Sequoyah Feed & Supply Co. v. Robinson

• Decision Date: 27 December 1951
• Docket Number: Civil No. 203.
• Parties: SEQUOYAH FEED & SUPPLY CO., Inc. v. ROBINSON et al.
• Court: U.S. District Court — Western District of Arkansas

101 F. Supp. 680

SEQUOYAH FEED & SUPPLY CO., Inc. v. ROBINSON et al.

Civil No. 203.

United States District Court W. D. Arkansas, Fayetteville Division.

December 27, 1951.

Greenhaw & Greenhaw, Fayetteville, Ark., Tom Pearson, Fayetteville, Ark., for plaintiff, Sequoyah, and for cross-defendant, Pillsbury.

Rex W. Perkins, Price Dickson, Fayetteville, Ark., for defendant, J. A. Robinson.

Lee Seamster of Fayetteville, Ark., for First Nat. Bank of Fayetteville, Ark.

JOHN E. MILLER, District Judge.

Motion to remand this case to the Chancery Court of Washington County, Arkansas, was filed by the defendant and crossclaimant, J. A. Robinson, which motion was heard by the court on December 27, 1951.

Plaintiff filed its complaint against J. A. Robinson and First National Bank of Fayetteville to recover against Robinson for an indebtedness in the total sum of $7,181.71 and to foreclose a chattel mortgage and to enjoin the Bank from permitting certain bank accounts of Robinson to be checked out. Subsequently Robinson filed a cross-complaint, under the State procedure, against Pillsbury Mills, Inc., seeking to recover damages for breach of contract and money owed in the total sum of $35,000. Pillsbury removed the case to this court under 28 U.S.C.A. § 1441(c). The question before the court is whether the case was removed improvidently and without jurisdiction.

28 U.S.C.A. § 1441(c) provides, inter alia: "Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed * * *."

This subsection was substituted for the provision in Sec. 71 of 28 U.S.C., 1940 ed., which read: "And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States".

Concerning the "separable controversy" provision of old Sec. 71, and the change made by 1441(c), the Revisors notes provide:

"This quoted language has occasioned much confusion. The courts have attempted to distinguish between separate and separable controversies, a distinction which is sound in theory but illusory in substance.

"Subsection (c) permits the removal of a separate cause of action but not of a separable controversy unless it constitutes a separate and independent claim or cause of action within the original jurisdiction of United States District Courts. In this respect it will somewhat decrease the volume of Federal litigation."

Without further discussion, the court is of the opinion that the claim asserted against Pillsbury on the cross-complaint is "a separate and independent claim or cause of action" within the contemplation of 1441(c). However, this is not conclusive of the matter, and the real question before the court is whether the Congress intended that 1441(c) be confined to the situation whereby the plaintiff joins two or more claims, one of which qualifies as a separate and independent claim, or whether the section covers claims introduced into the action by counterclaims, cross-claims, third-party claims, etc.

In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, at page 104, 61 S.Ct. 868, at page 870, 85 L.Ed. 1214, the Supreme Court held that a plaintiff defending against a counterclaim was not a defendant within the removal statute and could not remove, and concerning the scope of the removal statute and the construction to be given thereto, stated: "The removal statute which is nationwide in its operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied. Hence the Act of Congress must be construed as setting up its own criteria, irrespective of local law, for determining in what instances suits are to be removed from the state to the federal courts."

And, at page 108 of 313 U.S., at page 872 of 61 S.Ct: "Not only does the language of the Act of 1887 evidence the...