Lang v. Elm City Construction Company

• Decision Date: 14 May 1963
• Docket Number: Civ. No. 9024.
• Citation: 217 F. Supp. 873
• Court: U.S. District Court — District of Connecticut
• Parties: Arthur L. LANG, Administrator of the Estate of Richard Klinkhammer, Plaintiff, v. The ELM CITY CONSTRUCTION COMPANY, Austin R. LeMoine, a.k.a. Augustin R. LeMoine, Defendants, v. SAVIN BROTHERS, INC., Third-Party Defendant.

217 F. Supp. 873

Arthur L. LANG, Administrator of the Estate of Richard Klinkhammer, Plaintiff, v. The ELM CITY CONSTRUCTION COMPANY, Austin R. LeMoine, a.k.a. Augustin R. LeMoine, Defendants, v. SAVIN BROTHERS, INC., Third-Party Defendant.

Civ. No. 9024.

United States District Court D. Connecticut.

May 14, 1963.

Ira B. Grudberg, of Jacobs, Jacobs, Jacobs & Jacobs, New Haven, Conn., for plaintiff.

John D. Fassett, of Wiggin & Dana, New Haven, Conn., for defendant The Elm City Const. Co.

Richard P. Heffernan, of Heffernan & Heffernan, West Hartford, Conn., for defendant LeMoine.

Francis J. Moran, New Haven, Conn., for third party defendant Savin Brothers, Inc.

TIMBERS, District Judge.

Plaintiff's motion, pursuant to Rule 12(f), Fed.R.Civ.P.,¹ to strike the first defense of defendant Elm City Construction Company, raises questions with respect to the Court's jurisdiction over the subject matter of this wrongful death action in view of the appointment of plaintiff as foreign administrator expressly for the purpose of creating diversity of citizenship.

Plaintiff's motion is granted; partial summary judgment may enter in favor of plaintiff on the first defense of defendant Elm City Construction Company.

FACTS

The facts necessary to a determination of this motion, as disclosed by the pleadings and other papers submitted on this motion, are not in dispute.

Richard Klinkhammer, age 24, sustained fatal injuries November 30, 1960 when a bulldozer² backed over him at the Long Wharf Redevelopment area in New Haven. The bulldozer was owned by defendant Elm City Construction Company which leased it to defendant Savin Brothers, Inc. whose employee, defendant Austin R. LeMoine, was operating it at the time of the accident. All defendants are Connecticut citizens.

Plaintiff Arthur L. Lang, administrator of the estate of Klinkhammer, is a Pennsylvania citizen. The prime motive for substituting³ plaintiff as administrator of decedent's estate "was to obtain the requisite diversity of citizenship necessary to institute this particular action in this particular forum."⁴ Plaintiff was appointed administrator by the Probate Court for the District of North Branford, Connecticut; he has qualified and is acting as such.

The requisite jurisdictional amount is involved, plaintiff having sued for $200,000.

QUESTIONS PRESENTED

Two questions are presented by defendant Elm City Construction Company's first defense,⁵ the answers to which are believed to be dispositive of the instant motion:

(1) Does 28 U.S.C. § 1359 require dismissal of this action on the ground plaintiff "has been improperly or collusively made or joined to invoke the jurisdiction" of this Court?

(2) Does Conn.Gen.Stat. § 52-21 require dismissal of this action on the ground plaintiff is presumed to reside "in the town where the court of probate which granted administration is held" here, North Branford, thus destroying diversity jurisdiction?

The Court holds both questions must be answered in the negative.

I

28 U.S.C. § 1359

The citizenship of the fiduciary —whether executor, administrator, trustee or guardian—and not that of the decedent, beneficiary or ward, is looked to in determining diversity jurisdiction. 3 Moore's Federal Practice, ¶ 17.04, p. 1313 (2d ed. 1948); see Chappedelaine v. Dechenaux, 8 U.S. (4 Cranch.) 306, 2 L.Ed. 629 (1808). The rationale is that the fiduciary is the real party in interest. Rule 17(a), Fed.R.Civ.P. This Court has held that an administratrix is the proper party in the federal court to pursue a claim based on the Connecticut wrongful death statute; in denying a motion to dismiss for lack of jurisdiction, Judge Smith said, "The powers and duties of the administratrix under her appointment make her a real party in interest even though the recovery is for the ultimate benefit of others." O'Donnell v. Hayden Truck Lines, 61 F.Supp. 823 (D.Conn. 1945).⁶

So far as this Court can discover, neither the United States Supreme Court nor the Court of Appeals for the Second Circuit has passed on the question whether appointment of a foreign fiduciary expressly for the purpose of creating diversity of citizenship is improper or collusive within the meaning of 28 U.S.C. § 1359.⁷

