The opinion of the court was delivered by: MARSH
In this action, Carlsberg Resources Corporation, trading as Carlsberg Mobile Home Properties, Ltd., -- '72, a limited partnership, filed a complaint asserting that jurisdiction is founded on diversity of citizenship of the parties. See paragraph 12 of complaint.
It is alleged that all the defendants are citizens of Pennsylvania.
It is alleged that Carlsberg Resources Corporation is a corporate citizen of California having its principal place of business in that State, and is the general partner in Carlsberg Mobile Home Properties, Ltd., -- '72 (Carlsberg Ltd.) a limited partnership, having a place of business in California. This averment can have no jurisdictional meaning attached to it. It is not alleged that the limited partners are citizens of states other than Pennsylvania. Thus we hold that the complaint, unless amended, should be dismissed for lack of jurisdiction because it does not disclose that the action is between citizens of different states, 28 U.S.C. § 1332(a)(1); it does not disclose the citizenship of the limited partnership.
Although the jurisdictional issue presents policy factors, as we understand the law unincorporated associations are considered to be citizens of each state in which the association has members. United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S. Ct. 272, 15 L. Ed. 2d 217 (1965); Thomas v. Board of Trustees, 195 U.S. 207, 25 S. Ct. 24, 49 L. Ed. 160 (1904); Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 20 S. Ct. 690, 44 L. Ed. 842 (1900), involving a limited partnership; Chapman v. Barney, 129 U.S. 677, 9 S. Ct. 426, 32 L. Ed. 800 (1889), involving a joint stock company partnership; Underwood v. Maloney, 256 F.2d 334, 338 (3rd Cir. 1958); Larwin Mortgage Investors v. Riverdrive Mall, Inc., 392 F. Supp. 97 (S.D. Texas 1975);
Jim Walter Investors v. Empire-Madison, Inc., 401 F. Supp. 425 (N.D.Ga. 1975); Fox v. Prudent Resources Trust, 382 F. Supp. 81, 92-93 (E. D. Pa. 1974), involving a limited and general partner of a New York limited partnership.
It is necessary for a district court to inquire sua sponte into the jurisdictional attributes of a case and to dismiss the complaint if subject matter jurisdiction is absent. Rule 12(h)(3), Fed.R.Civ.P.; Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir. 1964); Underwood v. Maloney, 256 F.2d 334, 340 (3rd Cir. 1958);
McGahey v. Giant Food, Inc., 300 F. Supp. 475, 477 (D.Md.1969).
As stated in Thomas v. Board of Trustees :
"It is equally well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived." 195 U.S. at 211, 25 S. Ct. at 25, 49 L. Ed. at 164.
In light of the foregoing decisions, since it does not affirmatively appear that this court has diversity jurisdiction, it must be held that the court has no authority to take cognizance of it. Thomas v. Board of Trustees, supra, p. 214, 25 S. Ct. p. 26, 49 L. Ed. p. 165.
In Donroy, Ltd. v. United States, 301 F.2d 200, 206-207 (9th Cir. 1962), involving a similar California partnership, the Court of Appeals stated:
"In the State of California, . . . a partnership, unlike a corporation, is considered to be not a legal entity, but an association of individuals. Our attention has not been called to any authority to the effect that a limited partnership in this respect is any different from a general partnership.
Consistently with this concept, both the United States and Canada look, not to the partnership as such, but to the distributive income of the individual partners for income tax purposes.
To say that for practical purposes a limited partner in a partnership is no different from an investing shareholder in a corporation or from the corporate owner of a subsidiary corporation, overlooks the fact that in these latter instances the corporate entities are taxed for and pay income taxes while a partnership, whether limited or general, does not.
Under this concept of partnership as an association of individuals, it follows that each partner, whether general or limited has an interest as such in the assets ...