John Birch Soc'y, a Corp. v. Nat'l Broad. Co., a Corp., & Nat'l Broad. Co. News, a Corp., Robert Welch, Laurence E. Bunker & MacDonald Hays v. Nat'l Broad. Co., a Corp., & Nat'l Broad. Co. News, a Corp., 377 F.2d 194 (2d Cir. 1967). · Go Syfert
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John Birch Soc'y, a Corp. v. Nat'l Broad. Co., a Corp., & Nat'l Broad. Co. News, a Corp., Robert Welch, Laurence E. Bunker & MacDonald Hays v. Nat'l Broad. Co., a Corp., & Nat'l Broad. Co. News, a Corp., 377 F.2d 194 (2d Cir. 1967). Cases Citing This Book View Copy Cite
“t has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizen.”
137 citation events (58 in the last 25 years) across 21 distinct courts.
Strongest positive: Caren v. Collins (ca2, 2017-04-28)
Treatment trajectory · 1967 → 2026 · click a year to view as-of
1967 1996 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Caren v. Collins
2d Cir. · 2017 · quote attribution · 1 verbatim quote · confidence high
statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens.
discussed Cited as authority (quoted) Hernandez v. Monaghan
S.D.N.Y. · 2024 · quote attribution · 1 verbatim quote · confidence low
t has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizen.
discussed Cited as authority (rule) Cavanaugh v. Northwell Health, Inc. (2×) also: Cited "see"
E.D.N.Y · 2025 · confidence medium
John Birch, 377 F.2d at 199 (failure to properly allege domicile can be cured “if there is anything on the record from which actual citizenship may be determined”).
discussed Cited as authority (rule) Maxwell v. Velasquez
S.D.N.Y. · 2023 · confidence medium
Partners I, L.P. v. ExxonMobil Corp., 79 F. App’x 489, 491 (2d Cir. 2003) (quoting John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967).) Further, Plaintiff argues that Defendants have not established complete diversity because Defendant Penske Co. “is a limited partnership” and “[a]s such, each and every member of the limited partnership should have been disclosed as should their addresses.” (Doc. 7 at 2.) This is correct.
discussed Cited as authority (rule) Doe v. Yale University
D. Conn. · 2021 · confidence medium
With distressing frequency, attorneys plead a difference in residence as if it established a difference in citizenship, notwithstanding the repeated admonition of the Second Circuit that “[a]n individual’s citizenship, within the meaning of the diversity statute, is determined by his domicile.” Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (citations omitted). “[I]t has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens.” John Birch Society v. National Broadcasting Co., 377 F.2d …
discussed Cited as authority (rule) Perez v. Sodexo, Inc.
E.D.N.Y · 2021 · confidence medium
Petitioner argues that 2 Citing John Birch Society v. National Broadcasting Corp., 377 F.2d 194, 197 (2d Cir. 1967), Petitioner also argues that “[w]here jurisdiction of an action is based upon diversity of citizenship[,] the citizenship of the parties must be positively averred.” (Pet’r Mem. ¶ 7.) Respondent does not respond to this argument, and, because the Court decides the motion on other grounds, the Court does not consider it. “[w]here . . . ‘after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may …
discussed Cited as authority (rule) Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont
2d Cir. · 2009 · confidence medium
