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DU ROURE v. ALVORD

February 16, 1954

DU ROURE
v.
ALVORD et al.



The opinion of the court was delivered by: DIMOCK

Plaintiff, a citizen of France and resident of New York City, moves for a preliminary injunction. She seeks an order restraining defendant Alvord, a citizen of the United States and resident of Washington, D.C., from further asserting ownership in any of the shares of capital stock of Hekor Investment Holding Company, Ltd., a Canadian corporation (hereinafter referred to as 'Hekor') and an order restraining defendant E. F. Hutton & Company, a New York partnership with partners residing in New York, New Jersey, California, Texas, Illinois and Connecticut, from recognizing such claim of defendant Alvord or acting upon his instructions and directions as owner of such stock. Defendant E. F. Hutton & Company, hereinafter referred to as 'Hutton', cross-moves to dismiss the complaint as to it for failure to state a claim for relief against it. Defendant Alvord moves to dismiss for lack of jurisdiction and improper venue and that this court decline jurisdiction on the ground of forum non conveniens. These motions were argued together, and since the issues raised are inter-related, I treat them together.

The action is one for a declaratory judgment that defendant Alvord has no interest in the Hekor stock. There is but one party plaintiff and the only defendants are Alvord and the members of the partnership.

 First I turn to the fundamental issues of jurisdiction and venue specifically raised by defendant Alvord's motion to dismiss.

 Plaintiff alleges that her father owned all the capital stock of Hekor and that, upon his death in 1951, title to the stock vested in her as his heir. Defendant Alvord contends that the claim which plaintiff asserts against him is not a personal right of action, but rather a claim which belongs to the estate of her deceased father, and argues from this that a representative of the estate is the 'real party in interest' in this suit. Defendant further contends that the New York ancillary administrator c.t.a. of the estate of plaintiff's deceased father is the real party in interest. That is one of the grounds of defendant Alvord's motion to dismiss.

 Rule 17(a) of the Federal Rules of Civil Procedure, 28 U.S.C., provides, as here material: 'Every action shall be prosecuted in the name of the real party in interest * * *.' The 'real party in interest' has been held to mean the party who, by the substantive law, has the right sought to be enforced. United States v. Allbaugh, D.C.D.Neb., 83 F.Supp. 109, 115; Capo v. C-O Two Fire Equipment Co., D.C.N.J., 93 F.Supp. 4, 6; Koepp v. Northwest Fright Lines, D.C.Minn., 10 F.R.D. 524, 526. See also 3 Moore's Federal Practice 1305 (2d ed.).

 Plaintiff alleges that her father died domiciled in France and that, under the law of France, title to all of his property vested in her at the moment of his death. She argues that the New York courts would recognize her right to maintain this action because, under the New York conflict of laws rule, her title to the stock in suit would be determined by the law of France.

 In a case not founded on a substantive federal right this court sits as another court of New York and is bound to apply the law of New York as to any matters which substantially affect the outcome of the action. See Guaranty Trust Co. v. York, 326 U.S. 99, 108-109, 65 S. Ct. 1464, 89 L. Ed. 2079; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477; Sampson v. Channell, 1 Cir., 110 F.2d 754, 128 A.L.R. 394, certiorari denied 310 U.S. 650, 761-762, 60 S. Ct. 1099, 84 L. Ed. 1415. Under the law of New York, plaintiff's allegation of title to personal property under the law of France would entitle her to maintain this action on her own behalf. See Berney v. Drexel, 33 Hun 34; Roques v. Grosjean, 66 N.Y.S.2d 348; cf. Sultan of Turkey v. Tiryakian, 213 N.Y. 429, 108 N.E. 72. Therefore, defendant Alvord's attack on the ground that plaintiff is not the real party in interest fails.

 Defendant Alvord also moves to dismiss the complaint on the ground that, even if this court has jurisdiction of the action, venue is improperly laid in this district because all the defendants do not reside in this district, and an alien plaintiff may sue only in the district in which all the defendants reside.

 Section 1391(a) of the Judicial Code, Title 28 U.S.Code, provides: 'A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial ...


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