Robinson v. Anastasiou, 339 F. Supp. 472 (S.D. Tex. 1972)
March 17, 1972
Marilyn P. ROBINSON
United States District Court, S. D. Texas, Houston Division.
W. Jiles Roberts, Houston, Tex., for plaintiff.
Henry P. Giessel, Talbert, Giessel & Stone, Houston, Tex., for defendant.
Memorandum and Order:
SINGLETON, District Judge.
Plaintiff, a citizen of Texas, has filed this suit seeking recovery in excess of $10,000.00 as the only beneficiary of her deceased ten-year-old son's estate. Plaintiff's son sustained personal injuries resulting in his death as he rode his bicycle on a Houston, Texas, street on June 26, 1969. The defendant is a Greek seaman who was born in Egypt and who also carries a British passport. The defendant has legally lived in Houston *473 as a permanent resident since 1959 and holds a "green card" from the U.S. Immigration Service. The defendant has never applied for nor received a status of naturalized United States citizen.
The case is presently before the court on a motion to dismiss for lack of jurisdiction. Upon review of the pleadings, this court concludes that the defendant is a domiciliary of Texas within the meaning of 28 U.S.C. § 1332(a) (1). Accordingly, 28 U.S.C. § 1332(a) (1) does not confer jurisdiction on this court since it reads as follows:
"(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between
"(1) citizens of different States;"
However, the second section of the diversity jurisdiction statute would provide for jurisdiction by this court:
"(2) citizens of a State, and foreign states or citizens or subjects thereof." 28 U.S.C. § 1332(a) (2).
Unfortunately, there is a dearth of precedent on this issue of having a plaintiff and defendant of the same domicile but the defendant simultaneously possessing a foreign citizenship. The case of Aguirre v. Nagel, 270 F. Supp. 535 (E.D.Mich.1967), is the only case this court has found that directly relates to the issue in question. There a young girl was domiciled with her parents in Michigan but also had a Mexican citizenship because her parents were Mexican nationals. Because the defendant in that case was also a citizen of Michigan, the court declined jurisdiction under 28 U.S.C. § 1332(a) (1). However, that court declared it would be bad policy to decline jurisdiction under 28 U.S.C. § 1332(a) (2).
Therefore, this court will take jurisdiction under 28 U.S.C. § 1332(a) (2) even though jurisdiction would not exist under 28 U.S.C. § 1332(a) (1).
Accordingly, the motion to dismiss is denied.