Notwithstanding any prior proceedings, it is our obligation to raise the matter of subject matter jurisdiction “whenever it appears from the pleadings or otherwise that jurisdiction is lacking.” John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir.1967) (emphasis added); see, e.g., Fed.R.Civ.P. *64 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” (emphasis added)).
cited Cited as authority (rule) Daneshvar v. Graphic Technology, Inc.
10th Cir. · 2007 · confidence medium
See Dubach v. Weitzel, 135 F.3d 590, 593 (8th Cir.1998); Mills, 118 F.3d at 53-54 ; Sarnoff, 798 F.2d at 1079 ; John Birch Soc’y, 377 F.2d at 197, 199; Joy v. Hague, 175 F.2d 395, 396 (1st Cir.1949).
discussed Cited as authority (rule) Daneshvar v. Graphic Technology
10th Cir. · 2007 · confidence medium
See Dubach v. Weitzel, 135 F.3d 590, 593 (8th Cir. 1998); M ills, 118 F.3d at 53-54 ; Sarnoff, 798 F.2d at 1079 ; John Birch Soc’y, 377 F.2d at 197, 199; Joy v. Hague, 175 F.2d 395, 396 (1st Cir. 1949).
discussed Cited as authority (rule) Adrian Family Partners I, LP v. Exxonmobil Corp.
2d Cir. · 2003 · confidence medium
It is well established that “[a] statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens.” John Birch Society v. National Broadcasting Co., 377 F.2d 194,199 (2d Cir.1967).
cited Cited as authority (rule) Jedrejcic v. Croatian Olympic Committee
E.D.N.Y · 1999 · confidence medium
LEXIS 705 , at *6 (quoting John Birch Soc’y, 377 F.2d at 199).
discussed Cited as authority (rule) Advani Enterprises, Inc. v. Underwriters at Lloyds and Syndicate 735 at Lloyds of London
2d Cir. · 1998 · confidence medium
We have consistently recognized that section 1653 should be construed “liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist.” John Birch Soc’y, 377 F.2d at 198-99.
discussed Cited as authority (rule) Richmond v. International Business MacHines Corp. (2×) also: Cited "see, e.g."
E.D.N.Y · 1996 · confidence medium
The Second Circuit has indicated that in an action, such as the instant one, “based only upon 28 U.S.C. § 1332 , diversity of citizenship must be apparent from the pleadings.” John Birch Soc’y, 377 F.2d at 197.
discussed Cited as authority (rule) Neat-N-Tidy Co., Inc. v. Tradepower (Holdings) Ltd. (2×) also: Cited "see"
S.D.N.Y. · 1991 · confidence medium
See International Shipping, 875 F.2d at 391 ; John Birch Soc’y, 377 F.2d at 198.
discussed Cited as authority (rule) Curley v. Brignoli, Curley & Roberts Associates
2d Cir. · 1990 · confidence medium
Under 28 U.S.C. § 1653 (1988), “[defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” “[Ujsually the section is to be construed liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist.” John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198-99 (2d Cir.1967).
discussed Cited as authority (rule) Curley v. Brignoli & Curley
2d Cir. · 1990 · confidence medium
Sec. 1653 (1988), "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." "[U]sually the section is to be construed liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist." John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198-99 (2d Cir.1967).
cited Cited as authority (rule) Equitable Life Assurance Society of the United States v. Alexander Grant & Co.
S.D.N.Y. · 1985 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 197-98 (2d Cir.1967); Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F.Supp. 637, 640 (S.D.N.Y.1977).
cited Cited as authority (rule) Myers v. Long Island Lighting Co.
E.D.N.Y · 1985 · confidence medium
John Birch Society v. National Broadcasting Corp., 377 F.2d 194, 197 (2d Cir.1967).
