The opinion of the court was delivered by: DAWSON
This is a motion to strike the complaint and to dismiss the action on the grounds that the federal court has no basis for jurisdiction of the subject matter, inasmuch as diversity of citizenship is lacking. The motion was made before the judge in the Calendar Part who had to determine whether the case should be put down for trial. Since the motion raised a question of jurisdiction of the court which required a prompt determination of the issue (Fed.Rules Civ.Proc. Rule 12(h), 28 U.S.C.A.) it properly could be made there.
The complaint alleges that during February 1956 the plaintiff, a passenger on defendant's steamer, the Cristoforo Colombo, was injured through the negligence of the defendant. Plaintiff brought this action on the civil side in this court, with the first three paragraphs of the complaint reading as follows:
'1. That from on or about the 1st day of March, 1956 plaintiff was and still is a resident of the State of Rhode Island, United States of America.
'2. That at all times hereinafter mentioned, defendant was and still is a corporation doing business in the State of New York and, upon information and belief, organized and existing under and by virture of the laws of the Republic of Italy.
'3. That the amount in controversy herein exceeds the sum of Three Thousand ($ 3000.) Dollars.'
The defendant contends that the plaintiff, although alleging she is a 'resident' of Rhode Island, is in fact a citizen and subject of the Republic of Italy, a fact which the plaintiff does not deny and which was admitted by her attorney on the argument of the motion. It further contends that since the defendant, for the purposes of this suit, is a citizen of the Republic of Italy, the action is between two citizens of a foreign state and therefore does not fall within the provision of the Judicial Code conferring jurisdiction on this court in civil actions involving diversity of citizenship.
The federal court does not have jurisdiction based on diversity of citizenship where one alien is suing another alien. Tsitsinakis v. Simpson, Spence & Young, D.C.S.D.N.Y.1950, 90 F.Supp. 578; Kavourgias v. Nicholaou Co., 9 Cir., 1945, 148 F.2d 96.
In the instant case, the plaintiff, in paragraph (1) of the complaint, alleges that she is a 'resident' of Rhode Island, presumably to create an inference that this may be sufficient to bring her within the 'citizenship' requirement necessary to create a diversity of citizenship and give this court jurisdiction. However, it is well established that a mere allegation of 'residence' in a state is insufficient to give jurisdiction to a federal court based on diversity of citizenship. The jurisdiction of the federal court cannot be presumed, but must be clearly shown, Brooks v. Yawkey, 1 Cir., 1953, 200 F.2d 663. In Davy v. Faucher, D.C.N.D.Fla.1949, 84 F.Supp. 737, an action was brought, based on diversity of citizenship, by a British subject against a defendant who was a Canadian citizen residing in Florida but who had never become a naturalized citizen. The court dismissed the action holding that there was no diversity.
Therefore, inasmuch as both plaintiff and defendant are citizens of Italy, the federal court does not have jurisdiction of the subject matter under 28 U.S.C.A. 1332.
However, the plaintiff contends that this court has jurisdiction, despite the alienship of the parties, because the case involves a maritime tort and by the specific language of the Judicial Code, 28 U.S.C.A. § 1333, jurisdiction thereover is vested in this court.
An action based upon an injury to a passenger of a vessel while on the high seas and caused by negligence comes within the scope of a maritime cause of action. The Plymouth, 1866, 3 Wall. 20, 70 U.S. 20, 18 L. Ed. 125; The Admiral Peoples, 1935, 295 U.S. 649, 55 S. Ct. 885, 79 L. Ed. 1633. Where, however, the suit is between aliens, this court, while it is not obligated to take jurisdiction, may in its discretion do so, when it is necessary to prevent a failure of justice or when the rights of parties would thereby be best promoted. Heredia v. Davies, 4 Cir., 1926, 12 F.2d 500; Nakken v. Fearnley & Eger, D.C.S.D.N.Y.1955, 137 F.Supp. 288. The Supreme Court has upheld the right of a district court to exercise its discretion in Canada Malting Co. v. Paterson Steamships, Ltd., 1932, 285 U.S. 413, 52 S. Ct. 413, 76 L. Ed. 837. There the court exercised its discretion to refuse to retain jurisdiction. It is to be noted, however, that the action involved a collision between two Canadian ships on Lake Superior in United States' waters and it appeared that all parties and all material witnesses were citizens of Canada.
In Cunard S.S. Co. v. Smith, 2 Cir., 1918, 255 F. 846, at page 848, the court stated:
'* * * while an admiralty court of the United States is under no obligation to entertain jurisdiction where all the parties are foreigners, yet it also may entertain jurisdiction of a suit between aliens in civil causes of admiralty and maritime jurisdiction and is inclined to do so when it is necessary to prevent a failure of justice and if the rights of the parties would thereby be best promoted.'
Therefore, this court may in its discretion entertain an action between aliens under the ...