Petition for Writ of Certiorari — Parker-Hannifin Corp. v. Kiser

87-1175 5),

Supreme Court, U.S,

on FILED

sree JAN 12 y998

IN THE

SUPREME COURT |” cee

OF THE UNITED STATES OF AMERICA

October Term, 1987

PARKER-HANNIFIN CORPORATION,

Petitioner,

as F

ANNIE C. KISER et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

(Appeal No. 87-1023)

John O’Brien, III, Esquire

O'BRIEN & O'BRIEN

1260 Suburban Station Building

Philadelphia, PA 19103

(215) 567-7381

Counsel for Petitioner

OF COUNSEL:

Allan Kanner, Esquire

Eunice Trevor, Esquire

ALLAN KANNER & ASSOCIATES

1616 Walnut Street

22nd Floor

Philadelphia, PA 19103

(215) 546-6661

January 11, 1988

PACKARD PRESS LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

Pe ES

QUESTIONS PRESENTED

1. Whether federal pleading practice allows a plain-

tiff to add JOHN DOE defendants to an action originally

filed in federal court pursuant to the limited grant of

diversity jurisdiction, 28 U.S.C. 1331?

2. Whether the naming of JOHN DOE defendants

necessarily defeats diversity jurisdiction?

3. Whether a plaintiff may affirmatively invoke

federal diversity jurisdiction while utilizing a form of

JOHN DOE pleading practice that is neither recognized

nor allowed in the state in which the federal district

court sits?

_ 4. Under what circumstances may a circuit court

reverse an otherwise proper Rule 12(h), Fed.R.Civ.P.,

dismissal of an amended complaint on the grounds that

Rule 15(a), Fed.R.Civ.P., mandates that “justice” re-

quires the allowance of a second amended complaint?

5. Whether the district court below, in fact, exer-

cised its discretion and abused the same under 28

U.S.C. §1653 and Rule 15(a), Fed.R.Civ.P., or whether

the court failed to exercise its discretion and committed

reviewable prejudicial error? >

LIST OF ALL PARTIES

The parties to the proceedings below were the

petitioner-defendant Parker-Hannifin Corporation and

the respondents-plaintiffs Annie C. Kiser and Annie C.

Kiser as Administratrix of the Estate of Everett W. Kiser.

Other named defendants, General Electric Corporation

and Eaton Corporation, were dismissed in the trial court

and were not parties to the appeal. They have no

continuing interest in this matter.

VIL.

VIIL.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............... i

Re eae | ii

TABLE OF CONTENTS AND AUTHORI-

re ee iS bss .g so cae ae os as eo iii

Bol 8 SE SE 6 re |

I eg va ce k ce et iase ss 2

“Soe Sule y= Bi) 6 By > 2 ee 6

STATEMENT OF THE CASE............. 6

REASONS FOR GRANTING THE WRIT... 8

APPENDIX (Opinion and Judgment of Court

of Appeals and Memorandum Decision of

oS Cen pd-Oa'eod sehen bd bes Al

TABLE OF AUTHORITIES

CASES: Page

Abood v. Block, 752 F.2d 548 (11th Cir. 1985).... 5

Abels v. State Farm Fire and Casualty Co., 770 F.2d

. ge fs |. Peery ere opr ye 9,13

Bamm, International v. GAF Corp., 651 F.2d 389

CO ee Ns oa ag dix kee s eee 12

Britt v. Arvantis, 590 F.2d 57 (3d Cir. 1978)..... 8

Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3rd

Ce Re 5 ots a a ha a 7

Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir.

yt BERS SI ear ctr Sa paar Rhys Som pe 8,9

Burlington Northern R.R. v. Woods, 107 S.Ct. 967

ks Pepper Pe ats weary bore See Care 11

Carlsberg Resource Corp. v. Cambria Savings and

Loan, 554 F.2d 1254 (3rd Cir. 1977)......... 13

Chavez v. U.S., 219 F.2d 948 (5th Cir. 1955) ..... 5

DeVargas v. Montoya, 796 F.2d 1245 (10th Cir.

I ks ieee i ea ie eee 13

Erie R.R. Co. v. Thompkins, 304 U.S. 64 (1938).. 10

Fassett v. Delta Kappa Epsilon, et al., 807 F.2d

ORE Cae OE, 6 Sol Se sick ee andes 12

Feres v. United States, 340 U.S. 135 (1950)...... 3, 4

Foman v. Davis, 371 U.S. 178 (1962)............ 13

Grigg v. Southern Pacific Co., 246 F.2d 613 (9th

Re ER ce Ss 50s bie ss wkd ie ek ee 8

Hanna v. Plumer, 380 U.S. 460 (1965)........ 10, 11

In re “Agent Orange” Product Liability Litigation,

534 F.Supp. 1046 (E.D.N.Y. 1982)........... 7

iv

TABLE OF AUTHORITIES—(Continued )

CASES: Page

Kiser v. General Electric, 831 F.2d 423 (3rd Cir.

iT fh a GP eee er ec a Catne et eee Ree 1,9

Kushner v. Winterthur Swiss Insurance Co., 620

ee Se CE a OD co hr enltatkn ete: 5

Marker v. Universal Oil Products Co., 250 F.2d 603

CH ee, MR as aus ieee ee 7

Patchick v. Kensington Publishing Corp., 743 F.2d

rae Cpe Ga ee, or ss ce eds ae eo 8 ak 6

Pullman Co. v. Jenkins, 305 U.S. 534 (1939)..... 9

Santana v. Holiday Inns, Inc., 686 F.2d 736 (9th

ty Pods obi ass ea ck ia ea 8

Southwest Administrators, Inc. v. Lopez, 781 F.2d

Sate Cee a SO i ee 8 oe ve ee 5

Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). 2

Thomas v. Computax Corp., 631 F.2d 139 (9th Cir. -

EDs bina Keniy CAN en CRG ee 5

Yearsly v. Ross Construction Co., 309 U.S. 18

CE brie ek bil dA aw vd nee HO ee aes 7

RULES & STATUTES:

Bt SE es FR pho ss Fhe ed cee ae etee 1]

ne ics ho kd cas inet eee 6

PE SS 5 ons 0 8 os be hae kee 5, 6

ee a NE se ib vin .t wv boo odd wae ewes i, 6, 8, 14

Be PIES ooo sp 0 6a 0b oe Ox LOS ee 1]

IE oo os cs ee 2 eos hae wooewoaa 8

co Wee, Shoo, seemeety 6300... 6... i 32

SW OTTO a fOr bee hare vi feo RL ees 6

TABLE OF AUTHORITIES— Continued )

RULES & STATUTES:

- is to rrr errr re

Cal.Civ.Proc. Code §474 (West

1979)....

my (3a, ° 3. ) Se Peer re

Rule 8(a)(1), Fed.R.Civ.P....

Rule 9(a), Fed.R.Civ.P....

Rule 10(a), Fed.R.Civ.P......

Rule 11, Fed.R.Civ.P. .......

Rule 12(h) Fed.R.Civ.P. .....

Rule 12(h\(3), Fed. R.Civ.P....

Rule 15, Fed. R.Civ.P. ......

Rule 15(a) Fed.R.Civ.P........

Rule 15(c), Fed. R.Civ.P. ..

MISCELLANEOUS:

3 J. Moore, Moore’s Federal Practice, para. 15-15|2]

(2d ed. 1985)...

Notes of the Advisory Committee on Rules, (1963

Amendments). .

Restatement (Second) of Torts

vl

$355

No.

