NEALON, District Judge.
On September 30, 1967, a Dodge automobile operated by Dr. William Barnes, in which his wife, Mrs. Barbara Barnes and their two minor children, Curtis Elwyn Barnes and Rebecca Anne Barnes, were passengers, became involved in an accident with a vehicle owned by Reilly-Thrift, Inc., and driven by its alleged employee, Louis Dervarics, Jr. Mrs. Barnes died as a result of injuries sustained in the accident and Dr. Barnes and the two minor children were injured. On September 24, 1968, Mrs. Sylvia Richard, plaintiff herein, sister of Dr. Barnes and a citizen of Rhode Island, was appointed Administratrix of the Estate of Mrs. Barbara Barnes and also Guardian of the minors' Estates, by the Orphans Court of Luzerne County. Suit was filed against Louis Dervarics, Jr., and Reilly-Thrift, Inc., in this Court on September 27, 1968, by Sylvia Richard as Administratrix of the Estate of Mrs. Barbara Barnes and as Guardian of the minors' Estates, and defendants have moved to dismiss solely as to the claim on behalf of the minors, contending that diversity
was manufactured for jurisdictional purposes contrary to the rule laid down in McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968). Defendants withdrew a similar motion as to the action on behalf of the decedent for the reason that the Statute of Limitations had run on the wrongful death action.
In McSparran, supra, our Court of Appeals held that the appointment of an out-of-state Guardian solely to create diversity jurisdiction violates 28 U.S.C. § 1359, which denies jurisdiction to a District Court where a party has been improperly or collusively made or joined to invoke the jurisdiction of such Court.
In applying the language of § 1359 to suits wherein diversity is artificially created, the Court said:
"The collusion exists between the nonresident guardian and the applicant for his appointment in the state proceeding as a result of which one who would not otherwise have been named as guardian has achieved the status from which he claims the right to sue because of his artificial selection solely for the purpose of creating jurisdiction. He is not chosen because of his capacity to manage the property of his ward, and indeed need have no experience in the management of property. He is outside the jurisdiction of the court which is to supervise his nominal activity. In truth none of the considerations which normally lead to the selection of a guardian effects the local appointing court's determination because it knows that in the 'manufactured' diversity case the guardian is not expected to manage any property for his supposed ward and usually will not continue in office or exercise any real function after any funds are recovered in the litigation. He is no more than a representative of the minor's counsel whom counsel provides in order to establish a diversity of citizenship which will permit him to bring the action in the federal court. As a straw party he does not stand in the position of a true fiduciary whose involvement in litigation is incidental to his general duty to protect the interests of those for whom he is responsible."