judge; and second, whether or not the burden rested upon the plaintiffs or upon the defendant. The plaintiff desired to put the question to the jury and the defendant desired to put the question before the trial judge. I determined that I would put the question before the jury for its advisory opinion.
As to the question of burden, I, of necessity, had to rely upon the pretrial pleadings as supplementing the original pleadings in this case. Because in the pleadings of this case the defendant admitted diversity of citizenship and jurisdiction on that ground, and because of tradiness of the defendant in raising this issue without any explanation of why it was not raised within reasonable or normal discovery time, I concluded that the defendant had put the plaintiffs to rest on their burden; and when the defendant reviewed the issue and tardily put the plaintiffs in a more difficult position, the circumstances had changed sufficiently to put responsibility upon the defendant. When the defendant subsequently changed its mind as to the question of citizenship after it had lulled the plaintiffs into the belief that no proof would be required of them on that issue, it is my opinion that it then assumed the burden of this defense. Merely because jurisdiction is involved, it does not follow that the defendant cannot waive this defense. Di Frischia v. The New York Central Railroad Company, C.A. 3, 1960, 279 F.2d 141. In that case our Court of Appeals stated at page 143:
'* * * Defendant's action amounted to a striking of its defense of lack of jurisdiction and an admission of the jurisdictional facts alleged by plaintiff in his complaint. * * *'
Yet despite these circumstances, I permitted the defendant an opportunity to present this defense to the jury for its advisory opinion. It is to be noted that there is no right of trial by jury on the issue of whether there is jurisdiction of the subject matter such as diversity. Gilbert v. David (1915) 235 U.S. 561, 568, 35 S. Ct. 164, 59 L. Ed. 360; Guarantee Trust Co. v. Collings, C.A. 3, 1935, 76 F.2d 870, cert. den. 295 U.S. 747, 55 S. Ct. 825, 79 L. Ed. 1692; Romero v. International Terminal Operating Co. (S.D.N.Y., 1956), 142 F.Supp. 570. In Moore's manual, Federal Practice and Procedure, § 22.01(7), P. 1591, it is stated:
'* * * If, however, there is a submission the jury verdict should be regarded only as advisory since there is no right of jury trial.' (Emphasis supplied)
After reviewing the record, I am convinced that the advisory opinion of the jury is basically sound and that the plaintiffs in fact sustained any burden of proof in establishing this existence of citizenship by introducing more than a preponderance of the evidence on the issue of the plaintiffs' citizenship at the time of the filing of this suit. The plaintiffs' evidence was of such weight that this Court, in the exercise of its discretion, could well have ruled on this issue as a matter of law at the conclusion of all the evidence in the case and without submitting the issue to the jury for determination, that the plaintiffs were, in fact, citizens of the State of Florida at the time of the filing of this action. McNello v. John B. Kelly, Inc., C.A. 3, 1960, 283 F.2d 96. In the McNello case, McNello did not even attempt to register to vote in Florida and, in fact, only resided in Florida from June 1955 to August 1955. In the instant case the plaintiffs not only resided in Florida prior to the institution of this action, but also were citizens of Florida at the time they filed this action and at the time of trial.
For all of these reasons, the defendant's Motion to Set Aside Verdicts and Judgments Entered Thereon and For Entry of Judgment in Accordance with Defendant's Motion for a Directed Verdict will be denied.
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