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Dan Goodman

On June 30, 2010, complaint was filed in the Superior Court of Allegany City, New York. The plaintiff, Paul D. Ceglia. The defendants, Mark Elliot Zuckerberg and Facebook, Inc.

Ceglia alleged that Zukerberg, CEO of Facebook, had defrauded him of ownership interest in the Facebook corporation.

“Plaintiff Ceglia asserts that Zuckerberg needed funding to complete development of the ‘The Face Book’ and that the parties then entered into a written agreement under which Ceglia paid $1,000 for a 50% ownership in Zuckerberg’s contemplated product. . . . .

Plaintiff asserts that the alleged agreement created a partnership between Ceglia and Zuckerberg, and he then argues that it is this partnership that holds rights to the product developed thereunder – to wit, Facebook.” [Footnote 1]

http://www.pagemillpublishing.net/VCLRSample.pdf

(see pages 4801 thru 4802, Ceglia’s Alleged Contract with Zuckerberg)

 

On the First Amended Complaint, filed April 11, 2011, Ceglia is aver to be:

“5. Plaintiff Ceglia is a resident of Wellsville, New York with an address of 2558 Hanover Hill Road, Wellsvile, New York.”

While Zuckerberg is aver to be:

“6. Defendant Zuckerberg currently resides in California.”

As for Face book, Incorporated, it is aver to be:

“7. Defendant Facebook, Inc. is a corporation organized under the laws of the State of Delaware and maintains it principal place of business in Palo Alto, California. Facebook, Inc. was incorporated on July 29, 2004, under the name of TheFaceBook, Inc. On September 30, 005, it changed its name to Facebook, Inc.”

http://www.scribd.com/full/52865353?access_key=key-1io555tf3t1qlswj4sth

 

For purposes of diversity of citizenship, Facebook, Incorporated is a citizen of the State of Delaware and the State of California.

However, for purposes of diversity of citizenship, the state citizenship of Ceglia and Zuckerberg are not given. Residence is not the same as citizenship. In addition, Ceglia is not aver to be a citizen of the United States, nor is Zuckerberg.

On these points:

“. . .    [T]he jurisdiction of the circuit court fails, unless the necessary citizenship affirmatively appears in the pleadings or elsewhere in the record.’   . . .   The burden is on the plaintiff to affirmatively allege the essential elements of diversity jurisdiction.  See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188-89.

McCracken alleges that {the} Ford is incorporated in Delaware and headquartered in Michigan.  Thus, Ford is considered a citizen of both Delaware and Michigan.  The plaintiff alleges that he is a citizen of the United States, but does not make any allegation as to his state citizenship.  He alleges that he has resided principally in Pennsylvania, New York and Delaware over the past ten years.  These allegations do not establish McCracken’s state citizenship.

 

Since the plaintiff has failed to allege the citizenship of one of the parties to this action, he has not affirmatively alleged the essential elements of diversity jurisdiction.  Accordingly, the court is deprived of jurisdiction and this action is dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.” McCracken v. Ford Motor Company et. al. (Eastern District of Pennsylvania), Civil Action, No. 07-CV-2018, Memorandum Decision, 2009.

 

http://www.paed.uscourts.gov/documents/opinions/09d0519p.pdf

 

 

Too this is the case of Sun Printing & Publishing Association v. Edwards (194 U.S. 377, 1904).

Syllabus:

The facts, which involved the sufficiency of averments and proof of diverse citizenship to maintain the jurisdiction of the United States Circuit Court, are stated in the opinion of the court.

Opinion:

We come to the contention that the citizenship of Edwards was not averred in the complaint or shown by the record, and hence jurisdiction did not appear.

In answering the question, whether the Circuit Court had jurisdiction of the controversy, we must put ourselves in the place of the Circuit Court of Appeals, and decide the question with reference to the transcript of record in that court.

Had the transcript shown nothing more as to the status of Edwards than the averment of the complaint that he was a ‘resident of the State of Delaware,’ as such an averment would not necessarily have imported that Edwards was a citizen of Delaware, a negative answer would have been impelled by prior decisions. Mexican Central Ry. Co. v. Duthie, 189 U.S. 76; Horne v. George H. Hammond Co., 155 U.S. 393; Denny v. Pironi, 141 U.S. 121; Robertson v. Cease, 97 U.S. 646. The whole record, however, may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such allegation, that is sufficient. Horne v. George H. Hammond Co., supra and cases cited.

As this is an action at law, we are bound to assume that the testimony of the plaintiff contained in the certificate of the Circuit Court of Appeals, and recited to have been given on the trial, was preserved in a bill of exceptions, which formed part of the transcript of record filed in the Circuit Court of Appeals. Being a part of the record, and proper to be resorted to in settling a question of the character of that now under consideration, Robertson v. Cease, 97 U.S. 648, we come to ascertain what is established by the uncontradicted evidence referred to.

In the first place, it shows that Edwards, prior to his employment on the New York Sun and the New Haven Palladium, was legally domiciled in the State of Delaware. Next, it demonstrates that he had no intention to abandon such domicil, for he testified under oath as follows: ‘One of the reasons I left the New Haven Palladium was, it was too far away from home. I lived in Delaware, and I had to go back and forth. My family are over in Delaware.’ Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil, and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350.

