Estelle W. Sligh v. John Doe
596 F.2d 1169
4th Cir.
1979
Check Treatment

*1 plan receiving under are noteholders being overcom- they are not

arrangement, therefore, PCC’s shareholders

pensated we plan.9 Since prejudiced

are not plan is in conform- that the

also conclude law, we requirements

ance with all other did not err the district court

hold that

confirming plan.10 reasons, appeals foregoing

For reorganization court the orders

from and the orders dismissed

will be affirmed. XI Court will be

Chapter SLIGH, Plaintiff, Appellee, W.

Estelle Defendant, DOE, Appellant.

John 78-1312.

No. Appeals, Court of

United States

Fourth Circuit. 9, 1979.

Argued March 1979.

Decided appellants the PCC reor- liquida intimate Appellants have not claimed Chap- proceeded plan ganization under pursuant ar should have to the tion of the PCC Appellants’ Liquidations Chapter prejudicial per rangement XI. See se. ter X rather than 78-2336, plans p. Chapter Chapter rule pursuant X 17. No absolute XI and in No. Brief reorganization governs upheld so should the circumstances have been where whether See, g., Chapter accomplished See SEC v. In re Northern Illinois XI. warrant. e. under (7th Co., Development Corp., F.2d 104 Cir. Trailer Rentals American denied, (1964), (Chap 1963), U.S. 938 General cert. L.Ed.2d 510 Brewery XI); Shlensky, Corp. In re V. Loewer’s Gambrinus ter Stores X). (2d 1944) (Chapter 141 F.2d 747 Cir. no error There was plan proceedings with the conducting the PCTC under The need to coordinate the PCC allowing adequate justification plan Chapter PCC XI. Chapter pursuant liquidation XI to a here arrangement.

1170 judicial

The Power shall extend to . Citi- Controversies . . . between zens of different States. however, grant,

