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John Birch Society v. National Broadcasting Co.

decided: May 2, 1967.

JOHN BIRCH SOCIETY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
NATIONAL BROADCASTING COMPANY, A CORPORATION, AND NATIONAL BROADCASTING COMPANY NEWS, A CORPORATION, DEFENDANTS-APPELLEES. ROBERT WELCH, LAURENCE E. BUNKER AND MACDONALD HAYS, PLAINTIFFS-APPELLANTS, V. NATIONAL BROADCASTING COMPANY, A CORPORATION, AND NATIONAL BROADCASTING COMPANY NEWS, A CORPORATION, DEFENDANTS-APPELLEES



Friendly, Anderson and Feinberg, Circuit Judges.

Author: Anderson

ANDERSON, Circuit Judge.

These are appeals from judgments in two separate cases. The appellant, John Birch Society, a corporation, brought one action, and the individual appellants, Robert Welch, Laurence E. Bunker and MacDonald Hays, who were officers of the Society, brought the other, in the United States District Court for the Northern District of Texas against the National Broadcasting Company and National Broadcasting Company News (as National Broadcasting Company News is non-existent, reference is to one defendant hereinafter called NBC) alleging that they had been libelled during a nationwide broadcast of the defendant's network newscast program, known as The Huntley-Brinkley show. The gravamen of each complaint was:

"That on May 20, 1964, the said Huntley-Brinkley, newscasters, for the purpose of ruining [plaintiffs'] reputation and exposing [plaintiffs] to public hatred, contempt, ridicule and obloquy and depriving them of public confidence and embarrassing them publicly, did maliciously broadcast over the defendant's corporation network of and concerning the [plaintiffs], false and untrue matters knowing the same to be false and untrue, which were in substance: that the Federal Bureau of Investigation had arrested certain parties who were engaged in the selling of arms and ammunition, unlawfully and feloniously acquired to The John Birch Society, a corporation, and other caluminous statements which did degrade and irreparably injure the [plaintiffs'] reputation throughout the United States and elsewhere."

Each complaint sought to base jurisdiction on diversity of citizenship and claimed compensatory damages of $1,000,000 and punitive damages of $1,000,000. The allegations of citizenship in the Society's complaint were as follows:

"At all times mentioned herein plaintiff was and is a corporation organized and existing elsewhere than the State of Texas. * * *

That Defendant, National Broadcasting Company * * * [is] now and [was] at all times mentioned herein [a] foreign private corporation incorporated under the laws of a State other than the State of Texas. * * *"

The corresponding allegations in the complaint of the individual appellants alleged:

"That the Plaintiff, Robert Welch, is a resident of the State of Massachusetts * * *

That the Plaintiff, Laurence E. Bunker, is a resident of the State of Massachusetts * * *

That the Plaintiff, MacDonald Hays, is a resident of the State of Texas * * *

That Defendant, National Broadcasting Company * * * [is] now and [was] at all times mentioned herein [a] foreign private corporation incorporated under the laws of a State other than the State of Texas."

NBC moved before the district court in Texas to dismiss the complaints on the ground that service of process had been insufficient, but the motion was denied. On the same date, November 29, 1965, "upon the agreement and joint request of the parties," the court issued an order for a change of venue pursuant to the Act of June 25, 1948, 62 Stat. 937, 28 U.S.C. § 1404(a) (1959),*fn1 and the actions were transferred to the United States District Court for the Southern District of New York. There NBC moved to dismiss both complaints on numerous grounds.*fn2 The motion was argued on June 9, 1966 before Judge Cannella and, on September 14, 1966, he filed a memorandum opinion granting the motion as to both complaints because they failed to state a claim upon which relief could be granted*fn3 and because the court lacked subject matter jurisdiction over the Society's complaint, which was dismissed, however, without prejudice to the filing of an amended complaint within twenty days, i.e., to and including October 4th. On October 11, 1966, no amendment having been made within the time allowed, judgment was entered finally dismissing both complaints. On November 4, 1966, Judge Cannella denied an application for an order permitting the plaintiffs to replead, and notice of appeal to this court was filed in both actions. We affirm on the ground that the complaints do not demonstrate the existence of subject matter jurisdiction.

As these actions are sought to be based only upon 28 U.S.C. § 1332, diversity of citizenship must be apparent from the pleadings. It is elementary that all of the plaintiffs must be of citizenship diverse to that of all of the defendants. Hart & ...


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