As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 thru 383 (1904).

http://books.google.com/books?id=tekGAAAAYAAJ&pg=PA381#v=onepage&q&f=false

 

On the point of residence:

In the oral argument before this court, the inquiry arose, whether since the adoption of the Fourteenth Amendment to the Federal Constitution the mere allegation of residence in Illinois did not make such a prima facie case of citizenship in that State as, in the absence of proof, should be deemed sufficient to sustain the jurisdiction of the Circuit Court. That amendment declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside.’ It was suggested that a resident of one of the States is prima facie either a citizen of the United States or an alien, — if a citizen of the United States, and also a resident of one of the States, he is, by the terms of the Fourteenth Amendment, also a citizen of the State wherein he resides, — and if an alien, he was entitled in that capacity to sue in the Federal court, without regard to residence in any particular State. It is not to be denied that there is some force in these suggestions, but they do not convince us that it is either necessary or wise to modify the rules heretofore established by a long line of decisions upon the subject of the jurisdiction of the Federal courts. Those who think that the Fourteenth Amendment requires some modification of those rules, claim, not that the plaintiff's residence in a particular State necessarily or conclusively proves him to be a citizen of that State, within the meaning of the Constitution, but only that a general allegation of residence, without indicating the character of such residence, whether temporary or permanent, made a prima facie case of right to sue in the Federal courts. As the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, the presumption now, as well as before the adoption of the Fourteenth Amendment, is, that a cause is without its jurisdiction unless the contrary affirmatively appears. In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively, and with equal distinctness, in other parts of the record. And so where jurisdiction depends upon the alienage of one of the parties. In Brown v. Keene (8 Pet. 115), Mr. Chief Justice Marshall said: ‘The decisions of this court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.’ Here the only fact averred, or appearing from the record, is that Cease was a resident of Illinois; and we are, in effect, asked, in support of the jurisdiction of the court below, to infer argumentatively, from the mere allegation of ‘residence,’ that, if not an alien, he had a fixed permanent domicile in that State, and was a native or naturalized citizen of the United States, and subject to the jurisdiction thereof. By such argumentative inferences, it is contended that we should ascertain the fact, vital to the jurisdiction of the court, of his citizenship in some State other than that in which the suit was brought. We perceive nothing in either the language or policy of the Fourteenth Amendment which requires or justifies us in holding that the bare averment of the residence of the parties is sufficient, prima facie, to show jurisdiction. The judgment must, therefore, be reversed, upon the ground that it does not affirmatively appear from the record that the defendant in error was entitled to sue in the Circuit Court.” Robertson v. Cease: 97 U.S. 646, at 648 thru 650 (1878).

http://books.google.com/books?id=utkFAAAAYAAJ&pg=PA648#v=onepage&q&f=false

 

Unless one avers to be a citizen of the United States, it will be presumed that one is not a citizen of the United States:

“The petition avers, that the plaintiff, Richard Raynal Keene, is a citizen of the state of Maryland; and that James Brown, the defendant, is a citizen or resident of the state of Louisiana, holding his fixed and permanent domicil in the parish of St. Charles. The petition, then, does not aver positively, that the defendant is a citizen of the state of Louisiana, but in the alternative, that he is a citizen or a resident. Consistently with this averment, he may be either.

. . . A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicil; but the petition DOES NOT AVER that the plaintiff is a citizen of the United States. . . .

The decisions of this court require, that the averment of jurisdiction shall be positive, and that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.

The answer of James Brown asserts, that both plaintiff and defendant are citizens of the State of Louisiana.

Without indicating any opinion on the question, whether any admission in the plea can cure an insufficient allegation of jurisdiction in the declaration, we are all of opinion that this answer does not cure the defect of the petition. If the averment of the answer may be looked into, the whole averment must be taken together. It is that both plaintiff and defendant are citizens of Louisiana.” Brown v. Keene: 33 U.S. (Peters 8) 112, at 115 thru 116 (1834). [Footnote 2]

http://books.google.com/books?id=DUUFAAAAYAAJ&pg=PA115#v=onepage&q&f=false

 

Since there is no averment of state citizenship, as well as averment of United States citizenship, then a federal court would lack jurisdiction. Presumably, Ceglia and Zuckerberg are citizens of the United States. If not, then being citizens of a State, they would only have to aver being a citizen of a State of the Union. [Footnote 3]

 

________________________

Footnotes:

 

1. On July 9, 2010 the case was removed to the U.S. District Court, Western District of New York. And is still there:

http://dockets.justia.com/docket/new-york/nywdce/1:2010cv00569/

 

2. One who is a citizen of the United States, under the Fourteenth Amendment, is to aver that he or she is a citizen of the United States AND a citizen of a State of the Union:

“The bill filed in the Circuit Court by the plaintiff, McQuesten, alleged her to be ‘a citizen of the United States and of the State of Massachusetts, and residing at Turner Falls in said State,’ while the defendants Steigleder and wife were alleged to be ‘citizens of the State of Washington, and residing at the city of Seattle in said State.’ Statement of the Case, Steigleder v. McQuesten: 198 U.S. 141 (1905). {After the Fourteenth Amendment}

The averment in the bill that the parties were citizens of different States was sufficient to make a prima facie case of jurisdiction so far as it depended on citizenship.’ Opinion, Steigleder v. McQuesten: 198 U.S. 141, at 142 (1905). {After the Fourteenth Amendment}

http://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA141#v=onepage&q&f=false

 

3. See my works:

“Two Distinct State Citizens For Purposes of Diversity Of Citizenship”

http://www.jdsupra.com/post/documentViewer.aspx?fid=b6862bd9-e7a4-4215-bf24-881db524e76f

“Diversity of Citizenship includes a Citizen of a State who is not a Citizen of the United States”

http://www.jdsupra.com/post/documentViewer.aspx?fid=ea3588f3-a773-41c1-9107-c0a7a2ae7383

“Diversity of Citizenship and a Citizen of a State who is not a Citizen of the United States”

http://www.jdsupra.com/post/documentViewer.aspx?fid=532b04e7-9ef2-46a8-a9c4-f8ce95109223

“Diversity of Citizenship and a Citizen of the United States”

http://www.jdsupra.com/post/documentViewer.aspx?fid=e98329b4-8a1b-4946-9a40-2bfee2d69485

 

USA 20 March 2012. In any State of the Union, since the adoption of the Fourteenth Amendment and the Slaughterhouse Cases, there are now two distinct state citizens. The first is recognized at Article IV, Section 2, Clause 1 of the Constitution:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

The next is recognized at Section 1, Clause 1 of the Fourteenth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The difference between them is a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution is not a citizen of the United States, but a citizen of the several States:

“The Fourteenth Amendment declares that citizens of the United States are citizens of the state within they reside; therefore the plaintiff was at the time of making her application, a citizen of the United States and a citizen of the State of Illinois.

