Alla v. Kornfeld,
84 F. Supp. 823 (N.D. Ill. 1949)
US District Court for the Northern
District of Illinois
84 F. Supp. 823 (N.D. Ill. 1949)
June 8, 1949
84 F. Supp. 823 (1949)
KORNFELD et al.
No. 48 C 801.
United States District Court N. D. Illinois, E. D.
June 8, 1949.
*824 Eiger, Siegal
& Rothenberg, Chicago, Ill., for the plaintiff.
Bullas, Chicago, Ill., for defendants Dubin, Kornfeld, Perlman and Salavitch.
Harold I. Chayes and Martin O. Weisbrod,
Chicago, Ill., for defendant Lillard.
CAMPBELL, District Judge.
The plaintiff in this cause of
action is a citizen of Brazil. The complaint alleges that the defendants
entered into a contract with plaintiff whereby he was to be the exclusive
distributor of an automobile called the "Town Shopper" throughout
South America. At the time of the execution of the contract, plaintiff turned
over $15,000 to defendants, which he eventually was to receive back in the form
of discounts on automobiles delivered to him for sale. No deliveries were ever
made. The complaint is set up in two counts: (1) For breach of contract; (2)
Defendants duly filed the following
motions: (a) Dubin Motion to dismiss for failure to
state a claim upon which relief can be granted; (b) Kornfeld,
Perlman and Salavitch Motion to dismiss for failure
to state a claim upon which relief can be granted; (c) Lillard
Motion that service of summons be quashed and that he be dismissed as a
defendant, on the grounds that he was a defendant in a criminal case in this
district when served with process and that he is a citizen of the United States
but not of any State therein.
The motions of Dubin
and of Kornfeld, Perlman and Salavitch
to dismiss are denied. In the first place, they failed to submit briefs in
support of their motions in accordance with Rule 7 of this district, which fact
is sufficient ground for denial of the motions. Furthermore, the complaint on
its face clearly states a cause of action, and is immune to a motion to dismiss
for failure to state a claim upon which relief can be granted.
Lillard's motion, however, should be granted. It appears from an
affidavit, submitted in support of his motion, that an
arrest warrant was issued against him on April 30, 1948. He was arrested in
Texas and was brought to this district. On May 13, 1948 an indictment was
returned against him. On May 18, 1948 he entered a plea of not guilty to the
indictment, and the cause was ordered to be held on the trial call. On June 10,
1948, while he was awaiting trial, he was served with summons in the instant
The law is clear that, while
awaiting trial, a defendant in a criminal prosecution is immune from civil
"* * * Until the indictment is
disposed of and the prisoner is discharged he is constructively in custody of
the law, and not until the happening of that event is he required to depart for
the state of his domicile within a reasonable time or be deprived of his
privilege to exemption from service of process." Adamy
v. Parkhurst, 6 Cir., 61
F.2d 517, 518.
Lillard's further motion to be dismissed as a defendant challenges
the jurisdiction of this Court to hear the controversy between plaintiff and
him. His uncontroverted affidavit states that he has lived in Mexico
continuously for a period of thirteen years, and that he is registered with the
Department of State as a citizen of the United States. The pertinent grant of
jurisdiction to the federal district courts is contained in the Judicial Code,
28 U.S. C.A. § 1332:
"(a) The district courts shall
have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $3,000 exclusive of interest and costs, and is
of different States:
"(2) Citizens of a State, and
foreign states or citizens or subjects thereof;"
There is a recognized distinction
between citizenship of the United States and citizenship of a particular State,
and a person may be the former without being the latter. Slaughterhouse Cases,
16 Wall. 36, 21 L. Ed. 394.
In order to constitute *825 a person a citizen of a State, so as to sue
or be sued in the courts of the United States, that person must have domicile
in such State. If a person establishes domicile in a foreign country, he loses
his State citizenship but not necessarily his United States citizenship. He
loses the latter only where he renounces or otherwise abandons or loses it. Hammerstein
v. Lyne, 8 Cir., 200 F. 165.
Here it would appear that Lillard has lost his State
citizenship but not his United States citizenship. Hence, as between him and
plaintiff, the present action cannot be said to be a controversy between
citizens of different States, nor between a citizen of a State and a citizen of
a foreign state. At first blush, this might be deemed an inequitable situation,
but it must be remembered that, in his present status, Lillard
is similarly precluded from maintaining an action in the federal courts. The
following cases support the result achieved here. Although, under the present
Judicial Code, a resident of the District of Columbia may sue and be sued in
the federal courts, the rationale of the Land Co. case is still applicable to
the circumstances of the instant cause of action.
"The defendant Smoot moves to
dismiss the bill as to him for want of jurisdiction. This motion must prevail,
because it is well settled that a citizen of the District of Columbia is not a
citizen of a state within the meaning of the judiciary act and the subsequent
acts conferring jurisdiction upon the circuit courts of the United States, and
the jurisdiction of this court does not extend to a controversy between an
alien and a citizen of the United States who is not a citizen of a state.
Hepburn v. Ellzey, 2 Cranch
445, [2 L. Ed. 332]; Barney v. Baltimore City, 6 Wall.
280, [18 L. Ed. 825]; New Orleans v. Winter, 1 Wheat. 91 [4 L. Ed. 44]." Land Co. of New Mexico, Ltd., v.
Elkins, 2 Cir., 20 F. 545.
"As has been said, citizens of
the District of Columbia were not granted the privilege of litigating in the
federal courts on the ground of diversity of citizenship. Possibly no better
reason for this fact exists than such citizens were not thought of when the
judiciary article of the federal Constitution was drafted. It is even more
probable that citizens of the United States, occupying the very unusual status
that Pannill does, were also not thought of; but in
any event a citizen of the United States, who is not a citizen of any state, is
not within the language of the Constitution." D.C., Pannill v. Roanoke Times Co., 252 F. 910, 914.
For the above reasons, Lillard's motion to quash service of summons and to dismiss
him from the action is granted. Service of summons is, therefore, quashed and
the cause is dismissed as to defendant Lillard.