IN THE

SUPREME COURT

OF THE UNITED STATES OF AMERICA

October Term, 1987

PARKER-HANNIFIN CORPORATION.

Petitioner.

v.

ANNIE C. KISER et al..

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

(Appeal No. 87-1023)

The petitioner Parker-Hannifin Corporation respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Third Circuit, entered in the above-

entitled proceeding on October 14, 1987.

OPINIONS BELOW

The opinion of the Court of Appeals for the Third

Circuit is reported at 831 F.2d 423 (1987), and is

reprinted in the appendix hereto, infra.

The memorandum decision of the United States

District Court for the Eastern District of Pennsylvania

]

2

(Weiner, J.) has not been reported. It is reprinted in the

Appendix hereto, infra.

JURISDICTION

Respondents initially brought this tort suit in the

Eastern District of Pennsylvania on December 5, 1985.

Their original complaint blatantly failed to comply with

the minimal requirements of Rule 8(a)(1), Fed. R.Civ.P.,

which requires a “short and plain statement of the

grounds upon which the court’s jurisdiction

depends... .”

Despite being informed of this short-coming by a

responsive pleading and by the court, and being allowed

leave of court to amend pursuant to Rule 15(a),

Fed.R.Civ.P., plaintiffs’ first amended complaint again

ran afoul of the express pleading requirements of Rule

8(a)( 1), Fed. R.Civ.P., as well as Rule 9(a), Fed.R.Civ.?P..,

which requires legal existence be pled “to the extent

required to show the jurisdiction of the court.”

Specifically, plaintiffs for the first time added JOHN

DOE defendants of indeterminate citizenship and failed

to allege Parker-Hannifin’s citizenship for diversity pur-

poses. These shortcomings, once again, improperly left

the question of diversity jurisdiction unsettled. See,

Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806)

(complete diversity required).

Again, through the inadvertence of counsel this first

amended complaint was not properly served on defen-

dants in contravention of Rule 5(a), Fed. R.Civ.P., which

requires that “every pleading subsequent to the original

complaint. .. be served upon a party. . . .” See also, Rule

11, Fed.R.Civ.P.

It should be noted that the first amended complaint

identified three possible non-JOHN DOE defendants:

Parker-Hannifin, Eaton, and General Electric. Defen-

dant Eaton first moved to dismiss on the ground that the

3

complaint failed to adequately allege the basis of juris-

diction. Parker-Hannifin joined in the motion. On Feb-

ruary.12, 1986, the court directed counsel to submit

briefs on the potentially dispositive issues of the govern-

ment specifications defense and the Feres doctrine.

According to respondents, the court then informed

counsel that plaintiffs need not respond to the motions to

dismiss pending further notice from the court. Allegedly

these instructions are reflected in a confirming letter

from Eaton’s counsel to the court with copies to other

counsel.

On June 11, 1986, the court granted the motions of

Eaton and Parker-Hannifin for insufficient jurisdictional

allegations. General Electric had also moved to dismiss

for failure to state a cause of action against it. That

motion was also granted on the ground that plaintiffs

had failed to file an opposing brief. In August 1986,

plaintiffs appealed from the order reinstating the June

11, 1986, dismissal as per the court’s order of July 11,

1986. That appeal (No. 86-1514) was dismissed for

failure to follow appellate rules.

In response to the above mentioned dismissal or-

ders, plaintiffs’ counsel then requested the trial court

vacate the same. There followed a telephone conference

call among counsel and the court on July 2, 1986, which

resulted in entry of an order on July 11, 1986, vacating

the order entered June 11, 1986, granting the motions to

dismiss of Eaton and Parker-Hannifin; memorializing

Plaintiffs’ stipulation to dismiss with prejudice of all

claims against Eaton and General Electric; and, order-

ing Plaintiffs and Parker-Hannifin to spend 30 days from

July 2nd attempting to resolve plaintiffs’ claim that

diversity jurisdiction is proper:

“

. in the event of a failure by plaintiffs and

Parker-Hannifin Corporation to reach agrce-

ment on this issue, it is Stipulated and Agreed

that defendant, Parker-Hannifin Corporation

4

may move the Court upon the end of the said

thirty (30) day period for reinstatement of the

Order dismissing the Complaint as to Parker-

Hannifin Corporation for lack of diversity juris-

diction and/or lack of properly pleading the

existence of diversity jurisdiction.”

On or about August 28th Parker-Hannifin moved

pursuant to the July 11 order to reinstate the dismissal

order. Plaintiffs’ opposed the motion. On September 23,

1986, the district court filed its opinion and order by

which it granted Parker-Hannifin’s motion to reinstate

the initial dismissal order and dismissed the complaint

as to Parker-Hannifin:

Plaintiffs have not attempted to refute

Parker-Hannifin Corporation’s allegation that

the parties were unable to resolve the diversity

issue. Pursuant to paragraph three of the stip-

ulation, we, therefore, reinstate that part of our

Order dated June 9, 1986 dismissing the com-

plaint as to Parker-Hannifin Corporation for

lack of diversity jurisdiction.”

Plaintiffs moved for reconsideration of-the second

dismissal order and again moved for leave to amend the

complaint. Submitted with the motion was a proposed

second amended complaint which added the statement

that appellee is incorporated in the State of Ohio. On

December 11, 1986, the court rendered its opinion and

order denying reconsideration and affirmed the order of

dismissal:

. We based our decision on the fact that

since the parties were unable to resolve the

diversity issue by August 2, 1986, we were

unable to establish justsdiction under the diver-

sity statute.

. .We note that paragraph three of the stipu-

lation which was entered as the order of the

5

court on July 11, 1986, specifically states that

the parties’ shall have thirty (30) days from the

date of July 2, 1986, conference within which

to attempt to resolve plaintiff’s claim that diver-

sity jurisdiction is proper” (emphasis added).

“The use of the word ‘shall’ indicates that the

30 day time limit was intended to be manda-

tory, not permissive. Since plaintiff brought

this action the burden was on her to establish

diversity jurisdiction over Parker-Hannifin Cor-

poration by the August 2, 1986 deadline... .”.

On January 9, 1987, plaintiffs filed their notice of

appeal from the order of December 12, 1986, affirming

the prior order. Despite the prior dismissal of No. 86-

1514,! the circuit court assumed jurisdiction from the

December dismissal order under 28 U.S.C. §1291, inas-

much as the trial court dismissed plaintiffs’ complaint as

1. The circuit court rejected Petitioner's argument below that

it could not have appellate jurisdiction over this matter because a

previous appeal (86-1514) of the district court action had been

dismissed and the case was marked dismissed. The Docket entries

state on September 11, 1986, the following:

Certified Copy of Order received from U.S. Court of

Appeals that the case is dismissed for failure to order a

transcript of the proceedings in the Lower Court as re-

quired, filed. 9/12/86 entered.

Because respondent had failed to properly comply with the local

rules, their first appeal was properly dismissed. See Kushner v.

Winterthur Swiss Insurance Co., 620 F.2d 404 (3rd Cir. 1980);

Abood v. Block, 752 F.2d 548 (11th Cir. 1985); Southwest Admin-

istrators, Inc. v. Lopez, 781 F.2d 1378 (9th Cir. 1986); Thomas v.

Computax Corp., 631 F.2d 139 (9th Cir. 1980); Chavez v. U.S., 219

F.2d 948 (Sth Cir. 1955). The circuit court could not assume

jurisdiction over a case that has already been dismissed by the same

court.

6

to Parker-Hannifin, the sole remaining determinate de-

fendant, and denied plaintiffs’ application for leave to

amend.?

