Baker v. JC Penney Co., Inc.

Citation496 F. Supp. 922
Decision Date15 September 1980
Docket NumberCiv. A. No. 78-1768 A.
PartiesKenneth BAKER and Audrey Catherine Baker v. J. C. PENNEY COMPANY, INC., d/b/a Treasury Drug Center, Howard, Stanley Purser, Clarence Benford, and J. C. Schlicker.
CourtU.S. District Court — Northern District of Georgia

Alvin T. Wong, Atlanta, Ga., for plaintiffs.

A. Terry Sorrells, Carter, Ansley, Smith & McLendon, Atlanta, Ga., for defendants.

ORDER

VINING, District Judge.

On June 4, 1977, while the plaintiffs were on the premises of Treasury Drug Center, Kenneth Baker had verbal exchanges with Howard Stanley Purser, a Treasury Drug security guard. This confrontation lead to the arrest of both plaintiffs by J. C. Schlicker and Clarence Benford, two Atlanta police officers who responded to a call for assistance; Wanda Marie Schurtz, a Treasury Drug employee, also aided in the arrest. Upon arrest, Kenneth Baker was charged with aggravated assault on a police officer, simple battery, criminal trespass, obscene and abusive language, and creating a turmoil; Audrey Baker was charged with aggravated battery on a police officer, obstruction of an officer, and creating a turmoil. The plaintiffs allege that en route to the city jail, defendants Schlicker and Benford physically abused Kenneth Baker.

On February 8 and 9, 1978, Kenneth Baker was prosecuted for two counts of simple battery and one count of simple assault; Audrey Baker was prosecuted for obstruction of an officer and simple battery. At the close of the state's evidence, the court directed a dismissal as to all counts in favor of the Bakers.

In October 1978, the Bakers filed this complaint against J. C. Penney, Howard Stanley Purser, Wanda Marie Schurtz, J. C. Schlicker, and Clarence Benford. The plaintiffs have dismissed Wanda Marie Schurtz as a party-defendant, and on September 2, 1980, filed a dismissal as to Howard Stanley Purser, "individually, except for the claims which Plaintiffs may have against Defendant PURSER for his violation of Plaintiffs' rights under Title 42, U.S.C., § 1983." Although denominated as a dismissal against Purser "individually," the court notes that there would be no section 1983 claim against Purser in his capacity as an employee and agent of J. C. Penney, and the court will treat the dismissal as dismissing all claims against Purser in any capacity except those stated against him under section 1983. Under Rule 41(a), Federal Rules of Civil Procedure, the dismissal is not effective except upon order of the court. However, this dismissal is unopposed, and the court hereby DISMISSES the action against Purser except for the section 1983 claims against him.

The remaining issue before the court is one involving jurisdiction. Both plaintiffs are citizens of the State of Georgia; J. C. Penney is incorporated under the laws of the State of Delaware with its principal place of business in a state other than Georgia; and defendants Schlicker and Benford are citizens of the State of Georgia. The claims against Schlicker, Benford, and Purser are for violations of the plaintiffs' civil rights; the claims against J. C. Penney are grounded in state law and are for illegal arrest, false imprisonment, malicious prosecution, and failure to keep its premises safe.

J. C. Penney contends that diversity jurisdiction does not lie, since the requirement of complete diversity between all plaintiffs and all defendants as first enunciated in Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1906), is not met in this case. To support its position, J. C. Penney cites Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978), in which the Court stated, "Diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Although J. C. Penney urges the court to apply the plain and literal meaning of this language, the court believes that this language must be read in context with the Congressional purpose and judicial interpretations of the diversity requirement. Additionally, the court must consider the language of the jurisdictional statute itself, 28 U.S.C. § 1332(a)(1).

In recent years the Supreme Court has refused to expand federal court jurisdiction over pendent and ancillary state claims. Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Most of the recent Supreme Court and courts of appeals cases involving diversity, pendent, and ancillary jurisdiction have arisen because of the third party practice provided for by the Federal Rules of Civil Procedure. In these cases the plaintiff has attempted to sue in federal court a third party over whom he would not otherwise be able to acquire federal jurisdiction. See Ortiz v. United States, 595 F.2d 65 (1st Cir. 1974); Fawvor v. Texaco, Inc., 546 F.2d 636 (5th Cir. 1977); Kenrose Manufacturing Co. v. Fred Whitaker Co., 512 F.2d 890 (4th Cir. 1972).

In the case sub judice, however, the plaintiffs have an independent basis of federal jurisdiction over each of the defendants: in the claim against J. C. Penney only, the plaintiffs would be able to assert diversity jurisdiction under 28 U.S.C. § 1332(a)(1), and as to Purser, Schlicker, and Benford, the plaintiffs would be able to assert civil rights jurisdiction under 28 U.S.C. §...

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11 cases
  • Kauth v. Hartford Ins. Co. of Illinois
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Julio 1988
    ...Court for the Northern District of Georgia refused to dismiss an action for lack of subject matter jurisdiction. In Baker v. J.C. Penney Co., 496 F.Supp. 922 (N.D.Ga.1980), the plaintiffs sued three individuals under section 1983. In addition, the plaintiffs brought several state law claims......
  • Hiram Walker & Sons, Inc. v. Kirk Line
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 21 Julio 1989
    ...of the claims against the diverse respondents."); Kauth v. Hartford Ins. Co., 852 F.2d 951, 958-59 (7th Cir.1988); Baker v. J.C. Penney Co., 496 F.Supp. 922 (N.D.Ga.1980). In Baker, Judge Vining observed that an anomaly would be created by "not allowing a plaintiff to do in one federal suit......
  • In re Olympic Mills Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 17 Enero 2007
    ...separate federal suits.'" Hiram Walker & Sons, Inc., v. Kirk Line, 877 F.2d 1508, 1512 (11th Cir.1989) (quoting Baker v. J.C. Penney Co., 496 F.Supp. 922, 924 (N.D.Ga.1980)). The present case is clearly distinguishable because, at the commencement of the case, there was no independent basis......
  • Williams v. Conseco, Inc., CIV. A. 99-0118BHC.
    • United States
    • U.S. District Court — Southern District of Alabama
    • 7 Junio 1999
    ...novel holding. See, e.g., Kauth v. Hartford Insurance Co. of Illinois, 852 F.2d 951, 958-59 (7th Cir.1988); Baker v. J.C. Penney Co., Inc., 496 F.Supp. 922 (N.D.Ga. 1980); Pacific Mutual Life Ins. Co. v. American National Bank and Trust Co. of Chicago, 642 F.Supp. 163 (N.D.Ill.1986); see al......
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