MARIA TERESA PADILLA GARCIA ET AL., PLAINTIFFS, APPELLANTS,
v.
RAFAEL BERNABE, DEFENDANT, APPELLEE
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The court held that the complaint's allegations of residence were insufficient to establish diversity jurisdiction, but allowed for amendment to cure this defect.
Plaintiffs alleged they were residents of New York, but failed to allege the defendant's residence or citizenship. The district court dismissed the co…
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PER CURIAM.
This is an appeal from an order of the United States District Court for the District of Puerto Rico which dismissed the complaint. We note that the complaint is deficient in allegations necessary to establish the jurisdiction of the district court, although this was not the ground on which the district court dismissed. The complaint alleges that “plaintiffs Maria Teresa, Maria Ana y [sic] Maria Luisa Padilla Garcia are actual residents of the State of New York, having resided abroad for more than 20 years.” There is no allegation of defendant’s residence or citizenship.
The only possible basis for the district court’s jurisdiction of the instant action is diversity of citizenship of the parties under either 28 U.S.C. § 1332(a) (1) (1958), or § 41 of the Jones Act, 39 Stat. 965 (1917), 48 U.S.C.A. § 863, now known as the Puerto Rican Federal Relations Act, see Public Law 600, §§ 4 and 5, 64 Stat. 319, 320, 48 U.S.C.A. §§ 731e and note, 737 note. The allegations of residence are insufficient to establish jurisdiction on the basis of either statute. Realty Holding Co. v. Donaldson, 1925, 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014; Brooks v. Yawkey, 1 Cir., 1953, 200 F. 2d 663, 664. Under 28 U.S.C. § 1653 (1958) amendment of the complaint may be granted to correct such defective allegations.
In accordance with the procedure followed in Brooks v. Yawkey, supra, and Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F. 2d 815, we shall allow 20 days from the date of this opinion for the filing in this court of a motion under 28 U.S.C. § 1653 for leave to amend. If such a motion to amend is filed and allowed, we shall proceed to dispose of the appeal on the merits. Otherwise, we shall be obliged to vacate the district court’s judgment of dismissal, which was on the merits and with prejudice, and direct the district court to enter judgment dismissing the complaint for lack of jurisdiction. See Keene Lumber Co. v. Leventhal, supra, note 1 at page 818 of 165 F. 2d.
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Citator
Cited By
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Garcia v. Bernabe, 289 F.2d 690 (1st Cir. 1961)
Authorities Cited
- Realty Holding Co. v. Donaldson, 268 U.S. 398 (U.S. 1925)
- Keene Lumber Co. v. Leventhal, 165 F.2d 815 (1st Cir. 1948)
- Brooks v. Yawkey, 200 F.2d 663 (1st Cir. 1953)