We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the fourteenth amendment.” Bradwell v. the State of Illinois: 83 U.S. 130, at 138 (1873).

http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA138#v=onepage&q=&f=false

“There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of another State.” Harris v. Balk: 198 U.S. 215, at 223 (1905).

http://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA223#v=onepage&q=&f=false

“In speaking of the meaning of the phrase ‘privileges and immunities of citizens of the several States,’ under section second, article fourth, of the Constitution, it was said by the present Chief Justice, in Cole v. Cunningham, 133 U.S. 107, that the intention was ‘to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions.’ “ Maxwell v. Dow: 176 U.S. 581, at 592 (1900).

http://books.google.com/books?id=8toGAAAAYAAJ&pg=PA592#v=onepage&q&f=false

 

Privileges and immunities of a citizen of the United States are located in the Fourteenth Amendment, at Section 1, Clause 2 and arise “out of the nature and essential character of the Federal government, and granted or secured by the Constitution” (Duncan v. State of Missouri: 152 U.S. 377, at 382, 1894) or, in other words, “owe their existence to the Federal government, its National character, its Constitution, or its laws” (Slaughterhouse Cases: 83 U.S. (16 Wall.) 38, at 79, 1873).

http://books.google.com/books?id=ZGkUAAAAYAAJ&pg=PA382#v=onepage&q&f=false

http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA79#v=onepage&q=&f=false

 

 

Privileges and immunities of a citizen of the several States are those described in Corfield v. Coryell decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1825:

“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.”  Hodges v. United States: 203 U.S. 1, at 15 (1906).

 

http://books.google.com/books?id=HuEGAAAAYAAJ&pg=PA15#v=onepage&q=&f=false

 

 

Privileges and immunities of a citizen of the United States are not the same as privileges and immunities of a citizen of the several States:

 

“We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section (Section 1, Clause 2 of the Fourteenth Amendment), which is the one mainly relied on by the plaintiffs in error, speaks ONLY of privileges and immunities of citizens of the United States, and does not speak of those (privileges and immunities) of citizens of the several States.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873). [Footnote 1]

http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA74#v=onepage&q=&f=false

 

Therefore, there are two distinct state citizens:

“Because the ordinance and specifications, under which the paving in this case was done, require the contractor to employ only bona fide resident citizens of the city of New Orleans as laborers on the work, it is contended, on behalf on the plaintiff in error, that thereby citizens of the State of Louisiana, and of each and every State and the inhabitants thereof, are deprived of their privileges and immunities under article 4, sec. 2, and under the Fourteenth Amendment to the Constitution of the United States.  It is said that such an ordinance deprives every person, not a bona fide resident of the city of New Orleans, of the right to labor on the contemplated improvements, and also is prejudicial to the property owners, because, by restricting the number of workmen, the price of the work is increased.

 

Such questions are of the gravest possible importance, and, if and when actually presented, would demand most careful consideration; but we are not now called upon to determine them.

 

In so far as the provisions of the city ordinance may be claimed to affect the rights and privileges of citizens of Louisiana and of the other States, the plaintiff in error is in no position to raise the question.  It is not alleged, nor does it appear, that he is one of the laborers excluded by the ordinance from employment, or that he occupies any representative relation to them.  Apparently he is one of the preferred class of resident citizens of the city of New Orleans.” Chadwick v. Kelley: 187 U.S. 540, at 546 (1903). [Footnote 2] [Footnote 3]

http://books.google.com/books?id=bdkGAAAAYAAJ&pg=PA546#v=onepage&q=&f=false

 

Article III, Section 2 of the Constitution of the United States of America provides that “[t]he judicial Power shall extend to controversies between Citizens of different States.” Jurisdiction then of the courts of the United States is declared to extend to controversies between “citizens of different States.”

A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is considered to be “citizens of different States” under this provision of the Constitution:

“The next inquiry, growing out of this part of the clause, is, who are to be deemed citizens of different States, within the meaning of it. Are all persons born within a State to be always deemed citizens of that State, notwithstanding any change of domicil? Or does their citizenship change with their change of domicil? The answer to this inquiry is equally plain and satisfactory. The Constitution having declared, that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, every person, who is a citizen of one State, and removes into another, with the intention of taking up his residence and inhabitancy there, becomes ipso facto a citizen of the State, where he resides; and he then ceases to be a citizen of the State, from which he has removed his residence. Of course, when he gives up his new residence, or domicil, and returns to his native, or other State residence or domicil, he reacquires the character of the latter. What circumstances shall constitute such a change of residence or domicil, is an inquiry, more properly belonging to a treatise upon public or municipal law, than to commentaries upon constitutional law. In general, however, it may be said, that a removal from one State into another, with an intention of residence, or with a design of becoming an inhabitant, constitutes a change of domicil, and of course a change of citizenship. But a person, who is a native citizen of one State, never ceases to be a citizen thereof, until he has acquired a new citizenship elsewhere.” A Familiar Exposition Of The Constitution Of The United States . . . ; Joseph Story, LL. D.; (Boston: Marsh, Capen, Lyon, and Webb); 1840; Section 344, Page 207.

http://books.google.com/books?id=Aew9AAAAIAAJ&pg=PA207#v=onepage&q&f=false

 

A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, only has to aver that he or she is a citizen of a State of the Union:

“The petition avers, that the plaintiff, Richard Raynal Keene, is a citizen of the state of Maryland; and that James Brown, the defendant, is a citizen or resident of the state of Louisiana, holding his fixed and permanent domicil in the parish of St. Charles. The petition, then, does not aver positively, that the defendant is a citizen of the state of Louisiana, but in the alternative, that he is a citizen or a resident. Consistently with this averment, he may be either.

. . . A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicil; but the petition DOES NOT AVER that the plaintiff is a citizen of the United States. . . .

The decisions of this court require, that the averment of jurisdiction shall be positive, and that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.

The answer of James Brown asserts, that both plaintiff and defendant are citizens of the State of Louisiana.

