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July 19, 1955

Stella RUBINSTEIN and Edward J. Ennis, as Executors of the Estate of Serge Rubinstein, Deceased, Norfolk Insurance Company, Inc. and Virgil D. Dardi, Defendants

The opinion of the court was delivered by: BICKS

Defendant, Serge Rubinstein, heretofore moved to dismiss the action for lack of federal jurisdiction. The complaint asserts jurisdiction solely on the ground that plaintiff is a corporation organized under the laws of the State of New York and that 'the defendant Serge Rubinstein * * * is not a citizen of the United States of America or of the State of New York'. The motion came on to be heard before Judge Edelstein. Being of the view that a trial of the issue of Rubinstein's citizenship by affidavits was unsatisfactory and that the plaintiff should have an opportunity to prove the jurisdictional facts by discovery proceedings, he ordered the motion held in abeyance pending the taking by plaintiff of depositions. He further ordered that the motion 'may be renewed at the appropriate time in a regular motion part'. Commenting on the jurisdictional allegations, Judge Edelstein stated, 'This negative characterization of Rubinstein's status is inadequate to support the alienage jurisdiction of the Federal Court. * * * The absence of a positive averment of Rubinstein's citizenship renders the complaint jurisdictionally defective.' *fn1"

Consistent with the aforementioned order plaintiff proceeded to take the depositions of Rubinstein and his mother. The depositions, which consist of 388 pages and in connection with which plaintiff caused 35 exhibits to be marked in evidence, were completed in the latter part of July, 1954. Defendant thereupon renewed its motion. Upon the representation that plaintiff's counsel needed additional time to complete an investigation into whether Rubinstein was a citizen or subject of Russia, Portugal, Austria, France or Israel, the learned Judge before whom the renewed motion was brought endorsed the papers 'Motion to renew premature. Denied.'

A second renewal of the motion is now before the Court. Plaintiff does not urge that the present motion is premature nor has it applied for a continuance for the purpose of further investigation. In effect plaintiff has rested its case. We, therefore, proceed to a consideration of the motion on the merits. *fn2"

 The decision turns upon the answer to the question: Was Rubinstein a citizen or subject of a foreign state within the meaning of 28 U.S.C.A. § 1332(a)(2)? *fn3"

 Our first inquiry is into the status of Rubinstein at the commencement of the action. Plaintiff contends that it is not incumbent upon it to establish that the defendant is a citizen or subject of a particular foreign state. To require it to do so, it suggests, is imposing too heavy a burden. In view of the nefarious international machinations ascribed to Rubinstein the task of the plaintiff may indeed be difficult but, however onerous, it is a burden from which plaintiff may not be relieved. Hard facts do not justify a deviation from the well established and long accepted principle that one seeking to invoke the jurisdiction of the federal court must show by a preponderance of the evidence that the case falls within its jurisdiction. McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135.

 Rubinstein was born a subject of the Czar of Russia. He later acquired Portuguese citizenship. Relying on the doctrine that citizenship once established is presumed to continue, Hauenstein v. Lynham, 1879, 100 U.S. 483, 484, 25 L. Ed. 628; City of Minneapolis v. Reum, 8 Cir., 1893, 56 F. 576, 577, plaintiff urges that Rubinstein was a citizen or subject of either the Union of Soviet Socialist Republics or Portugal at the commencement of the action.

 The presumption that Rubinstein continued to be a citizen or subject of the U.S.S.R. must yield in face of the following proof: (a) Rubinstein and his entire family fled from Russia in 1918, soon after the Revolution without permission of the Soviet authorities; (b) under the applicable Soviet statutes and laws relating to forfeiture of Soviet citizenship, Rubinstein ceased to be a citizen of the U.S.S.R.; *fn4" (c) the issuance to Rubinstein of a so-called 'Nansen' passport which is alleged to have been given him in recognition of his status as a stateless person by an agency created by the League of Nations; (d) Rubinstein's subsequent acquisition of Portuguese citizenship; and (e) Rubinstein's registration as a stateless person with the United States Department of Justice as required by Section 265 of the Immigration and Naturalization Act of 1952, 8 U.S.C.A. § 1305.

 The presumption that Rubinstein continued to be a citizen of Portugal likewise has been overcome. It was demonstrated that the Portuguese Consul General in New York issued a document certifying that Rubinstein's citizenship had been cancelled. While plaintiff regards this certification with suspicion it does not deny that it was in fact issued. Each country has the undoubted right to determine who are its nationals and 'it seems to be general international usage that such a determination will usually be accepted by other nations'. Murarka v. Bachrack Bros., 2 Cir., 1954, 215 F.2d 547, 553. Since regularity of the procedure of foreign agencies is to be presumed, United States v. King, 1845, 3 How. 773, 44 U.S. 773, 784-786, 11 L. Ed. 824, the certificate of the Consul General is sufficient proof of the facts stated therein to wit: 'The Portuguese citizenship of Serge Rubinstein was cancelled by the Government of the Republic of Portugal and it has never been reinstated'.

 The presumption of continuing citizenship of either the U.S.S.R. or Portugal having been successfully rebutted, plaintiff is stripped of any proof identifying Rubinstein as a citizen or subject of either of said foreign states.

 We turn next to the question whether for the purpose of federal jurisdiction under 28 U.S.C.A. § 1332(a)(2) a stateless person is a citizen or subject of a foreign state. Plaintiff takes the position that the jurisdiction of this Court extends to a suit between a citizen of the United States and any alien, even if such alien is stateless.

 The right of the plaintiff to enforce the claim set out in its complaint in a federal court is not derived from the Constitution. Kline v. Burke Construction Co., 1922, 260 U.S. 226, 233, 43 S. Ct. 79, 67 L. Ed. 226. Inferior federal courts were established by Congress consistent with the provisions of the Judiciary Article of the Constitution and have only such jurisdiction as the Congress constitutionally confers upon them. 'Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined'. Healy v. Ratta, 1934, 292 U.S. 263, 270, 54 S. Ct. 700, 703, 78 L. Ed. 1248. The Congressional grant of diversity jurisdiction must be strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 108-109, 61 S. Ct. 868, 85 L. Ed. 1214; City of Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 76-77, 62 S. Ct. 15, 86 L. Ed. 47; see the dissenting opinion of Mr. Justice Frankfurter in National Mutual Insurance Co. v. Tidewater Transfer Co., 1949, 337 U.S. 582, 654, 69 S. Ct. 1173, 93 L. Ed. 1556.

 Neither the letters and papers of the Framers of the Constitution nor the records of the convention itself are a fruitful source of information for ascertainment of the 'precise limits' of the alienage jurisdiction contemplated by Article III, Section 2. (See Friendly, 'The Historic Basis of Diversity Jurisdiction', 41 Harvard Law Review 483.) The dominant considerations which prompted the provision for such jurisdiction appear to have been:

 (1) Failure on the part of the individual states to give protection to foreigners under treaties; Farrand, 'The Framing of the Constitution' 46 (1913); Nevins, 'The American State During and After the Revolution' 644-656 (1924); Friendly, 41 Harvard Law Review 483, 484.

 (2) Apprehension of entanglements with other sovereigns that might ensue from failure to treat the legal controversies of aliens on a national level. Hamilton, 'The Federalist' No. 80. *fn5" It seems clear against this background that the terms 'aliens' and 'foreigners', when used as abbreviated references to the more ponderous phrase, 'foreign states or citizens or subjects thereof' appearing in Section ...

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