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HAEBERLE v. TEXAS INTL. AIRLINES

September 24, 1980

William HAEBERLE and John W. Magee, Jr., trading as Villanova Leasing Company, William Haeberle and Harman S. Spolen, trading as Wayne Leasing Company, William Haeberle and Oliver Vanderbilt, trading as Windsor Leasing Company,
v.
TEXAS INTERNATIONAL AIRLINES



The opinion of the court was delivered by: POLLAK

MEMORANDUM

This is an action to recover damages for breach of three aircraft-leasing contracts. Defendant has moved to dismiss under F.R.C.P. 12(b)(1-6), or, in the alternative, to transfer the case under 28 U.S.C. § 1404(a), offering sundry reasons why the United States District Court for the Eastern District of Pennsylvania cannot, or should not, be the forum for plaintiffs' claim. Although, as will be noted below, the factual record presented is not without some ambiguity, the issues of law raised by defendant's challenges to subject-matter jurisdiction, personal jurisdiction and venue, and by defendant's forum non conveniens argument, are ripe for resolution at this point.

 I.

 Plaintiffs' complaint states that this is an action brought by three limited partnerships-each owning one Convair 600 aircraft-for damages caused by the breach of agreements under which defendant leased planes from plaintiffs. The jurisdiction of the court is grounded on the diversity jurisdiction of 28 U.S.C. § 1332(c). The complaint identifies the parties as follows:

 
Plaintiffs William L. Haeberle and John W. Magee, Jr. trading as Villanova Leasing Company ("Villanova") are the general partners of a Pennsylvania limited partnership with its principal place of business in Media, Pennsylvania. The general partners in this partnership are residents of Indiana and California.
 
Plaintiffs William L. Haeberle and Harman S. Spolen, trading as Wayne Leasing Company ("Wayne"), are the general partners of a Pennsylvania limited partnership with its principal place of business in Media, Pennsylvania. The general partners in this partnership are residents of Indiana and Pennsylvania.
 
Plaintiffs William L. Haeberle and Oliver DeG. Vanderbilt, trading as Windsor Leasing Company ("Windsor"), are the general partners of a Pennsylvania limited partnership with its principal place of business in Media, Pennsylvania. The general partners in this partnership are residents of Indiana and Pennsylvania.
 
Defendant Texas International Airlines ("TIA"), is a Texas corporation with its principal place of business in Houston, Texas. TIA is the successor in interest of Trans-Texas Airways ("TTA").

 The complaint states that on or about September 5, 1968, plaintiffs entered into agreements, by which each of the limited partnerships leased a plane to Systems Capital Aircraft, Inc. (Systems). On or about the same date, pursuant to three sub-leases, Systems leased the three planes to Trans-Texas Airways (Trans-Texas). Ultimately, the three limited partnerships became the lessors under the sub-leases between Systems and Trans-Texas under the terms of three novations entered into on March 31, 1977. A copy of each of the nine relevant agreements is attached to the complaint.

 Plaintiffs' complaint further states that Texas International, as successor in interest to Trans-Texas, was obligated to return the property in its original condition (reasonable wear and tear excepted), with the original engines and avionics, or their equivalent; to make all necessary repairs; to comply with all laws relative to the licensing, maintenance, use and storage of the property; and to return the leased property "to its sublessor or its designated agent at any airport within 150 air miles of Philadelphia, Pennsylvania which Systems shall designate to (Lessee) in writing."

 Plaintiffs then allege that, notwithstanding the above-summarized contractual provisions, Texas International abandoned the planes in Tucson, Arizona, stripped of engines and equipment, eighteen months before the lease expired, and allowed the planes to deteriorate, thereby breaching the agreement in regard to the required return, maintenance and licensing provisions.

 II.

 SUBJECT-MATTER JURISDICTION

 The complaint's documentation of plaintiffs' assertion of diversity jurisdiction is very wide of the mark:

 1. To establish their entitlement to sue a Pennsylvania corporation, plaintiffs rest on recitals that each of them, as a general partner of a "Pennsylvania limited partnership," resides in a state (variously, California, Indiana and Pennsylvania) other than Texas, the state in which defendant is incorporated.

 2. Characterization of an entity as a "Pennsylvania limited partnership" endows it with no Pennsylvania citizenship for diversity purposes. To establish diversity jurisdiction, plaintiffs had to show that the individual members of the several limited partnerships are all of diverse citizenship from the defendant. Moreover, at least in this Circuit, the focus on the citizenship of the individual members of the limited partnership extends not just to the general partners but to the limited partners as well. Carlsberg Resources Corporation v. Cambria Savings & Loan Association, 554 F.2d 1254, 1259-62 (3d Cir. 1977); but cf. Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2nd Cir. 1966).

 3. The complaint is, therefore, defective in two respects: (1) With respect to the members of the limited partnerships, the complaint talks only of the general partners. (2) And, even as to the general partners, the complaint talks only of residence, not citizenship. *fn1"

 Nor do the supplementary documents plaintiffs rely on rescue their defective complaint: The Certificates of Limited Partnership list the limited, as well as the general, partners; but here again it is residence which is set forth, not citizenship. Moreover, the Certificates apparently were current in 1969, so even as to present residence, they are hardly compelling evidence. Plaintiffs have sought to bring their recitals up to date by submitting certain correspondence sent by plaintiffs' counsel to defendant's counsel prior to the filing of defendant's motion; but, once again, the documents relied on go only to residence, not-at least in terms-to citizenship.

 The foregoing deficiencies of the complaint and the ancillary documents would ordinarily lead to the entry forthwith of an order of dismissal. However, I am moved to permit a very brief delay of the entry of such an order by plaintiffs' earnest and persistent representations that the jurisdictional showing absent on the present record can in fact be made. Plaintiffs will be directed to file, within five days from the filing date of this memorandum and the accompanying order, an amended complaint properly reciting the basis for the diversity jurisdiction plaintiffs assert. Failure, within the prescribed ...


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