# McSparran v. Weist

> Court of Appeals for the Third Circuit · October 2, 1968 · 402 F.2d 867

URL: https://www.frixlaw.com/law-library/cases/8879672

## Case

- **Full name:** Stella McSPARRAN, Guardian of the Estate of Richard R. Riegner, a minor, and Martha M. Fritzinger, parent and natural guardian of Richard R. Riegner, a minor, in her own right v. Jeffrey R. WEIST, Joseph R. Weist and Russell Millard, Martha M. Fritzinger, parent and natural guardian of Richard R. Riegner, a minor, in her own right
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** October 2, 1968
- **Citations:** 402 F.2d 867; 12 Fed. R. Serv. 2d 268
- **Precedential status:** Published
- **Opinion:** Dissent by McLaughlin
- **Judges:** Freedman, Kalodner, McLaughlin
- **Cited by:** 156 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

McLAUGHLIN, Circuit Judge
(dissenting).
The District Court here properly confined our applicable out of state administrator rule to the administrator’s action and barred the joining with it of a non-diversity suit as a matter of right under the cover of the administrator claim. That was the only question before us from the District Court on this appeal. I would affirm the judgment of the District Court solely on that point and as decided by the District Court. I dissent from the views expressed by the majority opinion.
*878 KALODNER, Circuit Judge
(dissenting).
In the instant case one Stella Mc-Sparran, a resident of New Jersey, was appointed guardian by a Pennsylvania court, to prosecute a personal injury claim for Richard R. Riegner, a minor, against the defendants Weist and Millard. The minor and the defendants are Pennsylvania citizens and the guardianship was designed to create diversity of citizenship jurisdiction. The guardian filed this action in the Eastern District of Pennsylvania for damages accruing to the minor, and the latter’s mother, Martha M. Fritzinger, a Pennsylvania citizen, joined in the action in her own right seeking out-of-pocket medical expenses.
The sole issue presented in the District Court was whether a parent who lacks diversity may join, as a matter of right, in the created diversity suit of a minor child. The District Court held that the do'ctrine of pendent jurisdiction did not grant a “right” to the mother to prosecute her independent claim in the prevailing circumstances, viz., the “artificial” diversity jurisdiction, and dismissed her claim for “lack of diversity.”
The only issue presented by the parties on this appeal was whether the District Court erred in dismissing the mother’s independent claim for damages for the reason it assigned.
The majority has seen fit to side-step the issue presented and to affirm the District Court’s disposition solely on the threshold ground that the “manufactured” diversity jurisdiction of the guardian’s action in behalf of the minor “offends against § 1359”, 28 U.S.C.A., overruling our prior decisions to the contrary.
I dissent from the majority’s holding that § 1359 forbids “manufactured” diversity jurisdiction, for the reasons stated in Judge Biggs’ dissent in Esposito v. Emery, 3 Cir., 402 F.2d 878 , today decided.
I am further of the opinion that the District Court had pendent jurisdiction with respect to the mother’s independent claim and would reverse the District Court’s ruling to the contrary. Borror v. Sharon Steel Co., 327 F.2d 165 (3 Cir. 1964); Newman v. Freeman, 262 F.Supp. 106 (E.D.Pa.1966). See too Wilson v. American Chain & Cable Company, Inc., 364 F.2d 558 (3 Cir. 1966).
For the reasons stated I would reverse the Order of the District Court dismissing the action of Martha M. Fritzinger, in her own right, for lack of diversity jurisdiction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8879672. Public record. Not legal advice.