cited Cited as authority (rule) Hogan v. Dow Chemical Co.
unknown court · 1985 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir.1967).
cited Cited as authority (rule) In Re Agent Orange Product Liability Litigation
E.D.N.Y · 1985 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir.1967).
cited Cited as authority (rule) Langella v. Weisz
E.D.N.Y · 1984 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 197 (2d Cir.1967).
cited Cited as authority (rule) Geidel Fuel Oil Corp. v. Peninsula National Bank
E.D.N.Y · 1984 · confidence medium
John Birch Society v. National Broadcasting Corporation, 377 F.2d 194, 197 (2d Cir.1967).
discussed Cited as authority (rule) Manway Construction Company, Inc. v. Housing Authority of the City of Hartford, Hartford National Bank & Trust Co., Garnishee-Appellant
2d Cir. · 1983 · confidence medium
Fed.R.Civ.P. 12(h); e.g., John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2 Cir.1967). *504 In the instant case, federal jurisdiction to adjudicate the dispute between the contractors, Manway and Damar, and the Authority rested on grounds of diversity of citizenship. 28 U.S.C. § 1332 (a) (1976).
discussed Cited as authority (rule) Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co.
2d Cir. · 1983 · confidence medium
Sec. 1653 which provides that "defective allegations of jurisdiction may be amended, upon terms in the trial or appellate courts." 16 While we have previously noted that Sec. 1653 should be broadly construed to avoid dismissals of actions on technical grounds, John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198-99 (2d Cir.1967), we have never allowed that provision to create jurisdiction retroactively where none existed.
discussed Cited as authority (rule) Pressroom Unions-printers League Income Security Fund v. Continental Assurance Co.
2d Cir. · 1983 · confidence medium
The Fund attempts to escape this doctrine by relying on 28 U.S.C. § 1653 which provides that “defective allegations of jurisdiction may be amended, upon terms in the trial or appellate courts.” While we have previously noted that § 1653 should be broadly construed to avoid dismissals of actions on technical grounds, John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198-99 (2d Cir.1967), we have never allowed that provision to create jurisdiction retroactively where none existed.
discussed Cited as authority (rule) Corporacion Venezolana De Fomento v. Vintero Sales Corp.
S.D.N.Y. · 1979 · confidence medium
See Tatum v. Laird, 144 U.S.App.D.C. 72 , 77 n.8, 444 F.2d 947 , 952 n.8 (D.D.C.1971); Cox v. Livingston, 407 F.2d 392, 393 (2d Cir. 1969); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198 (2d Cir. 1967).
cited Cited as authority (rule) Gresham v. Chambers
2d Cir. · 1974 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rule 12(h)(3), F.R.Civ.P.
discussed Cited as authority (rule) 8 Fair empl.prac.cas. 759, 8 Empl. Prac. Dec. P 9613 Jewelle Gresham, Individually and on Behalf of All Others Similarly Situated v. Dr. George Chambers, Individually and in His Capacity as President of Nassau Community College, and A. Holly Patterson, Individually and in His Capacity as Chairman of the Board of Trustees of Nassau Community College
