Estelle W. Sligh v. John Doe

596 F.2d 1169, 1979 U.S. App. LEXIS 15307

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 19, 1979
• Docket: 78-1312
• Status: Published

Opinions

DUMBAULD, Senior District Judge.

Plaintiff, a resident of the District of Columbia, a woman in her fifties employed by the government, was a passenger in the rear seat of an automobile which was negligently sideswiped in Virginia by a hit-and-run Cadillac occupied by four black males. She sustained injuries to her knees for which the jury awarded $13,500.¹ The Cadillac stopped, but immediately drove away, and escaped pursuit. The Cadillac bore Virginia license plates, but the numbers could not be determined.

The crucial question before us is whether diversity jurisdiction has been sufficiently established. Such jurisdiction is based upon Art. Ill, sec. 2, of the Constitution which provides that:

The judicial Power shall extend to . Controversies . . . between Citizens of different States.

The constitutional grant, however, simply endows inferior federal courts with the capacity to receive jurisdiction in specified cases; an act of Congress is necessary to vest it. Turner v. Bank of North America, 4 Dall. 8, 10, 1 L.Ed. 718 (1799); Sheldon v. Sill, 8 How. 441, 448-49, 12 L.Ed. 1147 (1850). In Chief Justice Marshall’s time the plaintiff could not have sued in the Virginia federal court. He held, in Hepburn v. Ellzey, 2 Cranch 445, 452, 2 L.Ed. 332 (1805), that the act of Congress establishing diversity jurisdiction “obviously uses the word ‘state’ in reference to that term as used in the constitution,” and that the District of Columbia is not a State “in the sense of that instrument.” Not until 1949 did the Supreme Court decide that residents of the District could invoke diversity jurisdiction. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949).² The present statutory language makes clear the intent of Congress to permit such invocation.³

It is hornbook law that a plaintiff seeking relief in a federal court has the burden of alleging and proving the jurisdictional facts. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Wright, Handbook of the Law of Federal Courts, 15—16 (2d ed. 1970). It is equally elementary that lack of jurisdiction is a question that may be raised at any time.⁴

Defendant’s reliance on Johnson v. General Motors, 242 F.Supp. 778 (E.D.Va. Norfolk Div. 1965), is misplaced. In that case a Virginia plaintiff sued, as plaintiff does here, an unknown motorist under the Virginia Uninsured Motorist law. Judge Hoffman, observing that plaintiff was admittedly unable to offer any proof as to the citizenship of John Doe, went on to say: “Indeed, since the accident giving rise to this cause of action took place in the City of Norfolk, it is more probable than not that the unknown driver . . . was a citizen of Virginia.” That circumstance, which served to defeat jurisdiction in Johnson, would tend to establish it in the case at bar.

Citizenship,⁵ like the other ingredients or elements of diversity jurisdiction (such as the amount in controversy,⁶ residence of the parties,⁷ principal place of business of a corporation⁸), presents a preliminary question of fact to be determined by the trial court. Appellate review should be limited by the usual standards applicable to such determinations. U. S. v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Bluefield Armature Co. v. R. G. Pope Construction Co., 548 F.2d 484, 485, 487 (C.A. 4, 1976); Cohen v. Boxberger, 544 F.2d 701, 704 (C.A. 4, 1976); U. S. v. One 1971 Mercedes Benz, 542 F.2d 912, 914 (C.A. 4. 1976).⁹ Applying those criteria we are unable to say that the District Court’s determination of the preliminary question of diversity of citizenship was clearly erroneous.

The trial court “was entitled to infer and find, as it did, that the driver of a car having Virginia tags involved in a Virginia accident is more likely than not a Virginia resident.” ¹⁰ This inference follows a forti-ori if Judge Hoffman’s reasoning in Johnson, supra, be accepted, that even when no evidence was offered, the circumstances made it “more probable than not that the unknown driver . . . was a citizen of Virginia.”

In the case at bar there was some affirmative evidence pointing toward Virginia citizenship, not conclusive evidence by any means, but sufficient to support a finding in the absence of any contradictory proof. Had defendant offered testimony that four persons in the area had recently robbed a bank and made their getaway in a stolen white Cadillac, or testimony from the local Hertz or Avis agency that such a vehicle had been rented to four men from Washington, the situation would be different. But as the record stands, the normal logical conclusion which a fair mind would reach is that the hit-and-run driver was a Virginia resident. Resort to speculation and conjecture would be necessary in order to overthrow this conclusion and maintain defendant’s position. Hence we are constrained to hold that the District Judge’s determination of the crucial question of fact was not clearly erroneous. Hence the judgment below must be affirmed.

1 . As the trial judge states, the verdict may have been generous, in the light of the evidence as to the extent of damages, but not excessive.

2 . The Act of April 20, 1940, 54 Stat. 143 was sustained by a combination of conflicting minorities on the Court. Three Justices held that the legislation was valid under the power to govern the District of Columbia conferred by Article I, sec. 8, cl. 17. Two Justices favored overruling Marshall’s decision in Hepburn. Four thought the law was unconstitutional. See Wright, Handbook of the Law of Federal Courts, 81-82 (2d ed. 1970).

3 . 28 U.S.C. § 1332(d): “The word ‘States,’ as used in this section, includes . . . the District of Columbia.”

4 . Wright, Handbook, note 2 supra, 16-17; Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934). In the case at bar defendant first raised the question after the jury was sworn but before counsels’ opening statements or presentation of evidence. The trial judge proceeded with the trial but later gave full consideration to defendant’s point.

5 . Ordinarily an individual’s citizenship will be determined by his place of residence, pursuant to Section 1 of the Fourteenth Amendment, which provides that “All persons born or naturalized in the United States . are citizens of the United States and of the State wherein they reside.”

6 . St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

7 . Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 32 L.Ed. 690 (1889); Wehrle v. Brooks, 269 F.Supp. 785, 787-88 (W.D.N.C., Charlotte Div. 1966), aff'd 379 F.2d 288 (C.A. 4, 1967); Griffin v. Matthews, 310 F.Supp. 341, 342-43 (M.D. N.C., Greensboro Div.1969), aff'd 423 F.2d 272 (C.A. 4, 1970).

8 . Caperton v. Pocahontas, 420 F.Supp. 445, 449-50 (W.D.Va., Abingdon Div. 1976), aff'd 585 F.2d 683, 691 (C.A. 4, 1978).

9 . It is plain that the “clearly erroneous” rule applies to jurisdictional as well as to substantive determinations. Caperton v. Beatrice-Pocahontas Coal Co., 585 F.2d 683, 691 (C.A. 4, 1978); Webb v. Nolan, 484 F.2d 1049, 1050 (C.A. 4, 1973); Marshall Exports v. Phillips, 507 F.2d 47, 49 (C.A. 4, 1974).

10 . Only the issue of damages was submitted to the jury. Defendant made no request to submit the question of domicile to the jury. In any event it was not error for the Court to determine that matter upon the testimony in the record. Gilbert v. David, 235 U.S. 561, 568, 35 S.Ct. 164, 59 L.Ed. 360 (1915).