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VAN DER SCHELLING v. U.S. NEWS & WORLD REPORT

February 4, 1963

Edna VAN DER SCHELLING
v.
U.S. NEWS & WORLD REPORT, INC.



The opinion of the court was delivered by: LORD, III

I am most grateful to both counsel in this case for their exceptionally able, thoughtful and imaginative briefs.

Federal jurisdiction in this libel action is invoked solely on the basis of diversity of citizenship: 28 U.S.C.A. § 1332. Defendant has moved to dismiss the complaint, arguing that, while plaintiff is a citizen of the United States, she is not a citizen of any state therein and, therefore, since this is not a suit between 'citizens of different States' (28 U.S.C.A. § 1332(a)(1), diversity jurisdiction does not exist. Plaintiff, on the other hand, contends that federal jurisdiction exists because she is a 'subject' of a foreign state within the meaning of 28 U.S.C.A. § 1332(a)(2), which provides:

 'The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 10,000 exclusive of interest and costs, and is between -- * * * 'citizens of a State, and foreign states or citizens or subjects thereof.'

 In Pemberton v. Colonna, 290 F.2d 220 (C.A.3, 1961), the facts were identical to those of this case. The entire per Curiam opinion reads:

 'In this case the plaintiff seeks to maintain a suit in federal court on the basis of diversity of citizenship, 28 U.S.C. § 1332. In the district court there was controversy upon the question whether plaintiff had established a new domicile in Mexico. The court found that she had. We are not reviewing this phase of the case. Assuming that she has established a domicile in Mexico she still is not entitled to maintain an action in federal court. It is admitted she has not become a citizen of Mexico and that she is living there under what is called a 'tourists' card.' A citizen of the United States is a citizen of the state in which he is domiciled. That is clear. But a citizen abroad is not a citizen of the country where he makes his home. To do that he must renounce his United States citizenship and acquire citizenship in the foreign country. We think that section (a)(2) 'citizens of a State, and foreign states or citizens or subjects thereof * * *' means what it says. The plaintiff even if no longer a citizen of Pennsylvania is a citizen of the United States and not a citizen of Mexico under the admitted facts.' (Emphasis added.)

 It may be that Pemberton impliedly decides the issue before me. However, I have examined the briefs in that case and the sole question presented by appellant was:

 'I. Plaintiff as a domiciliary of the Country of Mexico is a 'citizen' of a foreign state within the meaning of Section 1332(a)(2) of 28 U.S.C.A.'

 Because Pemberton was decided per Curiam and the issue of whether plaintiff was a 'subject' of Mexico was apparently not presented to the Court of Appeals, and because I conceive this to be an important question of federal jurisdiction, I feel it appropriate to set out my own views.

 The precise question is the meaning of the word 'subjects' in § 1332(a)(2) of Title 28 U.S.C.A. Is it to be equated with 'citizens' or does it establish a different and additional class of persons who have federal access?

 In Nagle v. Loi Hoa, 275 U.S. 475, 48 S. Ct. 160, 72 L. Ed. 381 (1928), speaking of the word 'subject' as used in the Chinese Exclusion Act, the Court said, at page 477, 48 S. Ct. at pages 160, 161, 72 L. Ed. 38:

 'The sole question presented is whether the word 'subject' as used in 6 is to be taken as including only those persons who by birth or naturalization owe permanent allegiance to the government issuing the certificate, or as embracing also those who, being domiciled within the territorial limits of that government, owe it for that reason obedience and temporary allegiance.

 'The word may be used in either sense. * * *'

 In 2 Kent's Commentaries (14th Ed.) at page 75, ...


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