Lurie Company v. Loew's San Francisco Hotel Corp.

ORDER

Defendant has moved to dismiss for lack of jurisdiction on the grounds that (1) the complaint fails to allege diversity of citizenship in that it fails to allege the principal place of business of either plaintiff or defendant; and (2) the principal place of business of defendant is in fact in the state of California, and as California is the state of incorporation of the plaintiff, there is no diversity of citizenship.

A hearing was held on July 16, 1970. Prior thereto the respective parties either submitted affidavits or conducted appropriate discovery through depositions and written interrogatories. Written briefs were filed and oral arguments were presented at the hearing.

Rule 12(d) of the Federal Rules of Civil Procedure provides for a preliminary hearing for determining before trial defenses raised by motions specified in Rule 12(b). It is “advisable generally to decide such defenses as * * * lack of jurisdiction * * * promptly after they are raised, and not defer them to the trial.” 2A Moore’s Federal Practice 2354, jf 12.16.

As a general rule the “trial court may, in its discretion, hear and determine issues of fact as to jurisdiction by receiving oral testimony…