Asher v. Pacific Power and Light Company

• Decision Date: 05 November 1965
• Docket Number: Civ. No. 9438.
• Citation: 249 F. Supp. 671
• Court: U.S. District Court — Northern District of California
• Parties: Ben ASHER et al., Plaintiffs, v. PACIFIC POWER AND LIGHT COMPANY, a corporation, Doe One through Doe Ten, Defendants.

249 F. Supp. 671

Ben ASHER et al., Plaintiffs, v. PACIFIC POWER AND LIGHT COMPANY, a corporation, Doe One through Doe Ten, Defendants.

Civ. No. 9438.

United States District Court N. D. California, N. D.

November 5, 1965.

Gregory A. Harrison, Malcolm T. Dungan, John E. Sparks and Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant Pacific Power & Light Company.

Leep, Saunders & Halpin, Redding, Cal., and Albert H. Newton, Jr., Yreka, Cal., for plaintiffs.

MacBRIDE, District Judge.

This is a diversity action for damages sustained by the plaintiffs as a result of flooding connected with the disastrous floods occurring in Northern California during the latter part of 1964 and early 1965. The complaint was originally filed in the Superior Court of Siskiyou County, California, and was subsequently removed to this Court by the defendant, Pacific Power and Light Company. Title 28 U.S.C. § 1441. The plaintiffs have filed a motion to remand. Title 28 U.S.C. § 1447.

The Facts

All of the plaintiffs reside in California. The only named defendant is incorporated in Maine and has its principal place of business in Oregon. The complaint also lists as defendants, Doe One through Doe Ten, and states that the true names of these defendants are unknown but that when they become known they will be added by amendment. This statement is set forth in the first cause of action and incorporated by reference in the second and third causes of action. Other than the above noted reference to the Does, no other mention is made of these parties except that the plural "defendants" is used in each cause of action and in the prayer.

The allegations in the three causes of action set forth in the complaint are extremely general. The first cause of action is based on inverse condemnation; the second on negligence; and the third on nuisance. The first cause of action states in pertinent part:

"IV

Defendants on or before December 22, 1964, designed, constructed, operated and maintained public improvements on the Klamath River between Klamath Lake and Iron Gate Dam.

V

The public improvements described in Paragraph IV were designed, constructed, operated and maintained in such a manner as to be a contributing cause of damage to the property of plaintiffs by flood on or about December 22, 1964."

The second cause of action states in pertinent part:

"II

On or before December 22, 1964, defendants so negligently designed, constructed, operated and maintained the public improvements described above that said facilities contributed to the causation of damages to plaintiffs' property by flood."

The third cause of action states in pertinent part:

"II

On or before December 22, 1964, defendants have occupied used and maintained the facilities described above in such a manner as to constitute a continual private and public nuisance, in that said facilities contributed to the causation of damage to the property of each plaintiff by flood. The amount of damage to the property of each plaintiff is set forth in Exhibit A.

"III

The occupation, use and maintenance of defendants' facilities constitutes a nuisance within the meaning of Civil Code § 3479 in that they are an obstruction to the free use of plaintiffs property, so as to interfere with the comfortable enjoyment of said property."

The above quoted paragraphs are the only charging allegations in the complaint.

As stated previously, the case is presently before the Court on the motion of the plaintiffs to remand to the state court. The basis for this motion is that the plaintiffs are now asserting that Doe One is Russell Poff, a resident of California, that Doe Two is The California Oregon Power Company, a California corporation, and that the presence of these two defendants in this action destroys the diversity jurisdiction of this Court. Neither of these defendants had been named or served prior to the removal of this case from the Superior Court of Siskiyou County to this Court.

It appears from the affidavit of the attorney for the plaintiffs which has been filed in connection with this motion that Russell Poff is an agent of Pacific Power and Light Company ("Pacific"). He asserts that Poff is a joint tort feasor with Pacific. It further appears from this affidavit that California Oregon Power Company ("Copco") was a California corporation which merged with Pacific in 1961. The plaintiffs' attorney also states:

"5. That said defendants are not named as nominal or non-existent parties, as indicated by the petition of Gregory Harrison, but in fact it was contemplated that said defendants and others would be served at the time of the filing of this action in the Superior Court of the State of California. * * *"

The question to be decided on this motion is simply whether or not, on the above stated facts, this Court should remand the case to the Superior Court of Siskiyou County, California. The same question of law, on slightly dissimilar facts, was recently decided by this Court in Fairhurst v. Heller et al. (files of this Court, Civil No. 9113). There was a hearing in that case and a decision was rendered from the bench, consequently no memorandum opinion was written. For the edification of the parties involved in that action, the law as set out hereinafter is the same as was applied in that case and with the same result.

