Opinion
No. 440 Civ.
June 27, 1940.
Frank J. McDonnell, of Scranton, Pa., for plaintiffs.
Stanley F. Coar, of Scranton, Pa., for defendants.
Action by William Fowler, Matthew N. Greer, and Harry Horowitz against Harry H. Baker and another, for damages allegedly sustained in automobile accident. On motion to dismiss complaint.
Order in accordance with opinion.
May 2, 1940, complaint was filed in the above case stating a cause of action for negligence against the above defendants. May 22, 1940, defendants filed a motion to dismiss the complaint for failure affirmatively to show jurisdiction of this court and to direct plaintiffs to file a more definite statement indicating which of defendants was driving the motor vehicle at the time of accident, and to state with particularity the place, time, and circumstances of the accident. Argument on the motion was heard by the court at Scranton, Pennsylvania, June 18, 1940.
Defendants' first objection is that the complaint refers to the parties as "residents" and not as "citizens" of different states. The complaint should show diversity of citizenship and not diversity of residence. Plaintiffs will be allowed to amend their complaint in this regard, as such amendment will not prejudice any rights of the defendants.
Defendants' next objection is that the complaint does not show the jurisdictional amount of $3,000 in the case of plaintiff Horowitz. The concluding paragraph of the complaint contains a demand by this plaintiff for damages in the sum of $5,000. The jurisdictional amount is thus properly shown by plaintiff Horowitz.
Defendants' third objection is that the complaint is indefinite and defective because it fails to state which of the two defendants was driving the motor vehicle alleged to have struck the plaintiffs, and because it fails to show any relationship between the defendants, and because it does not state with particularity the time, place, or circumstances of the accident.
Where plaintiffs do not know which of two persons were driving a motor vehicle they may properly allege the act against either or both: Official Form 10, Rule 84, Rules of Civil Procedure for District Courts, Appendix of Forms, 28 U.S.C.A. following section 723c. No relationship need be shown between the two defendants. After a study of the pleadings and briefs the court finds that the complaint sufficiently states the facts on which the case is based. Any further and more detailed information which defendants desire is available to them under the provisions of the Rules of Civil Procedure which cover depositions and discovery.
For the foregoing reasons it is ordered that plaintiffs amend their complaint within ten (10) days from the date of this order to show diversity of citizenship of the parties, and failing to do this, the complaint will be dismissed.
It is further ordered in all other respects the motion to dismiss this complaint be, and the same are hereby, denied and dismissed.
It is further ordered that the defendant shall be served with a copy of the amended complaint referred to above, and that within twenty (20) days from such service the said defendants shall file their answer thereto, or subject themselves to judgment by default, together with the costs of this action.