Stenhouse v. Jacobson

• Decision Date: 20 April 1961
• Docket Number: Civ. No. 7958.
• Court: U.S. District Court — Northern District of California
• Parties: James E. STENHOUSE, Plaintiff, v. G. F. JACOBSON, Anna B. Jacobson, Dolores Jacobson and Donna Joan Jacobson, a copartnership, doing business as Northwest Underwriters; Underwriting Members at Lloyd's, London, a corporation; Lloyd's, London, a corporation; C. E. Heath & Co., Ltd., a corporation, individually and as an Underwriter at Lloyd's London; Orion Insurance Company, Ltd.; Guardian Assurance Co., Ltd.; The Prudential Assurance Co., Ltd.; The United Scottish Insurance Co., Ltd.; Livestock Underwriting Agency, acting for Guardian Assurance Co., Ltd.; First Doe, Second Doe, Third Doe, Black and White Corporation, Green and Gold, a copartnership, Defendants.

193 F. Supp. 694

James E. STENHOUSE, Plaintiff, v. G. F. JACOBSON, Anna B. Jacobson, Dolores Jacobson and Donna Joan Jacobson, a copartnership, doing business as Northwest Underwriters; Underwriting Members at Lloyd's, London, a corporation; Lloyd's, London, a corporation; C. E. Heath & Co., Ltd., a corporation, individually and as an Underwriter at Lloyd's London; Orion Insurance Company, Ltd.; Guardian Assurance Co., Ltd.; The Prudential Assurance Co., Ltd.; The United Scottish Insurance Co., Ltd.; Livestock Underwriting Agency, acting for Guardian Assurance Co., Ltd.; First Doe, Second Doe, Third Doe, Black and White Corporation, Green and Gold, a copartnership, Defendants.

Civ. No. 7958.

United States District Court N. D. California, N. D.

April 20, 1961.

Desmond & Miller, Sacramento, Cal., for plaintiff.

Joseph P. Van Den Berg, Sacramento, Cal., for defendants G. F. Jacobson, Anna B. Jacobson, Dolores Jacobson and Donna Joan Jacobson, dba Northwest Underwriters.

HALBERT, District Judge.

Defendants have moved this Court to dismiss plaintiff's second amended complaint on the ground that an indispensable party, Robert Cheney, has not been joined. Plaintiff has filed a motion seeking permission to file an addition to the second amended complaint, so as to state a third cause of action against Robert Cheney.

This suit has been brought against certain insurers and their agents by reason of claims being made under the terms of a policy of insurance. Said policy was allegedly issued by said insurers and their agents to plaintiff, covering certain "Nutria Breeding Stock." In the first cause of action set forth in the second amended complaint (hereinafter referred to as the complaint), it is alleged inter alia that the nutria were killed or rendered valueless by an incident allegedly within the scope of the insurance, and that the insurance companies have refused to pay. A second cause of action is sought to be stated against certain agents for having allegedly issued the said policy, knowing that they were acting in excess of their authority. The aforementioned proposed third cause of action is sought to be stated against Cheney, on the ground that his name was inserted as an assured in the policy, allegedly by mistake. By this proposed third cause of action, plaintiff seeks to have it determined that Cheney has no right, title or interest in or to the proceeds of the policy.

It is alleged in the complaint that plaintiff is a citizen of the United States, and a resident of California; that defendants Jacobson are residents of Oregon; and that the named corporate defendants are corporations established by an Act of the British Parliament. There is no allegation in the complaint that defendant Underwriting Members at Lloyd's, London, or defendant Lloyd's, London, have their principal places of business in any specified place. The principal place of business of each of the other named corporations is alleged to be London, England. There are no positive allegations in the complaint concerning the citizenship of the fictitious parties defendant. It is alleged that proposed defendant Cheney is a resident of the State of Washington. It is alleged in the complaint that none of the named corporate defendants are citizens of California. It is also alleged in the complaint that the amount in controversy exceeds $10,000.

The jurisdiction of this Court is sought to be founded upon Title 28 U.S.C. § 1332 (diversity of citizenship). The complaint is jurisdictionally defective, since it does not contain any allegations as to the citizenship of plaintiff, but only his residence. Residence and citizenship are not the same thing (Mantin v. Broadcast Music, 9 Cir., 244 F.2d 204). Similarly, there is a failure to allege the citizenship of defendants Jacobson, or of proposed defendant Cheney. As has been noted, only the site of their respective residences has been alleged. Plaintiff has also failed to set forth affirmatively the citizenship of defendants Lloyd's, London, and Underwriting Members at Lloyd's, London. Plaintiff must set forth affirmatively not only the state by which these corporations have been incorporated, but also the state where each of them has its principal place of business (See Brandt v. Bay City Super Market, D.C., 182 F. Supp. 937; Pasternack v. Dalo, D.C., 17 F.R.D. 420; and Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132).

On the basis of the record now before it, the Court is of the view that the proposed defendant Cheney is an indispensable party to the action. It appears that he is a named assured in the policy upon which this action is based. It seems unreasonable to require the other defendants to defend an action in which plaintiff seeks to prove that he alone is entitled to recover upon the policy, when such an action will not be binding upon Cheney. Such a procedure would leave open the way for Cheney to bring a second action against the same defendants, in which he might establish that he alone was entitled to recover. If such should come to pass, the defendants might be required to pay twice on a single claim under the policy. This would create an unjust result which the Court cannot tolerate.

In State of Washington v. United States, 9 Cir., 87 F.2d 421, 427, four questions were posed as appropriate inquiries in resolving the issue of whether an absent interested party was an indispensable party....