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ZELLEM v. HERRING

April 18, 1951

ZELLEM
v.
HERRING. ZELLEM v. SNIDER



The opinion of the court was delivered by: GOURLEY

This is an action based on negligence for money damages. Plaintiff invokes the jurisdiction of the court on the ground of diversity of citizenship and jurisdictional amount.

The immediate matter relates to a motion to dismiss for failure of plaintiff to establish federal jurisdiction.

 The defendant contends:

 1. The plaintiff's proferred amended complaint averring that plaintiff and defendant were citizens of New York and Pennsylvania respectively should be refused, in that a new cause of action is thereby raised after termination of the statutory period.

 2. That the plaintiff, John Zellem, and defendant were citizens of the same state, Pennsylvania, at the time the suit was commenced.

 The cause of action in each proceeding arose on August 9, 1947, which was the date of the accident. Civil Action No. 7971 was filed July 12, 1949, and Civil Action No. 8013 was filed July 29, 1949.

 Should leave be granted to amend each complaint wherein it is alleged that the plaintiff was a citizen of the State of New York, rather than a resident of the State of New York, after the statute of limitations has elapsed?

 The petition for leave to amend each complaint was presented on February 28, 1951, which was subsequent to the running of the statute of limitations.

 Each complaint contained averments that plaintiff and defendant were 'residents' rather than 'citizens' of New York and Pennsylvania. Plaintiff asks leave to amend and substitute the following:

 '1. Plaintiff is and was at the time this action was filed a citizen of the State of New York.

 '2. Defendant is and was at the time this action was filed a citizen of the Commonwealth of Pennsylvania. At the time of the happening of the events hereinafter complained of, defendant conducted a general automobile garage business at 1101-1109 North Center Avenue, Somerset, Pennsylvania.

 The right to cure the jurisdictional allegations of a complaint filed in a federal district court seems to be clearly within the permissive language of 28 U.S.C.A. § 1653, which reads as follows: 'Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.'

 The right to amend the complaints is proper, to show diversity of citizenship, even after the statute of limitations has expired. Van Sant v. American Express Co., 3 cir., 169 F.2d 355; ...


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