The Court of Appeals for the Third Circuit, sitting en banc in a case on all fours with the instant case, held such appointment of a foreign fiduciary expressly to create diversity was not improper or collusive. Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3 Cir. 1959).⁸ There a 12 year old boy was killed in Pennsylvania when a wheel detached from a racing car, went into the stands and struck him. His mother, with whom the boy had lived in Pennsylvania, was appointed his administratrix by the Orphans' Court for Allegheny County. Thereafter she resigned expressly for the purpose of enabling the Orphans' Court to appoint a non-resident administrator who could bring a wrongful death action in the United States District Court for the Western District of Pennsylvania. Such a non-resident administrator from Steubenville, Ohio, was appointed. Such a wrongful death action was instituted in the federal court in Pittsburgh. Defendants moved to dismiss on the ground diversity of citizenship between the parties was "simulated" and "designed solely and collusively to create jurisdiction." The district court denied the motion and certified the controlling question of law to the Third Circuit pursuant to 28 U.S.C. § 1292(b).

The Third Circuit, noting that "The Supreme Court of the United States has not ruled on this issue,"⁹ stated the issue presented for determination as follows (264 F.2d 784, 785):

"Whether the resignation or renunciation of a resident administratrix and the appointment of a non-resident administrator, d. b. n., for the express purpose of creating diversity of citizenship between the parties, was collusive and, therefore, in violation of Section 1359, Title 28 U.S.C."

In answering this question in the negative, the court reviewed its own prior decisions dealing with the question;¹⁰ found the facts in the case at bar to be within the ambit of the decision of the United States Supreme Court in the Black & White Taxicab case¹¹ rather than the decisions of the Supreme Court in the Lehigh Mining case¹² and the Miller & Lux case;¹³ discussed the terms "improperly" and "collusively" as used in the statute;¹⁴ noted the cases supporting the court's view and those supporting a contrary view;¹⁵ and concluded that "the arrangement here made is not within the reach of Section 1359. If what we deem to be the law is to be changed we think that it would be improper for that change to emanate from this court."¹⁶

While the decision of the Third Circuit in Corabi is not controlling on this Court, it is persuasive and will be followed, absent a decision on the question by the Supreme Court or the Second Circuit.¹⁷

This Court accordingly holds that, while plaintiff was appointed foreign administrator expressly for the purpose of creating diversity of citizenship, he was not "improperly or collusively joined" to invoke the jurisdiction of this Court within the meaning of 28 U.S.C. § 1359.

II Conn.Gen.Stat. § 52-21

Defendant Elm City Construction Company's first defense presents an alternative line of defense.

It argues, not without ingenuity, that Section 52-21¹⁸ requires that a non-resident administrator be considered, in determining federal jurisdiction, as a resident of the town "where the court of probate which granted administration is held."

The short answer to defendant's contention, in the opinion of this Court, is that (i) the statute is not to be read as stripping the federal court of jurisdiction of actions brought by foreign fiduciaries, and (ii) if it were to be so read, this Court would be constrained to strike it down in view of the supremacy clause of the Constitution of the United States.¹⁹

Section 52-21, on its face and in the context in which it appears in the Connecticut General Statutes, deals with the Connecticut state court system.²⁰ It is part of Chapter 895, entitled "Jurisdiction and Venue" of "Civil Actions".²¹ Surrounding sections emphasize the local character of the venue and jurisdiction provisions of the chapter, e. g. "Land lying in several counties or towns" (Section 52-17); "Return of action brought by foreign corporation" (Section 52-20); "Civil actions of party resident in Shelton brought to Bridgeport or Ansonia" (Section 52-25); "Transfers between Bridgeport, New Haven and Waterbury and Ansonia" (Section 52-26).

Defendant argues that, while Rule 17 (a) provides that "an * * * administrator * * * may sue in his own name without joining with him the party for whose benefit the action is brought," nevertheless Rule 17(b) directs that the capacity of a person acting in a representative capacity to sue "shall be determined by the law of the state in which the district court is held." It follows, so defendant argues, that this Court must look to Connecticut law to determine the capacity of a fiduciary to maintain an action in the federal court. Up to this point, there can be no quarrel with defendant's position.

But then defendant cites Noel v. St Johnsbury Trucking Co., 147 F.Supp. 432 (D.Conn.1956), in support of its further argument that this Court, in looking to Connecticut law to determine the capacity of a fiduciary to maintain an action in the federal court, must read Section 52-21 as excluding foreign fiduciaries from suing in the federal court because "it has been held citing Noel that a foreign administrator may not maintain an action in that Court since he could not maintain an action in the courts of Connecticut." This argument the Court cannot accept.

In Noel, this Court dismissed the action on the ground plaintiff foreign administrator, although appointed by a New Hampshire court, brought suit in the federal court in Connecticut under the Connecticut Wrongful Death Act without first obtaining...