Conversely, the court lacks jurisdiction when the statutory beneficiaries and the defendant have identical citizenship even though the plaintiff administrator and the defendant are citizens of different states. See Mullins v. Seals, 562 F.2d 326 (4th Cir. 1977); Vaughan v. Southern Ry. Co., 542 F.2d 641 (4th Cir. 1976); Bishop, 495 F.2d 289; Lester, 415 F.2d 1101. Nevertheless, we have not departed altogether from the jurisdictional precept of Mecom.
The defendant contends that the citizenship of the takers under the will, North Carolina citizens, should control. In support of this position, the defendant cites several authorities, in particular Miller v. Perry, 456 F.2d 63 (4 Cir. 1972) and Vaughan v. Southern Ry. Co., 542 F.2d 641 (4 Cir. 1976). If the court accepts this argument, the requisite diversity will not exist.
The Fourth Circuit has concluded that an administrator may not rely upon his citizenship to establish diversity jurisdiction when his appointment is required by the law of the forum state as a prerequisite to bringing an action in the forum. E.g., Vaughn v. Southern Rwy. Co., 542 F.2d 641, 645-46 (4th Cir. 1972). The Fourth Circuit approach effectively abandons any notion that the purpose for the appointment is an important factor under Sec. 1359. Vaughn v. Southern Rwy. Co., 542 F.2d at 644.
In our opinion, it clearly does not. Subsequent to the decisions in Lester, Miller and Bishop, this Court had before it Vaughan v. Southern Ry. Co., 542 F.2d 641 (4th Cir. 1976). The case concerned a fatal accident in North Carolina to a Virginia resident.
Section 1359 continues to engender dispute within the Fourth Circuit. Compare Krier-Hawthorne v. Beam, 728 F.2d 658, 661-62 (4th Cir. 1984) (citizenship of personal representative who has more than nominal role is decisive) with id. at 671-72 (Murnaghan, J., dissenting) (urging adoption of American Law Institute rule that citizenship of decedent controls); and Vaughan v. Southern Railway, 542 F.2d 641, 643-44 (4th Cir. 1976) (citizenship of beneficiaries of wrongful death claim controls) with id. at 645 (Butzner, J., dissenting) (majority decision, though motivated by laudable desire for symmetry and reform, is supported by neither statute nor precedent). We are not the first to observe that "[t]he situation in the Fourth Circuit is unclear."
The reason for appointing the representative here is insufficient to establish more than a nominal relationship between the representative and the cause. Bishop, supra (remanding under § 1359 although administrator appointed for experience in business affairs); Vaughan v. Southern Ry., 542 F.2d 641 (4th Cir. 1976) (remanding under § 1359 although purpose of bringing suit in North Carolina with required resident representative was to locate litigation close to witnesses and scene of accident). Thus it is clear that the beneficiaries could not have used the citizenship of this administrator to invoke federal diversity jurisdiction.
Id. at 297; see Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969); Lester v. McFaddon, 415 F.2d 1101 (4 Cir. 1969); McSparran v. Weist, 402 F.2d 867 (3 Cir. 1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969). As in Miller, Vaughan v. Southern Railway Co., 542 F.2d 641 (4 Cir. 1976), involved a North Carolina ancillary administrator bringing a wrongful death action in North Carolina federal district court on behalf of non-resident beneficiaries. The defendants, however, were not citizens of North Carolina, but of Virginia, the domicile of the beneficiaries.
[16] ALBERT V. BRYAN, Senior Circuit Judge, concurring specially. I concur in the opinion of the majority because, as it amply demonstrates, the evidence rulings at trial were faulty and necessitated a new trial, and also because the present jurisdictional ruling is permitted by our decision in Vaughan v. Southern Ry. Co., 4 Cir., 542 F.2d 641 (1976). But I have reservations upon the correctness of the denial of jurisdiction.
The liberal interpretation given to § 1359 by the Supreme Court in Kramer was applied by us in O'Brien v. Avco Corp., 425 F.2d 1030 (2d Cir. 1969), where we held that the appointment of an administrator of an estate for the purpose of creating federal jurisdiction violated § 1359 and construed that section as barring "agreements whose primary aim was to vest the court with a jurisdiction it had not formerly enjoyed," id. 1034. See also Vaughn v. Southern Railway Co., 542 F.2d 641 (4th Cir. 1976). The reasoning behind our interpretation of the statute was well summarized by Judge [now Chief Judge] Kaufman in O'Brien:
There has been some suggestion by the plaintiff that, should I find no diversity on the basis of her citizenship, I should look to the citizenship of the sole beneficiary Donald Michaud, that I should find him to have been a citizen of New York, and that I should therefore conclude that there is diversity. Some courts, having discounted the "manufactured" diverse citizenship of the nominal plaintiff, have indeed attributed the citizenship of the beneficiary to the plaintiff for the purpose of that action, see, e.g., Vaughan v. Southern Ry. Co., 542 F.2d 641, 643-4 (4th Cir. 1976), though ordinarily for the purpose of defeating rather than finding diversity. I need not decide whether similar attribution would be appropriate in a case such as this in order to create diversity because it is clear from the evidence adduced at the hearing that Donald Michaud was a citizen of Massachusetts and not of New York in November 1980, the time of the filing of this action.