Maria Teresa Padilla Garcia v. Rafael Bernabe

First Circuit

Maria Teresa Padilla Garcia v. Rafael Bernabe

288 F.2d 60, 4 Fed. R. Serv. 2d 71, 1961 U.S. App. LEXIS 4979

CourtCourt of Appeals for the First Circuit

DecidedMarch 28, 1961

Docket5639_1

StatusPublished

Cited by3 cases

This text of 288 F.2d 60 (Maria Teresa Padilla Garcia v. Rafael Bernabe) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maria Teresa Padilla Garcia v. Rafael Bernabe, 288 F.2d 60, 4 Fed. R. Serv. 2d 71, 1961 U.S. App. LEXIS 4979 (1st Cir. 1961).

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Opinion

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.

*61 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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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.

*61 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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288 F.2d 60, 4 Fed. R. Serv. 2d 71, 1961 U.S. App. LEXIS 4979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maria-teresa-padilla-garcia-v-rafael-bernabe-ca1-1961.

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