454 F2d 1146 Kenebrew v. Columbia Land and Timber Company

454 F.2d 1146

Reverend B. M. KENEBREW, Administrator of the Succession of
Archie Ashworth, Sr., and Minnie Samuels Ashworth,

No. 71-3091 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 26, 1972.

Raymond D. Fuljenz, Peter A. Ciambotti, Lake Charles, La., for plaintiff-appellant.

Richard E. Gerard, Lake Charles, La., William E. Hall, Jr., DeRidder, La., for defendant-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.


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The Reverend B. M. Kenebrew, Administrator of the Succession of Archie Ashworth, Sr., and Minnie Samuels Ashworth, appeals from the judgment of the District Court dismissing his claim for lack of diversity jurisdiction. The action is a possessory action under Louisiana law: "The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted." La.Code Civ.Pro. Art. 3655. Reverend Kenebrew, a citizen of Texas, was appointed administrator of the succession of the two Louisiana decedents. The estate consists only of this claim. Appellant has no relationship by blood or marriage with either of the decedents. Ashworth's surviving children are Louisiana citizens. Several grandchildren, who claim a one-ninth interest in the land, reside in Texas. The District Court determined that "The administrator does not have sufficient substantive ties to the heirs or to the State of Louisiana to support federal diversity jurisdiction. Allowing this suit to be prosecuted here would not advance any of the functions that diversity jurisdiction was designed to serve." Thus, the Court dismissed the complaint for lack of diversity of citizenship pursuant to 28 U.S.C. Sec. 1359. The decision is correct and the judgment is affirmed. See White v. Lee Marine Corp., 5 Cir., 1970, 434 F.2d 1096; Caribbean Mills, Inc. v. Kramer, 5 Cir., 1968, 392 F.2d 387, aff'd 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969); Bass v. Texas Power & Light Company, 5 Cir., 1970, 432 F.2d 763; Groh v. Brooks, 3 Cir., 1970, 421 F.2d 589; Lester v. McFaddon, 4 Cir., 1969, 415 F.2d 1101; McSparran v. Weist, 3 Cir., 1968, 402 F.2d 867, cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969).




Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I