaint:
"That the amount in controversy herein is a sum, exclusive of interest and costs, in excess of $10,000.00, to wit: Sixteen Thousand Fifty Four and 80/100 ($16,054.80) Dollars; that there is diversity of citizenship between plaintiff and defendants herein and that the jurisdiction of this Court is invoked by reason of said diversity of citizenship and amount in controversy."
It is also alleged, however:
It therefore appears from the face of the complaint that there is no diversity between relator Gemco, Inc., and defendant American Concrete Forms, Inc. It is well established that in order for the federal court to have federal jurisdiction under § 1332, Title 28, United States Code, complete diversity among all plaintiffs and all defendants must exist. Universal Underwriters Insurance Company v. Wagner (C.A. 8) 367 F.2d 866, 870. While a municipal corporation, for the purposes of diversity jurisdiction, is to be considered a citizen of the state which created it (see, e. g. Great American Insurance Company v. Louis Lesser Enterprises, Inc. (C.A. 8) 353 F.2d 997) and the citizenship of the City of Kansas City would be diverse from the citizenships of all the defendants (according to the complaint), it is the citizenship of the relator which is important in this regard. In a case wherein the action is filed by the municipality ex relatione, the party on whose relation it is brought is regarded as the plaintiff for the purpose of determining diversity jurisdiction. Indiana v. Glover, 155 U.S. 513, 15 S.Ct. 186, 39 L.Ed. 243; see also Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L.Ed. 822; Hann v. City of Clinton, Oklahoma, ex rel. Schuetter (C.A. 10) 131 F.2d 978. The following allegations of the complaint have been made to justify the making of the City of Kansas City a party to this action:
and that Gemco, Inc., sold the goods, wares and merchandise above referred to "in reliance upon said bond of defendants Del E. Webb Corporation, National Surety Corporation and Fireman's Fund Insurance Company"; that "defendant American Concrete Forms, Inc., was a subcontractor of defendant Del E. Webb Corporation for the procurement and delivery of said items to said jobsite"; and that Gemco, Inc., has demanded the balance due on the account but "defendant and each of them (sic) wholly fails and refuses to pay same or any part thereof."
It is readily apparent from the foregoing that the monies which may be recovered by this suit would be paid to the use plaintiff and that Gemco, Inc., is the real party in interest who stands...
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