Without indicating any opinion on the question, whether any admission in the plea can cure an insufficient allegation of jurisdiction in the declaration, we are all of opinion that this answer does not cure the defect of the petition. If the averment of the answer may be looked into, the whole averment must be taken together. It is that both plaintiff and defendant are citizens of Louisiana.” Brown v. Keene: 33 U.S. (Peters 8) 112, at 115 thru 116 (1834). {Before the Fourteenth Amendment}

http://books.google.com/books?id=DUUFAAAAYAAJ&pg=PA115#v=onepage&q&f=false

 

A citizen of a State, under Section 1, Clause 1 of the Fourteenth Amendment, is to aver that he or she is a citizen of the United States AND a citizen of a State of the Union:

“The bill filed in the Circuit Court by the plaintiff, McQuesten, alleged her to be ‘a citizen of the United States and of the State of Massachusetts, and residing at Turner Falls in said State,’ while the defendants Steigleder and wife were alleged to be ‘citizens of the State of Washington, and residing at the city of Seattle in said State.’ Statement of the Case, Steigleder v. McQuesten: 198 U.S. 141 (1905). {After the Fourteenth Amendment}

The averment in the bill that the parties were citizens of different States was sufficient to make a prima facie case of jurisdiction so far as it depended on citizenship.’ Opinion, Steigleder v. McQuesten: 198 U.S. 141, at 142 (1905). {After the Fourteenth Amendment} [Footnote 4]

http://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA141#v=onepage&q&f=false

 

A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, can pursue a cause of action against another citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution:

“The appellants brought suit in the United States District Court for the Southern District of New York for the purpose of recovering from the Trustee an interest in a trust estate which had been sold, transferred and assigned by Conrad Morris Braker, the beneficiary. The complainants were citizens and residents of Pennsylvania. Both defendants were citizens and residents of New York. Notwithstanding the diversity of citizenship, the court dismissed the bill on the ground that, as the assignor Braker, a citizen of New York, could not in the United States District Court, have sued Fletcher, Trustee and citizen of the same State, neither could the Complainants, his assignees, sue therein, even though they were residents of the State of Pennsylvania.

The appeal from that decision involves a construction of §24 of the Judicial Code, which limits the jurisdiction of the United States District Court when suit is brought therein . . . ‘to recover upon any promissory note or other chose in action in favor of any assignee. . . .’ .” Brown v. Flectcher: 235 U.S. 589, at 594 thru 595 (1914). {After the Fourteenth Amendment}

http://books.google.com/books?id=4-4GAAAAYAAJ&pg=PA594#v=onepage&q&f=false

 

Thus, there are two distinct state citizens for purposes of diversity of citizenship.

 

________________________

Footnotes:

 

1. “ ‘ . . . The privileges and immunities of citizens of the United States protected by the fourteenth amendment, are privileges and immunities arising out of the nature and essential character of the federal Government, and granted or secured by the Constitution.’ Duncan v. Missouri (1904) 152 U.S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485; Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394.

 

The provisions of section 2, art. 4, of the federal Constitution, that citizens of each state shall be entitled to privileges and immunities of citizens of the several states, are held to be synonymous with rights of the citizens. Corfield v. Coryell, supra. This section is akin to the provision of section 1 of the fourteenth amendment, as respects privileges and immunities, but the former is held not to make the privileges and immunities (the rights) enjoyed by citizens of the several states the measure of the privileges and immunities (the rights) to be enjoyed as of right, by a citizen of another state, under its Constitution and laws. McKane v. Durston, 153 U.S. 684, 14 Sup. Ct. 913, 38 L. Ed. 867. This rule necessarily classifies citizens in their rights to the extent that a citizen of one state when in another state must be governed by the same rules which apply to the citizens of that state as to matters which are of the domestic concern of the state. Cole v. Cunningham, 133 U.S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; People v. Gallagher, 93 N.Y. 438, 45 Am. Rep. 232; Butchers’ Union v. Crescent City, Mo., 111 U.S. 746, 4 Sup Ct. 652, 28 L. Ed. 585; Ex parte Kinney, 14 Fed. Cas. 602; Douglas v. Stephens, 1 Del. Ch. 465.” Strange v. Board of Commission: 91 N.E. 242, at 246 (1910).

 

http://books.google.com/books?id=T_QKAAAAYAAJ&pg=PA246#v=onepage&q=&f=false

 

2. There is also the following:

“The Constitution forbids the abridging of the privileges of a citizen of the United States, but does not forbid the state from abridging the privileges of its own citizens.

The rights which a person has as a citizen of the United States are those which the Constitution and laws of the United States confer upon a citizen as a citizen of the United States. For instance, a man is a citizen of a state by virtue of his being resident there; but, if he moves into another state, he becomes at once a citizen there by operation of the Constitution (Section 1, Clause 1 of the Fourteenth Amendment) making him a citizen there; and needs no special naturalization, which, but for the Constitution, he would need.

On the other hand, the rights and privileges which a citizen of a state has are those which pertain to him as a member of society, and which would be his if his state were not a member of the Union. Over these the states have the usual power belonging to government, subject to the proviso that they shall not deny to any person within the jurisdiction (i.e., to their own citizens, the citizens of other states, or aliens) the equal protection of the laws. These powers extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties, privileges, and properties of people, and of the internal order, improvement, and prosperity of the state. Federalist, No. 45Hopkins v. City of Richmond: 86 S. E. Rep. 139, at 145; 117 Va. 692; Ann. Cas. 1917D, 1114 (1915), citing the entire opinion of Town of Ashland v. Coleman, in its opinion (per curiam); overruled on other grounds, Irvine v. City of Clifton Forge: 97 S. E. Rep. 310, 310; 124 Va. 781 (1918), citing the Supreme Court of the United States case of Buchanan v. Warley, 245 U.S. 60; 38 Sup. Ct. 16, 62 L. Ed. 149.

http://books.google.com/books?id=oDY8AAAAIAAJ&pg=PA145#v=onepage&q&f=false

 

Town of Ashland v. Coleman:

http://books.google.com/books?id=1SoZAAAAYAAJ&pg=PA427#v=onepage&q&f=false

 

“. . . It is contended that the 1st section of the Fourteenth Amendment has been violated? That section declares that ‘all persons born in the United States are citizens of the United States and the State wherein they reside,’ and provides that ‘no State shall make or enforce any law which shall abridge the privileges or citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws.’ This section, after declaring that all persons born in the United States shall be citizens (1) of the United States and (2) of the State wherein they reside, goes on in the same sentence to provide that no State shall abridge the privileges of citizens of the United States; but does not go on to forbid a State from abridging the privileges of its own citizens. Leaving the matter of abridging the privileges of its own citizens to the discretion of each State, the section proceeds, in regard to the latter, only to provide that no State ‘shall deny to any person within its jurisdiction the equal protection of the laws. . . .

