
    THE SUCCESSION AS THE HEIRS OF FRANCISCO DE LOS REYES CORREA, Plff., v. WILLIAM P. KRAMER, Dft.
    San Juan,
    Law,
    No. 1652.
    Opinion filed March 25, 1924.
    
      Mr. Willis Sweet for plaintiff.
    
      Mr. John L. Gay, United States District Attorney, for defendant.
   OdliN, Judge,

delivered tbe following opinion:

This action was instituted in the second division of the Insular district court of Porto Eico at San Juan, and was removed by the attorney for the defendant to this court. There has been filed a motion to remand, based upon the following grounds, to wit: Eirst, that this court is without jurisdiction upon the ground of diverse citizenship, because the plaintiffs are all domiciled in Porto Pico and the domicil of the defendant is not shown, even though it be immaterial; second, it is alleged by the counsel for the plaintiff in his motion to remand that the defendant is only a formal party without any interest to be affected as the result of this action, and is not therefore entitled to aslc for any removal from the Insular court to the Federal court; and third, because so far as it appears in the petition for removal the defendant may have his domicil in Porto Pico.

I will briefly discuss these grounds in order. So far as the allegations in the first ground are to be considered, it is alleged by the attorney for the plaintiff in his motion to remand that the plaintiffs all have their domicil in Porto Pico, which allegation is a very important one, but it does not appear in the petition for removal that the plaintiffs are all domiciled in Porto Pico. It must be remembered that the jurisdiction of this court is very far from being the same as the jurisdiction of a district of the United States sitting outside of Porto Pico. The Congressional Act of 1917, commonly called the Organic Act for Porto Pico, contains a peculiar clause which actually makes the jurisdiction of this court in civil cases restricted to controversies where the parties on one side are domiciled in Porto Pico and the parties on the other side are not domiciled in Porto Pico. Diversity of citizenship alone is sufficient to confer jurisdiction upon a district court of the United States sitting in any one of the forty-eight states of the Union, but diversity of citizenship alone is not sufficient to confer jurisdiction upon the United States district court for Porto Pico. By reason of this fact, although I am clear that the petition for removal is defective, I cannot agree 'with tbe statement made by counsel for tbe plaintiff that tbe domicil of tbe defendant is immaterial. It is very clear to me that tbe domicil of tbe defendant is absolutely material; because it being admitted tbat all tbe plaintiffs are domiciled in Porto Pico, if it should be disclosed tbat tbe defendant bimself was also domiciled in Porto Pico, it would necessarily follow tbat the litigation could neither be instituted in nor transferred to tbe Federal court. I therefore bold tbat tbe first ground in tbe motion to remand is not properly stated.

Coming to tbe second ground of tbe motion to remand, counsel alleges tbat tbe defendant is only a formal party without any interest to be affected as a result of this action, and is not therefore entitled to ask for a transfer to this court. If this statement be true, it seems to me tbat counsel for tbe plaintiff is bound to disclose in bis motion to remand who is tbe actual party defendant, in order tbat this court may know intelligently tbe nature of tbe litigation. In other words, if parties domiciled in Porto Rico see fit to bring an action in tbe Insular court involving property of a value exceeding $3,000, exclusive of interest and costs, against a person who is merely a formal party, it is impossible for this court to act intelligently upon tbe question of removal or nonremoval until this court is made aware who is tbe actual party defendant, whose rights may be affected by tbe result of tbe litigation.

Coming to tbe third ground of tbe motion to remand, it seems to me tbat it is well taken. It is alleged tbat so far as appears from tbe petition for removal tbe defendant Kramer may have his own domicil in Porto Pico. If this be true, then bis domi-cil would be tbe same as tbat of tbe plaintiffs, and tbe litigation could neither be instituted in this court nor removed to this court.

The absence from the petition for removal of any direct, specific allegation as to the domicil of the defendant would require me to hold the petition for removal fatally defective, and to grant this motion to remand, except for the provision in § 274c of the Judicial Code, which provides for an amendment by either party, at any stage of the proceedings, of the petition for removal. This is also found in 38 Stat. at L. page 956, chap. 90, Comp. Stat. § 1251 c, 5 Ted. Stat. Anno. 2d ed. 1059.

Hence it follows, that before remanding this case to the Insular district court, it is the duty of this court to allow counsel for the defendant a reasonable opportunity to amend his petition for removal, so that this court may be made aware whether the proper diversity of domicil exists or does not exist.

It is therefore the order of this court that the motion to remand be granted, unless counsel for the defendant shall on or before the 5th day of April, 1924, file a proper amendment to his petition for removal.

To this order and opinion counsel for the plaintiff excepts.

Done and Ordered in open court at San Juan, Porto Eico, this 25tn day of March, 1924.  