Fifty Associates, a Massachusetts Corporation v. The Prudential Insurance Company of America

446 F.2d 1187 FIFTY ASSOCIATES, a Massachusetts corporation, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee. No. 23936. United States Court of Appeals, Ninth Circuit. July 6, 1970. Rehearing Denied Oct. 6, 1970. James Powers (argued), of Powers, Boutell, Fannin & Ridge, Phoenix, Ariz., for appellant. Daniel T. Bergin (argued), Robt. H. Carlyn, Robt. P. Robinson, of Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., for appellee. Before MERRILL and KOELSCH, Circuit Judges, and BYRNE, * District judge. BYRNE, District Judge. This case presents an excellent example of the problems confronting a pleader in a federal court of limited jurisdiction, who is accustomed to preparing pleadings in a state court of general jurisdiction. Appellant Fifty Associates and its lessee of Arizona real estate, Mayer-Central Building Company, executed a mortgage on certain property in Phoenix, to Prudential Insurance Company of America. After Mayer defaulted in making payments due to Prudential, the appellee filed a foreclosure action in federal court. Jurisdiction purportedly was based on the diversity of citizenship provisions of Title 28 U.S.C. 1332. Prudential named as…

This case presents an excellent example of the problems confronting a pleader in a federal court of limited jurisdiction, who is accustomed to preparing pleadings in a state court of general jurisdiction.

Appellant Fifty Associates and its lessee of Arizona real estate, Mayer-Central Building Company, executed a mortgage on certain property in Phoenix, to Prudential Insurance Company of America. After Mayer defaulted in making payments due to Prudential, the ap-pellee filed a foreclosure action in federal court. Jurisdiction purportedly was based on the diversity of citizenship provisions of Title 28 U.S.C. § 1332 . Prudential named as defendants the parties set forth in the margin. 1

Within the body of the complaint Prudential alleged with respect to diversity jurisdiction:

After considering the cause without a jury, the district court entered a “Judgment and Decree of Foreclosure and Sale” in favor of Prudential titled:

The district court noted that each of the defendants had been served regularly with process, that all defendants, except Fifty Associates and the State of Arizona (Arizona State Tax Commission), failed to answer the complaint or otherwise plead, and that…

(concurring).

We concur in Judge Byrne’s result. While we do not find any real problem presented by Prudential’s allegations respecting its New Jersey citizenship (Prudential may still wish to satisfy Judge Byrne on this score), we do agree that in other respects our perceptive brother, sua sponte, has put his finger on problems that should be straightened out and that since land titles (and potential clouds) are involved the solution he proposes — that the straightening out be accomplished in the District Court— would best assure the avoidance of future difficulties.

With respect to that solution we may add that in any appeal from a new summary judgment the briefs filed herein may be utilized and the appeal shall, by the clerk, be assigned to this panel. Unless new problems are presented requiring supplemental briefing or argument, it may be assumed that the case will be ordered submitted forthwith on the argument already had.

ON REHEARING

Appellee has moved for an order of this court recalling our mandate and granting leave to appellee to file petition for rehearing. In appellee’s view, proceedings below, since our mandate went down, call for a clarification of our decision…