The rights which a person has a citizen of a State are those which pertain to him as a member of society, and which would belong to him if his State were not a member of the American Union. Over these the States have the usual powers belonging to government, and these powers ‘extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties, (privileges), and properties of people; and of the internal order, improvement, and prosperity of the State. Federalist, No. 45. . . .

On the other hand, the rights which a person has as a citizen of the United States are such as he has by virtue of his State being a member of the American Union under the provisions of our National Constitution. For instance, a man is a citizen of a State by virtue of his being native and resident there; but, if he emigrates into another State he becomes at once a citizen there by operation of the provision of the Constitution (Section 1, Clause 1 of the Fourteenth Amendment) making him a citizen there; and needs no special naturalization, which, but for the Constitution, he would need to become a citizen.” Ex Parte Edmund Kinney: 3 Hughes 9, at 12 thru 14 (1879) [4th cir ct Va.].

http://books.google.com/books?id=pB0TAAAAYAAJ&pg=PA12#v=onepage&q&f=false

 

3. It is to be noted that privileges and immunities of a citizen of a State are those in the constitution and laws of the individual State:

“. . .   Whatever may be the scope of section 2 of article IV -- and we need not, in this case enter upon a consideration of the general question -- the Constitution of the United States does not make the privileges and immunities enjoyed by the citizens of one State under the constitution and laws of that State, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another State under its constitution and laws.”  McKane v. Durston: 153 U.S. 684, at 687 (1894).

http://books.google.com/books?id=mmkUAAAAYAAJ&pg=PA687#v=onepage&q=&f=false

 

4. This can be seen also in the case of Sun Printing & Publishing Association v. Edwards (194 U.S. 377, 1904): {After the Fourteenth Amendment}

“We come to the contention that the citizenship of Edwards was not averred in the complaint or shown by the record, and hence jurisdiction did not appear.

In answering the question, whether the Circuit Court had jurisdiction of the controversy, we must put ourselves in the place of the Circuit Court of Appeals, and decide the question with reference to the transcript of record in that court.

Had the transcript shown nothing more as to the status of Edwards than the averment of the complaint that he was a ‘resident of the State of Delaware,’ as such an averment would not necessarily have imported that Edwards was a citizen of Delaware, a negative answer would have been impelled by prior decisions. Mexican Central Ry. Co. v. Duthie, 189 U.S. 76; Horne v. George H. Hammond Co., 155 U.S. 393; Denny v. Pironi, 141 U.S. 121; Robertson v. Cease, 97 U.S. 646. The whole record, however, may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such allegation, that is sufficient. Horne v. George H. Hammond Co., supra and cases cited.

As this is an action at law, we are bound to assume that the testimony of the plaintiff contained in the certificate of the Circuit Court of Appeals, and recited to have been given on the trial, was preserved in a bill of exceptions, which formed part of the transcript of record filed in the Circuit Court of Appeals. Being a part of the record, and proper to be resorted to in settling a question of the character of that now under consideration, Robertson v. Cease, 97 U.S. 648, we come to ascertain what is established by the uncontradicted evidence referred to.

In the first place, it shows that Edwards, prior to his employment on the New York Sun and the New Haven Palladium, was legally domiciled in the State of Delaware. Next, it demonstrates that he had no intention to abandon such domicil, for he testified under oath as follows: ‘One of the reasons I left the New Haven Palladium was, it was too far away from home. I lived in Delaware, and I had to go back and forth. My family are over in Delaware.’ Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil, and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350.

As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared [Footnote 5] that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 thru 383 (1904).

http://books.google.com/books?id=tekGAAAAYAAJ&pg=PA381#v=onepage&q&f=false

 

5. That is, from the averment of citizenship or other parts of the record.

 

USA 19 March 2012. The author has been researching online for a new or used computer. As a result of this research he has found information which may be useful to others who are looking to purchase a computer or who already own one.

The information in this work relates to the following computer: the iMac 24” White MA456LL (Order Number), A1200, EMC 2111 (Model Numbers) Computer with 2.16 Ghz Intel Core 2 Duo. The computer is white with a gray apple logo, a black square at top and center (the iSight camera) and an aluminum stand. This computer is also referred to as a late 2006 model.

Specs for this computer can be seen at this website:

http://www.everymac.com/systems/apple/imac/stats/imac-core-2-duo-2.16-24-inch-specs.html

Parts for this computer can be obtained at this website:

http://www.macpartsonline.com/imac-parts/imac-intel-white-24-inch.html

Upgrades (with a history of the intel processors) can be read at this website:

http://www.macupgrades.co.uk/store/machine.php?name=imac-core-duo


There are times when you may need to work on your computer. For example;

installing and replacing memory (RAM):

http://support.apple.com/kb/HT1432?viewlocale=en_US

removing the front panel (to clean for dust, remove hard drive, etc.):

http://www.youtube.com/watch?v=iVgL9u7ySUk

or replacing the LCD:

http://www.youtube.com/watch?v=g06ROXHhez0


Note:

The part number for the LCD is 661-4184:

http://www.macpartsonline.com/imac-parts/imac-intel-white-24-inch/661-4184-lcd-panel-24-inch-w-inverter-board-and-gasket-24-inch-2-16-2-33ghz-imac-a1200.html

However, the item description for the LCD is LG Philips LM240WU2-SLA1, S-IPS, 8-bit:

http://www.mactalk.com.au/10/73950-imac-screens-20-vs-24-query.html


Disclaimer: The information contained herein in this work does not constitute technical advice. The reader (user) uses this information at his or her own risk.


In my work “Diversity of Citizenship and a Citizen of a State who is not a Citizen of the United States”, I showed in the cases of Bondurant v. Watson (103 U.S. 281, 1880) and Sun Printing & Publishing Association v. Edwards (194 U.S. 377, 1904) that one who is a citizen of the United States and a citizen of a State (Fourteenth Amendment), as well as one who is a citizen of a State who is not a citizen of the United States (Article IV, Section 2, Clause 1 of the Constitution), has the requisite citizenship to give a circuit court of the United States jurisdiction in a diversity of citizenship suit.

