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FACTOR v. PENNINGTON PRESS

December 23, 1964

JOHN FACTOR, PLAINTIFF,
v.
PENNINGTON PRESS, INC., AN OHIO CORPORATION, ET AL., DEFENDANTS.



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

This cause having come on for hearing on the defendants' motion to dismiss for want of jurisdiction over the subject matter of this case, on the ground that there is no diversity of citizenship between the plaintiff and the defendants, as required by 28 U.S.C. § 1332, and the Court, having considered the complaint, the motion to dismiss, affidavits submitted by the parties, briefs on the law and having heard evidence produced in open court by both parties and allowed oral argument by both parties, being fully informed in the premises, now finds as follows:

Findings of Fact

2. Testimony was received in open court on this jurisdictional issue by the Court, sitting without a jury.

3. The plaintiff's sole claim, and the evidence he introduced in support of the claim, is that he was a citizen of the United Kingdom by virtue of the fact that he was born in Hull, England. The plaintiff never was naturalized a citizen of England or the United Kingdom or of any other country than the United States. (His naturalization in the United States occurred July 15, 1963, which was subsequent to the date of filing of the complaint herein.) The plaintiff's only claim to citizenship in the United Kingdom is that he was born in the United Kingdom.

4. The plaintiff introduced in evidence the following documentary evidence to sustain his claim that he was born in Hull, England:

A photostatic copy of a British passport which the plaintiff obtained in Canada in 1920;

An affidavit of one Solomon Schultz, allegedly made in 1926, in Britain, stating that Solomon Schultz knew of the plaintiff's birth in Hull, England;

An affidavit of the plaintiff's mother, Leah Factor, certified to by one Rose Factor in 1928, also stating that the plaintiff was born in Hull, England;

A non-contemporaneous certificate of the birth of one Jerome Factor, the plaintiff's oldest son, which is dated November 27, 1942, and purports to certify to the birth of Jerome Factor on November 16, 1913; which later certificate of birth states that the father's place of birth was Hull, England.

The plaintiff also offered in evidence certified copies of a petition for naturalization and of findings of fact and conclusions of law and recommendations of a naturalization examiner which became orders of the United States District Court of the Southern District of California when they were entered in 1963. These documents contain statements by the plaintiff that he was born in Hull, England, but they were not received in evidence.

5. The plaintiff testified that he was born in Hull, England, on October 8, 1892, and first entered the United States in 1905 or 1906 at the Port of Philadelphia. His last entry into the United States for naturalization purposes was at El Paso, Texas, December 3, 1930. The plaintiff further testified that his first application for first citizenship papers was made in 1917, and in this the plaintiff admitted he stated that he was born in Russia. Subsequently, the plaintiff testified he learned from his parents and brothers that he had been born in Hull, England, and he did not pursue his first application for naturalization because, he testified, he learned that he had misstated the place of his birth. On testimony as an adverse witness called by the defendants in this case, the plaintiff testified that he has been known by other names and that he has signed these names to the various official documents mentioned below. These names, in addition to John Factor, are: J. Factor, Jake Factor, Jacob John Factor, Yanko Factor, Jack Factor and John Jacob Factor. The plaintiff testified that he was one of nine or ten children born of his father's second marriage to his mother, Leah Factor. Plaintiff admitted that all eight of his full brothers and sisters were born in Russia, most of them being born in Lodz. The plaintiff testified that his father was as itinerant rabbi, who spent six or eight months in England where the plaintiff claims that he was born. The plaintiff admitted that in a prior sworn deposition he had stated that his father's sojourn in England was only for two or three months.

7. The plaintiff stated that he had never signed nor had ever given anyone the information necessary to fill out a certificate of his son Jerome's birth in the State of Illinois. This certificate, which was admitted in evidence, bore the signature "Jack Factor," stated his birth date was 1891 or 1892 and his birth place Russia, but it was not made under oath. The certificate is dated November 16, 1913, and the plaintiff admitted that at ...


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