2d Cir. · 1974 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rule 12(h)(3), F.R.Civ.P. 9 In support of the position that jurisdiction should have been refused for non-exhaustion of administrative remedies it may be argued that to permit Title VII to be bypassed through an independent lawsuit under 1981 would frustrate the purpose of Title VII, which was to establish an inexpensive conciliatory framework utilizing administrative expertise to resolve differences of the tupe before us.
discussed Cited as authority (rule) Ellen F. Baer v. United Services Automobile Association (2×) also: Cited "see"
2d Cir. · 1974 · confidence medium
Nevertheless, “[b]ecause of the limited jurisdic *397 tion of the federal courts, . . . it is incumbent upon this court to raise the question of subject-matter jurisdiction sua sponte whenever it appears from the pleadings or otherwise that jurisdiction is lacking.” John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2 Cir. 1967); see Mitchell v. Maurer, 293 U.S. 237 , 55 S.Ct. 162 , 79 L.Ed. 338 (1934); Wymard v. McCloskey & Co., 342 F.2d 495, 497 (3 Cir.), cert. denied, 382 U.S. 823 , 86 S.Ct. 52 , 15 L.Ed. 2d 68 (1965).
discussed Cited as authority (rule) Baker v. FCH Services, Inc.
S.D.N.Y. · 1974 · confidence medium
Yet such complete diversity has long been required under § 1332 and the Second Circuit has clearly stated that “[i]t is elementary that all of the plaintiffs must be of citizenship diverse to that of all of the defendants.” John Birch Society v. National Broadcasting Co., 377 F.2d 194, 197 (2d Cir. 1967) (emphasis added).
discussed Cited as authority (rule) Rosalie Givens v. W. T. Grant Company
2d Cir. · 1972 · confidence medium
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2 Cir. 1967); Hackner v. Guaranty Trust Co., 117 F.2d 95, 97 (2 Cir.), cert. denied, 313 U.S. 559 (1941) ; Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939). 3 .
discussed Cited as authority (rule) United States ex rel. D'Agostino Excavators, Inc. v. Heyward-Robinson Co.
2d Cir. · 1970 · confidence medium
Co. v. Swan, 111 U.S. 379, 384 , 4 S.Ct. 510 , 28 L.Ed. 462 (1884); Precise Imports Corp. v. Kelly, 378 F.2d 1014, 1015-1016 (2d Cir.), cert. denied, 389 U.S. 973 , 88 S.Ct. 472 , 19 L.Ed.2d 465 (1967); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Shahmoon Industries Inc. v. Imperato, 338 F.2d 449 (3rd Cir. 1964).
discussed Cited as authority (rule) United States v. Heyward-Robinson Company
2d Cir. · 1970 · confidence medium
Co. v. Swan, 111 U.S. 379, 384 , 4 S.Ct. 510 , 28 L.Ed. 462 (1884); Precise Imports Corp. v. Kelly, 378 F.2d 1014, 1015-1016 (2d Cir.), cert. denied, 389 U.S. 973 , 88 S.Ct. 472 , 19 L.Ed.2d 465 (1967); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Shahmoon Industries Inc. v. Imperato, 338 F.2d 449 (3rd Cir. 1964).
discussed Cited as authority (rule) Zelson v. Thomforde
3rd Cir. · 1969 · confidence medium
R. v. Mottley, 211 U.S. 149, 152 , 29 S.Ct. 42 , 53 L.Ed. 126 (1908); Mansfield, Coldwater & Lake Michigan R’way Co. v. Swan, 111 U.S. 379 , 4 S.Ct. 510 , 28 L.Ed. 462 (1884); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 27 (8th Cir. 1964); McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa.1961); 1A Barron and Holtzoff, Federal Practice and Procedure § 370, p. 509 (Wright ed. 1960).
discussed Cited as authority (rule) Zelson v. Thomforde
3rd Cir. · 1969 · confidence medium
Appellants' Appendix 5a, 6a. 5 We reverse the dismissal of the complaint. 6 Jurisdictional objections which may be raised at any time by the parties, or by the court sua sponte, relate to subject matter jurisdiction. 7 Louisville & N.R.R. v. Mottley, 211 U.S. 149, 152 , 29 S.Ct. 42 , 53 L.Ed. 126 (1908); Mansfield, Coldwater & Lake Michigan R'way Co. v. Swan, 111 U.S. 379 , 4 S.Ct. 510 , 28 L.Ed. 462 (1884); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 27 (8th Cir. 1964); McGonigle v. Baxter…