In my work “Diversity of Citizenship includes a Citizen of a State who is not a Citizen of the United States”, I made the following statement:

“A citizen of the United States is to identified his citizenship in a federal court by averring that he or she is a citizen of the United States AND a citizen of a State of the Union. . . .

The reason for this is that a citizen of the United States can be a citizen of the United States without being a citizen of a State, as in the case of living overseas (aboard). [Footnote 1]

 

If one is a citizen of the United States, then he or she is to aver that he is a citizen of the United States AND a citizen of a State of the Union:

“The courts of the United States have not jurisdiction in cases between citizens of the United States, unless the record expressly states them to be citizens of different states.” Wood v. Wagon: 6 U.S. (2 Cranch) 1 (1804). {Before the Fourteenth Amendment}

http://books.google.com/books?id=qzkFAAAAYAAJ&pg=PA9#v=onepage&q&f=false

 

Unless the averment of citizenship shows one to be a citizen of the United States, it will be presumed that one is not a citizen of the United States:

“The petition avers, that the plaintiff, Richard Raynal Keene, is a citizen of the state of Maryland; and that James Brown, the defendant, is a citizen or resident of the state of Louisiana, holding his fixed and permanent domicil in the parish of St. Charles. The petition, then, does not aver positively, that the defendant is a citizen of the state of Louisiana, but in the alternative, that he is a citizen or a resident. Consistently with this averment, he may be either.

. . . A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicil [Footnote 2]; but the petition DOES NOT AVER that the plaintiff is a citizen of the United States. . . .

The decisions of this court require, that the averment of jurisdiction shall be positive, and that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.

The answer of James Brown asserts, that both plaintiff and defendant are citizens of the State of Louisiana.

Without indicating any opinion on the question, whether any admission in the plea can cure an insufficient allegation of jurisdiction in the declaration, we are all of opinion that this answer does not cure the defect of the petition. If the averment of the answer may be looked into, the whole averment must be taken together. It is that both plaintiff and defendant are citizens of Louisiana.” Brown v. Keene: 33 U.S. (Peters 8) 112, at 115 thru 116 (1834). {Before the Fourteenth Amendment}

http://books.google.com/books?id=DUUFAAAAYAAJ&pg=PA115#v=onepage&q&f=false

 

The Fourteenth Amendment did not modify the requirement of one averring that he or she is a citizen of the United States AND a citizen of a State:

“In the oral argument before this court, the inquiry arose, whether since the adoption of the Fourteenth Amendment to the Federal Constitution the mere allegation of residence in Illinois did not make such a prima facie case of citizenship in that State as, in the absence of proof, should be deemed sufficient to sustain the jurisdiction of the Circuit Court. That amendment declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside.’ It was suggested that a resident of one of the States is prima facie either a citizen of the United States or an alien, — if a citizen of the United States, and also a resident of one of the States, he is, by the terms of the Fourteenth Amendment, also a citizen of the State wherein he resides, — and if an alien, he was entitled in that capacity to sue in the Federal court, without regard to residence in any particular State. It is not to be denied that there is some force in these suggestions, but they do not convince us that it is either necessary or wise to modify the rules heretofore established by a long line of decisions upon the subject of the jurisdiction of the Federal courts. Those who think that the Fourteenth Amendment requires some modification of those rules, claim, not that the plaintiff's residence in a particular State necessarily or conclusively proves him to be a citizen of that State, within the meaning of the Constitution, but only that a general allegation of residence, without indicating the character of such residence, whether temporary or permanent, made a prima facie case of right to sue in the Federal courts. As the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, the presumption now, as well as before the adoption of the Fourteenth Amendment, is, that a cause is without its jurisdiction unless the contrary affirmatively appears. In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively, and with equal distinctness, in other parts of the record. And so where jurisdiction depends upon the alienage of one of the parties. In Brown v. Keene (8 Pet. 115), Mr. Chief Justice Marshall said: ‘The decisions of this court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.’ Here the only fact averred, or appearing from the record, is that Cease was a resident of Illinois; and we are, in effect, asked, in support of the jurisdiction of the court below, to infer argumentatively, from the mere allegation of ‘residence,’ that, if not an alien, he had a fixed permanent domicile in that State, and was a native or naturalized citizen of the United States, and subject to the jurisdiction thereof. By such argumentative inferences, it is contended that we should ascertain the fact, vital to the jurisdiction of the court, of his citizenship in some State other than that in which the suit was brought. We perceive nothing in either the language or policy of the Fourteenth Amendment which requires or justifies us in holding that the bare averment of the residence of the parties is sufficient, prima facie, to show jurisdiction. The judgment must, therefore, be reversed, upon the ground that it does not affirmatively appear from the record that the defendant in error was entitled to sue in the Circuit Court.” Robertson v. Cease: 97 U.S. 646, at 648 thru 650 (1878). {After the Fourteenth Amendment} [Footnote 3]

http://books.google.com/books?id=utkFAAAAYAAJ&pg=PA648#v=onepage&q&f=false

 

One who is a citizen of the United States, under the Fourteenth Amendment, is to still aver that he or she is a citizen of the United States AND a citizen of a State of the Union:

“The bill filed in the Circuit Court by the plaintiff, McQuesten, alleged her to be ‘a citizen of the United States and of the State of Massachusetts, and residing at Turner Falls in said State,’ while the defendants Steigleder and wife were alleged to be ‘citizens of the State of Washington, and residing at the city of Seattle in said State.’ Statement of the Case, Steigleider v. McQuesten: 198 U.S. 141 (1905). {After the Fourteenth Amendment}

The averment in the bill that the parties were citizens of different States was sufficient to make a prima facie case of jurisdiction so far as it depended on citizenship.’ Opinion, Steigleider v. McQuesten: 198 U.S. 141, at 142 (1905). {After the Fourteenth Amendment}

http://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA141#v=onepage&q&f=false

 

Otherwise, one who is a citizen of the United States will not be able to pursue an action in diversity of citizenship at the federal level.

