
    Frank P. McGONIGLE v. Dorothy BAXTER and Charles P. Baxter.
    Civ. A. No. 23483.
    United States District Court E. D. Pennsylvania.
    May 10, 1961.
    Wanda P. Chocallo, Philadelphia, Pa., for plaintiff.
    Howard R. Detweiler, Philadelphia, Pa., for defendants.
   EGAN, District Judge.

Pursuant to Federal Rule of Civil Procedure 36, 28 U.S.C., the defendants have requested the plaintiff to admit the truth of some ten statements of fact, all relating to the question of whether the plaintiff at the time of instituting this suit was a citizen of New Jersey, as he claims, or of Pennsylvania, as the defendants claim. Since the defendants were citizens of Pennsylvania at the time the complaint was filed, a finding that the plaintiff was also a Pennsylvania citizen would defeat this Court’s jurisdiction. The plaintiff has objected to all of the requested admissions on the ground that they are irrelevant and involve disputed issues of fact raised for the first time in the defendants’ pre-trial memorandum. Counsel have submitted briefs and made oral argument.

While it is true that the defendants challenged the plaintiff’s citizenship for the first time in their pre-trial memorandum, it is likewise true that the defense of lack of jurisdiction of the subject matter is available at any time and cannot be waived. F.R.Civ.P. 12(h).

The objection that the requested admissions are irrelevant is not well-founded since they bear on the vital question of whether the plaintiff was a New Jersey or a Pennsylvania citizen at the time suit was brought. That the admissions may concern disputed issues of fact does not of itself make them objectionable. Tillman v. Fickencher, D.C.E.D.Pa.1960, 27 F.R.D. 512.

We note that the plaintiff’s complaint does not allege New Jersey citizenship but alleges merely New Jersey residence, so that the complaint fails to allege the required jurisdictional facts. The plaintiff will be granted leave to amend his complaint to allege New Jersey citizenship if such be the case.

Order.

And Now, this 10 day of May 1961, the plaintiff’s objections to the defendants’ requested admissions are overruled. The plaintiff is granted leave to amend the complaint within twenty days to allege that at the time of filing the complaint he was a citizen of New Jersey if such be the case.  