Truck Insurance Exchange v. Dow Chemical Company, 2220.

• Decision Date: 03 September 1971
• Docket Number: No. 2220.,2220.
• Citation: 331 F. Supp. 323
• Parties: TRUCK INSURANCE EXCHANGE, a reciprocal or interinsurance exchange, Plaintiff, v. The DOW CHEMICAL COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

331 F. Supp. 323

TRUCK INSURANCE EXCHANGE, a reciprocal or interinsurance exchange, Plaintiff, v. The DOW CHEMICAL COMPANY, a corporation, et al., Defendants.

No. 2220.

United States District Court, W. D. Missouri, Southwestern Division.

September 3, 1971.

Bob J. Keeter, Schroff, Keeter & Glass, Springfield, Mo., for plaintiff.

Almon H. Maus, Monett, Mo., for defendant Dow.

Joe R. Ellis, Cassville, Mo., for other defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

ELMO B. HUNTER, District Judge.

This matter is presently before the Court upon the motion of defendants, filed pursuant to Rule 12, F.R.Civ.P., to dismiss plaintiff's complaint for lack of federal jurisdiction. Plaintiff has filed suggestions in opposition to this motion.

This is a civil action for declaratory judgment in which plaintiff seeks a judicial determination of the rights of the parties under an insurance policy. Plaintiff relies upon diversity of citizenship as a basis of federal jurisdiction. With regard to the citizenship of the parties, the record in this cause reveals that defendant Dow Chemical Company is a citizen of the State of Delaware in which it is incorporated and a citizen of the State of Michigan where it has its principal place of business; that defendant G & R Industries, Inc., is a citizen of the State of Missouri with its principal place of business in Missouri; and that defendant G & R Metal Processors, Inc., is a citizen of the State of Missouri with its principal place of business in Missouri. Plaintiff is a reciprocal insurance exchange composed of a number of members acting as an unincorporated association. Plaintiff alleges that it is organized under the laws of the State of California, and that, under the statutory law of that state, it has been granted the authority to sue or be sued. Plaintiff's principal place of business is in the State of California.

The thrust of defendants' motion to dismiss is that the citizenship of the parties to this action is not diverse. It is defendants' contention that since some of plaintiff's members are citizens of Missouri and since two of the defendants are citizens of Missouri, federal jurisdiction cannot rest upon diversity of citizenship. In its suggestions in opposition to defendants' motion to dismiss, plaintiff admits that it has members in the State of Missouri, but contends that it should be deemed a citizen of the State of California for purposes of federal diversity jurisdiction. In support of its position, plaintiff primarily relies upon the Second Circuit case of Mason v. American Express Company, 334 F.2d 392 (2nd Cir. 1964), a case in which the Court of Appeals for the Second Circuit determined that an unincorporated association was a citizen of the state in which is was organized, rather than of the states in which its members were located.

The infirmity in plaintiff's position is that the rationale of Mason has been expressly rejected by several other Courts of Appeal and by the United States Supreme Court. See: R. H. Bouligny, Inc. v. United Steelworkers of America, 336 F.2d 160 (4th Cir. 1964), aff'd 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965); Arbutnot v. State Automobile Insurance Association, 264 F.2d 260 (10th Cir. 1959), and cases cited therein. In United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965), after noting that the existing rule had been sharply criticized...