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Tanzymore v. Bethlehem Steel Corp.

decided: March 29, 1972.

EUGENE TANZYMORE, APPELLANT,
v.
BETHLEHEM STEEL CORPORATION, APPELLEE, V. YOUNG-POSEN, INC., THIRD-PARTY DEFENDANT



Adams, Gibbons and James Rosen, Circuit Judges.

Author: Gibbons

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 ...


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