Before McLAUHGLIN, STALEY and FORMAN, Circuit Judges.
This appeal brings before us one narrow issue, i. e., whether or not the district court erred in dismissing the action for want of diversity jurisdiction under the circumstances.
Plaintiff was seriously injured at a grade crossing in Meigs County, Ohio, on January 4, 1957, when struck by a locomotive and train belonging to defendant railroad. Alleging that the accident was caused by the negligence of the defendant and its violation of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., the plaintiff instituted an action in the District Court for the Western District of Pennsylvania on May 2, 1957. In part, the complaint alleged that the plaintiff was a citizen of Pennsylvania, residing at R.D. #1, Fombell, Beaver County, Pennsylvania, and that defendant was a corporation incorporated under the laws of the State of New York and a citizen of New York. In its answer defendant admitted this allegation but additionally averred that it was a consolidated railroad corporation, organized and existing also under the laws of the Commonwealth of Pennsylvania.
For its first defense the defendant alleged that the district court was without jurisdiction inasmuch as both plaintiff and defendant were citizens of Pennsylvania. Pursuant to Federal Rule of Civil Procedure 12(d), 28 U.S.C.A., plaintiff on September 19, 1957, moved for a preliminary hearing on the questions of jurisdiction and venue raised by the answer. That same day, defendant filed a motion requesting transfer of the action to the District Court for the Southern District of Ohio.
Shortly thereafter a paper entitled "Stipulation and Order of Court Determining Jurisdiction and Venue" was filed. It was signed by counsel for both parties, dated September 26, 1957, and read as follows:
"It is hereby stipulated and agreed between the parties to this action that the jurisdiction and venue of the District Court of the United States for the Western District of Pennsylvania is recognized in this action but that such recognition shall not prejudice the pending argument regarding defendant's motion to transfer said action."
On October 1, 1957, the district court entered an order "that the District Court of the United States for the Western District of Pennsylvania has proper jurisdiction in this action and that proper venue has been established in this action." Accordingly, no preliminary hearing was held and subsequently the motion to transfer was denied.
Extensive trial preparation by both parties transpired in the next 23 months, as is indicated by the 41 intervening docket entries. After all discovery had been completed the case was prepared for pretrial in accordance with Rule 5 (II) of the Rules of the District Court which requires the parties to stipulate in advance to matters not substantially in dispute and to file a brief on any disputed questions of law one week prior to pretrial conference. The defendant failed to file any brief indicating that it contested jurisdiction.
At the pretrial conference held on August 13, 1959, the counsel for defendant indicated he had been instructed "by Cleveland counsel to request counsel for plaintiff to admit that the New York Central Railroad is incorporated in Pennsylvania." Counsel for the plaintiff did not do so, and on August 28, 1959, the defendant filed a motion to dismiss for lack of jurisdiction. The motion raised the same issue as the original answer. Attached to the motion was an exhibit which was a copy of a certificate of the Secretary of the Commonwealth of Pennsylvania which recited that the New York Central Railroad Company was the remaining entity resulting from a consolidation and merger and that on August 18, 1959, it was a presently subsisting corporation of the Commonwealth of Pennsylvania. This motion to dismiss and plaintiff's motion to strike the motion to dismiss*fn1 came on for hearing on September 17, 1959. On October 8, 1959, the district court dismissed the action and later filed a memorandum in clarification, stating that under the circumstances no exercise of discretion was proper and that plaintiff had taken no action to either admit or deny defendant's alleged incorporation in Pennsylvania.
In its brief the defendant relies on Jacobson v. New York, New Haven & Hartford Railroad Co., 1954, 347 U.S. 909, 74 S. Ct. 474, 98 L. Ed. 1067, which affirmed the opinion of the First Circuit reported in 1 Cir., 1953, 206 F.2d 153. It was there held that multi-state corporations, being citizens of each state of their incorporation, cannot be sued in a federal court on the basis of diversity by a citizen of the state in which the district court sits if the corporation is also incorporated therein. Insofar as our opinions in Gavin v. Hudson & Manhattan R. Co., 3 Cir., 1950, 185 F.2d 104, 27 A.L.R.2d 739, and Bartron v. Delaware River Joint Toll Bridge Commission, 3 Cir., 1954, 216 F.2d 717, certiorari denied, 1955, 348 U.S. 943, 75 S. Ct. 364, 99 L. Ed. 738, hold to the contrary, they are no longer the law.
Be that as it may, this case does not fall within the principles there enunciated, for upon analysis it becomes clear that the defendant, by entering into the so-called stipulation, hereinbefore set forth, following plaintiff's motion for a preliminary hearing on the issue of jurisdiction, in effect amended its answer. Defendant's action amounted to a striking of its defense of lack of jurisdiction and an admission of the jurisdictional facts alleged by plaintiff in his complaint. Furthermore, after full opportunity for presentation of evidence and argument, the district court made a finding upon the undisputed facts that jurisdiction obtained.
We are not unmindful of Federal Rule of Civil Procedure 12(h), 28 U.S.C.A., which states:
"(h) Waiver of Defenses. A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the ...