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December 5, 1972

Karen FAHRNER, a minor, by her parents and natural guardians, J. Edward Fahrner and Agnes H. Fahrner, et al.,
Nancy E. GENTZSCH et al. Edward V. PINEDA et al. v. Nancy E. GENTZSCH and Joan Gentzsch v. Monica PINEDA, Third-Party Defendant

Huyett, District Judge.

The opinion of the court was delivered by: HUYETT

Defendants, Nancy and Joan Gentzsch, have moved to dismiss the action in C.A. 70-819 for lack of complete diversity. The plaintiffs are Edward V. Pineda and Monica Pineda, husband and wife, their daughter, Maria Carolina, and their son, Gregory. *fn1" Both Maria Carolina and Gregory are minors and their claims for relief are brought by their parents. The case involves an intersectional collision between a vehicle driven by Mrs. Pineda, in which Maria Carolina and Gregory were passengers, and a vehicle driven by Nancy Gentzsch and owned by Joan Gentzsch, in which Karen Fahrner, plaintiff in C.A. 69-814, was a passenger.

 Defendants are citizens of the Commonwealth of Pennsylvania. The complaint alleges that Edward V. Pineda, Monica Pineda and Maria Carolina are citizens of Chile, residing in Pennsylvania, and that Gregory is a citizen of the United States, residing in Pennsylvania. Defendants have moved to dismiss for lack of subject matter jurisdiction since it appears on the face of the complaint that complete diversity is lacking in that Gregory is a citizen of the same state as the defendants. *fn2"

It is our conclusion that it is not the citizenship of the incompetent, whether or not he be the real party in interest, which governs but the citizenship of the guardian, provided he has capacity to sue.

 Fallat v. Gouran, supra, 220 F.2d at 326. *fn5" With this view in mind the court set out two alternative guidelines, without stating which was correct, for determining whether the general guardian had capacity to sue. Capacity to sue in federal court was to be determined by either Rule 17 of the Fed.R.Civ.P., 28 U.S.C. *fn6" or by reference to state law. In DiStefano v. Lehigh Valley Railroad Co., supra, the reasoning in Fallat was extended to allow even a guardian ad litem's citizenship to control so long as the guardian ad litem had capacity to sue under state law. *fn7"

 It is doubtful, however, that a next friend as such has capacity to sue under Pennsylvania law. Pennsylvania Fiduciaries Act of 1949, § 1041, 20 P.S. § 320.1041 *fn8" provides that the "guardian of the estate of a minor appointed by a court . . . shall also have the right to maintain any action with respect to such real or personal property of the minor." A next friend *fn9" is in no sense a guardian of the estate of a minor, and is not a party in a suit by a minor. Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58 (1938). And the designation of a next friend as a guardian in Rule 2026 of the Pa.R.Civ.P., 12 P.S. Appendix is merely for the purpose of consistency in terminology. P.L.E. Minors § 74. But Bertinelli did state that the purpose of a next friend is to "supply the want of capacity in the minor." In addition, it may be argued that Fed.R.Civ.P. 17(c) provides the next friend with capacity to sue. Fallat v. Gouran, supra, 220 F.2d at 328.

 It is not necessary, however, in light of McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968), cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969) to distinguish the capacity of a guardian ad litem or a next friend to sue, if indeed such a distinction were at all tenable. See 3A Moore, Federal Practice, para. 17.26, p. 908 (2d Ed.1970). Compare Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585 (3rd Cir. 1962) (distinction between a general guardian and a guardian ad litem recognized). McSparran v. Weist, supra, overruled Fallat to the extent that Fallat indicated approval of "manufactured" diversity. There is much in McSparran, however, to indicate that, regardless of the capacity of a guardian to sue under state law, if a representative is a nominal party the minor's citizenship shall control in determining diversity. McSparran made it clear that a representative, including the guardian of a minor, will be considered a nominal party when the sole grounds for appointment of the representative was for the purpose of creating or manufacturing diversity jurisdiction in violation of 28 U.S.C. § 1359 (1970). *fn10" It was the nominal status of the guardian at which the court struck. Thus, in refusing to find significant, on the issue of diversity of citizenship, the guardian's appointment by a state court, the court stated:

We do not impugn this decree [the state court appointment of the guardian] collaterally by refusing to recognize the citizenship of a straw guardian. Guardian he remains, but since he is acting in the capacity of a straw party we refuse to recognize his citizenship for purposes of determining diversity jurisdiction. His appointment may have authorized him to bring suit but his nominal status does not make his citizenship determinative for purposes of diversity. He occupies in effect the role of a guardian ad litem or a next friend or prochein ami whose function merely is to supply a party on the record responsible for costs. ( Bertinelli v. Galoni, 331 Pa. 73, 75, 200 A. 58, 59, 118 A.L.R. 398 (1938), and whose citizenship would not be determinative of diversity jurisdiction.

