McGrier v. P. Ballantine & Sons

• Decision Date: 04 May 1942
• Docket Number: Civil No. 2506.
• Parties: McGRIER v. P. BALLANTINE & SONS et al.
• Court: U.S. District Court — Eastern District of New York

44 F. Supp. 762

McGRIER v. P. BALLANTINE & SONS et al.

Civil No. 2506.

District Court, E. D. New York.

May 4, 1942.

Grant, Clark & Fox, of New York City (Byron Clark, Jr., of New York City, of counsel), for defendant P. Ballantine & Sons, for the motion.

Ben M. Selbest, of Brooklyn, N. Y., for plaintiff, opposed.

CAMPBELL, District Judge.

This is a motion made on behalf of the defendant, P. Ballantine & Sons, to dismiss the complaint on the ground that it affirmatively appears that this Court is without jurisdiction.

This is an action brought by the plaintiff to recover from the defendants damages for personal injuries, and the basis for the jurisdiction of this Court would be alleged diversity of citizenship.

The complaint alleges that the plaintiff is a resident of the State of New York, that the defendant P. Ballantine & Sons is a New Jersey corporation with a place of business in this District, and that the defendants Melville Hollins and Jeanette Zaillard are residents of the State of New York.

The defendants are alleged to be joint tort-feasors, and this is an original action.

For this Court to have jurisdiction under the complaint herein, it must be based on diversity of citizenship between the plaintiff and each and all of the defendants. Raphael v. Trask, 194 U.S. 272, 277, 24 S.Ct. 647, 48 L.Ed. 973; Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338; Olsen v. Jacklowitz et al., D.C., 6 F.Supp. 102, affirmed 2 Cir., 74 F.2d 718, 719; Osthaus v. Button, 3 Cir., 70 F.2d 392, 393, 394; Treinies v. Sunshine Min. Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Mathers & Mathers v. Urschel, 10 Cir., 74 F.2d 591; Dollar S. S. Lines, Inc., et al. v. Merz, 9 Cir., 68 F.2d 594; Meyer v. Kansas City Southern Ry. Co., D.C., 11 F.Supp. 937, affirmed 2 Cir., 84 F.2d 411, certiorari denied 299 U.S. 607, 57 S.Ct. 233, 81 L.Ed. 448.

The affirmative allegations of the complaint show that this Court does not have jurisdiction of this action, because, while there is diversity of citizenship between the plaintiff and the defendant P. Ballantine & Sons, there is no diversity of citizenship between the plaintiff and the defendants Jeanette Zaillard and Melville Hollins, but on the contrary that they are all residents of the State of New York. Woodhouse v. Budwesky, 4 Cir., 70 F.2d 61.

The joinder of the defendants was the act of plaintiff, and binding on him, and the Court is without jurisdiction. Olsen v. Jacklowitz et al., 2 Cir., 74 F.2d 718, 719; Lee v. Lehigh Valley Coal Co., 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782.

The joining of the parties was more than a mere form. Lee v. Lehigh Valley Coal Co., supra, 267 U.S. at page 543, 45 S.Ct. 385, 69 L.Ed. 782.

The contention on behalf of plaintiff that the Court has jurisdiction because service of the summons has not been made on any of the defendants, except P. Ballantine & Sons, finds no support in...