Pursuant to 28 U.S.C. 44254, the Supreme Court

may review by writ of certiorari the judgment of the

lower federal circuit court. This is especially important

here because of the split in the circuits regarding JOHN

DOE practice, and the resulting scope of diversity juris-

diction.

STATUTES INVOLVED

This writ raises important questions about the scope

of 28 U.S.C. §1331 (diversity jurisdiction), as well as the

proper construction of Rules 8(a)(1), 12(h) and 15(a),

Fed.R.Civ.P.3 de

STATEMENT OF THE CASE

This action was brought by or for the parents of

Tony E. Kiser, deceased, to recover damages for his

alleged wrongful death. Tony Kiser was single and

without children. The action is brought by his mother in

her own right and as administratrix of the estate of

decedent’s father, who died in December 1984. The

decedent was on active duty in the United States Navy

on board the USS Guam in a war zone off the coast of

Lebanon. He allegedly died from injuries caused by the

failure and/or malfunction of a cylinder which had been

2. The circuit court either treated the JOHN DOE defendants

as dismissed, or as irrelevant. See Patchick v. Kensington Publishing

Corp., 743 F.2d 675, 677 (9th Cir. 1984) (“If an action is dismissed

as to all of the defendants who have been served and only unserved

defendants remain, the district court’s order may be considered

final under [28 U.S.C. §1291} for the purpose of perfecting an

appeal.”).

3. The Federal Rules of Civil Procedure and Appellate Proce-

dure set forth mandatory requirements for all litigants. The Federal

Rules have the force and effect of statutes. See, 28 U.S.C. §§2071-

72.

7

manufactured according to specification and govern-

ment contract for the Navy and installed on the USS

Guam. The Navy’s blueprints indicate that the cylinder

was manufactured and supplied by the Miller Fluid

Power Corporation of Bensenville, Illinois.

Because of seemingly insurmountable problems,

strong defenses, and absolute immunities, plaintiffs will

likely never recover, even assuming liability. E.g., Feres

v. United States, 340 U.S. 135 (1950) (immunity);

Yearsly v. Ross Construction Co., 309 U.S. 18 (1940)

(government contractor defense); In re “Agent Orange”

Product Liability Litigation, 534 F.Supp. 1046, 1055

(E.D.N.Y. 1982) (same); Brown v. Caterpillar Tractor

Co., 696 F.2d 246, 249, 250 n.9 (3rd Cir. 1982) (same;

applying Pennsylvania law); Marker v. Universal Oil

Products Co., 250 F.2d 603 (10th Cir. 1957) (sophisti-

cated user defense as construed pursuant to RESTATE-

MENT (SECOND) OF TORTS, §388). This at least was

the unequivocal view of the trial court.

Even though the Navy blueprints make clear that

Parker-Hannifin could not have been responsible, plain-

tiffs seem to have erred and named the wrong defen-

dant. Since they are too late to sue the Miller Fluid

Power Corporation, they~insist on pressing forward

against Parker-Hannifin, despite irrefutable contrary

evidence of non-liability.

Despite the ultimate frivolousness of their claim, the

trial court allowed plaintiffs an opportunity to amend,

pursuant to Rule 15(a) Fed.R.Civ.P. Then pursuant to

Rule 12(h), Fed.R.Civ.P., the court gave plaintiffs an-

other chance to try to present legitimate claim as to

Parker-Hannifin. Not only did they fail to do this, as

required by Rule 8(a)(1), Fed.R.Civ.P., but they made

matters worse by adding JOHN DOE defendants. In

light of this, the court properly fulfilled its obligations to

dismiss.

8

REASONS FOR GRANTING THE WRIT

THERE IS NO PROVISION IN

THE FEDERAL RULES TO ALLOW A

PARTY TO ADD JOHN DOE DEFENDANTS

TO AN ACTION ORIGINALLY FILED IN

FEDERAL COURT PURSUANT TO THE LIMITED

GRANT OF DIVERSITY JURISDICTION, 28 U.S.C. §1331

Petitioner is unaware of any case that would allow a

plaintiff to amend to add JOHN DOE defendants to an

action originally filed in federal court under diversity

jurisdiction. The Federal Rules of Civil Procedure do not

provide for suing fictitious parties. Indeed, the practice

is inconsistent with many of the federal rules and

incompatible with federal procedure. See, e.g.,

Fed.R.Civ.P. 10(a) (“li]Jn the complaint the title of the

action shall include the names of all the parties. . . .”).

Such pleadings, although perhaps unavoidable in an

action removed pursuant to 28 U.S.C. §1441 have no

place in an original federal action.*

4. The question of JOHN DOE plaintiffs can arise in original

federal pleadings, as is the case here, or in the context of removal

jurisdiction cases under 28 U.S.C. §1441, as was the case in Bryant

v. Ford Motor Co., 832 F.2d 1080 (9th Cir. 1987). Although control

of 28 U.S.C. §1331 jurisdiction mandates vigilance in both con-

texts, it is hard to see why the federal courts should ever tolerate

original JOHN DOE pleadings in diversity cases in districts located

in states that don’t recognize JOHN DOE pleadings. See, Grigg v.

Southern Pacific Co., 246 F.2d 613, 620 (9th Cir. 1957). Perhaps

these JOHN DOES have some place in California state practice.

But, it is inconceivable that they serve any purpose when they are

included superstitiously and without reason in non-JOHN DOE

states.

Even in JOHN DOE jurisdictions, the JOHN DOES do not

survive. in federal court. When a diversity case is initially filed in

federal court, Rule 15(c), Fed.R.Civ.P. clearly supersedes state law

on relation back. See, e.g., Santana v. Holiday Inns, Inc., 686 F.2d

736, 738-39 (9th Cir. 1982); Britt v. Arvantis, 590 F.2d 57, 61-62

(3d Cir. 1978). Arguably, this Court might feel a need to distinguish

the propriety of the presence of JOHN DOE pleadings in removal

cases from original actions. E.g., Bryant v. Ford Motor Co., 832

F.2d at 1087 (Kozinski, J., dissenting).

|

9

THERE IS A NEED TO RESOLVE THE

CONFLICT IN THE CIRCUITS ON WRETHER

THE NAMING OF JOHN DOE DEFENDANTS

DEFEATS DIVERSITY JURISDICTION

This Honorable Court must resolve the conflict in

the circuits on the proper disposition of JOHN DOE

pleadings in a diversity action. Specifically, even assum-

ing that JOHN DOE pleadings are allowable under some

limited circumstances, plaintiffs should not be allowed

to add JOHN DOE defendants in a diversity action.

Consistent with Rule 11, Fed.R.Civ.P., how can a plain-

tiff allege both that someone unknown is also culpable,

but is a diverse someone?

There is no doubt that, without more, JOHN DOE

defendants destroy diversity jurisdiction. C.f., Pullman

Co. v. Jenkins, 305 U.S. 534, 540 (1939) (named defen-

dant bound to show unnamed JOHN DOE defendant a

nonresident to justify removal). Under diversity law the

citizenship of these JOHN DOE defendants are un-

known and thus diversity cannot be properly alleged.

