Adair Pipeline Company v. Pipeliners Local Union No. 798, Civ. A. No. 2023.
| Decision Date | 21 March 1962 |
| Docket Number | Civ. A. No. 2023. |
| Citation | 203 F. Supp. 434 |
| Parties | ADAIR PIPELINE COMPANY, Inc. v. PIPELINERS LOCAL UNION NO. 798 et al. |
| Court | U.S. District Court — Southern District of Texas |
Lloyd, Lloyd & Dean, Homer E. Dean, Jr., Alice, Tex., Fischer, Wood, Burney & Nesbitt, Tracy N. DuBose, Corpus Christi, Tex., for plaintiff.
Ryan & Eckhardt, Robert C. Eckhardt, Houston, Tex., Edward P. Anderson, William H. Shireman, Corpus Christi, Tex., for defendants.
This cause of action was commenced as Cause No. 1230 in the 79th District Court of Jim Wells County, Texas, on June 29, 1961. The Plaintiff, Adair Pipeline Company, Inc., was suing two unions and their representatives, seeking an injunction against picketing, boycotting and other alleged acts being performed by the Defendants against the Plaintiff Company, and for damages which Plaintiff stated were in excess of the sum of $10,000.00.
The State District Judge issued a temporary restraining order and set the same for hearing to show cause why the same should not be extended as a temporary injunction, for July 10, 1961, at 9:00 o'clock a. m.
On July 10, 1961, the Defendants filed their petition for removal, and bond, with this Court.
On July 10, 1961, the State Court proceeded to issue a temporary injunction against the Defendants, and on March 2, 1962, entered a final judgment in this cause, making the injunction permanent, with the Plaintiff waiving its right to damages.
On February 23, 1962, the Defendants filed in this cause and in this Court a motion for a preliminary injunction, seeking to set aside the temporary injunction issued by the State District Court on July 10, 1961, and that motion is before the Court.
The Plaintiff has countered with a motion to dismiss, filed in this Court on March 6, 1962, basing its motion for dismissal on the grounds that a copy of petition for removal and bond was never filed by the Defendants with the District Clerk of the State Court in compliance with Section 1446(e), Title 28 U.S.C.A. It is their contention that in view of this failure, the State Court never lost jurisdiction of the case, and since a final judgment has been entered by the State Court, the case is now moot and there is nothing that this Court can do in this matter.
At a hearing held before the Court on March 14, 1962, a certificate was presented to the Court from the District Clerk of Jim Wells County, Texas, certifying that no copy of the petition and bond for removal had ever been filed by the Defendants with his office before the entry of the final judgment of March 2, 1962.
It was stipulated by the parties, however, that an attorney for the Defendants, Mr. Edward Anderson, appeared before the State District Judge in open court on July 10, 1961, when the case was called as per the restraining order which was issued by the State District Judge; that in open court, with the Judge sitting on the bench, the attorney for the Defendants informed the State District Judge that the cause had been removed to the Federal Court, and tendered the Judge a copy of the petition and bond for removal, and gave the attorneys for the Plaintiff a copy of the same.
The attorney for the Defendants claims that when he handed the State District Judge the petition for removal, the Judge said, in effect, that he guessed that that was all that he could do.
The evidence shows that the attorney for the Defendants then left the State Courthouse. The evidence further shows that after he had left, the attorneys for the Plaintiff suggested to the State District Judge that since the petition for removal had not been filed with the District Clerk, as provided by Section 1446 (e), the Judge had not lost jurisdiction of the case, and that it was then that the State District Judge issued his temporary injunction, which temporary injunction states that "The Defendants, though duly and legally cited to appear and show cause why said temporary injunction should not issue as prayed for, failed to appear and wholly made default."
It is admitted that the final judgment of March 2, 1962, by the State District Court was entered after the attorneys for the Plaintiff had received a copy of the motion for preliminary injunction, filed with this Court by the Defendants.
The issue before this Court is to determine whether Section 1446(e) of Title 28 U.S.C.A., which reads as follows:
"Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal...
To continue reading
Request your trial
-
Eastern v. Canty
...(1956), 226 Miss. 892, 85 So.2d 588; State ex rel. Gremillion v. NAACP (La.App.1956), 90 So.2d 884; Adair Pipeline Co. v. Pipeliners Local Union No. 798 (S.D.Tex.1962), 203 F.Supp. 434, Aff'd (5th Cir. 1963), 325 F.2d 206; Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616; State v. Price......
-
Nixon v. Wheatley
...proceed with the case until the federal court decides whether it will retain jurisdiction or not." Adair Pipeline Co. v. Pipeliners Local Union No. 798, 203 F.Supp. 434, 437 (S.D.Tex.1962); see Hampton v. Union Pac. R.R. Co., 81 F.Supp.2d 703, 705 (E.D.Tex.1999); 14C FEDERAL PRACTICE & PROC......
-
Peterson v. BMI Refractories, Inc.
...federal court's jurisdiction. Dukes v. South Carolina Insurance Company, 770 F.2d 545 (5th Cir.1985); Adair Pipeline Co. v. Pipeliners Local Union No. 798, 203 F.Supp. 434 (S.D.Tex.1962), aff'd, 325 F.2d 206 (5th Cir. 1963); see also Covington v. Indemnity Insurance Co., 251 F.2d 930, 933 (......
-
Hampton v. Union Pacific R. Co.
...proceed with the case until the federal court decides whether it will retain jurisdiction or not." Adair Pipeline Co. v. Pipeliners Local Union No. 798, 203 F.Supp. 434, 437 (S.D.Tex.1962), aff'd, 325 F.2d 206 (5th Cir.1963). Certainly, a state court cannot be deemed to be "notified" of rem......