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May 13, 1970

Ellon BUTLER, guardian of the Estate of Michael J. Ware, a minor, and James Ware and Gloria Goddard
Katherine P. COLFELT

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 This action arose from an accident involving Pennsylvania residents which occurred in Pennsylvania on December 2, 1966, when a vehicle operated by the defendant struck a bicycle being operated by the minor plaintiff, Michael J. Ware. Appearing as parties-plaintiff are James Ware and Gloria Goddard, the natural parents of the minor plaintiff and Ellon Butler, guardian of the estate of the minor plaintiff. At the time of the accident the parents, their minor son and the defendant were all Pennsylvania residents. Ellon Butler, duly appointed guardian of the minor plaintiff, was, at the time of the accident, at the time of her appointment as guardian, and at the time of filing suit, a resident of the State of New Jersey. Therefore, jurisdiction is based upon diversity of citizenship.

 Relying, inter alia, upon McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968), cert. denied, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), the defendant has filed a motion to dismiss for lack of jurisdiction alleging "manufactured" diversity. A saving action has been instituted and is pending in the Court of Common Pleas in Chester County, Pennsylvania. The question presented by defendant's motion is whether the plaintiff has made a sufficient showing of facts to sustain federal jurisdiction.

 In McSparran v. Weist, supra, the Third Circuit Court of Appeals clearly and unequivocally held that the appointment of an out-of-state guardian solely to create diversity jurisdiction violates 28 U.S.C. ยง 1359 *fn1" which denies federal diversity jurisdiction where a party has been improperly or collusively made or joined to invoke jurisdiction. The manufactured character of the asserted diversity was conceded in McSparran. However, the Court wisely observed that cases would follow in which there would be no such concession. In such circumstances, it is the duty of the District Court to make the factual determination on the record. Groh v. Brooks, 421 F.2d 589, at 594, 595 (3rd Cir. 1970).

 Since the plaintiff has invoked the jurisdiction of the Court the burden rests upon her to prove all the facts to sustain it. McSparran v. Weist, supra, 402 F.2d at 875; Richard v. Dervarics, 302 F. Supp. 709 (M.D. Pa. 1969). When an inquiry involves the jurisdiction of a Federal Court, the McSparran Court noted that it is presumed that the Court is without jurisdiction "unless the contrary appears from the record". This is particularly true "in diversity jurisdiction which trenches upon the jurisdiction of the state courts." McSparran, supra, 402 F.2d at 876. Noting these considerations, the Third Circuit recently, in Groh v. Brooks, supra, suggested several factors to be used as guidelines in making determinations concerning artificially created diversity jurisdiction.

"In determining whether or not diversity has been artifically created, the district court may consider, inter alia, such factors as the identity of the representative and his relationship to the party represented; the scope of the representative's powers and duties; any special capacity or experience which the representative may possess with respect to the purpose of his appointment; whether there exists a non-diverse party, such as a parent in a suit for injuries to a child, who might more normally be expected to represent the interests involved; whether those seeking the appointment of the representative express any particular reasons for selecting an out-of-state person; and whether, apart from the appointment of an out-of-state representative, the suit is one wholly local in nature." (Emphasis added.)

 The plaintiff has had a full opportunity to present the facts by way of depositions, briefs or memoranda and oral argument. Accordingly, we shall proceed to a consideration of the record in the light of the "presumption against federal jurisdiction" to determine whether plaintiff has met the "burden" resting upon her and whether there is a "clear showing * * * that jurisdiction exists" based upon the considerations and tests suggested recently by the Third Circuit.

 In applying to the Orphans Court of Chester County for the appointment of a guardian for the minor plaintiff, the parents, also plaintiffs herein, alleged, inter alia, that:

"The minor is entitled to no fund except as a result of litigation connected with this accident, for which purpose, it is requested that a guardian be appointed." (Emphasis added) *fn2"

 No other "purpose" was suggested in the petition itself. Thus, it is evident that "litigation" was the primary if not the sole purpose of this appointment. In further suggesting the appointment of Ellon Butler it was alleged that:

(a) She was a resident of the State of New Jersey;
(b) She was 28 years ...

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