Martinez v. U.S. Olympic Committee

• Decision Date: 06 October 1986
• Docket Number: No. 83-1758,83-1758
• Citation: 802 F.2d 1275
• Parties: , 5 Fed.R.Serv.3d 1253 Elsie Pinto MARTINEZ, as Personal Representative of the Estate of Benjamin Davis, deceased, Plaintiff-Appellant, v. UNITED STATES OLYMPIC COMMITTEE, the USA Amateur Boxing Federation, Inc., the New Mexico Association of USA Amateur Boxing Federation, Inc., the Golden Gloves Association of America, the New Mexico Golden Gloves Association, the State of New Mexico, the New Mexico Boxing Commission, the City of Albuquerque, the VFW Post 401, Lloyd Vanderhoff, Stan Gallup, John Van Sickler, Sammy Burke, Floyd Mansell, Sandy Pino, Fran Montoya, Albert Gutierrez, Roger Rodriguez, Dr. James Shiveley, Dr. A.A. Chester, Dr. C.D. Milligan, Northeastern Fire Insurance Company of Pennsylvania, and Sugar Ray Leonard, Inc., Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1275

802 F.2d 1275

55 USLW 2216, 5 Fed.R.Serv.3d 1253

Elsie Pinto MARTINEZ, as Personal Representative of the Estate of Benjamin Davis, deceased, Plaintiff-Appellant, v. UNITED STATES OLYMPIC COMMITTEE, the USA Amateur Boxing Federation, Inc., the New Mexico Association of USA Amateur Boxing Federation, Inc., the Golden Gloves Association of America, the New Mexico Golden Gloves Association, the State of New Mexico, the New Mexico Boxing Commission, the City of Albuquerque, the VFW Post 401, Lloyd Vanderhoff, Stan Gallup, John Van Sickler, Sammy Burke, Floyd Mansell, Sandy Pino, Fran Montoya, Albert Gutierrez, Roger Rodriguez, Dr James Shiveley, Dr. A.A. Chester, Dr. C.D. Milligan Northeastern Fire Insurance Company of Pennsylvania, and Sugar Ray Leonard, Inc., Defendants- Appellees.

No. 83-1758.

United States Court of Appeals Tenth Circuit.

Oct. 6, 1986.

John B. Leyba (Chris Lucero, Jr., with him, on briefs), Albuquerque, N.M., for plaintiff-appellant.

John A. Klecan of Shaffer, Butt, Thornton & Baehr, Albuquerque, N.M., for defendants-appellees, The USA Amateur Boxing Federation, Inc., The New Mexico Ass'n of USA Amateur Boxing Federation, Inc., Sammy Burke, Floyd Mansell, Sandy Pino, Fran Montoya, and Albert Gutierrez.

Kenneth L. Harrigan and Mark B. Thompson, III, of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N.M., filed a brief on behalf of defendants-appellees State of N.M. and New Mexico Athletic Com'n.

Alan Konrad and Alice Tomlinson Lorenz of Miller, Stratvert, Torgerson & Brandt, Albuquerque, N.M., filed a brief on behalf of defendant-appellee U.S. Olympic Committee.

C. LeRoy Hansen, Terry R. Guebert, and Paul L. Civerolo of Civerolo, Hansen & Wolf, and Robert W. Casey of Carian & Casey, Albuquerque, N.M., filed a brief on behalf of defendants-appellees V.F.W. Post 401, Stan Gallup, John Van Sickler, and Lloyd Vanderhoof.

Before HOLLOWAY, Chief Judge, and LOGAN and TIMBERS ^*, Circuit Judges.

LOGAN, Circuit Judge.

This is a wrongful death action brought by Elsie Pinto Martinez as personal representative of the estate of Benjamin Davis. The district court dismissed the complaint for lack of subject matter jurisdiction. We consider on appeal whether the district court erred in finding (1) no federal diversity jurisdiction because Martinez was improperly or collusively made a party in violation of 28 U.S.C. Sec. 1359, and (2) no federal question jurisdiction under 28 U.S.C. Sec. 1331.

Benjamin Davis was a twenty-two year old amateur boxer who, in February 1982, participated in a Golden Gloves boxing tournament in Albuquerque, New Mexico. During his second fight in the tournament, Davis collapsed; he died five days later from severe brain stem injuries.

At the time of his death, Davis was domiciled in New Mexico. He died intestate, and under New Mexico law his only heirs were his parents--Navajo Indians who speak no English. In probate proceedings in New Mexico, both parents listed post office boxes in New Mexico as their addresses. ¹ Both declined to act as personal representative for the estate, as did Davis' brothers and sisters. A New Mexico state court appointed as personal representative Elsie Pinto Martinez, Davis' aunt, an English-speaking resident of Arizona. Martinez filed this action on behalf of the estate in the United States District Court for the District of New Mexico. Martinez' various claims for Davis' wrongful death are the estate's only assets. ²

Martinez joined as defendants the United States Olympic Committee (USOC), a congressionally-chartered corporation; the State of New Mexico; several unincorporated associations based in New Mexico and other states; several for-profit and not-for-profit corporations incorporated and having their principal offices in New Mexico and other states; the New Mexico Boxing Commission, a New Mexico state agency; the City of Albuquerque; and various individuals associated with these entities. No joined defendant was a resident or citizen of Arizona. Martinez claimed diversity jurisdiction under 28 U.S.C. Sec. 1332 on the basis that all listed defendants were diverse to herself. Martinez also claimed federal question jurisdiction under 28 U.S.C. Sec. 1331 on the basis that "Benjamin Davis' rights and guarantees as provided by the constitutions and laws of the State of New Mexico and these United States, were violated under color of law," and also that "[s]ubstantial federal questions are involved...." R. I, 4.