cited Cited "see" Ntsebeza v. Citigroup, Inc.
S.D.N.Y. · 2004 · signal: see · confidence high
See John Birch Soc. v. Nat’l Broadcasting Co., 377 F.2d 194 , 197-98 (2d Cir.1967); Equita ble Life Assurance Soc. v. Alexander Grant & Co., 627 F.Supp. 1023, 1025-26 (S.D.N.Y.1985).
cited Cited "see" In Re South African Apartheid Litigation
S.D.N.Y. · 2004 · signal: see · confidence high
See John Birch Soc. v. Nat'l Broadcasting Co., 377 F.2d 194 , 197-98 (2d Cir. 1967); Equitable Life Assurance Soc. v. Alexander Grant & Co., 627 F.Supp. 1023, 1025-26 (S.D.N.Y. 1985).
cited Cited "see" Jenkins v. Virgin Atlantic Airways, Ltd.
S.D.N.Y. · 1999 · signal: see · confidence high
See John Birch Soc’y, 377 F.2d at 197; Anisfeld v. Cantor Fitzgerald, 631 F.Supp. 1461, 1468 (S.D.N.Y.1986).
discussed Cited "see" Barnhill v. Insurance Company of North America
D.S.C. · 1990 · signal: see · confidence high
See John Birch Society v. Nat’l Broadcasting Co., 377 F.2d 194 , 197 (2d Cir.1967) (“diversity of citizenship must be apparent from the pleadings”); Simmons v. Rosenberg, 572 F.Supp. 823, 825 (E.D.N.Y.1983) (diversity jurisdiction must be alleged with detail and certainty). 4 Because § 1441(a) provides only for removal of actions “of which the district courts of the United States [would] have original jurisdiction,” and because Rule 8(a) has been interpreted to require a corporate party to adequately allege the existence of complete diversity both in terms of its state of incorporat…
cited Cited "see" Anisfeld v. Cantor Fitzgerald & Co., Inc.
S.D.N.Y. · 1986 · signal: see · confidence high
See John Birch Society v. National Broadcasting Co., 377 F.2d 194,197 (2d Cir.1967).
cited Cited "see" Washburn v. Madison Square Garden Corporation
S.D.N.Y. · 1972 · signal: see · confidence high
See John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198-199 (2d Cir. 1967); Christophides v. Porco, 289 F.Supp. 403, 408 (S.D.N.Y. 1968).
cited Cited "see" Eddings v. Pennsylvania
E.D. Pa. · 1970 · signal: see · confidence high
See John Birch Society v. NBC, 377 F. 2d 194 (2nd Cir. 1967); Brown v. Ingraham, 11 F.R.D. 522 (W.D.Pa.1951).
cited Cited "see" Stearn v. MacLean-Hunter Ltd.
S.D.N.Y. · 1969 · signal: see · confidence high
See 377 F.2d at 197 n. 3.
cited Cited "see" Cass v. Sonnenblick-Goldman Corp.
E.D. Pa. · 1968 · signal: see · confidence high
See, John Birch Society v. National Broadcasting Company, 377 F.2d 194 , 197 (C.A.2, 1967).
discussed Cited "see, e.g." John Doe No. 1 v. Knights of Columbus
D. Conn. · 2013 · signal: see also · confidence low
See also John Birch Soc. v. Nat’l Broadcasting Co., 377 F.2d 194 , 199 (2d Cir.1967) ("it has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens”). .
Retrieving the full opinion text from the archive…
John Birch Society, a Corporation
v.
National Broadcasting Company, a Corporation, and National Broadcasting Company News, a Corporation, Robert Welch, Laurence E. Bunker and MacDonald Hays v. National Broadcasting Company, a Corporation, and National Broadcasting Company News, a Corporation
30978_1.
Court of Appeals for the Second Circuit.
May 2, 1967.
377 F.2d 194
Cited by 4 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 78%
Citer courts: S.D. New York (1)

