finding that a' plaintiff cannot affirmatively demonstrate complete diversity if the identity and citizenship of fictional defendants are unknown
How later courts described this case
- finding that a' plaintiff cannot affirmatively demonstrate complete diversity if the identity and citizenship of fictional defendants are unknown
- holding that there was no diversity jurisdiction where the plaintiff sued a state agency alongside private entities
- finding a presumption that federal courts “are without jurisdiction unless the contrary affirmatively appears”
- “Failure to make proper and complete allegations of diversity jurisdiction 3 relegates a litigant to . . . jurisdictional purgatory.”
Written by the judges who cited it.
The opinion
MERRILL and KOELSCH, Circuit Judges
(concurring).
We concur in Judge Byrne’s result. While we do not find any real problem presented by Prudential’s allegations respecting its New Jersey citizenship (Prudential may still wish to satisfy Judge Byrne on this score), we do agree that in other respects our perceptive brother, sua sponte, has put his finger on problems that should be straightened out and that since land titles (and potential clouds) are involved the solution he proposes — that the straightening out be accomplished in the District Court— would best assure the avoidance of future difficulties.
With respect to that solution we may add that in any appeal from a new summary judgment the briefs filed herein may be utilized and the appeal shall, by the clerk, be assigned to this panel. Unless new problems are presented requiring supplemental briefing or argument, it may be assumed that the case will be ordered submitted forthwith on the argument already had.
ON REHEARING
PER CURIAM.
Appellee has moved for an order of this court recalling our mandate and granting leave to appellee to file petition for rehearing. In appellee’s view, proceedings below, since our mandate went down, call for a clarification of our decision and the opinions of the judges filed in connection with it.
We seen no need for recall of the mandate. Some clarification is perhaps in order.
We did not order dismissal save in the event jurisdiction could not be es *1193 tablished on remand. (See 28 U.S.C. 1653 and Rule 15(c) Federal Rules of Civil Procedure.) The lack of jurisdiction noted by us was jurisdiction to render judgment. Implicit in our order was recognition of the present power of the District Court to entertain corrective amendments and proceedings and that if the existence of jurisdiction to entertain suit was thereby established, such jurisdiction would apply retroactively and serve to perfect the authority of the court to determine a motion for summary judgment if one be made, or otherwise proceed to trial. (Unlike Dollar S.S. Lines v. Merz, 68 F.2d 594 (9th Cir. 1934), no trial was had in this case.) It was not our intention to suggest that action heretofore taken by the District Court to preserve the subject matter of suit pending final judgment would be beyond the retroactive reach of jurisdiction (subsequently established) to entertain suit.
With this clarification, the motion is denied.