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George McGOVERN, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., et al., Defendants-Appellees

United States Court of Appeals for the Fifth Circuit1975-04-18No. No. 74-2362
511 F.2d 653

Summary

Holding. The district court properly dismissed for lack of subject matter jurisdiction where the plaintiff failed to distinctly and affirmatively allege complete diversity, explicitly disclaimed federal question jurisdiction, and refused to attempt amendment despite notice of the defect. The dismissal was affirmed.

George McGovern sued several corporations in federal court, claiming they violated state and federal election laws by contributing to Richard Nixon's presidential campaign. He sought damages equal to double the amounts contributed. The district court dismissed his complaint without prejudice, citing defective jurisdictional allegations and other pleading defects. McGovern did not attempt to refile with corrected allegations. Instead, he moved to vacate the dismissal while maintaining his original complaint was correct, and the district court dismissed again without prejudice.

On appeal, McGovern claimed diversity jurisdiction as his sole basis for federal court jurisdiction, explicitly abandoning any reliance on federal question jurisdiction. However, his complaint failed to clearly and affirmatively allege that the defendant corporations were incorporated and had their principal places of business in states other than South Dakota—he merely stated they were incorporated in states "other than South Dakota" without negating the possibility that they might also be incorporated in South Dakota. Because McGovern showed no willingness to cure the jurisdictional defect even after being put on notice, and there was no indication the defect could likely be remedied, the court declined to allow amendment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a plaintiff must distinctly and affirmatively allege complete diversity jurisdiction
  • Whether a court must allow amendment of defective jurisdictional allegations when plaintiff shows no inclination to cure the defect
  • Standards for dismissal without prejudice for jurisdictional defects

Procedural posture

McGovern appealed from a district court dismissal without prejudice for lack of subject matter jurisdiction based on defective diversity allegations.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

George McGovern filed a complaint in the United States District Court for the Southern District of Texas, alleging that certain corporations were civilly liable to him in double the amount each had contributed to candidate for President Richard M. Nixon, in violation of Article 14.-07 of the Texas Election Code, V.A.T.S., as well as of 18 U.S.C. § 610, a federal criminal statute. Defendant Gulf Oil Corporation moved to dismiss the complaint for lack of standing and failure to state a claim upon which relief could be granted. The district court granted Gulf’s motion without prejudice, on grounds that McGovern had failed to allege a jurisdictional basis and venue. The court’s order also referred to the possible unavailability of a private cause of action under 18 U.S.C. § 610. Rather than refile as he was invited to by the court, McGovern stood on his complaint and moved to vacate, amend and/or cancel the dismissal of Gulf Oil Corporation. Both in his motion and in his brief in support of his motion, McGovern stated that the sole allegation of jurisdiction was diversity, and he specifically disclaimed reliance on federal question jurisdiction. The court again found the jurisdictional allegation inadequate and dismissed as to all defendants without prejudice nunc pro tunc. This appeal followed.

The burden is on a plaintiff to allege and invoke jurisdiction. McGovern having chosen diversity and having expressly abandoned reliance on the federal question as a jurisdictional ground, we have no choice but to’ take him at his word. Clearly, the trial court was correct in finding deficient, allegations of diversity. McGovern’s complaint reads:

1. Plaintiff is a citizen of South Dakota. Defendants are corporations incorporated and having their principal places of business in states other than South Dakota. The matter in controversy exclusive of interest and costs is for a sum in excess of TEN THOUSAND DOLLARS ($10,000.00).

When jurisdiction depends on citizenship, citizenship should be “distinctly and affirmatively alleged.” 2A Moore’s Federal Practice ¶ 8.10 at 1662; Wright & Miller, Federal Practice & Procedure § 1208. Centraal Stikstof Verkoopkantoor v. Pensacola Port Authority, 205 F.Supp. 724, 725 (N.D.Fla.1962), aff’d 316 F.2d 189 (5th Cir. 1963); Bryant v. Harrelson, 187 F.Supp. 738, 739 (S.D.Tex.1960). There is nothing in plaintiff’s complaint to negate the conclusion, for example, that these companies are also incorporated in South Dakota, incorporation in more than one state being a viable possibility.

Having found a jurisdictional defect, the court did not abuse its discretion in dismissing without prejudice. Indeed, McGovern did not even offer to change his jurisdictional pleadings in his motion to vacate, convinced they were correct despite the trial court’s specific reference to jurisdictional defects in its original dismissal order. On this record, therefore, it appears giving McGovern a chance to amend would not have cured the jurisdictional defect. He continues to maintain in this court that the clearly defectivo, allegation of diversity jurisdiction is without error.

The facts as stated above compel us to reject the plea to allow a chance to amend based on 28 U.S.C. § 1653. Certainly, the section should be construed liberally, bet where as here there is no indication in the record that diversity in all probability exists and the appellant has shown in a second plea to the trial court no inclination to cure the jurisdictional defect even though on notice of the defect, we decline to allow appellant an opportunity to amend. John Birch Society v. National Broadcasting Co., 377 F.2d 194 (2d Cir. 1967).

Affirmed.

. In view of our disposition of this case, we need not reach other issues discussed by the trial court.

. “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”

. See Kaufman v. Western Union Telegraph Co., 224 F.2d 723, 725 (5th Cir. 1955), cert. denied, 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825 (1956); Firemen’s Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349, 350 (5th Cir.), cert. denied, 368 U.S. 875, 82 S.Ct. 122, 7 L.Ed.2d 77 (1961); Niagara Fire Ins. Co. v. Dyess Furniture Co., 292 F.2d 232, 232-33 (5th Cir. 1961).

. Contrary to the situation in Kaufman, supra.