Charles J. Vaughan, Ancillary Administrator of the Estate of Eldon Eure Swain v. Southern Railway Company

III. ments were false in any degree. substantial Under the rules governing summary judg- deny that he was does not Anderson ment, the granting of defendant’s motion murdering his wife and that convicted was therefore proper. is certainly “[I]t well published by the defendant article settled that the opposing party is not enti- supported by sworn testi respects in most tled to hold back his evidence trial, until argues, how his trial. Anderson mony at and is not entitled to a trial on possibili- ever, took truthful that the defendant ty that an issue of material fact might arise exaggerated or embellished statements if the case were go to trial on the mer- them, thereby rendering them libelous. We Moore, its.” 6 Pt. 2 J. Federal Practice merit. argument is without think that 56.23, at (1976) (footnotes 56—1391 omit- examples given by Anderson show ted). the insubstantial nature of his claim. One The granting of summary judgment excerpt alleges that he to be libelous stated is especially appropriate in libel cases, for shipmate third that of Anderson’s testi- “[a] prolonging a meritless case through trial fied that being boasted of [Anderson] result could in further chilling of First high ranking member of the Mafia.” Al- rights. Amendment Bon Hotel, Air Inc. v. though admitting that he had claimed mem- Time, Inc., 426 864-865 Mafia, bership in the argues Anderson that conclude, We therefore, this statement was libelous because he had district court properly entered summary high ranking. never claimed to be We judgment in favor of defendant, as the deviation, think that as well as the clearly record shows that the allegedly libe cites, legal others he is without significance. lous statements were substantially true. Under the law of South judgment of the district court will be jurisdiction case, applicable AFFIRMED. “substantial truth” is a valid defense to a claim. In Dauterman libel v. State-Record (1967), S.C. S.E.2d

example, South Court plain that even if the statement

held drinking quite might

tiff “had been a bit” libelous, it was

be considered not actionable the record reflected that

because

substantially true. We think that similarly record in the case VAUGHAN, reflects Ancillary Charles J. alleged by the statements Anderson Administrator of the Estate of substantially Swain, libelous were Any true. Appellant, Eldon Eure testimony from the sworn deviations at tri inconsequential al were embellishments COMPANY, SOUTHERN RAILWAY author to add color or by interest Appellee. They did not to the article. cause Ander “good any name” to be No. son’s sullied 75-2107. already

than it had been the fact of his Appeals, United States Court of conviction. Even in deposi murder his own Fourth Circuit. tion Anderson failed to state unequivocally allegedly libelous statements Argued April Again again, response false. Decided Oct. detail, questions as he said he could not remember or did not know. Nor did he

affidavit otherwise offer evidence estab

lishing a conflict as to whether the state- Wilson, City, Elizabeth N.C. Kenyon

J. Godwin, Gateville, N.C., and W. (Philip P. Jr., N.C., brief), Raleigh, for on Joyner, T. appellee. HAYNSWORTH, Judge, Chief

Before BUTZNER, Circuit WINTER and Judges.

