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December 30, 1963


The opinion of the court was delivered by: Decker, District Judge.

This is a lawsuit by John Factor (also called "Jake the Barber," which I mention only because the defendants keep referring to Mr. Factor both in the documents in this lawsuit and in the book, which is the subject matter of this litigation, by that alias) against the publisher, Pennington Press, the printer, American Lithograph Co., four book stores and two authors, Roger Touhy and Ray Brennan.

The suit charges libel of Factor by publication of a book entitled, "The Stolen Years," in which Roger Touhy through Ray Brennan related his version of how he came to be convicted and incarcerated for some 25 to 30 years for the kidnapping of John Factor. Suffice it to say at this point that Touhy claims that John Factor lied in order to ingratiate himself with the Federal and state authorities so that he would be spared prosecution for various types of mail fraud. In the course of the book Touhy repeatedly refers to John Factor as a "swindler," a "liar" and by a variety of other unsavory characterizations.

Each of the defendants moves to dismiss the complaint on the ground that this Court lacks jurisdiction over the subject matter in that the "alienage jurisdiction" of this Court is improperly invoked. The complaint alleges, insofar as it is material to the determination of this motion, that John Factor is a citizen of the United Kingdom by reason of (and only by reason of) his being born in Hull, England. It appears that Mr. Factor has at various times asserted his birthplace to be other than at Hull, England, whenever it suited his convenience so to do. For example, in 1912, in a sworn application to the Illinois Barbers State Board of Examiners, he stated that his birthplace was in Russia. Also, in 1917, when he took out his first naturalization papers (and prior to the filing of this lawsuit, he had never completed the naturalization process by taking out his second papers), he swore that his birthplace was Russia. Again, when applying for his marriage license in New York City, he swore that his birthplace was Chicago, Illinois; and again, on November 16, 1913, when a birth certificate for his son, John, was filled out, it showed the birthplace of his father, John Factor, to be Russia.

Citing these various places of birth used from time to time by the plaintiff in this case, the defendants argue that Factor is not to be believed today when he alleges in his complaint that he was born in Hull, England.

Further, the defendants rely on three orders of the United States District Court for the Northern District of Illinois, Eastern Division, which were entered more than thirty years ago in a lawsuit in which "J. Factor" was a party defendant. This litigation involved a suit for civil fraud by some 800 British citizens and subjects against Factor and others (Arthur Traviss Faber, et al., v. Foreman State Trust and Savings Bank, et al., No. 10538):

(1) On October 1, 1931, Factor's motion to dismiss the complaint on the ground, inter alia, that alienage jurisdiction was lacking since both he, by virtue of his birth in Hull, England, and the plaintiffs were citizens and subjects of Great Britain, was denied, without opinion or findings, by Judge Wilkerson.

(2) On March 5, 1932, Factor's motion for a rehearing of the denial of his motion to dismiss, under the old Equity Rule 69, was denied by Judge Woodward. This latter order was accompanied by a fourteen page opinion in which Judge Woodward indulged in speculation as to what the grounds for Judge Wilkerson's order "must necessarily" have been. Judge Woodward clearly limited the scope of his opinion by stating:

  "The sole question here involved is the right to
  a rehearing under Equity Rule 69. Whether the
  defendant, John Factor, may in another pleading
  again challenge the jurisdiction of the court is
  not involved and is not passed upon." (The
  Woodward Opinion, p. 6.)

Nevertheless, the defendants rely on dicta in Judge Woodward's opinion and argue that:

  "In entering this order Judge Wilkerson
  necessarily must have concluded that from all the
  facts and circumstances then in evidence before
  him, that the defendant, John Factor, was not
  born in Hull, England, or at least that he was
  not an alien, but a citizen of the United

(3) On September 29, 1932, Judge Wilkerson entered a consent decree accompanied by findings of fact and conclusions of law which included the following:

  "John Factor * * * [and others] * * * were at the
  time of the institution of the above entitled
  cause and now are citizens and residents of the
  State of Illinois and of the Northern District of
  Illinois." (Findings of Fact and Conclusions of
  Law with Reference to Decree, p. 8-9.)

The issue now before the Court is whether, as defendants contend, these three orders establish uncontrovertibly that Factor cannot sustain his burden of proving his allegation that the diversity jurisdiction of this Court is properly invoked. Must these three orders be given res judicata, effect over the issue of Factor's citizenship in this case under the doctrine of the bar of collateral estoppel, and consequently bar relitigation of that issue now?

The statute in question is 28 U.S.C. ยง 1332, which provides for diversity jurisdiction of ...

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