I thought I would offer some discussion in writing of the more confusing scenarios involving alienage jurisdiction under 28 USC 1332(a)(2)-(3) that I discussed in class. In all of the following scenarios the cause of action is under state law and the amount in controversy is more than $75,000.


1)      A California sues a German.

            This is an unproblematic example of alienage jurisdiction under 1332(a)(2), since it is a controversy between “citizens of a State and citizens or subjects of a foreign state.”

2)      A German sues a Californian.

Same as 1.

3)      A Californian sues a New Yorker and a German.

            This is an unproblematic example of alienage jurisdiction under 1332(a)(3), since it is a controversy between “citizens of different States [the Californian vs. the New Yorker] and in which citizens or subjects of a foreign state [the German] are additional parties.”

4)      A Frenchman sues a German.

            There is no federal subject matter jurisdiction for this action. It is not a controversy between “citizens of a State and citizens or subjects of a foreign state” under 1332(a)(2) nor is it a controversy between “citizens of different States and in which citizens or subjects of a foreign state are additional parties” under 1332(a)(3).

            What is more it would be unconstitutional for Congress to enact a statute allowing such a case into federal court. It does not fall under the only possibly relevant provision in Article III, section 2, which extends the judicial power of the United States to controversies between “a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

5)      A Frenchman domiciled in France sues a German with a green card domiciled in California.

            Under 28 USC 1332(a), “an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.” So that means that the German is a “citizen” of California for diversity purposes, making this a case of a Frenchman suing a Californian, which is a perfectly good example of alienage jurisdiction under 1332(a)(2).

            So what’s the problem? The problem is that this looks like a case that is not allowed in federal courts under the Constitution. The only relevant provision in Art. III, section 2, is the one that extends the judicial power of the United States to controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” The Supreme Court has treated this provision as prohibiting federal jurisdiction for suits in which an alien sues an alien. Jackson v. Twentyman, 27 U.S. (2 Pet.) 136 (1829).

            But the Supreme Court has not considered cases in which one of the aliens is domiciled in the U.S. Still, it seems plausible that the first occurrence of “Citizens” in “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” refers to American nationals domiciled in a particular U.S. state, and the second refers nationals of a foreign country. If so, then the Constitution forbids a federal court from taking our case, no matter what 1332(a) might say.

            On the other hand, we might understand the first occurrence of “Citizens” to refer to those domiciled in a U.S. state, no matter what their nationality. Then the case would be allowable in federal court under the Constitution.

            Most courts who have dealt with such cases have not really decided the Constitutional issue straight-on, but have concluded that Congress did not mean to extend alienage jurisdiction to such cases by passing the “permanent resident” provision in 1332(a). They were interested only in reducing the scope of alienage jurisdiction by excluding controversies between a US national domiciled in a state and a foreigner domiciled in that same state. See Buti v. Impressa Perosa, S.R.L., 935 F.Supp. 458 (S.D.N.Y 1996); Saadeh v. Farouki, 107 F.3d 52 (D.C. Cir. 1997). But a recent case has concluded that if Congress had wanted to extend alienage jurisdiction to our case through the provision, the Constitution would forbid it. Gall v. Topcall Int'l, A.G., 2005 WL 664502 (E.D. Pa. 2005).

6)      A Californian sues a U.S. citizen domiciled in France.

            There is neither diversity nor alienage jurisdiction. This is not a suit between “citizens of different States” under 1332(a)(1), because the defendant is not a citizen of a US state, since she is not domiciled in any US state. But it also not a suit between “citizens of a State and citizens or subjects of a foreign state” under 1332(a)(2) because the defendant is not a citizen or subject of a foreign state (she is an American). The reason is that the second occurrence of “citizens” in 1332(a)(2) has been taken to refer, not to domicile, but to nationality. Courts have consistently so held. See, e.g., Twentieth Century-Fox Film Corp. v. [Elizabeth] Taylor, 239 F. Supp. 913 (S.D.N.Y. 1965); Hammerstein v. Lyne,  200 F. 165 (W.D. Mo. 1912).

7)      A Frenchman sues a Californian and a German (or a German and Californian sue a Frenchman).
       
            Courts have consistently held that such cases do not fall under 1332(a). E.g. Israel Aircraft Indus. Ltd. v. Sanwa Business Credit Corp., 16 F.3d 198, 202 (7th Cir.1994) ("the statute creating the diversity jurisdiction does not contemplate an alignment of alien versus citizen plus alien."); Ed & Fred, Inc. v. Puritan Marine Insurance Underwriters Corporation, 506 F.2d 757 (5th Cir. 1975). It is not a case of a suit between “citizens of different States” under 1332(a)(1), because there is a citizen of a State (meaning a U.S. state) on only one side. It is not a case of a suit between “citizens of a State and citizens or subjects of a foreign state” under 1332(a)(2), because we have aliens on both side. And it is not a suit between “citizens of different States and in which citizens or subjects of a foreign state are additional parties” because there are not citizens of U.S. states on each side.

8)      A Frenchman and a New Yorker sue a Californian and a German.

            It looks like this has federal subject matter jurisdiction, for it is a suit between “citizens of different States and in which citizens or subjects of a foreign state are additional parties” under 1332(a)(3). And courts have so held: Samincorp, Inc. v. Southwire Company, 531 F. Supp. 1 (N.D. Ga. 1980).