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WITTMEYER TRUCKING CO. v. FESS TRANSP. LTD.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


March 7, 1961

WITTMEYER TRUCKING CO., Inc., Plaintiff,
v.
FESS TRANSPORT LIMITED, formerly Douglas C. Fess Limited, et al., Defendants

The opinion of the court was delivered by: HENDERSON

Defendants have moved for an order dismissing this action for lack of diversity jurisdiction on the grounds that defendants Louis P. Mirando and Paul E. Andrews are not citizens of a different state than plaintiff or of a foreign state as required by Title 28 U.S.C. ยง 1332. In support of the motion the two named defendants have submitted affidavits, Mirando stating that he is a citizen of the United States resident in Canada and Andrews stating that he is a citizen of the United States resident in Erie County, New York.

Even assuming that Andrews had moved to Canada, as contended by plaintiff, Jurisdiction would not be present. Residence of United States citizens in Canada does not satisfy the requirement that parties be citizens of a foreign state, and there is no showing that either of the defendants is domiciled in a state of the United States other than New York, the residence of the plaintiff. See McClanahan v. Galloway, D.C.N.D.Cal.1955, 127 F.Supp. 929; Alla v. Kornfeld, D.C.N.D.Ill.1949, 84 F.Supp. 823.

It is ordered that defendants Louis P. Mirando and Paul E. Andrews be severed, and as to them, the complaint is dismissed. Jurisdiction is retained as to the remaining defendants. So ordered.

19610307

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