 

 

________________________

Footnotes:

 

1. ”Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).

http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA74#v=onepage&q&f=false

“The language of the Fourteenth Amendment declaring two kinds of citizenship is discriminating. It is: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ While it thus establishes national citizenship from the mere circumstance of birth within the territory and jurisdiction of the United States, birth within a state does not establish citizenship thereof. State citizenship is ephemeral. It results only from residence and is gained or lost therewith.” Edwards v. People of the State of California: 314 U.S. 160, 183 (concurring opinion of Jackson) (1941).

http://scholar.google.com/scholar_case?case=6778891532287614638

“The first point of inquiry is with respect to the status of appellant. The stipulation of facts states that appellant ‘is by trade and occupation a deep-sea diver engaged in sponge fishery, his residence address being at Tarpon Springs, Pinellas County, Florida,’ and that he ‘has been engaged in this business for the past several years.’ Appellant has not asserted or attempted to show that he is not a citizen of the United States, or that he is a citizen of any State other than Florida, or that he is a national of any foreign country. It is also significant that in his brief in this Court, replying to the State's argument that as a citizen of Florida he is not in a position to question the boundaries of the State as defined by its constitution, appellant has not challenged the statement as to his citizenship, while he does contest the legal consequences which the State insists flow from that fact.

It further appears that upon appellant's arrest for violation of the statute, he sued out a writ of habeas corpus in the District Court of the United States and was released, but this decision was reversed by the Circuit Court of Appeals. Cunningham v. Skiriotes, 101 F.2d 635. That court thought that the question of the statute's validity should be determined in orderly procedure by the state court subject to appropriate review by this Court, but the court expressed doubt as to the right of the appellant to raise the question, saying: ‘Skiriotes states he is a citizen of the United States resident in Florida, and therefore is a citizen of Florida. His boat, from which his diving operations were conducted, we may assume was a Florida vessel, carrying Florida law with her, but of course as modified by superior federal law.’ Id., pp. 636, 637.

In the light of appellant's statements to the federal court, judicially recited, and upon the present record showing his long residence in Florida and the absence of a claim of any other domicile or of any foreign allegiance, we are justified in assuming that he is a citizen of the United States and of Florida. Certainly appellant has not shown himself entitled to any greater rights than those which a citizen of Florida possesses.” Skiriotes v. State of Florida: 313 U.S. 69, at 71 thru 72 (1941).

http://scholar.google.com/scholar_case?case=9757650854292938204

 

2. See my work, “Yes a citizen of the United States cannot be domiciled in a State”, where I show that under the Fourteenth Amendment, “resides”, does not mean “permanent residence (domicile)” but rather, “bona fide residence”, as provided in the Slaughterhouse Cases.

 

3. This can be seen also in the case of Sun Printing & Publishing Association v. Edwards (194 U.S. 377, 1904): {After the Fourteenth Amendment}

“We come to the contention that the citizenship of Edwards was not averred in the complaint or shown by the record, and hence jurisdiction did not appear.

In answering the question, whether the Circuit Court had jurisdiction of the controversy, we must put ourselves in the place of the Circuit Court of Appeals, and decide the question with reference to the transcript of record in that court.

Had the transcript shown nothing more as to the status of Edwards than the averment of the complaint that he was a ‘resident of the State of Delaware,’ as such an averment would not necessarily have imported that Edwards was a citizen of Delaware, a negative answer would have been impelled by prior decisions. Mexican Central Ry. Co. v. Duthie, 189 U.S. 76; Horne v. George H. Hammond Co., 155 U.S. 393; Denny v. Pironi, 141 U.S. 121; Robertson v. Cease, 97 U.S. 646. The whole record, however, may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such allegation, that is sufficient. Horne v. George H. Hammond Co., supra and cases cited.

As this is an action at law, we are bound to assume that the testimony of the plaintiff contained in the certificate of the Circuit Court of Appeals, and recited to have been given on the trial, was preserved in a bill of exceptions, which formed part of the transcript of record filed in the Circuit Court of Appeals. Being a part of the record, and proper to be resorted to in settling a question of the character of that now under consideration, Robertson v. Cease, 97 U.S. 648, we come to ascertain what is established by the uncontradicted evidence referred to.

In the first place, it shows that Edwards, prior to his employment on the New York Sun and the New Haven Palladium, was legally domiciled in the State of Delaware. Next, it demonstrates that he had no intention to abandon such domicil, for he testified under oath as follows: ‘One of the reasons I left the New Haven Palladium was, it was too far away from home. I lived in Delaware, and I had to go back and forth. My family are over in Delaware.’ Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil, and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350.

As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared [Footnote 4] that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 thru 383 (1904).

http://books.google.com/books?id=tekGAAAAYAAJ&pg=PA381#v=onepage&q&f=false

 

4. That is, from the averment of citizenship or other parts of the record.

USA 9 March 2012. In my work “Diversity of Citizenship includes a Citizen of a State who is not a Citizen of the United States”, I showed in the case of Bible Society v. Grove (101 U.S. 610, 1879); cited in Young v. Parker’s Administrator (132 U.S. 267, 1889), that since the adoption of the Fourteenth Amendment and the Slaughterhouse Cases, a citizen of a State (who is not a citizen of the United States) under Article IV, Section 2, Clause 1 of the Constitution of the United States of America, is still recognized in diversity of citizenship suits, in particular in cases which are removed from the state level to the federal level.

In addition to Bible Society v. Grove (101 U.S. 610), there is the following case: Bondurant v. Watson (103 U.S. 281, 1880):

“On Jan. 30, 1866, Walter E. Bondurant began an action against his uncles, Albert Horace and John Bondurant, in the District Court for the Parish of Tensas, to recover judgment against them for his part of the purchase price of said plantation and to enforce his mortgage and privilege thereon. The court rendered a judgment in his favor for the sum of $37,500, with interest, and ordered, adjudged, and decreed that the authentic act of mortgage, which was the basis of the action, should be, and the same was thereby, rendered executory and ordered to be executed, and that the land described therein should be seized and sold to satisfy said judgment. . . .