E.g., Abels v. State Farm Fire and Casualty Co., 770

F.2d 26 (3rd Cir. 1985). There can be no subject matter

jurisdiction over this matter as long as JOHN DOE

-defendants ONE through FIVE are present in this

action. The only question is whether the courts should

follow the mandate of Rule 12(h), Fed.R.Civ.P., and

dismiss complaints with JOHN DOE allegations, Bryant

v. Ford Motor Co., 832 F.2d 1080 (9th Cir. 1987) (en

banc), or instead should rewrite or blue pencil com-

plaints to preserve diversity, Kiser v. General Electric,

831 F.2d 423, 426 n.6 (3rd Cir. 1987).

10

JOHN DOE PLEADINGS MAY NOT

BE USED WHEN INVOKING DIVERSITY

JURISDICTION IN A FORUM STATE THAT

DOES NOT RECOGNIZE SUCH PLEADINGS

AS A MATTER OF STATE LAW

Since federal practice has absolutely no place for

JOHN DOE pleadings in complaints in jurisdictions in

which there is no state JOHN DOE law, it should be

abolished forthwith.

The Commonwealth of Pennsylvania does not rec-

ognize JOHN DOE pleadings. Even assuming that in

those states in which such pleadings are allowed, @.¢,.

Cal.Civ.Proc. Code §474 (West 1979), tederal court

pleading rules may suffer modification in the apirit of

federalism, there is no reason a federal district court

sitting in Pennsylvania need accept such) pleadings

Hanna v. Plumer, 380 U.S. 460 (1005) addressed

the question of what happens when they is a conflict

between state law and the Federal Rules of Civil Proce

dure. It holds that if there is a direct conflict between the

Federal Rules and state law, the Federal Rule takes

precedence unless the Federal Rule is invalid:

It is true that both the [Rules] Enabling Act {28

U3... §2072] and the Erie [R.R. Co. v. Thomp-

kins, 304 U.S. 64, 78 (1938)] rule say, roughly.

that federal courts are to apply state “substan-

tive” law and federal “procedural” law. but from

that it need not follow that the tests are identi-

cal. For they were designed to cOntrol very

different sorts of decisions. When a sjtuation is

covered by one of the Federal Rules, the ques-

tion facing the court is a far cry from the

typical, relatively unguided Erie Choice: the

court has been instructed to apply the Federal

Rule, and can refuse to do so only if the

Advisory Committee, this Court and Congress

erred in their prima facie judgment that the

11

Rule in question transgresses neither the terms

of the Enabling Act nor constitutional restric-

tions.

380 U.S. at 471 (emphasis added; footnote omitted). See

generally 3 J. Moore, Moore’s Federal Practice para.

15-15[/2], at 15-142 (2d ed. 1985) (“Hanna v. Plumer is

dispositive of the issue and. . . the matter is. . . one

solely of federal practice under Rule 15(c)") (footnote

omitted), See also, Burlington Northern R.R. v. Woods,

107 §.Ct, 967 (1987).

A TRIAL COURT HAS AN ABSOLUTE

RIGHT TO DISMISS AN ORIGINAL JOHN DOK

COMPLAINT FOR WANT OF DIVERSITY

AND “JUSTICE” DID NOT MANDATE THE

ALLOWANCE OF A SECOND AMENDED COMPLAINT

Neither parties nor circuit courts may create subject

Matter jurisdiction where none exists, Without federal

subject matter jurisdiction, an action must be dismissed

at any time, with or without motion of the parties. Rule

12(h)(3), Fed. R.Civ.P., clearly states: “Whenever it ap-

pears by suggestion of the parties or otherwise that the

court lacks jurisdiction of the subject matter, the court

shall dismiss the action.” (emphasis added).5 In the

instant case, the trial court followed this absolute rule.

The Third Circuit and the trial court agree that

plaintiffs amended complaint failed to allege subject

matter jurisdiction in diversity, 28 LLS.C. §1332, due to

the grossly improper JOHN DOE pleadings, and the

failure to allege the principal place of business of Peti-

tioner Parker-Hannifin.

Rule 15(a), Fed. R.Civ.P., makes clear that where, as

here, a party has already amended its complaint anda

responsive pleading has been served, then that “party

—s = wees

5. This rule continues former 28 U.S.C, §80 (dismissal or

remand of action over which district court lacks jurisdiction),

12

may amend his pleading only by leave of court or by

written consent of the adverse party; and leave shall be

freely given when justice so requires.” According to the

Notes of the Advisory Committee on Rules (1963

Amendments), “the court has discretion to permit a

supplemental pleading . . . in light of particular circum-

stances... and if so, upon what terms.” What the circuit

court is saying is that the trial court read “the circum-

stances” wrong.

Nevertheless, the circuit court found that the trial

court erred in dismissing plaintiffs’ claim for want of

subject matter jurisdiction, The only basis for this

extreme repudiation of Rule 120h), Fed, R.Civ.P., ia that

in effect, under Rule 18(a), Fed R.Civ.P., the tial court

abused ita discretion and should have granted a manda

tory second right to amend the Complaint, The eireuit

then said that there must be diversity, sinee the cireuit

wutomatically blue pencils the John Doe allegations, and

improperly finds outside the record that the Kisers were

factually correct in claiming that diversity jurisdiction

existed, See Fassett v, Delta Kappa Epsilon, et al., 807

F.2d 1150, 1165 (3rd Cir, 1986) (any attempt to supple-

ment the record is improper because the appellate court

may only consider matters on the record below).

Although the findings outside the record are im-

proper, the circuit court's lack of deference to the trial

court is more puzzling. In Bamm, International v. GAF

Corp., 651 F.2d 389 (5th Cir. 1981), the court stated in

part:

In deciding whether to grant leave to amend

the district court must take into account several

factors “such as undue delay, bad faith or

dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amend-.

ments prev tied persist undue pao ¢ to

ora oxen sar sem. 2

6 Rule 15, Fed, R. Civ P.. continues old 28 U.S.C. $1653

formerly §399 (amendments to show diverse citizenship)

13

the opposing party by virtue of allowance of the

amendment, futility of the amendment. . ." 651

F.2d at 391; Also see Foman v. Davis, 371 U.S.

178 (1962).

The plaintiffs have had over a year to amend their

complaint, It is still not correct and ultimately the

second amended complaint did not resolve the JOHN

DOES problem, This is clearly contrary to the require-

ments for proper averments of diversity, The "DOES"

have unknown citizenship and therefore diversity is not

present, See, Abels v, State Farm Fire and Caaualty Co,,

770 F.2d 26 (Ard Cir, 1988); Carlsberg Resource Corp, v.

Cambria Savings and Loan, 554 F.2d 1284 (ard Cir,

O77),

The trial court gave the plaintilfs several opportuni:

ties to amend their complaint and now over a year later

the complaint still did not properly allege diversity,

Ultimately, the amendment may be found to be futile if

the cylinder, which is alleged to be defective, was

manufactured by another company pursuant to U.S.

Navy specifications.

THE COURT DID NOT ABUSE ITS DISCRETION

AND HAD A VALID REASON FOR DENYING LEAVE

TO AMEND

On several occasions the plaintiffs have been given

the opportunity to amend their complaint, and that

responsibility rests with the plaintiffs alone. E.g., De-

Vargas v. Montoya, 796 F.2d 1245 (10th Cir. 1986). To

date the plaintiffs have yet to properly allege diversity.

How much time must a party be given to amend its

pleading? In the present case, the plaintiffs were given

from February 13, 1986 to June 11, 1986, The District

Court dismissed this action on three occasions June 9,

1986, September 23, 1986, and December 11, 1986, and

relented twice to give respondents another chance, The

14

trial court has been generous, but at some point a final

decision must be made.

CONCLUSION

For these various reasons, this petition for certiorari

should be granted. Most important, this Honorable

Court should resolve the conflict in the circuits regard-

ing JOHN DOE pleadings, even assuming they have a

place in federal practice, at least to the extent that it

concerns the limited grant of diversity jurisdiction, 28

U.S.C. 1331.

