Kelbert v. Travelers Insurance Company

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Milton Gurwitz, New York City, for plaintiffs
• Citation: 245 F. Supp. 31
• Parties: Helen F. KELBERT and Caribe Time Products, Inc., Plaintiffs, v. The TRAVELERS INSURANCE COMPANY, Defendant.
• Decision Date: 08 September 1965

245 F. Supp. 31

Helen F. KELBERT and Caribe Time Products, Inc., Plaintiffs,
v.
The TRAVELERS INSURANCE COMPANY, Defendant.

United States District Court S. D. New York.

September 8, 1965.

Milton Gurwitz, New York City, for plaintiffs.

Terhune, Gibbons & Mulvehill, New York City, for defendant; John G. Donovan, New York City, of counsel.

FEINBERG, District Judge.

This is a motion stated to be brought under 28 U.S.C. § 1332(c) by plaintiffs for an order "transferring and remanding" the action to the Supreme Court of the State of New York, County of New York. Plaintiffs Helen F. Kelbert and Caribe Time Products, Inc., originally brought suit in the state courts in November 1963 against defendant The Travelers Insurance Company. The individual plaintiff is a citizen of the State of New York, and the corporate plaintiff was incorporated under the laws of the Virgin Islands. Defendant insurance company is a Connecticut corporation. The action seeks recovery upon two policies of life insurance issued by defendant upon the life of Rudolph S. Kelbert, husband of the individual plaintiff Helen F. Kelbert, which name plaintiffs as beneficiaries. Defendant's answer claims recovery is barred on the policies because of misrepresentations by the insured.

In December 1963, defendant removed the action to this court pursuant to 28 U.S.C. § 1441, alleging that diversity of citizenship existed. In February 1964, plaintiffs moved in this court for an order permitting them to file a demand for trial by jury, nunc pro tunc, although the time for such demand had passed. This motion was denied on March 10, 1964 after argument before Judge Bryan. The following day, a note of issue was filed. Some seventeen months later, plaintiffs brought this motion to remand to the state courts, apparently (according to oral argument) in an effort to preserve the right to jury trial, which has been lost in this court.

Although the motion purports to be brought pursuant to 28 U.S.C. § 1332(c), it is probable that plaintiffs are seeking relief under 28 U.S.C. § 1447(c). That section provides for remand "if at any time before final judgment it appears that the case was removed improvidently

245 F. Supp. 32

and without jurisdiction * * *." Plaintiffs argue that there is lacking the requisite diversity of citizenship between the individual plaintiff and defendant, claiming that defendant corporation should be regarded as a citizen of the State of New York for the purpose of diversity. The basis for this claim is not clear. By construing plaintiffs' papers liberally, it appears that at least two arguments can be spelled out

1. Plaintiffs' notice of motion relies on 28 U.S.C. § 1332(c). That section provides that:

(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant,

...