Walter E. Bondurant thereupon brought an action in the United States Circuit Court for the District of Louisiana against Augustus C. Watson, Sen., to recover possession of that part of the plantation which had been sold to him by John Bondurant.

He recovered judgment for the land against Watson. That judgment was taken, by writ of error, to the Supreme Court the United States, where it was reversed on the sole ground that there had been no actual seizure of the premise by the sheriff before the sale. See Watson v. Bondurant, 21 Wall. 123.

In the mean time, Walter E. Bondurant died. The judgment in his favor in the District Court for the Parish of Tensas was revived in the name of his widow, Ella F. Bondurant, his testamentary executrix and the tutrix of his minor son. . . . .

Thereupon, on Oct. 1875, Mrs. Bondurant filed her petition, verified by her oath, in which she prayed for a removal of the cause to the United States Circuit Court for the District of Louisiana. In her petition, she averred that she was a citizen of the State of Mississippi and was, in her capacity as tutrix and executrix, defendant in a civil suit pending in that court, in which the matter in dispute exceeded, exclusive of costs, the sum of $500, and in which Frank Watson, who was a citizen of Louisiana, was plaintiff. . . . .

. . . [I]t becomes necessary to decide the question of jurisdiction.

On this question, the first contention of Watson, the complainant, is that the petition of Mrs. Bondurant for the removal of the case, which was filed Oct. 18, 1875, does not aver that at the commencement of the suit, which was June 25, 1875, she was a citizen of the State of Mississippi.

Whether, under the act of March 3, 1875, c. 137, to regulate the removal of causes from the State courts, such an averment is necessary, is a question which was expressly reserved by this court in the case of Insurance Company v. Pechner (95 U.S. 183), and which it has never decided. We do not find it necessary to decide it now, for the evidence in the record satisfies us that Mrs. Bondurant was a citizen of Mississippi on June 25, 1875, when the proceeding against her was begun by Watson. Whether the petition avers the fact or not is immaterial, provided the fact is shown to exist by any part of the record. Gold-Washing and Water Company v. Keyes, 96 U.S. 199; Briges v. Sperry, 95 U.S. 401; Robertson v. Cease, 97 U.S. 646.

The record shows that her husband, of whose she was the executix, was at the time of his death, and for many years before had been, a citizen of the State of Mississippi, residing at Natchez. She was therefore a citizen of Mississippi at the time of her husband’s death, which took place before the filing by Watson of the petition in this case, on June 25, 1875. In October, 1875, she swears that she was then a citizen of Mississippi. . . . .

We think the fact of her citizenship in Mississippi, at the time of the commencement of Watson’s suit against her, sufficiently appears by the record, and this supplies the want of an averment of the fact in her petition for the removal of the case.” Bondurant v. Watson: 103 U.S. 281, at 282 thru 286 (1880). [Footnote 1]

http://books.google.com/books?id=Y7wGAAAAYAAJ&pg=PA282#v=onepage&q&f=false

 

Too this is the case of Sun Printing & Publishing Association v. Edwards (194 U.S. 377, 1904).

Syllabus:

The facts, which involved the sufficiency of averments and proof of diverse citizenship to maintain the jurisdiction of the United States Circuit Court, are stated in the opinion of the court.

Opinion:

We come to the contention that the citizenship of Edwards was not averred in the complaint or shown by the record, and hence jurisdiction did not appear.

In answering the question, whether the Circuit Court had jurisdiction of the controversy, we must put ourselves in the place of the Circuit Court of Appeals, and decide the question with reference to the transcript of record in that court.

Had the transcript shown nothing more as to the status of Edwards than the averment of the complaint that he was a ‘resident of the State of Delaware,’ as such an averment would not necessarily have imported that Edwards was a citizen of Delaware, a negative answer would have been impelled by prior decisions. Mexican Central Ry. Co. v. Duthie, 189 U.S. 76; Horne v. George H. Hammond Co., 155 U.S. 393; Denny v. Pironi, 141 U.S. 121; Robertson v. Cease, 97 U.S. 646. The whole record, however, may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such allegation, that is sufficient. Horne v. George H. Hammond Co., supra and cases cited.

As this is an action at law, we are bound to assume that the testimony of the plaintiff contained in the certificate of the Circuit Court of Appeals, and recited to have been given on the trial, was preserved in a bill of exceptions, which formed part of the transcript of record filed in the Circuit Court of Appeals. Being a part of the record, and proper to be resorted to in settling a question of the character of that now under consideration, Robertson v. Cease, 97 U.S. 648, we come to ascertain what is established by the uncontradicted evidence referred to.

In the first place, it shows that Edwards, prior to his employment on the New York Sun and the New Haven Palladium, was legally domiciled in the State of Delaware. Next, it demonstrates that he had no intention to abandon such domicil, for he testified under oath as follows: ‘One of the reasons I left the New Haven Palladium was, it was too far away from home. I lived in Delaware, and I had to go back and forth. My family are over in Delaware.’ Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil, and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350.

As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 thru 383 (1904).

http://books.google.com/books?id=tekGAAAAYAAJ&pg=PA381#v=onepage&q&f=false

 

Thus, one who is a citizen of the United States and a citizen of a State (Fourteenth Amendment), as well as one who is a citizen of a State who is not a citizen of the United States (Article IV, Section 2, Clause 1 of the Constitution), has the requisite citizenship, as stated in Sun Printing & Publishing, to give a circuit court of the United States jurisdiction in a diversity of citizenship suit.

 

 

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Footnotes:

1. cited in Denny v. Pironi (141 U.S. 121, 1891):

“. . . In Bondurant v. Watson, 103 U.S. 281, the record showed that the husband of the original defendant, of whose will she was the executrix, was at the time of his death, and for many years before had been a citizen of Mississippi, and the court held that it necessarily followed that the defendant was a citizen of such State at the time of her husband’s death, which took place before the filing of the petition in the case, and that as it also appeared that she was a citizen of the same State at the time of the commencement of the suit against her, the jurisdiction should be sustained.” Denny v. Pironi: 141 U.S. 121, at 125 (1891).

http://books.google.com/books?id=Nt8GAAAAYAAJ&pg=PA125#v=onepage&q&f=false

 

 

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