Prudencio v. Hanselmann, 4-59-Civ.-121.
Citation | 178 F. Supp. 887 |
Decision Date | 03 December 1959 |
Docket Number | No. 4-59-Civ.-121.,4-59-Civ.-121. |
Parties | Jaime Jimenez PRUDENCIO, Plaintiff, v. Roland Richard HANSELMANN, Arthur H. Chouanard, Joel Merrills Huelskamp, Defendants. |
Court | U.S. District Court — District of Minnesota |
Irwin Ketroser, Minneapolis, Minn., for plaintiff.
Sheldon D. Karlins, Minneapolis, Minn., for defendant Hanselmann.
Michael Gaughan, Minneapolis, Minn., for defendant Huelskamp.
John Castor, Minneapolis, Minn., for defendant Chouanard.
This action is for personal injuries sustained in a collision of the three defendants' automobiles in southern Minnesota. The plaintiff, who was a passenger in the automobile of the defendant Hanselmann, is a citizen of Bolivia and lives in Minnesota. Hanselmann is a citizen and resident of North Dakota, while the remaining defendants, Chouanard and Huelskamp, are both citizens and residents of Minnesota.
Defendant Hanselmann moves to dismiss this action as to him for the reason that venue cannot be properly laid in this court if he is included as a party defendant.
The plaintiff claims that he is entitled to sue Hanselmann in this district because 28 U.S.C. § 1391(a) (1952) allows suits wherein jurisdiction is founded on diversity of citizenship to be brought in the district where the plaintiff resides. Hanselmann argues that in a suit by an alien, the alien cannot be considered the "resident" of any district, and venue in such a case must therefore be laid in the district where all the defendants reside.
Prior to the revision of the judicial code in 1948, it was settled that an alien could bring suit only in the district where the defendant was an inhabitant. Galveston, H. & S. A. Ry. v. Gonzales, 1894, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248; Campbell v. Duluth, S. S. & A. Ry., C.C. Minn.1892, 50 F. 241. This was so even though the alien resided in one of the United States. Lehigh Valley Coal Co. v. Washko, 2 Cir., 1916, 231 F. 42.
The rule established by these and other cases was clearly warranted by the plain meaning of the applicable jurisdictional and venue statutes which remained substantially unchanged up to 1948. These formerly read:
Since a suit by an alien was not an action "between citizens of different States," it was simple for the courts to reach their conclusion that an alien could sue only in the defendant's district, regardless of the alien's place of residence.
In 1948 the judicial code was revised. The governing jurisdictional and venue provisions were then rewritten to read:
The plaintiff here argues that by including aliens' suits within the jurisdictional title "diversity of citizenship," and then by allowing actions to be brought in the plaintiff's district when "founded only on diversity of citizenship," Congress intended to change the old law in order to allow resident aliens to bring suit in their home districts.
This contention must be rejected because it is clear from both the legislative history of the judicial code revision and from the semantics of prior case law that neither the revisers nor Congress intended a substantive change by the use of new phraseology.
Repeatedly during consideration of the proposed new judicial code, Congress was told in effect that this "was primarily a restatement of existing law," which avoided as far as possible "any substantive changes that did not meet with unanimity of opinion."1
Even assuming that a renovation allowing an alien to sue in his home district would not be controversial, it is at least the type of change which must be called substantive. Yet intended changes in the substantive law were supposed to have been pointed out in the reviser's notes:
In this context, it is significant that we find no mention in the reviser's notes appended to section 1391 of changing the venue law to allow an alien to sue in the district where he resides. Again, at another point, it is expressly stated that the venue provisions have not been altered. Hearing Before Subcommittee No. 1, supra, n. 1, at 1969 of West's U. S.C.Cong. Service publication.
The absence of discussion on change is not the only evidence of lack of intent to change. By examining case law prior to 1948, it can be observed that this new choice of phraseology was completely natural and consistent with an intent to retain the substance of the old provision.
The term "diversity of citizenship" for the purposes of venue came to be used synonymously with the phrase "between citizens * * * of different States." This was natural for at least two reasons.
First, although the relationship between a citizen of a state and a citizen of a foreign state is in a generic sense referred to as "diversity of citizenship," see Fribourg v. Pullman Co., C.C.E.D. N.C.1910, 176 F. 981, 982, it is more specifically termed "alienage" rather than "diversity." Coty v. Prestonettes, Inc., 2 Cir., 1922, 285 F. 501, 503, reversed on other grounds, 1924, 264 U.S. 359, 44 S.Ct. 350, 68 L.Ed. 731; Vidal v. South American Securities Co., 2 Cir., 1921, 276 F. 855, 865; 1 Moore's Fed. Practice 635, par. 0.60 (8.-4) (1959).
Secondly, and more importantly, it is a basic venue principle that an alien is presumed not to reside in any district. Best v. Great Northern Ry., D.C.Mont. 1917, 243 F. 789, 790; Adzenoska v. Erie R. R., D.C.M.D.Pa.1914, 210 F. 571; Fribourg v. Pullman Co., C.C.E.D.N.C. 1910, 176 F. 981. Thus, even though "diversity" may generically include suits both by aliens as well as by citizens, "diversity", when used to describe the venue exception allowing suits in the plaintiff's district, can only describe suits by citizens because the presumption precludes an alien from being an inhabitant of any district. Cf. Miller v. New York Cent. & H. R. R., C.C.Mass.1906, 147 F. 771.
On this basis, the courts often restated the venue statute, using the phrase "diversity of citizenship" interchangeably with actions "between citizens of different states." Atlantic Coast Line R. R. Co. v. Macon Groc. Co., 5 Cir., 1909, 166 F. 206, 211, affirmed 1910, 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300, see A. L. Wolff & Co. v. Choctaw, O. & G. R. R. Co., C.C.E.D.Ark.1904, 133 F. 601, 604. And where the court itself did not provide the substitution, the headnoter often would, thus indicating the commonly understood interchangeability of the terms for venue purposes. Gotter v. McCulley, D.C.E.D.Wash.1923, 292 F. 382; see especially O'Neil v. Co-operative League of America, D.C.M.D.Pa. 1922, 278 F. 737, 738, where the court speaks of "diversity of citizenship of states" and the headnote reduces it to "diversity of citizenship."
That the revisers chose the phrase "diversity of citizenship" with the connotations of these cases in mind would seem to be a necessary assumption:
Cited in the reviser's notes are cases which support this assumption more expressly. Sandusky Foundry & Machine Co. v. DeLavaud, D.C.N.D.Ohio 1918, 251 F. 631, and Keating v. Pennsylvania Co., D.C.N.D.Ohio 1917, 245 F. 155...
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