McGarry v. City of Bethlehem, Civil Action No. 2339.

• Citation: 45 F. Supp. 385
• Decision Date: 15 May 1942
• Docket Number: Civil Action No. 2339.
• Parties: McGARRY v. CITY OF BETHLEHEM.
• Court: U.S. District Court — Western District of Pennsylvania

45 F. Supp. 385

McGARRY v. CITY OF BETHLEHEM.

Civil Action No. 2339.

District Court, E. D. Pennsylvania.

May 15, 1942.

H. P. McFadden, of Bethlehem, Pa., for plaintiff.

Daniel L. McCarthy, of Bethlehem, Pa., for defendant.

MOORE, District Judge.

This case is before the court upon defendant's motion to dismiss on the ground that the Court is without jurisdiction.

The jurisdictional averments of the complaint are, in addition to allegation of the amount in controversy:

(1) That the plaintiff is an individual residing and domiciled in the District of Columbia and is a citizen of the United States of America.

(2) That the defendant is a municipal corporation, being a third class city of the Commonwealth of Pennsylvania, situate in Northampton and Lehigh Counties within the territorial jurisdiction of this court.

It is contended by the defendant that the status of both the plaintiff and the defendant is such as to defeat the jurisdiction.

I am of opinion that the defendant, as a third class city of the Commonwealth of Pennsylvania, situate in this district, is amenable to suit in this court, provided the plaintiff's status is such as to establish diversity of citizenship between the plaintiff and the defendant under Article III, Section 2 of the Federal Constitution and the laws of Congress passed in pursuance thereof. It is true that the statute of Pennsylvania relating to cities of the third class which lie in more than one county provides that such cities "shall * * * be deemed and considered as under and within the jurisdiction of the courts of that county in which is situate the borough first incorporated of those forming such consolidated borough." P.L.1931, 1932, § 211, 53 P.S.Pa. § 12198 — 211. Defendant argues from this fact that the City of Bethlehem, being such a city as is referred to in the above mentioned statute, is suable only in the state courts of Northampton County. I do not so conclude. The various states of the Union fix by statute the jurisdiction of their own courts and the venue of suits brought in those courts. Whenever an action is commenced in the state courts, the proceedings therein must conform to the requirements of the state statutes. It is otherwise in respect of a proceeding commenced in or removed to a district court of the United States. There, if the matter in controversy exceeds three thousand dollars in value and the suit is brought to the Federal Court on the ground of diverse citizenship, the only questions to be answered, if there be only one plaintiff and one defendant, are: (1) Are the plaintiff and the defendant citizens of different states? And (2) is the defendant a resident of the district in which the action is commenced?

There is no dispute as to the answer to the second question. Nor is there any doubt that the defendant is a citizen of Pennsylvania, and that it is suable as such in the Eastern Federal District Court thereof. Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 41 S.Ct. 237, 65 L.Ed. 500; Cowles v. Mercer County, 74 U.S. 118, 7 Wall. 118, 19 L.Ed. 86; Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L. Ed. 766.

Objection is made that the allegation that the plaintiff resides and is domiciled in the District of Columbia does not sufficiently aver citizenship therein. I am of opinion that this is a sufficient averment of citizenship.

The remaining question to be decided is whether the plaintiff as "an individual residing and domiciled in the District of Columbia" may lawfully maintain this action against the defendant in this court. The answer to this question requires a construction of the amendment of April 20, 1940, to the Judicial Code, Section 24 (1). The pertinent part of the section as amended is as follows: "The district courts shall have original jurisdiction as follows: (1) First. Of all suits of a civil nature, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and * * * (b) is between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory * * *." 28 U.S.C.A. § 41(1). Prior to the amendment, the statute did not contain the words "or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory." By a long series of decisions beginning with Hepburn and Dundas v. Ellzey, 1805, 2 Cranch. 445, 452, 2 L.Ed. 332, in which case Chief Justice Marshall delivered the opinion, ...