Irvin Jacobs & Co. v. Levin, Civ. No. 26452.
Decision Date | 06 September 1949 |
Docket Number | Civ. No. 26452. |
Citation | 86 F. Supp. 850 |
Parties | IRVIN JACOBS & CO. v. LEVIN et al. |
Court | U.S. District Court — Northern District of Ohio |
Bolton, Taggart, Boer, Mierke & McClelland, Cleveland, Ohio, for plaintiff.
Frank K. Levin, Cleveland, Ohio, Arnold S. Levin, Lorain, Ohio, for defendants.
This is an action upon a contract for services rendered. The action was begun in the Court of Common Pleas of Cuyahoga County and removed to this Court upon petition of defendants. The amount in controversy exceeds $3,000. Plaintiff is a Delaware corporation and defendants are citizens of Ohio.
Defendants have filed the following motions:
1. Motion to remand;
2. Motion to dismiss;
3. Motion for more definite statement;
4. Motion to strike.
Considering first the Motion to Remand, 28 U.S.C.A. § 1441 deals with removal and the parts applicable to this case are subsections (a) and (b) which read as follows:
Defendants base the propriety of this removal upon subsection (a) of Section 1441 while plaintiff contends that subsection (b) is also applicable and does not permit removal if any of the parties defendant are citizens "of the State in which such action was brought."
Defendants say that the phrase "any other such action" in the last sentence of subsection (b) of Section 1441 refers to an action of which the district courts do not have original jurisdiction but which is founded on a claim arising under the Constitution or laws of the United States. Although plaintiff does not so state, I assume it would necessarily have to take the position that the phrase "any other such action" refers to "any civil action of which the district courts have original jurisdiction", appearing at the beginning of subsection (b).
28 U.S.C.A. § 1331 provides as follows: "The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs and arises under the Constitution, laws or treaties of the United States."
Thus, following defendants' theory (and as it is set forth in their brief) the phrase "any other such action" of Section 1441(b) would mean any action arising under the Constitution or laws of the United States wherein the amount in controversy is less than $3,000 since this is the only type of action arising under the Constitution or laws of the United States of which the district courts would not have original jurisdiction. If this theory were correct and it were carried to its logical conclusion we would have a situation whereby an action, arising under a statute of the United States involving an amount in controversy of less than $3000, and between parties of diverse citizenship, could not be brought by either party in a district court under 28 U.S.C.A. § 1331 et seq., but could be removed to a district court by a non-resident defenda...
To continue reading
Request your trial-
Marshall v. Navco, Inc.
...See also Monroe v. United Carbon Company, 5 Cir., 196 F.2d 455; Levin v. Irvin Jacobs & Company, 6 Cir., 180 F.2d 356; Irvin Jacobs & Co. v. Levin, D.C., 86 F.Supp. 850; Aready Farm Milling Co. v. Northcutt, D.C., 87 F.Supp. 373; American Fire & Casualty Co. v. Finn, 6 I quote from such thi......
-
In re Nucorp, Ltd.
...second sentence, however, trims back the availability of removal where other sources of jurisdiction would lie. Irvin Jacobs & Co. v. Levin, 86 F.Supp. 850, 852 (N.D.Ohio 1949) ("[T]he second sentence of Section 1441(b) is a limitation on Section 1441(a)."). Applying in lawsuits where the o......
-
Monroe v. United Carbon Co., 13717.
...it is apparent that no change in this respect was made by the new code, which became effective September 1, 1948. See Irvin Jacobs & Co. v. Levin, D.C., 86 F.Supp. 850; Id., 6 Cir., 180 F.2d 356. This is not a question of simple irregularity in the procedural requirements as to the removal ......
-
M.D. Moody & Sons v. Dockside Marine Contractors
...under Section 1441(b) because defendants are citizens of the State in whose courts the action was brought." Irvin Jacobs & Co. v. Levin, 86 F.Supp. 850, 852 (D.C.Ohio 1949). "[D]efendant, being a c.itizen of Puerto Rico, the state in which the action was brought, removal is not possible." S......