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RICHARD v. DERVARICS

June 20, 1969

Sylvia RICHARD, Administratrix of the Estate of Barbara Barnes, Deceased, and Guardian of the Estates of Curtis Elwyn Barnes and Rebecca Anne Barnes, Minors, Plaintiff,
v.
Louis DERVARICS, Jr., and Reilly-Thrift, Inc., Defendants



The opinion of the court was delivered by: NEALON

 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 *fn1" 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. *fn2"

 In applying the language of § 1359 to suits wherein diversity is artificially created, the Court said:

 Also considered as important factors in McSparran were (1) the fact that the appointing Court normally would not have designated an out-of-state Guardian because of his absence from the jurisdiction and the consequent limitation of control over him; (2) the controversy itself was essentially local, thereby removing one of the reasons underlying diversity jurisdiction, viz., discrimination against out-of-state litigants, and (3) the out-of-state Guardian had no duty or function except to offer the use of his citizenship to create diversity in contemplated litigation. The Court noted that a plaintiff invoking diversity jurisdiction has the burden to prove all facts by which it could be sustained and that the presumption is that a United States Court does not have jurisdiction unless the contrary appears from the record.

 The only three facts of record distinguishing this case from McSparran are: (1) the Guardian is a relative of the minors, viz., an Aunt; (2) an action was instituted by Dr. Barnes for his injuries in Carbon County Court, *fn3" and (3) in the Guardian's Petition for Appointment filed in Luzerne County Orphans Court, plaintiff alleged that her appointment was necessary "* * * to create diversity of citizenship in order to initiate a law suit." As in McSparran, the accident occurred in Pennsylvania where the injured minors and all defendants reside.

 Counsel for both parties informed the Court that they did not desire a hearing, but would rest on the record and affidavits filed. In an attempt to satisfy her burden of proof, plaintiff asserts that she is an Aunt of the minors and is "very close to Dr. Barnes and his minor children * * *", but this pales in significance when compared with her bold statement in her petition for appointment that such appointment was necessary in order to create diversity of jurisdiction to initiate a law suit, obviously in Federal Court. In addition, plaintiff complains that a dismissal in this Court would create an unreasonable and unnecessary burden on the minor plaintiffs because they would be forced to incur additional legal expenses in Carbon County and would be prejudiced by a joinder with their Father's action inasmuch as he was the operator of the vehicle, whereas they and the decedent were passengers. I am compelled to conclude, in light of the McSparran principles hereinabove referred to, that plaintiff has "added nothing to a record which shows on its face a naked arrangement for the selection of an out-of-state guardian in order to prosecute a diversity suit." McSparran v. Weist, supra. The mere fact that plaintiff is the minors' Aunt, without more, does not make it any less artificially created for diversity jurisdiction. In any event, she has not satisfied her burden of proving all the facts by which diversity ...


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