Smith v. Dealers Transit, Inc.

• Decision Date: 04 February 1965
• Docket Number: 1819.,Civ. A. No. 1818
• Citation: 239 F. Supp. 605
• Parties: Calvin C. SMITH, Plaintiff, v. DEALERS TRANSIT, INC., and John Serafin, Defendants. Mrs. Louise SMITH, Plaintiff, v. DEALERS TRANSIT, INC., and John Serafin, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

239 F. Supp. 605

Calvin C. SMITH, Plaintiff, v. DEALERS TRANSIT, INC., and John Serafin, Defendants.

Mrs. Louise SMITH, Plaintiff, v. DEALERS TRANSIT, INC., and John Serafin, Defendants.

Civ. A. Nos. 1818, 1819.

United States District Court E. D. Tennessee, Northeastern Division.

February 4, 1965.

Hyder & Jenkins, Rogersville, Tenn., J. Edward Hyder, Rogersville, Tenn., of counsel, for plaintiffs.

Brantley Blue, Kingsport, Tenn., for defendants.

NEESE, District Judge.

These actions were removed to this court from a state court as diversity actions. At the pretrial conference, as it is required to do, McNutt v. General Motors Acceptance Corp. (1936), 298 U. S. 178, 56 S.Ct. 780, 80 L.Ed. 1135, 1141 (headnote 3), this Court began considering whether the jurisdiction of the state court was ever divested.

Removal statutes must be strictly construed. "* * * The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. `Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined'. * * *" Shamrock Oil & Gas Corp. v. Sheets (1941), 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214, 1219 (headnote 4).

The removal petitions herein aver that the respective plaintiffs were, at the time of the removals citizens of Tennessee, respectively; that the corporate defendant was, at the time of the removals, an Illinois corporation, not incorporated by Tennessee, with its principal place of business in Illinois; and that the individual defendant was, at the time of the removals, a citizen of Mississippi. These allegations appear to establish the essential facts of diversity of citizenship at the time of removal, as contemplated by 28 U.S.C. § 1441(b), which governs these actions, and Sec. 1332(a) (1) and (c).

However, the removal petitions are defective in that they do not allege the citizenship of either the corporate or the individual defendants at the time these actions were commenced. "* * * The sum of a line of Supreme Court * * * decisions * * * certainly is that such allegations of citizenship of the parties at the date of commencing the suits in the state court as to demonstrate that they were not, at that moment, citizens of the same state as the other party, is of the essence of jurisdiction, and being so essential, their absence can neither be overlooked nor supplied by inference nor cured by amendment. * * *" La Belle Box Co. v. Stricklin, C.C.A.6th (1914), 218 F. 529, 533 5, 6.¹

Defective allegations of jurisdiction may be amended in federal courts any time such courts possess the jurisdiction to allow such amendments. 28 U.S.C. § 1653; but, after the expiration of the 20-day period allowed for the removal procedure, 28 U.S.C. § 1446(b), federal courts lack jurisdiction to grant an amendment to supply missing allegations of jurisdiction: only amendments to cure defective allegations may then be allowed. Bradford v. Mitchell Brothers Truck Line, et al., D.C.Cal. (1963), 217 F.Supp. 525; Franks v. City of Okemah, Okla., D.C.Okl., (1959), 175 F.Supp. 193. Where specific allegations of citizenship are inadequate to confer diversity jurisdiction, a federal court may acquire jurisdiction for amendment purposes from allegations in the record which negate completely the possibility that the plaintiff (or plaintiffs) and the defendant (or defendants) are citizens of the same state. Evans-Hailey Company v. Crane Company, D.C.Tenn. (1962), 207 F.Supp. 193, 202 8.

It is alleged elsewhere than in the removal petitions in these records that at the time of the commencement of these actions the corporate defendant was a Chicago corporation and that the individual defendant was a resident of Mississippi. It...