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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 906

## Text

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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1212%3A1. Public record. Not legal advice.