377 F.2d 194

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.

No. 342.

No. 343.

Docket 30977.

Docket 30978.

United States Court of Appeals Second Circuit.

Argued February 24, 1967.

Decided May 2, 1967.

COPYRIGHT MATERIAL OMITTED J. P. Tonkoff, Yakima, Wash. (Ned W. Kimball, Waterville, Wash., and Sol Lefkowitz, New York City, on the brief), for plaintiffs-appellants.

C. G. Eldridge, Jr., New York City (Coudert Brothers and Gordon T. King, New York City, on the brief), for defendants-appellees.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge.

[*~194]1

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:

2

"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."

3

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:

4

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

5

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. * * *"

6

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

7

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

8

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 * * *

9

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."

10

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),[1] 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.[2] 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[3] 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.

11

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 & Wechsler, The Federal Courts and the Federal System, 901 (1953).

12

Considering separately the complaint of the John Birch Society, the allegations of citizenship which it contains, as noted by the district judge, demonstrate only that neither of the parties was a citizen of Texas and were inadequate to support jurisdiction under 28 U.S.C. § 1332.

13

Nevertheless, in dismissing the complaint, the district judge gave the Society a fair opportunity to correct its omission; but no amendment was offered within that period, nor was any application made to the court for a further extension of time within which to do so. It was not until November 1, 1966, twenty-one days after the judgment had been entered against the Society, that it asked that the judgment be reopened and that it be granted leave to amend its complaint; the trial court denied the motion. The only amendment offered to correct the jurisdictional allegation was the following:

14

"That the plaintiff, John Birch Society, a corporation, is a corporation organized and existing under and by virtue of the laws of the State of Massachusetts, and does not do business in the State of New York.

15

That the defendant, National Broadcasting Company, a corporation, was organized and existing under and by virtue of the laws of the State of Delaware, doing business in the State of New York."

16

Even if this amendment had been allowed, it still would not, strictly speaking, have been sufficient to establish subject matter jurisdiction, because it does not negative the possibility that NBC might have its principal place of business in Massachusetts, see George v. Douglas Aircraft Co., 332 F.2d 73, 74 n. 1 (2 Cir.) cert. denied 379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 (1964); Dining Car Employees Local No. 385 v. Chicago, Milwaukee, St. Paul & Pacific R. R. Co., 323 F.2d 224, 226 (7 Cir. 1963); Fine v. Philip Morris, Inc., 239 F.Supp. 361, 364-365 (S.D.N.Y.1964), and thereby be deemed a citizen of that State. See 28 U.S.C. § 1332(c).[4]

17

What this court must first consider, however, is whether the trial court, after pointing out the Society's errors in its jurisdictional allegation and after it had afforded the Society a reasonable time within which to amend (which was ignored), abused its discretion in denying the appellant's petition. This must be tested on the basis of the representations made to the district judge in support of the motion. The sole ground urged by the Society was that its failure to file an amended pleading within the time allowed was the result of excusable delay. More particularly, it asserted that the proposed amended pleading was mailed from Yakima, Washington, where appellant's counsel resides, on October 5, 1966 and, because of some unexplainable delay in the mails, did not arrive in New York until October 13th. It is apparent, however, that even if difficulties with the mail could be considered grounds for excusable delay, they would not provide a legitimate excuse in this case, because the alleged date of mailing, October 5th, was after the period for repleading had elapsed. As no other ground was presented by the Society in support of its motion and in view of the fact that the defects in the allegations were pointed out to appellant at least as early as February 7, 1966, when NBC first moved to dismiss the complaints, we conclude that the district judge did not abuse his discretion in denying leave to amend.

18

The Society now petitions this court pursuant to authority provided in 28 U.S.C. § 1653,[5] to permit it to amend its jurisdictional allegation now so that it will read as follows:

19

"That the plaintiff, John Birch Society, is a Corporation existing under the laws of the State of Massachusetts and having its principal place of business in the State of Massachusetts."

20

Otherwise it would apparently leave its complaint as it is. An application under § 1653 is, of course, addressed to the discretion of the court, and usually the section is to be construed liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist. See, e. g., Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 234 F.2d 253, 258 n. 6 (2 Cir. 1956); Moore v. Coats Co., 270 F.2d 410, 412 (3 Cir. 1959); Mantin v. Broadcast Music, Inc., 248 F.2d 530 (9 Cir. 1957). Where, however, as in the present case, the district court has pointed out the defects in the complaint and has afforded a plaintiff a reasonable time to amend and the plaintiff, with the intention to delay, has not done so, the appellate court will not allow the plaintiff-appellant leave to amend. Joy v. Hague, 175 F.2d 395 (1 Cir. 1949); Kataoka v. May Department Stores Co., 115 F.2d 521 (9 Cir. 1940) cert. denied 312 U.S. 700, 61 S.Ct. 739, 85 L.Ed. 1134 (1941); Harris v. American Legion, 162 F.Supp. 700, 712 (S.D.Ind.) aff'd 261 F.2d 594 (7 Cir. 1958).

