Park v. Hopkins, IP 59-C-191.

Decision Date11 January 1960
Docket NumberNo. IP 59-C-191.,IP 59-C-191.
Citation179 F. Supp. 671
PartiesRosemary PARK, as Administratrix of the Estate of Robert E. Park, Deceased, Plaintiff, v. Verlynn L. HOPKINS, and Holland Motor Express, Inc., Defendants.
CourtU.S. District Court — Southern District of Indiana

Grant Rogers, Franklin, Ind., for plaintiff.

Murray, Mannon, Fairchild & Stewart, by James J. Stewart, Indianapolis, Ind., for defendants.

STECKLER, Chief Judge.

This is a wrongful death action originally filed in the Circuit Court of Johnson County, Indiana, and removed to this court by the defendants. The petition for removal recites the following jurisdictional facts:

"* * * all of the parties defendant to said action are citizens of the State of Michigan, whereas the party plaintiff to said action is a citizen of the State of Indiana, and there is, therefore, diversity of citizenship between the parties plaintiff and defendant and the matter in controversy exceeds exclusive of interest and costs the sum of $10,000.00."

Plaintiff filed a motion to remand the cause to the Johnson Circuit Court since neither the complaint nor the petition for removal state the location of the principal place of business of the defendant Holland Motor Express, Inc. See Title 28 U.S.C. § 1332(c). Thereupon the defendants filed an affidavit of one Charles Cooper, the president of Holland Motor Express, Inc., in which the affiant states, in part:

"That said corporation Holland Motor Express, Inc. was incorporated under the laws of the State of Michigan and its home office and principal place of business is now and has been since incorporation in the City of Holland, State of Michigan and not in Indianapolis, Indiana."

This affidavit was filed subsequent to the expiration of twenty days after the receipt of a copy of the initial pleading by the defendants. See Title 28 U.S.C. § 1446(b).

In an entry dated August 28, 1959, the court overruled plaintiff's motion to remand, since sufficient facts to properly invoke federal jurisdiction were then in the record before the court. See Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 1956, 234 F.2d 253, 258, note 6; Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815.

On September 10, 1959, plaintiff filed a motion urging the court to reconsider its ruling of August 28th in view of the contrary holding of Browne v. Hartford Fire Ins. Co., D.C.N.D.Ill.1959, 168 F. Supp. 796, 800. In the Browne case, Judge Campbell held that a petition for removal which failed to set out the principal place of business of a corporate defendant was fatally defective, and furthermore, that such petition could not be amended subsequent to the expiration of the twenty-day period provided in § 1446 (b), because:

"There is no pleading of the required facts at all. This is not an attempt to cure a defect but to make an entirely new allegation. * * * The amendment must do no more than set forth in proper form what has been previously imperfectly stated in the petition for removal."

I agree that § 1332(c) now requires corporate litigants to plead and prove principal place of business in order to invoke the diversity jurisdiction of federal courts. However, the denial of a right to amend to show that proper jurisdictional facts do exist seems overly harsh. Title 28 U.S.C. § 1653 states:

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

It has been held that this section applies to removal petitions as well as to complaints. McGuigan v. Roberts, D.C.S.D. N.Y.1959, 170 F.Supp. 372; Hernandez v. Watson Bros. Transportation...

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16 cases
  • Van Horn v. Western Elec. Co.
    • United States
    • U.S. District Court — Western District of Michigan
    • 5 January 1977
    ...168 F.Supp. 796, 798 (N.D.Ill.1959); F. & L. Drug Corp. v. American Central, 200 F.Supp. 718, 720 (D.Conn.1961); Park v. Hopkins, 179 F.Supp. 671, 672 (S.D.Ind. 1960); Handy v. Uniroyal, 298 F.Supp. 301, 302 (D.Del.1969). Moreover, federal jurisdiction must be present both at the time of th......
  • Yarbrough v. Blake
    • United States
    • U.S. District Court — Western District of Arkansas
    • 8 January 1963
    ...the contra decisions of Firemen's Insurance Co. of Newark, N. J. v. Robbins Coal Co. (5 Cir., 1961), 288 F.2d 349, and Park v. Hopkins (D.C.S.D.Ind.1960), 179 F. Supp. 671. "The decisions in both Park and Robbins in holding that a petition for removal might be amended rested upon the author......
  • F & L DRUG CORP. v. American Central Insurance Co.
    • United States
    • U.S. District Court — District of Connecticut
    • 15 December 1961
    ...the contra decisions of Firemen's Insurance Co. of Newark, N. J. v. Robbins Coal Co. (5 Cir., 1961), 288 F.2d 349, and Park v. Hopkins (D.C.S.D.Ind. 1960), 179 F.Supp. 671. The decisions in both Park and Robbins in holding that a petition for removal might be amended rested upon the authori......
  • Handy v. Uniroyal, Inc.
    • United States
    • U.S. District Court — District of Delaware
    • 26 March 1969
    ...Corp. v. Republic Ins. Co., 225 F.Supp. 76 (E.D.N.Y.1963); Goforth v. Allstate Ins. Co., 213 F.Supp. 595 (W.D.N.C.1963); Park v. Hopkins, 179 F.Supp. 671 (S.D.Ind.1960). Wright, while conceding that the "numerical majority" of the cases refuse to allow amendment of the petition to allege pr......
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