Respectfully submitted,

7

ie

John O’Brien, III, Esq.

O'BRIEN & O'BRIEN

1260 Suburban Station Building

Philadelphia, PA 19103

(215) 567-7381

Counsel of Record and

Counsel for Petitioner

OF COUNSEL:

Allan Kanner, Esq.

Eunice Trevor, Esq.

ALLAN KANNER & ASSOCIATES

1616 Walnut Street

22nd Floor

Philadelphia, PA 19103

(215) 546-6661

January 12, 1988

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-1023

KISER, ANNIE C. and

KISER, ANNIE C. as Administratrix of

the Estate of KISER, EVERETT wW.

Appellant

v.

GENERAL ELECTRIC CORPORATION

PARKER-HANNIFIN CORPORATION and

EATON CORPORATION and

DOES 1-5

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 85-6997)

Argued July 6, 1987

Before: HIGGINBOTHAM and BECKER, Circuit

Judges,

and BARRY, District Judge.*

(Filed October 14, 1987)

* Honorable Maryanne Trump Barry, United States District Judge

for the District of New Jersey, sitting by designation.

A-1

A-2

VALERIE ANSEL KARPMAN, ESQ. (ARGUED)

Bailey and Karpman oi

240 Stockton Street

8th Floor

San Francisco, CA 94108

MICHAEL KLEEMAN, ESQ.

Kleeman & Abloeser, P.C.

1819 John F. Kennedy Boulevard

Suite 350

Philadelphia, PA 19103

Attorneys for Appellant

JOHN M. O'BRIEN, Ill, ESQ. (ARGUED)

O'Brien and O'Brien

1260 One Penn Center

1617 John F. Kennedy Boulevard

Philadelphia, PA 19103

Attorney for Appellee Parker-Hannifin

Corporation

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal concerns a district court order that

affirmed its prior order dismissing a complaint

without first considering appellant's request, or her

subsequent motion, for leave to amend her complaint.

We find that the district court should have granted

appellant's request or her motion for leave to amend,

and that the district court thus acted improperly when

it dismissed the complaint without even addressing

appellant's request or motion to amend. Accordingly,

we will reverse the order of dismissal and remand to the

district court with directions to grant leave to amend

the complaint to include an allegation that

appellee-corporation's state of incorporation is Ohio.

A-3

This action was brought by the parents of Tony W.

Kiser, deceased, to recover damages for his allegedly

wrongful death.' The initial complaint, filed December

5, 1985, alleged that the decedent, while on active duty

as a fireman in the United States Navy, was killed on

February 23, 1984, aboard the U.S.S. Guam, which

was then stationed in the Mediterranean Sea off the

coast of Lebanon. He died from injuries allegedly

caused by the failure and malfunction of certain

component parts of a hatch that allegedly had been

manufactured by the defendants, sold to the Navy and

installed on the U.S.S. Guam.

The initial complaint failed adequately to allege the

basis of the district court's diversity jurisdiction. On

February 6, 1986, then-defendant Eaton Corporation

(“Eaton”) moved to dismiss the complaint for that

reason. On February 11, 1986, appellee

Parker-Hannifin Corporation (“Parker-Hannifin")

joined Eaton's motion to dismiss. Thereafter, on

February 12, 1986, the district court held a telephone

conference with counsel for the parties. Counsel for

appellant Annie C. Kiser (“Kiser”) was informed at that

time that, pending further notification from the court,

the pending motions of Eaton and Parker-Hannifin

required no immediate response from her.’

1. The decedent's father, Everett W. Kiser, died on December

18, 1984. Appellant Annie C. Kiser maintains this action as the

mother of the decedent and as the duly-appointed administratrix of

her husband's estate.

2. A letter to the district court from Leonard A. Busby, Esquire,

attorney for Eaton, dated February 13, 1986, stated in relevant

part: “Your Honor ... informed counsel {during the telephone

conference] that the pending Motions of Eaton Corporation and

Parker-Hannifin on the grounds that the Complaint does not

properly allege the basis for jurisdiction need not be responded to

by plaintiffs pending further notification from Your Honor.”

A-4

One week later, on February 19, 1986, Kiser filed

an amended complaint where she again failed

specifically to allege the state of incorporation of

Parker-Hannifin. The amended complaint did,

however, allege that Parker-Hannifin was not a North

Carolina corporation.’ It also added as defendants

John Does one through five, who were alleged not to be

incorporated, nor to have their principal places of

business, in North Carolina. On March 27, 1986,

Parker-Hannifin filed its answer. Notwithstanding the

district court’s direction that Kiser could defer any

response to the pending motions, the district court

thereafter granted those motions of Parker-Hannifin

and Eaton to dismiss the amended complaint for

insufficient jurisdictional allegations. Kiser v.

Parker-Hanntfin Corp., No. 85-6997, mem. op. at 2

(E.D. Pa. June 9, 1986).

By letter dated June 24, 1986, Kiser’s counsel

asked the district court to vacate its dismissal order,

referring to the district court's February 12th directive

deferring consideration of the motions to dismiss.

There followed another telephone conference involving

counsel and the district court on July 2, 1986, which

resulted in an order vacating the dismissal order of

June 9, 1986,‘ and stipulating to dismissal with

Appendix for Plaintiffs-Appellants at 34a. Neither the district court

nor counsel has suggested that this letter does not recount

accurately the district court's directive on this jurisdictional issue.

3. Kiser is a citizen of North Carolina.

4. Because the record shows that the district court, on

February 12. 1986, informed Kiser’s counsel that

Parker-Hannifin’s pending motion to dismiss did not need to be

answered pending further notification from the court, and because

no such notification was ever given, we conclude that the initial

dismissal order of the district court was inadvertent. Apparently

recognizing this oversight, the district court properly vacated that

dismissal order.

A-5

prejudice on her claims against Eaton and

then-defendant General Electric Corporation. Kiser v.

Parker-Hannifin Corp.. No. 85-6997, stipulation &

order at | (E.D. Pa. July 11, 1986). In addition, this

stipulation and order provided that:

3. Plaintiffs and Defendant, Parker-Hannifin

Corporation shall have thirty (30) days from the

date of [the] July 2, 1986 conference within which

to attempt to resolve plaintiffs’ claim that diversity

jurisdiction is proper; in the event of a failure by

plaintiffs and Parker-Hannifin Corporation to

reach agreement on this issue, it is Stipulated and

Agreed that defendant, Parker-Hannifin

Corporation may move the Court upon the end of

the said thirty (30) day period for reinstatement of

the Order dismissing the Complaint as to

Parker-Hannifin Corporation for lack of diversity

jurisdiction and/or lack of properly pleading the

existence of diversity jurisdiction.

Id. at 1-2.

Kiser’s counsel then attempted to obtain consent

to allow her to amend the complaint to allege that

Parker-Hannifin’s state of incorporation is Ohio.*

Parker-Hannifin, however. would not consent to this

amendment. Appendix for Plaintiffs-Appellants

(“App.”) at 15la 417. On August 28, 1986,

Parker-Hannifin moved to reinstate the June 9th

dismissal order. and, on September 12, 1986, Kiser

5. Kiser’s Motion for Reconsideration of Court's Order

Dismissing the Complaint and for Leave to Amend the Complaint

alleges that. “ibletween July 11, 1986 and August 2, 1986{, her]

counsel and counsel for defendant, Parker-Hannifin, agreed that

defendant's counsel would attempt to obtain the consent of his

client for |Kiser| to amend her complaint to allege defendant's place

of incorporation.” App. at 133a 4 16. Parker-Hannifin’s answer to

this motion admits the same. See App. at 15la 4 16.

