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Federal tax refund cases.5 The dissent expresses the belief that
the U.S. Courts of Appeals for the Seventh and Eighth Circuits
would look to these cases and ascertain appellate venue based on
the residence of the estate’s representative.6
I respectfully disagree because for venue purposes: (1) We
are not dealing with refund, diversity jurisdiction, or tort
claims; (2) we are not compelled to follow the rationale of
refund, diversity, or Federal tort claims cases; and,
significantly, (3) the dissent relies on the diversity cases
despite Congress’ having enacted legislation that effectively
“overrules” them.
Concerning the weight to be afforded to diversity
jurisdiction precedent, 28 U.S.C. sec. 1332 was amended in 1988
to ensure that the citizenship of represented parties will be
determined according to the citizenship of the represented
party--not the fiduciary. 134 Cong. Rec. 31051 (1988). Congress
was concerned with attorneys using out-of-State fiduciaries
5 The Federal tax refund case Kruskal v. United States, 178 F.2d
738 (2d Cir. 1950), which is heavily relied on in the dissenting
opinion, places central focus and substantial reliance on Mecom
v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931), a case
involving Federal diversity jurisdiction. It is also noted that
these cases are about 45 and 65 years old, respectively, and
predate contemporary legislation and thinking on the subject of
venue.
6 The dissent, however, does not explain why following those
principles would cause a better or more feasible result.
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