Defendants USOC and Sugar Ray Leonard, Inc. moved to dismiss for lack of subject matter jurisdiction. Apparently all defendants sought dismissal for lack of diversity jurisdiction. Although its memorandum opinion specifically addressed only USOC and Sugar Ray Leonard, Inc.'s motions, the district court found both federal question and diversity jurisdiction lacking, and dismissed the complaint. The parties have treated the dismissal as applying to all defendants. Hence we conclude that we have a final appealable order under 28 U.S.C. Sec. 1291. We affirm.

I

The general rule in federal court is that the citizenship of a personal representative of an estate determines diversity in suits brought by or against that person for the estate. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 52 S.Ct. 84, 85, 76 L.Ed. 233 (1931). See generally 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3606 (1984). This rule is subject to 28 U.S.C. Sec. 1359, which denies jurisdiction when "any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of [the district court]." In the leading case of McSparran v. Weist, 402 F.2d 867 (3rd Cir.1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), the court held that a personal representative chosen for the sole purpose of creating diversity jurisdiction, who has no real or substantial interest in the controversy, is improperly or collusively named within the meaning of Sec. 1359. Id. at 873. In Groh v. Brooks, 421 F.2d 589 (3d Cir.1970), the court set forth several factors to be considered in determining whether jurisdiction has been artificially created, including

"the identity of the representative and his relationship to the party represented; the scope of the representative's powers and duties; any special capacity or experience which the representative may possess with respect to the purpose of his appointment; whether there exists a non-diverse party, such as a parent in a suit for injuries to a child, who might more normally be expected to represent the interests involved; whether those seeking the appointment of the representative express any particular reasons for selecting an out-of-state person; and whether, apart from the appointment of an out-of-state representative, the suit is one wholly local in nature."

Id. at 595.

Other circuits, while generally following McSparran, have differed regarding the importance of the actual motive or purpose behind the appointment of a particular representative. Compare Bishop v. Hendricks, 495 F.2d 289, 293-96 (4th Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 639, 42 L.Ed.2d 653 (1974) (only motives giving "substance" to representation and elevating representative above the level of a nominal party are relevant in determining diversity; personal preference, kinship, and business experience will not be considered), and Betar v. De Havilland Aircraft of Canada, Ltd., 603 F.2d 30 (7th Cir.1979), cert. denied, 444 U.S. 1098, 100 S.Ct. 1064, 62 L.Ed.2d 785 (1980) (representative with no stake in outcome of wrongful death action and no duties to perform other than distributing proceeds to the beneficiaries was improperly made a party under Sec. 1359 despite absence of motive to manufacture jurisdiction), with Bianca v. Parke-Davis Pharmaceutical Division, 723 F.2d 392, 398 (5th Cir.1984) (language of Sec. 1359 requires that motive underlying appointment be the guide for diversity inquiry; administratrix' citizenship can be disregarded "only when there is a factual determination that the administratrix was named with a purpose to manufacture diversity").

In Hackney v. Newman Memorial Hospital, Inc., 621 F.2d 1069 (10th Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 397, 66 L.Ed.2d 244 (1980), we held that the appointment of a fiduciary who had a substantial beneficial interest in the litigation being conducted was immune from challenge under Sec. 1359. In essence we held in Hackney that an heir's beneficial interest in the outcome of the litigation kept the appointment from being a sham transaction condemned by Sec. 1359. That holding does not require us to find, however, that if the representative has no personal economic stake in the outcome, the appointment is in violation of Sec. 1359 regardless of motive, as it apparently would be under the Bishop and Betar tests. While we would prefer to avoid time-consuming hearings on difficult-to-resolve issues of subjective motivation, we agree with the Fifth Circuit's view in Bianca that the language of Sec. 1359, denying jurisdiction when a party has been made or joined "to invoke" jurisdiction, requires inquiry into the motive for the appointment in cases in which the appointee does not have a personal economic stake in the litigation.

It is apparent that Martinez has no beneficial interest in the litigation; any recovery will go to the decedent's parents, his only heirs. ³ Therefore it is necessary to inquire into the motive behind Martinez' appointment. The determination of motive is a fact question, subject to review on a clearly erroneous standard. Bianca, 723 F.2d at 398; Fed.R.Civ.P. 52(a). And the burden of proof on this issue is on the party seeking to invoke the federal court's jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Bradbury v. Dennis, 310 F.2d 73 (10th Cir.1962), cert. denied, 372 U.S. 928, 83 S.Ct. 874,...