A-6

filed its opposition to this motion and requested leave

to amend her complaint. On September 23, 1986, the

district court granted Parker-Hannifin’s motion on the

basis of paragraph three of the July 11th stipulation.

Kiser v. Parker-Hannifin Corp., No. 85-6997, mem. op.

at 4 (E.D. Pa. Sept. 23, 1986). The district court did

not mention, and, thus, apparently did not consider,

Kiser's then-pending request for leave to amend her

complaint.

On October 8, 1986, Kiser moved for

reconsideration of the second dismissal order and,

again, for leave to amend her complaint. This motion

was accompanied by a proposed second amended

complaint stating that Parker-Hannifin is an Ohio

corporation. Parker-Hannifin filed its opposition to

this motion on October 17, 1986, asserting therein for

the first time that the five John Doe defendants

destroyed diversity of citizenship.®

6. Although Parker-Hannifin has also raised this issue

concerning the effect of the inclusion of the five John Doe

defendants in Kiser’s amended complaint on diversity of

citizenship in this appeal, to date this issue has not been addressed

by the district court. Because Kiser. on remand, may seek leave

further to amend her complaint as to these defendants, we decline

to issue what may well be an advisory opinion on this issue.

Judge Becker would address this issue, believing that it

potentially affects our jurisdiction, and he would dismiss the John

Doe defendants on either of two theories. First, noting that John

Doe defendants destroy diversity when their citizenship cannot

truthfully be alleged, Puilman Co. v. Jenkins, 305 U.S. 534, 540

(1939); Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 30-32

(3d Cir. 1985), and further that the John Doe defendants named in

Kiser’s amended complaint are not indispensable parties. Judge

Becker would follow the case law that authorizes their dismissal so

as to preserve (diversity) jurisdiction. See, e.g., Othman v. Globe

Indem. Co., 754 F.2d 1458, 1467 (9th Cir. 1985). Second, Judge

Becker would hold that John Doe defendants should be dismissed

as a matter of course absent a showing by Kiser of why the Does are

A-7

On December 11, 1986, the district court denied

Kiser’s motion for reconsideration and affirmed the

second dismissal order, noting that paragraph three of

the July 11th stipulation mandated that the parties

“shall have thirty (30) days from the date of July 2,

1986 conference within which to attempt to resolve

[Kiser]'s claim that diversity jurisdiction is proper. The

use of the word ‘shall’ indicates that the 30 day time

limit was intended to be mandatory, not permissive.”

Kiser v. Parker-Hannifin Corp., No. 85-6997, mem. op.

at 4(E.D. Pa. Dec. 11, 1986) (original emphasis). At the

time of this final dismissal order, the district court

again did not mention Kiser’s then-renewed motion for

leave to amend her complaint. Our appellate

needed (a showing that he believes will rarely be made because it is

unlikely that an unknown, unnamed defendant would be

indispensable to the litigation). Judge Becker observes that the

principal reason for John Doe pleadings ts protection against the

Statute of limitations. Notwithstanding this rationale, Judge

Becker believes that, in reality. the presence of John Does in the

complaint ts not likely to aid plaintiffs in avoiding statute of

limitations problems. He notes that, absent state law to the

contrary, a defendant who does not receive actual notice of a suit

before the statute has run cannot later be brought into the

litigation, even if that defendant was technically sued under a

fictitious name. See Schiavone v. Fortune, __ U.S. __. 106 S. Ct.

2379, 2385 (1986) (“the linchpin {of Federal Rule cf Civil Procedure

15(c)'s relation-back doctrine] is notice, and notice within the

limitations period”); cf. Talbert v. Kelly, 799 F.2d 62, 66 n. 1 (3d Cir.

1986) (dictum) (naming John Doe in complaint will not toll statute

even if state law provides otherwise).

In sum, because a John Doe pleading ts usually problematic

and is no boon to anyone, Judge Becker would render John Doe

defendants dismissible as a matter of course in federal diversity

litigation. See generally 2A J. Moore, J. Lucas & G. Grotheer,

Moore's Federal Practice § 8.10 at 8-45 (2d ed. 1987) (absent

“unusual circumstances ... the practice [of pleading John Doe

defendants] ts unwarranted in diversity cases brought originally in

the federal courts”).

A-8

jurisdiction over this matter is conferred by 28 U.S.C.

§ 1291 (1982).

II-

The first question we must address is whether the

district court erred when it failed to consider Kiser's

motions for leave to amend her complaint prior to

addressing Parker-Hannifin’s motions to dismiss. The

decision of a district court to grant or deny leave to

amend is reviewed only for an abuse of discretion. See

Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 330-31 (1971); Foman v. Davis, 371 U.S.

178, 182 (1962): Sanders v. Clemco Indus., 823 F.2d

214, 216 (8th Cir. 1987); Lewis v. Curtis, 671 F.2d

779, 783 (3d Cir.), cert. denied, 459 U.S. 880 (1982);

Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of the

Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981),

cert. denied sub nom. F.D. Rich Housing of the Virgin

Islands, inc. v. Government of the Virgin Islands, 455

U.S. 1018 (1982). Even after a responsive pleading has

been filed, however, great liberality in allowing

amendment of an initial pleading is often appropriate,

especially when an amendment will further the ends of

justice, effectuate presentation of a suit’s merits and

not prejudice the opposing party. See generally

Hirshorn v. Mine Safety Appliances Co., 101 F. Supp.

549, 552 (W.D. Pa. 1951), affd, 193 F.2d 489 (3d Cir.

1952). For these reasons, the Federal Rules of Civil

Procedure provide that leave to amend “shall be freely

given when justice so requires.” Fed. R. Civ. P. 15f{a).

“The Federal Rules reject the approach that pleading is

a game of skill in which one misstep by counsel may be

decisive to the outcome and accept the principle that

the purpose of pleading is to facilitate a proper decision

on the merits.” Conley v. Gibson, 355 U.S. 41, 48

(1957). In addition, by federal statute, “{dlefective

allegations of jurisdiction may be amended, upon

A-9

terms, in the trial or appellate courts.” 28 U.S.C.

§ 1653 (1982). This statute applies in particular to

amendments that affect a court's diversity jurisdiction,

and it permits amendments broadly so as to avoid

dismissal of diversity suits on technical grounds. See

Moore v. Coats Co., 270 F.2d 410, 412 (3d Cir. 1959).

Accordingly, it is not only within the power, but it isa

duty. of a federal court to consider on the merits a

proposed amendment of a defective allegation once the

court's attention is called to the defect. See generally

Howard v. De Cordova, 177 U.S. 609, 614 (1900).

In this case, the district court did not mention

Kiser’s requests for leave to amend the complaint in

either of its memorandum opinions. The only apparent

reason for this effective denial of Kiser’s requests was

the parties’ failure to resolve the diversity issue

pursuant to paragraph three of the July llth

stipulation. See Kiser, No. 85-6997, mem. op. at 4

(E.D. Pa. Dec. 11, 1986); Kiser, No. 85-6997, mem. op.

at 3-4 (E.D. Pa. Sept. 23, 1986). The district court

erred, however, when it employed the stipulation to

achieve such a drastic result. The stipulation’s only

mandate was that the parties “shall... attempt” to

resolve Kiser’s claim that diversity jurisdiction ts

proper. Kiser, No. 85-6997. stipulation & order at 1-2

(E.D. Pa. July 11. 1986). It did not direct that the

parties, on pain of dismissal. shall resolve Kiser’s claim

that such jurisdiction is proper. We note that the

record reveals that Kiser did make the required

attempt. and we hold that the district court erred when

it punished Kiser. by dismissing her complaint. for

Parker-Hannifin’s refusal to cooperate with her honest.

albeit belated. efforts to allege a basis for the district

court's jurisdiction.

