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WATSON v. RUSNAK

January 3, 1973

Michael C. WATSON, a minor by his Guardian Harold Rosenbaum, and Harold Rosenbaum, in his own right,
v.
Mary P. RUSNAK et al.


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

DITTER, District Judge.

 This is a suit brought on behalf of a minor to recover for injuries suffered when he was struck by an automobile. Defendant has moved to dismiss on the grounds that diversity jurisdiction was created so the case could be brought in federal court.

 Based upon the entire record, I make the following findings:

 1. The accident in question occurred in Cumru Township, Berks County, Pennsylvania, on or about September 15, 1969.

 2. It is conceded that all parties in interest except the minor, Michael C. Watson, are citizens of Pennsylvania. *fn1"

 3. In August of 1971, minor plaintiff went to stay with Mr. and Mrs. Harold Rosenbaum, 50 Brompton Road, Apartment 2-L, Great Neck, New York. Mrs. Rosenbaum is the minor's maternal aunt. Suit was brought on August 26, 1971, by Harold Rosenbaum acting in the capacity of guardian for the minor.

 4. The minor remained in New York for approximately six weeks, returning to the home of his parents in time to start the 1971 school year in Shillington, Pennsylvania. During the time that he stayed with the Rosenbaums, they had marital problems and have since become divorced.

 5. The minor's parents are living and are persons who would be normally expected to represent his interests.

 6. No convincing reason has been given to explain the minor's going to New York to live with his aunt and uncle. The minor said he wanted to go to private school, but had been enrolled in a public school. The affidavit of Bruce G. Watson, the minor's father, indicates that there were certain medical, educational, and cultural facilities which would be conducive to the minor's well-being, but these are not explained in detail. In view of the remainder of the record, this evidence is insufficient to prove that residence in New York was being established for reasons other than the bringing of this suit.

 7. Apart from the designation of an out of state guardian, this suit is local in nature.

 Under the circumstances, I conclude that Harold Rosenbaum was chosen guardian so that federal jurisdiction could be asserted. Suit should have been instituted in state court and therefore this action must be dismissed. Groh v. Brooks, 421 F.2d 589 (3rd Cir. 1970); Tanzymore v. Bethlehem Steel Corporation, 457 F.2d 1320 (3rd Cir. 1972). However, because the interests of a minor are involved, justice requires that he be given an opportunity to be heard in an appropriate state proceeding. Therefore, the following order is entered:

 ORDER

 And now, this 3rd day of January, 1973, upon consideration of the motion of Mary P. Rusnak and upon the court's determination that bona fide jurisdiction does not exist and that the motion to dismiss should be granted, subject to appropriate conditions for the protection of the interests of the parties and the ...


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