Opinion

Research of the law applicable to the question presented by this and the Fairhurst case points up the fact that a number of devices may be employed to create or to defeat diversity jurisdiction. Hoping to eliminate any artificiality from our decision and bearing in mind Mr. Justice Frankfurter's admonition that:

"Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific juridical origin and etiology. They derive meaning and content from the circumstances that gave rise to them and from the purposes they were designed to serve." (Reid v. Covert, 354 U.S. 1, 50, 77 S.Ct. 1222, 1248, 1 L.Ed.2d 1148 (1955)),

we turned to a study of the policy upon which diversity jurisdiction is founded.

The study proved to be rather discouraging. To explain: We found no strong policy underlying the diversity jurisdiction of this Court. An examination of two of the sources to which we referred — Ninth Circuit Judicial Conference, 37 F.R.D. 499 (1965) and Wright, Federal Courts, § 23 — will make this readily apparent. For example, according to Professor Wright one of the most compelling reasons to retain diversity jurisdiction is found in Chief Justice Taft's suggestion that, were it not for the availability of the federal forum to foreign corporations, many of them would hesitate to enter a new state. This seems to ignore the large body of cases which would allow a resident plaintiff to join a resident agent of the corporation as a joint tort feasor with the foreign corporation and thereby destroy the diversity jurisdiction of the Federal Court under the law as it now stands. Chicago, R. I. & P. R. Co. v. Dowell, 229 U.S. 102, 33 S.Ct. 684, 57 L.Ed. 1090 (1912), Chicago R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473 (1912), Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1938), Kraus v. Chicago, B. & Q. R. Co., 16 F.2d 79 (8th Cir. 1926).

The obvious and elementary policy behind diversity jurisdiction is that an out of state defendant should be entitled to a federal forum if he decides that he cannot receive a fair trial in a state court due to local prejudice. We accept this as reason enough for diversity jurisdiction even though it does seem highly unlikely that this type of prejudice exists in much quantity today.

Certainly artificial devices should not be allowed to defeat this jurisdiction (James v. National Pool Equipment Co., D.C., 186 F.Supp. 598 (1960)) regardless of the strength of the aforementioned policy. As stated in 44 Harvard Law Review 97 at 100: "Devices both for obtaining and avoiding the diversity jurisdiction are to be condemned as opening and shutting the Federal Courts on grounds entirely unrelated to the basis of the doctrine, if its soundness be conceded. If a policy of limiting the diversity jurisdiction is to be effectuated, less opportunistic methods are required."

Nor does one have to be highly perceptive to recognize that one of the culprits in our particular problem is the extremely general notice pleading¹ which has grown concomitantly with discovery in California. Were it necessary to set forth the facts upon which the plaintiff is to rely, with any degree of specificity, the motion before us would be much more simple. We will refer to this point again later in this opinion.

Finally, before discussing the law that we find applicable to this case, it occurs to the Court that the form of the motion alone gives some clue to the primary purpose of the plaintiff in filing this motion. This is a motion to remand. It is not a motion to join new defendants under Rule 21 of the Federal Rules of Civil Procedure. The supposed purpose in joining any defendant in a law suit is to enable the plaintiff to recover from such defendant. Apparently the plaintiffs here are only concerned with recovering from these two defendants in a state action as they have made no motion to join them if the case remains in this Court (that joinder here is possible see Hardenbergh v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93 (1893), Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965).

To reiterate the point which is the major premise in deciding this motion: we should not allow artificial devices to destroy the diversity jurisdiction of this Court. If then we find the attempt of the plaintiffs to join these two defendants to be such an artificial device, thus fulfilling the requisite minor premise, we will retain jurisdiction. The problem, of course, is determining whether or not the plaintiffs' conduct fulfills this definition.

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