21

Moreover, this court is in no position to do so, because there is still nothing in the pleadings or on the record to negative the possibility that the plaintiff and defendant are citizens of the same state. Cf. Troupe v. Chicago, Duluth & Georgian Bay Transit Co., supra. The dismissal of the Society's complaint is therefore affirmed.

22

Much of what has been said about the Society's complaint applies also to that of the individual appellants. NBC's motion did not allege lack of subject matter jurisdiction as one of the grounds for dismissal, and the district judge dismissed only for failure to state a claim. Because of the limited jurisdiction of the federal courts, however, it is incumbent upon this court to raise the question of subject matter jurisdiction sua sponte whenever it appears from the pleadings or otherwise that jurisdiction is lacking. Louisville & Nashville R. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Beck v. Miriani, 293 F.2d 333, 335 (6 Cir. 1961); Rule 12(h) (2), Fed.R.Civ.P.

[*~194]23

The jurisdictional allegations neither negative the possibility that absolute diversity of citizenship may be lacking nor state the citizenship of the plaintiffs. As to the second point, it has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens. See Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389, 13 S.Ct. 602, 37 L.Ed. 493 (1893); Realty Holding Co. v. Donaldson, 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014 (1925). Such a defect can be cured by this court if there is anything on the record from which actual citizenship may be determined. See National Farmers Union Property & Cas. Co. v. Fisher, 284 F.2d 421 (8 Cir. 1960); cf. Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). But we have found nothing in the record of this case on which to make such a correction.

[*~198]24

There is a proposed amended pleading which the appellants sought leave to file in the district court at the same time that the Society made its motion to amend.[6] Under the circumstances we do not think that the trial judge abused his discretion in denying the appellants' motion. The proposed amended pleading failed to correct the deficiencies in the jurisdictional allegations relating to the plaintiffs and the defendant; it still did not allege the citizenship of the plaintiffs or negate the possibility that NBC's principal place of business coincided with that of the citizenship of one of them. The complaint must therefore be dismissed for lack of subject matter jurisdiction.

[*~199]25

Judgments of dismissal affirmed.

Notes:

1

28 U.S.C. § 1404(a) provides:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

2

The grounds urged for dismissal were: (1) the statement complained of was not libelous per se, and no special damages were pleaded, (2) no innuendo was pleaded, (3) the statement was not libelous, (4) the statement was conditionally privileged under the First Amendment of the United States Constitution, as interpreted in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), (5) the statement was not "of and concerning" the individual plaintiffs, and (6) the complaint of the John Birch Society did not demonstrate the existence of diversity of citizenship among the parties

3

The dismissal of these actions on jurisdictional grounds should not be construed to imply affirmance of the substantive grounds for dismissal adopted by the District Court, particularly with respect to the sufficiency of the complaint in stating a good cause of action under New York law, see Hinsdale v. Orange County Publications, Inc., 17 N.Y.2d 284, 270 N.Y.S. 2d 592, 217 N.E.2d 650 (1966), or the underlying assumptions that the cases should be treated as having originated in the Southern District of New York rather than in the Northern District of Texas, see Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), and that on this basis the substantive law of New York would apply. Zuck v. Interstate Publishing Corp., 317 F.2d 727, 734, n. 12 (2 Cir. 1963). Cf. James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967)

4

"For the purposes of this section * * * a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business * * *."

5

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

6

The proposed amended complaint reiterated the jurisdictional allegation of the original complaint, except that it alleged that:

"The defendant, National Broadcasting Company, is a corporation existing under and by virtue of the laws of the State of Delaware."