HAYNSWORTH, Judge: Chief presented court was with the In 1969 dealing cases of a series of first fiduciary to create or of a diversity jurisdiction. Lester v. defeat Cir., 415 F.2d 1101held 4th Georgia resident as Caro- of the estate South bringing a decedent for lina courts wrongful death action in the federal an defendant was against a South Carolina jurisdiction.” “improper manufacture Subsequent cases reaffirmed Id. at 1104. Lester notion that expanded the personal representative inflexible determinant not an Cir., 4th citizenship. Miller 63; Cir., 4th Bishop v. F.2d Mil- generally, Wright ler, Practice and Procedure § Now, has arisen question (1971). a related context. in a new Swain, Ports- a resident of Eldon mouth, Virginia, killed in North Caroli- rails, when, he was seated between na Railway train. Southern by a hit Southern prin- Virginia and has its incorporated in place of business in the District cipal mother, Marie The decedent’s Columbia. Swain, Virginia, a citizen of who was also qualified as administratrix Swain bringing estate Railway wrongful against Southern were no assets in the death. There Swain other than the death claim. estate According plaintiff, was deter- place that the most convenient mined Whitlow, Portsmouth, (Rich- be the of North trial would State Carolina. Va. Morton Mattox, Sondej Young, governed by action would be North Young, & ard S. law since the Va., Vaughan, J. Turn- accident occurred Portsmouth, Charles Carolina N.C., there, potential all of the Woodland, brief), witnesses Vaughan, er & in North resided Carolina. Since North appellant. North and his ancil- Carolina also a requires that a resident Carolina Florida, sought bring wrong- citizen of appointed lary administrator action,1 Vaughan, a death action in the federal courts of plaintiff, ful such He was attorney, an- North Carolina. thwarted in his efforts, by the same estate. North Caroli- Swain cillary administrator case, Vaughan brought require- death ac- na rule involved that a North Carolina administrator in States District Court the United ment tion wrong- an action for District of North Carolina. be Eastern the Accordingly, in that state. parties the action is between ful death Nominally, citizenship, a situation administrator was who are of diverse ed, court subsequently have existed had the ac- and the district dis- would not which Swain, the the action because the defendant by filed Marie mother missed tion been also a North Carolinian. beneficiary. was the appeal, filed a motion to dismiss On we reversed district court The defendant citizenship that the of a Vaughan prop- that had not and held resident ground the reluctantly procured by out- qualified as administrator. The dis- administrator erly Miller, court, on Lester and of-state beneficiaries for the sole relying trict procedural Vaughan properly complying require- whether had with a state ruled that be be- should not be looked to when to the case should dismissed do so qualified, diversity jurisdiction. was made for defeat In so Vaughan’s would cause transferring essentially holding, implicitly we decided that the rule purpose of by controversy into the federal courts. announced Court in Mecom below, agree 52 the reasons stated v. Fitzsimmons U.S. For 76 L.Ed. 233 not “inflexi- proper. was dismissal constitutionally ble and mandated.” upon we relied Kramer v. Car In F.2d at 64. ibbean Weist, Cir., McSparran v. 3d The final case in 9 and the Fourth Circuit trilo- L.Ed.2d situa- gy, 867 to conclude that was a Lester court, citizenship per noting that Miller may ignore had court change “a substantial in signaled and look to that of the sonal jurisdiction,” held that represents he if it is deter beneficiaries foreign improper was joinder personal rep administrator or mined that the that, 1359. We was or collusive to collusive under declared § resentative notwithstanding, jurisdiction proper the court’s within the motive test for invoke determining of 28 1359.2 fo whether an administrator’s U.S.C.A. We § falls fact that there no other within 1359 was whether § cused on the “something has the estate and concluded that as administrator assets in Kramer, interest at stake assignee in nominal in the true of than a litigation.” had done little more F.2d at 297. foreign administrator use of his name and could lend the principles, the above must Applying party.” termed a “straw be best Vaughan’s citizenship conclude that should 1103-04. at disregarded in determining be whether di- versity of Lester. exists. the ben- presented Miller converse Since Miller, resident killed in eficiaries of the death claim are a Florida provides requires district court that actions Section 1359 “[a] 28-173 § 1. N.C.Gen.Stat. jurisdiction prosecuted in not have of a civil action in death be the name shall otherwise, any party, by assignment representative. or N.C.Gen.Stat. which improperly collusively provides made or letters of administration has been 28-8 person joined of such court.” who is a nonres- to invoke the not be issued to a shall of North Carolina. ident of the State is as Virginia, is also the artificial and as it shadowy which citizens all defendant, sense, incorporation and in Bishop. was in Lester In that case and the Indeed, pretense, reality. is no there it is dismissing it was correct district we said administrator’s lack lack of controversy enough stake citizenship irrelevant. make his earnestly that Me- plaintiff contends question dispositive Moreover, com Miller where we cri- it sets forth because “inflexibl[e] were unaided 1359 for the of diver- for ultimate determination sought jurisdiction, to invoke teria] there Mecom, however, dealt a case sity.” it, we not to defeat concluded that Mecom been select- in which had been so eroded Kramer v. his diverse. ed because it could longer regarded Mills that collusively effort was not to create universality. a rule of We felt free to look it. jurisdiction, but to defeat Sec- federal to the substantive relations of parties the Mecom, had no relevance in as tion it that, in determining and concluded the ex- Here, we as say easily here. cannot as does diversity citizenship, istence of the on and the ap- did in Lester we side should look to citizen- plaintiff’s of the was collu- administrator ship of the beneficiaries and not to purpose procured solely for the sive of the representative. Section creating diversity jurisdiction, for expresses greater congres- a 1359 at least good bring reason to action in there about sional concern artificial creation of Carolina, and the North North diversity than about its artifi- brought require that it be statutes Hence, here, cial defeat. we conclude as in name of a North Carolina administrator. Miller, that we should look to the citizen- Perry, Miller v. if As in Mrs. Swain was ship beneficiary in Virginia rather Carolina, bring to the action in going than that of North Carolina administra- compelled procure appoint- to she to comply tor with North Caroli- ment North Carolina administrator. procedural requirement. na’s purity circumstances make the of her Those As we observed North Caroli- beyond question, attempts, motive but she appointing Vaughan na’s decree as adminis- appointment of by the the North Carolina under trator “is not attack. to controversy convert may be assumed to be valid every Virginia citizens of between into one be- respect perfectly administrator free citizens of different states. In Les- tween pursue to the action in the state court.”3 finding recognize that a ter an could proceeded diversity pre- apparent difficulty. with no state court The action dependent upon evil or tensive attempt con- foundered because to motive, conduct or but flowed reprehensible controversy vert an intra-state in- into an the fact that the chosen administrator from controversy. ter-state controversy no stake in the and was creating appar- for the informed that limi- selected We are the statute of Here, diversity citizenship. Vaughan run and that ent tations has an affirmance of stake in the outcome court’s has no contro- district order will mean that the given the decision to file the action claim will versy; death never be attempt his was not an in North to trial. avoid such hard- creating solely ship, we held Lester that its rule would action, citizenship, attempt put applied prospectively only. but the it to be may regarded use a substantial was filed much as later. Now only With stake in outcome Kramer Lester and equivalent. controversy, well, substantive but point Miller v. as 3. 415 F.2d at 1105. 642, 668-669, (1823) Wheat.) 5 L.Ed. 705 jurisdiction in of federal to denial way citizenship of the executor of a case.4 diversity juris- estate determines decedent’s reasons, of the com- dismissal For This rule was reaffirmed and diction. affirmed. is plaint death in Mecom plied to suits AFFIRMED. v. Fitzsimmons 76 L.Ed. 233