Parker-Hannifin argues that Kiser had been given

the time from February 13. 1986, to amend her

complaint, This argument fails to take into account the

A-10

district court's February 12th statement that no

response by Kiser to the dismissal motion was

necessary. In addition, Rule 15(a) declares that a party

may amend his or her pleading once as a matter of

course at any time before a responsive pleading is

served. Thereafter. a party may amend his or her

pleading only by leave of court or by written consent of

the adverse party. See Fed. R. Civ. P. 15(a). Because

Kiser had amended her complaint on February 19,

1986, which was prior to the filing of Parker-Hannifin’s

answer on March 27, 1986, she was thereafter

constrained by the mandate of Rule 15(a) from further

amending her complaint as a matter of course. Finally,

we note that “mere delay is not by itself enough to

justify denial of leave to amend.” Sanders, 823 F.2d at

217. The delay, to become a legal ground for denying a

motion to amend, must result in prejudice to the party

opposing the amendment, and it is the opposing

party's burden to prove that such prejudice will occur.

See id.

We are unable to envision any prejudice to

Parker-Hannifin from the proposed amendment;

because allowing this amendment should not affect

Kiser’s tactics or case theories, it will not cause

Parker-Hannifin undue difficulty in preparing its

defense. See Sanders. 823 F.2d at 217 (“The

amendment [plaintiff] seeks would not alter the claims

originally asserted in any way. thus no additional

burden of defense would fall on [defendants].”):

Deakyne v. Commissioners of Lewes, 416 F.2d 290,

300 (3d Cir. 1969). The proposed amendment seeks

merely to allege Parker-Hannifin’s state of

incorporation, a fact that Kiser bears the burden of

proving at trial. The district court's action, which

appears to lack any legal or practical basis, thus

amounts to an outright refusal to grant Kiser leave to

amend, Such an outright refusal, without

A-11

justification, is a clear abuse of discretion and is

inconsistent with the spirit of the Federal Rules, see

Foman, 371 U.S. at 182, especially where the motion

for leave to amend the complaint is accompanied by an

amended complaint that may properly be relied upon

for relief. As in many of these cases, if Kiser’s counsel

had exercised greater diligence and had prepared an

original complaint of the required specificity, the

present problem never would have arisen. Lawyers --

who, like judges, operate under the pressures of time

and demanding schedules -- sometimes, however, fall

short of perfection. Recognizing this fact of legal life,

Rule 15(a) was enacted to create an uncomplicated

method by which pleadings may be amended without

causing serious injustice.

The second question before us is whether the

district court properly dismissed Kiser’s complaint.

The dismissal of a complaint, by the district court, for

failure adequately to allege jurisdiction is subject to

plenary review. See Medical Fund-Philadelphia

Geriatric Center v. Heckler, 804 F.2d 33, 36 (3d Cir.

1986). We conclude that the district court erred as a

matter of law when it granted Parker-Hannifin's

second motion to reinstate the June 9th dismissal

order and denied Kiser’s motion to reconsider. First.

the district court's February 12th directive

understandably dissuaded Kiser from opposing the

initial motion to dismiss. In granting the motion to

reinstate dismissal. the district court effectively

reinstated what we regard as an inadvertent dismissal

order. Second, the July 11th stipulation did not

provide the district court with an adequate basis for

dismissal. Instead, it merely permitted

Parker-Hannifin to move for reinstatement, which is a

far cry from providing that defendant with an

A-12

automatic right to dismissal. Finally, as we explained

in the preceding section, Kiser’s request for leave to

amend the complaint should have been considered by

the district court before it acted on Parker-Hannifin's

motions to dismiss Courts must be cautious in

assessing motions to dismiss, particularly where

granting such a motion would terminate the litigation

before the parties have had their day in court. See

Vogelstein v. National Screen Serv. Corp., 204 F.

Supp. 591, 595 (E.D. Pa.), affd, 310 F.2d 738 (3d Cir.

1962), cert. denied, 374 U.S. 840 (1963).

IV.

We must conclude by noting that Kiser has filed

with this Court a document from the Secretary of the

Stace of Ohio. It certifies that Parker-Hannifin is an

Ohio corporation, was incorporated there on December

30, 1938 and has its principal location in Cleveland,

Ohio. While this fact of course should have been pled by

Kiser in her original complaint, we find it somewhat

disturbing that counsel for Parker-Hannifin refuses

even to acknowledge that the Ohio certificate

accurately describes Parker-Hannifin’s incorporation

and place of business.’ The district court's July 11th

order placed Kiser in the precarious position of relying

on Parker-Hannifin's good faith to stipulate the

obvious fact of its own incorporation. By refusing to

stipulate to what now appears to be the truth,

oe We note the following statements from oral argument to this

Court:

THE COURT: [Alre you asserting before us that your client does

not have [its] principal place of business in Ohio .... and

|denying that] it’s incorporated in Ohio?

MR. O'BRIEN: | frankly don’t know personally, Your Honor... .

| can't assert that one way or another.

A-13 ¢

Parker-Hannifin was then in a position to preclude

Kiser from amending the complaint, thereby

unilaterally defeating her action. Such a procedure

encourages gamesmanship, not candor with our

courts, and cannot be sanctioned.

V.

For the foregoing reasons, we will dismiss the Doe

defendants from Kiser’s complaint, reverse the

dismissal order of the district court and grant Kiser’s

motion for leave to amend her complaint.

THE COURT: You mean [that.| after all of this time{.| with all

the counsel fees that have been paid in litigating this{.) that

you don't know [if] -- [that you] have not made inquiry as to

whether |--] your client is incorporated in Ohio and its principal

place of business is in Ohio?

MR. O'BRIEN: No. I have not. Your Honor.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circuit

A-14

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-1023

KISER, ANNIE C. and

KISER, ANNIE C. as Administratrix of

the Estate of KISER, EVERETT W.

Appellant

v.

GENERAL ELECTRIC CORPORATION

PARKER-HANNIFIN CORPORATION and

EATON CORPORATION and

DOES 1-5

On Appeal from the United States District

Court for the Eastern District

of Pennsylvania

(D.C. Civil Action No. 85-6997)

Argued July 6, 1987

Before: HIGGINBOTHAM and BECKER,

Circuit Judges, and

BARRY, District Judge.*

(Filed October 14, 1987)

* Honorable Maryanne Trump Barry, United States District Judge

for the District of New Jersey, sitting by designation.

A-15

ORDER AMENDING OPINION

It is ordered that the slip opinion of this Court filed

October 14, 1987, be amended as follows:

(1) On page 7, footnote 6, in the fourth line of

the final paragraph, the characters “2A” should

appear in regular, not bold, typeface.

(2) On page 10, line 8, “Fed. R. Civ. P.” should

appear in bold typeface.

(3) On page 13, delete “dismiss the Doe

defendants from Kiser’s complaint.” from section

V.

BY THE COURT.

