UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 29, 1972.
EUGENE TANZYMORE, APPELLANT,
BETHLEHEM STEEL CORPORATION, APPELLEE, V. YOUNG-POSEN, INC., THIRD-PARTY DEFENDANT
Adams, Gibbons and James Rosen, Circuit Judges.
Opinion OF THE COURT
GIBBONS, Circuit Judge.
Appellant Tanzymore filed a complaint in the District Court for the Eastern District of Pennsylvania seeking damages from Bethlehem Steel Corporation for personal injuries. The complaint alleges that Mr. Tanzymore is "a domiciliary of 7418 Lenwood Street, Apartment 3, City of Cleveland, State of Ohio," and that Bethlehem is a Delaware corporation with its principal place of business in the Eastern District of Pennsylvania. Bethlehem filed an answer, and took Mr. Tanzymore's deposition. When the deposition was filed Bethlehem moved to dismiss the action on the ground that the district court lacked jurisdiction because the controversy is not wholly between citizens of different states. No affidavits were filed by Mr. Tanzymore in opposition to the motion. The court considered the briefs filed by the parties, heard argument on the motion, and without holding an evidentiary hearing, on the basis of Mr. Tanzymore's deposition concluded that there was no diversity of citizenship between the parties and dismissed the complaint. In its opinion, 325 F. Supp. 891, the court stated:
"Both the deposition[s] taken of the plaintiff, and his work record [as disclosed therein], indicate[s] that he is at best a resident of Pennsylvania, and may, in fact, be a citizen of no state.
This Court is unable to find that plaintiff is a citizen of the state of Ohio."
This appeal followed.*fn1 On appeal Mr. Tanzymore concedes, as he must, that determination of the underlying jurisdictional facts may be made by the court. Wetmore v. Rymer, 169 U.S. 115, 18 S. Ct. 293, 42 L. Ed. 682 (1898). Nor does he dispute that where a jurisdictional fact is traversed the burden of showing that the federal court has jurisdiction rests upon the plaintiff. Gibbs v. Buck, 307 U.S. 66, 72, 59 S. Ct. 725, 83 L. Ed. 1111 (1939). He contends only that in a case in which the pleadings and depositions show a dispute as to the jurisdictional facts that dispute may not be resolved by the court without an evidentiary hearing. Mr. Tanzymore's deposition does contain the naked assertion that he intended at all times to remain an Ohio domiciliary, but virtually nothing else in the deposition is consistent with the conclusive assertion.*fn2 Nevertheless, he contends, it was improper to resolve the disputed domicile issue against him without giving him the opportunity to testify in an evidentiary hearing.
Appellant's argument confuses the court's role in deciding a motion for summary judgment under Fed.R.Civ.P. 56 with its role in making a jurisdictional determination pursuant to 28 U.S.C. § 1359*fn3 and Fed.R.Civ.P. 12(h) (3).*fn4 Since 1875, when the predecessor to 28 U.S.C. § 1359 was first enacted, when a question of federal jurisdiction is raised either by a party as here, or by the court on its own motion, the court may inquire, by affidavits or otherwise, into the facts as they exist. Wetmore v. Rymer, 169 U.S. 115, 120-121, 18 S. Ct. 293, 42 L. Ed. 682; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184-190, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S. Ct. 197, 81 L. Ed. 183 (1936); Gibbs v. Buck, 307 U.S. 66, 71 -72, 59 S. Ct. 725, 83 L. Ed. 1111; Land v. Dollar, 330 U.S. 731, 735, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947). In Wetmore v. Rymer, the Court wrote:
"But the questions might arise in such a shape that the court might consider and determine them without the intervention of a jury. And it would appear to have been the intention of congress to leave the mode of raising and trying such issues to the discretion of the trial judge."
169 U.S. at 121, 18 S. Ct. at 296.
More recently in Gibbs v. Buck, the Court wrote:
"As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court."
307 U.S. at 71-72, 59 S. Ct. at 729.
Shortly after our decision in McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969) in which we directed that the district courts make inquiry into diversity manufactured by the appointment of out of state guardians, we had occasion to suggest a standard for the exercise of discretion in the method of determining the jurisdictional issue. In Groh v. Brooks, 421 F.2d 589, 594 (3d Cir. 1970) Judge Stahl wrote:
"If a plaintiff whose assertion of federal jurisdiction is challenged by a motion to dismiss fails to bring forth any factual material to support his claim to jurisdiction, then dismissal may properly be granted against him. However, it should clearly appear from the record that plaintiff has had an opportunity to present facts, either by way of affidavit or in an evidentiary hearing, in support of his position that diversity was not manufactured." (footnotes omitted)
Here the attorney for Tanzymore had an opportunity to cross examine him at the deposition. He did so. There was an opportunity, unavailed of, to file affidavits in opposition to the motion to dismiss. The district court, having discretion as to the procedure to be followed in making its jurisdictional determination, exercised that discretion reasonably in deciding the motion on the basis of the deposition. Had parts of the deposition tended to support Mr. Tanzymore's conclusory statement of domicile and had he then requested an evidentiary hearing to resolve the conflict a different procedure might have been appropriate.
Compare Seideman v. Hamilton, 275 F.2d 224 (3d Cir. 1960), in which we approved the procedure of the court's hearing evidence on the issue of diversity and Shahmoon Industries Inc. v. Imperato, 338 F.2d 449 (3d Cir. 1964), in which this court sua sponte returned the case to the district court to enlarge the record on a diversity issue by taking additional evidence. While these cases teach that an evidentiary hearing may be appropriate they do not hold that such a hearing is always required so long as the court has afforded the plaintiff notice and a fair opportunity to be heard. We will not set aside its reasonable exercise of discretion as to the mode of determination of the jurisdictional facts. A different rule applies, of course, where a summary disposition reaches the merits of the claim rather than the jurisdiction of the court. Compare Fed.R.Civ. 56(c), 65(a).
Mr. Tanzymore also contends that the district court decision is a holding which accepts the doctrine of cases such as Pannill v. Roanoke Times Co., 252 F. 910 (W.D.Va.1918), which hold that a person may be "stateless" and that such a stateless person cannot create diversity of citizenship for purposes of 28 U.S.C. § 1332. See also Clapp v. Stearns & Co., 229 F. Supp. 305 (S.D.N.Y.1964); Factor v. Pennington Press, Inc., 238 F. Supp. 630 (N.D.Ill.1964). He urges that we reject this doctrine.
The district court did speculate that Mr. Tanzymore may be a stateless person, but this is not its holding. The plaintiff had the burden of alleging a basis for federal jurisdiction. Fed.R.Civ.P. 8(a) (1). When the jurisdictional allegations were traversed he had the burden of supporting those allegations. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-189, 56 S. Ct. 780, 80 L. Ed. 1135; KVOS v. Associated Press, 299 U.S. 269, 276-277, 57 S. Ct. 197, 81 L. Ed. 183; Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). The holding was only that Mr. Tanzymore failed to meet the burden of establishing that he was, as he alleged, a citizen of Ohio.*fn5 Since he had the burden of establishing the basis of federal jurisdiction which he alleged, and failed to carry that burden, we need inquire no further for it was his obligation, not that of the court, to establish his citizenship.
The judgment of the district court dismissing the complaint for want of jurisdiction will be affirmed.