BUTZNER, (dissenting): Judge Circuit the Court said: where instance in the first presents This case petitioner “The insists that where the residence of a has utilized a court which is wrongful death claim to beneficiary of a giving right to recover a statute when the resi- diversity jurisdiction deny act, is, here, by wrongful for death personal repre- of the decedent’s dence charged responsibility sentative, required by is whose or settlement of such suit and conduct jurisdic- law, sustain otherwise would proceeds its distribution of think the court’s because I I dissent statute, entitled under and is persons by a laudable decision, though motivated for failure upon his official bond liable reform, is based symmetry desire diligence he is the fidelity, act with law should be rather what the concept of citizenship, his real in interest and actually the decision is. Since what beneficiaries, than that of the rather prece- nor neither statute supported determinative contrary general- dent, it is believe think is the correct view.” This we juris- governing the accepted principles ly diversity jurisdiction has never This rulé of least, very At the courts. of district diction repudiated by Court. been tempered should be innovation drastic this Miller, Wright and Practice application. prospective Procedure, is, 1548 and 1556. It and §§ proposition unquestioned however, I start subject excep- to two well-defined a state must defer to federal court that a tions. resident requiring exception first The codified in 28 fiduciary to institute an action for or 1359.1 The of this statute § U.S.C. The North Carolina fidu- wrongful death. prohibit “improperly from or tois indispensable plaintiff. The was an ciary collusively” invoking diversity jurisdiction. residence, therefore, issue, is which sole fiduciary’s citizenship Manifestly, beneficiary’s, is to be con- fiduciary’s or jurisdiction if his not confer should diversity jurisdic- determining in sidered correctly have violates 1359. We § course, This, decided must be of proscription statute’s to suits applied the law. brought by out-of-state fiduciaries who imported to manufacture be- Story Mr. Justice ago as long As residing in the (8 litigants forum state. Emory, 21 U.S. tween in Childress wrote Perry, shortly Miller v. a rule which the the rule of until before was not filed This action 4. strenuously year plaintiff running and his counsel now re- two stat- of North Carolina’s By general allega- factual situation was the time the There was a sist. of limitations. ute jurisdictional question upon jurisdiction the actual founded diversi- resolved and was tion that confronted, expired. period citizenship the limitations ty of more and the involvement of however, specific protective $10,000. Strangely, been filed in a state action had No plaintiff allegations was a citizen court. were that Railway Southern and that North Carolina of existing organized provides the laws of under that “A district § 1. 28 U.S.C. was place jurisdiction principal of a civil of busi- ac- with its court shall by assignment Greensboro, any party, or oth- There North Carolina. tion in which ness collusively erwise, improperly citizenship or has been on the face no thus jurisdiction joined presence to invoke complaint, diversi- unless court.” ty such to be determined dispenses necessity today 495 F.2d 289 Bishop See, g., e. impropriety. or other It collusion 1974); proving Lester v. (4th Cir. statute, elements of the 1969). case now (4th The deletes Cir. deny jurisdiction, se rule to per us, differs from creates before when, compliance with the law of even Lester. state, fiduciary a local is selected unequivocally in this case The record Act nor Neither the text of the good faith. the North fidu- demonstrates justifies con- explanation the Reviser’s for the ciary was struction jurisdiction. The manufacturing diversity rule exception general second appointment was valid The reason citizenship of the administrator re- Carolina law substantial —the exists diversity jurisdiction as an resident be named determines that a local quired requir- statute application of a state had where ancillary administrator. fiduciary suit would appointee. ing a local choice Supremacy by eliminat- opinion acknowledges, the violate the Clause majority As the exception beyond ing jurisdiction. This the claimant’s motive is purity decision in Miller v. It is the absence of an out-of- the basis of our question.2 fiduciary, appointed solely to manu- state jurisdiction, distinguishes