 McSparran v. Weist, supra, 402 F.2d at 874 [footnote omitted]. And, in rebutting those cases which established the proposition that courts will not inquire into the motives that led to the appointment of a personal representative, the court felt that motive was a relevant factor in determining the question before it, i.e., "whether the fiduciary is in fact a straw fiduciary whose citizenship is to be disregarded." Id. [footnote omitted.] Furthermore, in referring to the relevance of Rule 17 of the Fed.R.Civ.P. in determining the issue of whose citizenship is to be looked to for deciding the question of diversity of citizenship, the court stated:

The focus of the rule is on capacity to sue, and it does not purport to establish standards for the determination of diversity of citizenship. Indeed, as Rule 82 expressly states, the rules do not affect the jurisdiction of district courts. Even though Rule 17(c) authorizes an infant or incompetent to sue or be sued by his next friend or by a guardian ad litem, it has been held that the citizenship of one acting in such a limited representative capacity, although with capacity to sue, is not determinative of diversity of citizenship.

 Id. at 870 [footnote omitted]. Thus, while no contention can be made that diversity is manufactured in this case, it is clear that the citizenship of the parents as next friend is not determinative whether state law or Rule 17(c) grants a next friend capacity to sue. See also Lester v. McFaddon, 415 F.2d 1101 (4th Cir. 1969); Ziady v. Curley, 396 F.2d 873 (4th Cir. 1968); Appelt v. Whitty, 286 F.2d 135 (7th Cir. 1961); Curry v. Maxson, 318 F. Supp. 842 (W.D.Mo.1970).

 Having determined that the minor's citizenship is controlling in deciding diversity of citizenship when a minor is represented by a next friend, we must now consider of what state Gregory is a citizen. This inquiry is mandated since United States citizenship is not by itself sufficient to sue or be sued in federal court under 28 U.S.C. § 1332(a)(1) (1970); a person must also be a citizen of a particular state of the United States. See generally 1 Moore, Federal Practice para. 0.74 [1] pp. 707-707.1 and para. 0.74 [3. -- 1] p. 707.50 (2 ed. 1972). Furthermore, Gregory cannot rely on the alienage provision of 28 U.S.C. § 1332 (1970) since he is a citizen of the United States. Van der Schelling v. U.S. News & World Report, Inc., 213 F. Supp. 756, 762 (E.D.Pa.) aff'd per curiam 324 F.2d 956 (3rd Cir. 1963), cert. denied 377 U.S. 906, 84 S. Ct. 1166, 12 L. Ed. 2d 177 (1964); Pemberton v. Colonna, 189 F. Supp. 430, 432 (E.D.Pa.1960) aff'd per curiam, 290 F.2d 220 (3rd Cir. 1961).

 Citizenship is generally regarded as synonymous with domicile. See 1 Moore, Federal Practice para. 0.74 [3. -- 1] p. 707.50 (2d Ed.1972). The domicile of a minor is generally considered to be that of the father. Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968). See also 1 Moore, Federal Practice para. 0.74 [6. -- 2] p. 708.55 (2d Ed. 1972). As previously noted, Gregory's father was a citizen of Chile at the time this action was commenced. *fn11" Since Mr. Pineda was not a United States citizen at the time suit was filed, he could not have had domicile for diversity purposes in any particular state of the United States. City of Minneapolis v. Reum, 56 F. 576 (8th Cir. 1893); Frick v. Lewis, 195 F. 693 (6th Cir. 1912). See also Wright, Federal Courts § 24 pp. 80-81 (2d Ed.1970). Thus Gregory was not a citizen of any particular state at the time suit was filed. Hernandez v. Lucas, 254 F. Supp. 901 (S.D.Tex.1966); 1 Moore, Federal Practice para. 0.74 [4] p. 708.3 and para. 0.75 [1. -- 1] p. 709.4 (2d Ed.1972). But see Aguirre v. Nagel, 270 F. Supp. 535 (E.D.Mich.1967). And because ...

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