The constitutional with simply endows inferior federal courts jurisdiction speci in capacity to receive cases; Congress fied an act of Bank of North Ameri vest it. Turner v. 8, 10, 1 ca, 4 Dall. L.Ed. 718 Sheldon Fairfax, Va., Perry, (Thom- Randolph H. Sill, 441, 448-49, 8 How. 12 L.Ed. 1147 Jordan, Pace, Carr, Savits, Coyne as & (1850). In Justice Marshall’s time the Chief C., brief), Washington, appellant. on for D. plaintiff could not have sued in the C., Nappo, Washington, (Mi- D. Vincent held, in Hepburn federal court. He Ell Branham, Vienna, Va., brief), chael on for 445, 452, (1805), 2 2 zey, Cranch L.Ed. 332 appellee. establishing Congress that the act of diver sity jurisdiction “obviously uses the word PHILLIPS, Before and WIDENER Cir ‘state’ in reference to that term as used in DUMBAULD,* Judges, cuit and Dis Senior constitution,” District of and that the Judge. trict “in the sense of Columbia is not State 1949 did the that instrument.” Not until DUMBAULD, Judge. District Senior Supreme residents of the Court decide that Plaintiff, a resident of the District of diversity jurisdiction. District could invoke Columbia, employed a woman in her fifties National Mutual Ins. Co. v. Tidewater government, passenger was a by 582, 1173, Transfer 93 negli rear seat of an automobile which was (1949).2 present statutory The L.Ed. 1556 gently sideswiped Virginia by a hit-and- language makes clear intent of Con occupied by run Cadillac four black males. gress permit such invocation.3 injuries sustained to her knees She $13,500.1 jury which the The awarded Cad plaintiff seeking It is law that a hornbook stopped, immediately away, illac but drove relief in a federal court has the burden of escaped pursuit. and The Cadillac bore Vir jurisdictional alleging proving ginia plates, license but the numbers could Accept facts. McNutt v. General Motors not be determined. 189, Corp., ance U.S. S.Ct. (1935); Wright, The 80 L.Ed. 1135 Handbook of question crucial before us is whether Courts, jurisdiction (2d the Law sufficiently has been of Federal 15 — 16 ed. 1970). jurisdiction equally elementary established. is based It is that lack of Such Ill, question may Art. raised sec. Constitution which is a provides any that: at time.4 * Dumbauld, Wright, Judge, See Handbook of the Law of Edward Senior District Federal Pennsylvania, sitting by Courts, (2d 1970). Western District of ed. designation. ‘States,’ 1332(d): 3. 28 U.S.C. “The word as § states, judge 1. As the trial the verdict have section, in this used includes . . . the Dis- generous, light been in the as the evidence trict of Columbia.” damages, the extent of but not excessive. Handbook, 16-17; Wright, supra, note 20, 1940, 2. The Act of 54 Stat. 143 was Maurer, 237, 244, 55 Mitchell v. by conflicting sustained mi- combination of at bar In the case norities on the Court. Three Justices held that question after defendant first raised the legislation power was valid under jury opening was sworn but before counsels’ govern the District of Columbia conferred presentation statements of evidence. I, Article sec. cl. 17. Two Justices favored judge proceeded but later trial with the trial overruling Hepburn. Marshall’s decision in gave point. full consideration to defendant’s thought Four the law was unconstitutional. Defendant’s reliance on Johnson v. The trial court “was Gen- entitled to infer and Motors, (E.D.Va. 242 F.Supp. eral Nor- find, did, as it the driver a car 1965), misplaced. folk Div. In that case a having Virginia tags in Virginia involved sued, Virginia plaintiff plaintiff as does accident is likely than not a here, an unknown motorist under the Vir- 10 This resident.” inference follows a forti- ginia Judge Uninsured Motorist law. Hoff- Judge ori if reasoning Hoffman’s in John- man, observing *3 was admitted- son, supra, be accepted, that even when no ly any proof unable to offer as to the citi- offered, evidence was the circumstances Doe, zenship of John went on say: to “In- made it probable “more than not that the deed, since the giving accident rise to this unknown driver . . . was a citizen of cause of action place City took in the of Virginia.” Norfolk, it is probable than not that the unknown driver . . . was a citizen In the case at bar was some there affirm- circumstance, Virginia.” of That which ative pointing Virginia evidence toward cit- jurisdiction Johnson, served to defeat izenship, not conclusive evidence by any would tend to establish it in the case at bar. means, support but sufficient to finding a Citizenship,5 ingre like the other in the absence of any proof. contradictory diversity jurisdiction dients elements of Had defendant testimony offered that four (such as the controversy,6 amount in resi persons in the area had recently robbed a parties,7 dence of the principal place of bank getaway and made their in a stolen corporation8), presents business of a pre Cadillac, white or testimony from the local liminary question of fact to be determined agency Hertz or Avis that such a vehicle by Appellate the trial court. review should had been rented to four men from Wash- by be limited the applicable usual standards ington, the situation would be different. to such Gypsum determinations. U. S. v. stands, But as the logical record the normal Co., 364,395, 525, 333 U.S. 68 S.Ct. 92 L.Ed. conclusion which a fair mind would reach is (1948); 746 Bluefield Armature Co. v. R. G. Virginia hit-and-run driver was a Pope Co., 484, 485, Construction 548 F.2d speculation resident. conjec- Resort to 4, (C.A. 1976); 487 Boxberger, Cohen v. 544 ture would be in order to over- 701, (C.A. 4, F.2d 1976); 704 U. S. v. One throw this conclusion and maintain defend- Benz, 912, 1971 (C.A. Mercedes 542 F.2d 914 position. ant’s Hence we are constrained to 1976).9 Applying those criteria we are 4. hold that Judge’s the District determination unable to say that the District Court’s de- of the crucial question of fact was not clear- termination preliminary of the question of ly diversity judgment erroneous. Hence the citizenship clearly was errone- below ous. must be affirmed. Ordinarily Pocahontas, citizenship Caperton