A. Leon Higginbotham

Circuit Judge

Dated: October 27, 1987

A True Copy:

Teste:

Clerk of the Linited States Court of Appeals

Sor the Third Circuit

(A.O. U.S. Courts. G.M.C. Printing, Phila., Pa. 215-568-4264)

A-16

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

C.A. No. 85-6997

ANNIE C. KISER and ANNIE C. KISER

as Administratrix of the Estate

of EVERETT W. KISER

V.

GENERAL ELECTRIC CORPORATION,

PARKER-HANNIFIN CORPORATION,

and EATON CORPORATION

MEMORANDUM OPINION AND ORDER

WEINER, J. DECEMBER 11, 1986

Plaintiff, a citizen of North Carolina, brought this

action, alleging that the defendants do business in

Pennsylvania. In a Memorandum Opinion and Order

dated June 9, 1986, we granted the motions of defen-

dants Eaton Corporation and Parker-Hannifin Corpora-

tion to dismiss since the complaint did not contain any

allegations as to the place of incorporation and the

principal place of business of the corporate parties for

the purpose of establishing diversity jurisdiction under

the diversity statute. In the same Memorandum Opinion

and Order, we granted the motion of defendant General

Electric Company to dismiss for failure of the plaintiff to

file a brief in opposition within thirteen (13) days as

provided by Local Rule 20. Following a telephone con-

ference with all parties on July 2, 1986, the court

adopted and entered as the order of the court on July 11,

1986, the following stipulation:

; A-17_

“1. The order dated June 9, 1986 marked as having

been entered by the Clerk of the Court on June 11, 1986,

granting the motions of the Eaton Corporation and

Parker-Hannifin Corporation to dismiss is hereby va-

cated.-

2. Plaintiffs hereby stipulate to the dismissal with

prejudice of all claims asserted, or which could be

asserted, against defendants Eaton Corporation and

General Electric Company.

3. Plaintiffs and defendant, Parker-Hannifin Corpo-

ration shall have thirty (30) days from the date of July 2,

1986 conference within which to attempt to resolve

plaintiff’s claim that diversity jurisdiction is proper; in

the event of a failure by plaintiffs and Parker-Hannifin

Corporation to reach agreement on this issue, it is

. Stipulated and Agreed that defendant, Parker-Hannifin

Corporation may move the Court upon the end of the

said thirty (30) days period for reinstatement of the

Order dismissing the Complaint as to Parker-Hannifin

Corporation for lack of diversity jurisdiction and/or lack

of properly pleading the existence of diversity jurisdic-

tion. :

4. Defendant, Parker-Hannifin Corporation shall

decide within the aforementioned thirty (30) day period

whether or not it will dismiss with prejudice all claims it

has asserted or intends to assert against Eaton Corpora-

tion and General Electric Corporation; if Parker-

Hannifin Corporation decides not to agree to such a

dismissal, defendants Eaton Corporation and General

Electric Company may file any Motion that they deem

appropriate with respect to the said claims of Parker-

Hannifin Corporation.”

When the parties were unable to resolve the diver-

sity issue within the thirdy day period, Parker-Hannifin

Corporation, pursuant to paragraph three of the stipula-

tion, filed a motion on August 28, 1986, to reinstate the

A-18

part of or Order of June 9, 1986 dismissing the com-

plaint as to Parker-Hannifin Corporation. In a Memoran-

dum Opinion and Order dated September 23, 1986, we

reinstated that part of our Order dated June 9, 1986

dismissing the complaint as to Parker-Hannifin

Corporation.' We based our decision on the fact that

since the parties were unable to resolve the diversity

issue by August 2, 1986, we were unable to establish

jurisdiction under the diversity statute. Presently before

the court is the motion of plaintiff for reconsideration of

our Order of September 23, 1986 dismissing the com-

plaint as to Parker-Hannifin Corporation. After careful

reconsideration, we affirm our Memorandum Opinion

and Order of September 23, 1986.

In support of her motion for reconsideration, plain-

tiff makes the following assertions:

“1. Between July 11, 1986 and August 2, 1986

plaintiff’s counsel and counsel for defendant, Parker-

Hannifin, agreed that defendant’s counsel would at-

tempt to obtain the consent of his client for plaintiff to

amend her complaint to allege defendant’s place of

incorporation.

2. As of August 2, 1986 defense counsel had not

received a definite answer from his client on this ques-

tion. Plaintiff’s counsel informed defense counsel that

she would be on vacation during the month of August

and defense counsel assured her that, during that time,

he would continue to attempt to obtain the Stipulation

from his client and would not move to reinstate the

Order of Dismissal. Counsel also agreed that out of an

abundance of caution, it would be a good idea for

plaintiff to file a Notice of Appeal in case the reinstate-

ment was done automatically.

1. Plaintiff took an appeal from our Order of September 23,

1986 to the United States Court of Appeals for the Third Circuit. In

an Order dated September 9, 1986, the Court of Appeals dismissed

the case for failure to order a transcript of the proceedings in the

lower court as required. The case was not remanded to this court.

A-19

3. When plaintiff returned from vacation on approx-

imately August 26, 1986, she was informed by counsel

for defendant, Parker-Hannifin that his client would not

stipulate to the requisite amendment and that he was

moving to reinstate the Court’s order. Plaintiff then filed

an opposition to said motion and asked the Court for

leave to amend her complaint.

4. Had plaintiff’s counsel known prior to August 2,

1986, that Parker-Hannifin would not stipulate to an

amendment, counsel would have moved to amend the

complaint prior to August 2, 1986. However, in the

hopes that a formal motion to the Court would be

unnecessary, and relying on the good faith of Parker-

Hannifin’s counsel, plaintiff refrained from making such

a motion.”

However meritorious those assertions may be, they

do not persuade us to vacate our Order of September 23,

1986. We note that paragraph three of the stipulation

which was entered as the order of the court on July 11,

1986, specifically states that the parties “shall have

thirty (30) days from the aate of July 2, 1986 conference

within which to attempt to resolve plaintiff’s claim that

diversity jurisdiction is proper.” (emphasis added). The

use of the word “shall” indicates that the 30 day time

limit was intended to be mandatory, not permissive.

Since plaintiff brought this action the burden was on her

to establish diversity jurisdiction over Parker-Hannifin

Corporation by the August 2, 1986 deadline. The court

believes it was more than lenient in approving what

amounted to a 30-day grace period in which the plaintiff

could correct her complaint by pleading the state of

incorporation of Parker-Hannifin. However, she failed to

do so. ;

Plaintiff asserts as a reason for not having complied

with the August 2, 1986 deadline that as of August 2,

1986, defense counsel indicated that he had not received

a definite answer from his client as to whether his client

would consent to plaintiff amending her complaint to

A-20

allege defendant’s place of incorporation. Defendant

denies this assertion and states that he advised plain-

tiff’s counsel on August 5, 1986 that his client would not

agree to a stipulation. If plaintiff wanted additional time

to resolve the diversity issue, she should have filed a

motion with the court for an extension of time. Since we

are still unable to establish jurisdiction under the diver-

sity statute over defendant Parker-Hannifin Corporation,

we affirm our Memorandum Opinion and Order of

September 23, 1986.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

C.A. No. 85-6997

ANNIE C. KISER and ANNIE C. KISER

as Administratrix of the Estate

of EVERETT W. KISER

V.

GENERAL ELECTRIC CORPORATION,

PARKER-HANNIFIN CORPORATION,

and EATON CORPORATION

ORDER

After careful reconsideration, we AFFIRM our Or-

der of September 23, 1986 dismissing the complaint as

to defendant Parker-Hannifin Corporation.

IT IS SO ORDERED.

CHARLES R. WEINER