facture Miller, we held that the rendering from case non-resident beneficiaries rather than that inapposite. them ancillary the resident cases, majori- by law, was required two other on which the whose relies, jurisdiction brought interpreting are also not ty determined defendants. controlling. Any In Kramer v. resident against other conclusion, Inc., emphasized, 23 L.Ed.2d would insulate citizens from federal actions (1969), assignment the Court held that the debt, admittedly motivated to manu- beneficiaries for by out-of-state Therefore, diversity jurisdiction, we conferred death. facture holding the state law in conflict 1359. avoid within or collusive noted, 9, Supremacy Clause. In the case 394 U.S. at 828 n. 89 with the The Court us, however, arising of abuse now before defendant possibilities of North so the appointment of out-of-state fidu- not a citizen out gave suggestion a local administrator as re- But it no hint or ciaries. citizen, quired of a local as state law bar federal will law, constitutionality The required by state or col- law, therefore, Weist, Similarly, McSparran jeopardy, v. is not in lusive. (3rd 1968), applying Miller not ex- Cir. dealt with a suit reason does F.2d ’ fiduciary out-of-state named brought by an ist. diversity jurisdiction. solely manufacture determining di- problems inherent in jurisdiction by versity 1359 was enacted in its Section long rec- personal representative of the 1948 revision of the been part as a form Wright Mil- ognized. generally 6 The Reviser’s Note states See judicial code. ler, Practice and Procedure 1557. is confined to cases where a the statute reform, the Ameri- conferring jurisdiction preferable “is im- most As the device proposes Institute to attribute the collusively made. . . .”3 can Law properly Nevertheless, adopted by rule decedent the new Mills, Inc., plaintiff brought 3. See Kramer v. Caribbean lawful, practical Because the acci- reasons. 23 L.Ed.2d 9 state, are in that the witnesses quoted. dent occurred Reviser’s Note is where the available, readily and North Carolina governs. Moreover, we do not many of determin- know how cases American Law Insti- ing jurisdiction. pending are in district courts where merito- tute, Division of Jurisdiction Study death, for wrongful rious claims Courts, and Federal official impropriety between State without collusion or in reliance rule, 1301(b)(4), 1307. The law, draft will yesterday’s destroyed §§ if our adopts, falls far short today which the applied new rule is not also prospectively to certainty achieving simplicity them. Instead of as- proposal.4 Institute’s certaining person of one proposal, in the Institute’s courts