5. 445, an F.Supp. individual’s will 8. be v. 420 by place residence, pursuant (W.D.Va., 1976), determined his Abingdon 449-50 Div. aff'd Amendment, 683, 4, (C.A. 1978). Section 1 of the Fourteenth 585 F.2d 691 provides persons which that “All born or natu- ralized in the United States . are citi- plain “clearly 9. It is the erroneous” rule zens of the United States and of the State applies jurisdictional as well as to substan- they wherein reside.” Caperton tive determinations. v. Beatrice-Poc- Co., 683, (C.A. 4, ahontas Coal 585 F.2d 691 Mercury Indemnity 1978); Nolan, 6. 1049, St. Paul Co. v. Red Cab Webb v. 484 F.2d 1050 283, 288-90, 586, 4, (C.A. 1973); Exports 303 Phillips, U.S. 82 Marshall (1938). 47, (C.A. 4, 1974). L.Ed. 845 507 F.2d 49 Gilmer, 315, 328, Only damages Morris v. 9 S.Ct. the issue of was submitted to Brooks, jury. request Wehrle v. 269 Defendant made no to sub- F.Supp. (W.D.N.C., question jury. any 787-88 Charlotte Div. mit the of domicile to the In 1966), 4, 1967); (C.A. aff'd 379 F.2d 288 it Griffin event was not error for the Court to deter- Matthews, F.Supp. (M.D. testimony 310 mine that matter in the N.C., Div.1969), David, 561, 568, Greensboro aff'd 423 F.2d record. Gilbert v. (C.A. 4, 1970). L.Ed. jurisdiction without WIDENER, court would be since it Judge, dissenting: Circuit citizenship prove would impossible be respectfully I dissent. rendered operator. result bar, suit plaintiff brought the case at In alluring for it all majority makes too motorist stat- under the uninsured plaintiff narrow line try to walk the ute, 38.1-381(c)-(e). Section 38.- Va.Code § information much and little between too too l-381(e) provides, pertinent part: “If the opera- concerning the identification operator any causing vehicle owner or jurisdic- tor in invoke limited order to unknown, damages action injury or an keep with- yet tion of the district court and de- against be instituted unknown in the statute. I believe result as ‘John Doe’ . . . .” To fendant jurisdiction where none strains to find “John un- against maintain an action Doe” should exist. statute, prove must der this equally As valid reason an additional and operator of vehicle is “unknown.” my opinion Brizendine, Haymore v. 210 Va. See *4 here, present not I think the district court 172 S.E.2d 777-78 Doe v. Sim- determining plaintiff’s the erred in that mers, 207 Va. S.E.2d support finding a evidence was sufficient to Doe,” operator, that the defendant “John Plaintiff, a citizen of the District of Co- Virginia. was of The court a citizen lumbia, against to bring chose suit “John premised solely conclusion on the follow- its court, basing Doe” in the federal district ing Virginia; accident in facts: the occurred diversity the court’s on of citi- driving the was an automobile defendant zenship. such, As burden the was with no Virginia tags; license and contra- majority, plaintiff, prove as noted the to dictory citizenship on evidence defendant’s that “John Doe” was not a citizen of the was introduced. District of Columbia. anything If the above evidence show I believe it is contradiction in for terms to citizenship, very as at the best it would operator the to contend that of a owner, go citizenship to of and not the the purposes vehicle is for of Vir- “unknown” driver, car, the the owner of for the is statute, uninsured ginia’s yet motorist suf- required register an Va.Code to auto. See ficiently purposes for of identified even evidence does not 46.1-41. And that § citizenship. juris- of Either the court lacks support an inference that the owner of the citizenship of diction because the the de- for, Virginia, Virginia, is in car a citizen of Virginia’s proven, fendant cannot be or un- variety there are a circumstances in of apply insured motorist statute does not be- register which and a nonresident must it cannot that the proven operator cause license his vehicle the State. See Va. is “unknown.” The two contentions cannot Therefore, just Code be- 46.1-131-139. §§ logically coexist. Virginia tags cause license a vehicle bears If the both contentions is coexistence of does the owner is even a resident not mean following the accepted, dilemma becomes at of much less a citizen thereof. Virginia, apparent. persuade by must once If one Furthermore, registration keyed to the preponderance op- that the of the evidence State, of the highways use of of the the use not a the erator is citizen of State of 46.1-41, operation Va.Code § possible plaintiff, it as must be to well State, 46.1-134, not to either Va.Code § operator sufficiently identify the so that he citizenship or residence. the meaning is not “unknown” within speculative It to infer that is even identify But to so statute. the car a citizen Vir- driver of was would operator render statute out, ginia. majority points the hit- hand, As the inapplicable. the other if one On occupied by males. was four It prove operator must is “unknown” and-run car to that the driv- Virginia’s speculation that motorist stat- sheer assume so uninsured also applies, ute it er the car was the owner car must be the district Therefore, in these circumstances. tags nothing

license tell us about the citi- car,

zenship of the driver of the even if we

accept argument proposition

they something tell us about the owner of Likewise,

the car. the acci- fact Alexandria, Virginia,

dent occurred in is in proximity Mary-

which close to both C., Washington,

land and D. does not tell us

anything citizenship about the of the driver.

The majority opinion states that “resort speculation conjecture and would be nec-

essary in order to overthrow district [the conclusion” as defendant’s citi-

court’s]

zenship. Because I believe the evidence of citizenship

record is silent as to the car,

driver of the I think it is speculation conjecture

resort in or- uphold This,

der to finding. the court’s I unwilling

am to do.

I require would the dismissal of the case *5 jurisdiction.

for lack of diversity HOME, Petitioner,

The METHODIST

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 78-1075. Appeals,

United States Court of

Fourth Circuit.

Argued Jan.

Decided