Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



September 13, 1990

BEKINS VAN LINES, INC., et al., Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR



 Richard and Candice Salzstein (collectively "Salzsteins") have just filed suit against a number of common carriers engaged in the shipment of goods by motor vehicle -- five named defendants *fn1" and an unnamed John Doe, as to which Complaint para. 8 says this:


At all relevant times, John Doe, was a corporation and/or partnership doing business as a common carrier in the State of Illinois.

 Based on its initial examination of the Complaint, *fn2" this Court issues this sua sponte opinion to require the curing of some of Salzsteins' mistaken jurisdictional allegations.

 Complaint para. 9 reads this way:


Plaintiffs and defendants are citizens of different states and the matter in controversy exceeds the sum of $ 50,000.00, exclusive of interest and costs. This action arises under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C., sec. 11707. This Court has jurisdiction of this controversy by virtue of 28 U.S.C., sec. 1332.

 That mongrelization of the two different potential sources for federal jurisdiction -- diversity jurisdiction and federal-question jurisdiction -- is echoed elsewhere in the Complaint.

 If indeed Salzsteins seek to invoke federal jurisdiction on diversity-of-citizenship grounds (as stated both in the first sentence of Complaint para. 9 and the reference to 28 U.S.C. § 1332), *fn3" they have failed to set out the necessary facts. Complaint para. 1 identifies Salzsteins as Arizona residents but is silent as to their citizenship, the relevant fact under Section 1332(a)(1). All of the Complaint's allegations as to the corporate defendants identify only the respective states of incorporation without setting out the other source of dual corporate citizenship, their principal places of business (Section 1332(c)(1)). And as for the "John Doe" defendant or defendants, the Judicial Code was amended two years ago to provide in Section 1441(a):


For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

 But by its terms that provision is limited to removed cases and does not extend to cases originally filed in the federal court, as to which the principle underpinning such cases as Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir. 1987)(en banc) would still appear to apply. *fn4"

 All those pleading defects deprive this Court of independent subject matter jurisdiction over this action in diversity-of-citizenship terms, for federal courts can deal with cases only as Congress specifies (see Sections 1332(a) and (c)) and as a plaintiff's express allegations bring the case within those specifications. See, e.g., 5 Wright & Miller, Federal Practice and Procedure: Civil 2d § 1208, at 101 & n. 9, 103-04 & n. 12, and cases cited in both notes (1990 ed.); 13 B id. § 3611, at 516-18 & nn. 27-29, § 3624, at 610 & n. 20, and cases cited in all those notes (1984 ed. and 1990 pocket part). Federal jurisdiction cannot be based on surmise or guesswork.

 All this, however, may be quite beside the mark -- the product of needless confusion. Salzsteins' Complaint para. 9 also identifies this action as arising under the Carmack Amendment. And if that source of federal-question jurisdiction indeed applies here, diversity of citizenship is wholly irrelevant and the only question becomes whether there is at least $ 10,000 (not $ 50,000) in controversy (Section 1337(a)).

 Where that leaves us is this:


1. If Salzsteins have properly invoked the Carmack Amendment, *fn5" their Count I and Count V claims may remain in this federal court without reference to considerations of citizenship.


2. If that is so and Salzsteins cannot cure their flawed allegations as to citizenship, federal jurisdiction over the common-law claims asserted in Counts II, III, IV and VI must depend on considerations of pendent jurisdiction (also a subject beyond the scope of this initial opinion).


3. If Salzsteins were to prove able to allege complete diversity of citizenship in proper terms, those common law claims would remain part of this lawsuit as a matter of right.

 Salzsteins are ordered on or before September 24, 1990 to amend their Complaint in such manner as they find feasible to meet the issues posed by this opinion. This action is set for a first status hearing at 9 a.m. October 10, 1990, by which time all defendants should have been served with process and obligated to file responsive pleadings. If the matters dealt with in this opinion have not been fully addressed before then, they will be considered at that time.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.