prescribed will be to consider the

frequently many persons single case.

situation reason, predict that the new rule

For this than it questions far more settles.5

will raise will now be re- Apparently MALVEAUX, Elizabeth allege prove jurisdictional quired Plaintiff-Appellee, respect beneficiary. to each This facts may add considera- unfortunately in itself complexity, especially in the cost and ble MATHEWS, Secretary F. David issue that in most discovery stages, to an Health, Welfare, Education and simple undisputed would be cases Defendant-Appellant. present rule or the Institute’s either No. 76-2252 Frank, Cf. J. American Law: proposal. Summary Calendar.* Reform, esp. at 185' for Radical The Case (1969). Appeals, United States Court of Fifth Circuit.

Finally, ruling I believe the in this case prospective. should be was the Nov. adopted Lester v. device 1969) McSparran Cir. and in Weist, (3rd 402 F.2d 867 cases, although of those the claimants both

admittedly procured jur- fiduciaries manufacture

out-of-state

isdiction, injustice applying the rule

retrospectively injus- was avoided. Similar here where the

tice occurs claimant is not impropriety. tarnished collusion or

even If, indeed, change present injuries can the fatal can be recovered in a suit for despite in Mecom the rule stated v. Fitzsim- wrongful pressing death. Are the creditors mons claims deemed beneficiaries within the these scope and the limited 76 L.Ed. beneficiary the new rule? If each is would do better to em- 28 U.S.C. interest, considered to be the real suggestion. the Institute’s brace beneficiary the claim of each to be considered “separate and distinct” for the of de- Among questions the more obvious are the termining jurisdictional amount? mention following: apply plain- the rule when the Will issues, potential disparage not to the de- tiff is the executor named the decedent? reform, sirability emphasize apply but to Will it when likely improve to administer assets in addition to new rule is so, If death claim? how substan- determining jurisdiction. method of jurisdic- be? How will tial must these assets the decedent’s estate tion be determined when * 18, Cir., Enterprises, see Isbell Rule Inc. v. beneficiary death is the al., Casualty ofCo. New York et 5 Cir. Citizens states, expenses funeral act? In some Part I. hospital expenditure incident medical

Case Details

Case Name: Charles J. Vaughan, Ancillary Administrator of the Estate of Eldon Eure Swain v. Southern Railway Company

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 7, 1976

Citation: 542 F.2d 641

Docket Number: 75-2107

Court Abbreviation: 4th Cir.