Associated Press v. Emmett

• Decision Date: 19 June 1942
• Docket Number: No. 1926-Y.,1926-Y.
• Citation: 45 F. Supp. 907
• Court: U.S. District Court — Southern District of California
• Parties: ASSOCIATED PRESS v. EMMETT.

45 F. Supp. 907

ASSOCIATED PRESS v. EMMETT.

No. 1926-Y.

District Court, S. D. California, Central Division.

June 19, 1942.

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Cosgrove & O'Neil, Roscoe C. Andrews, and Samuel H. Rindge, all of Los Angeles, Cal., for plaintiff.

James E. Neville, of Los Angeles, Cal., for defendant.

YANKWICH, District Judge.

The motions involve three questions.

First, the question of jurisdiction. Then, arbitrariness and unilaterality of the By-Laws, and, especially, of the sections relating to withdrawal. And, finally, the invalidity of the provision for liquidated damages, which might, also, result in the court lacking jurisdiction of the case.

The two latter grounds are also urged as grounds for refusing recovery. One of the first things we learn when we come to this bench from the state trial courts is that, despite what we or the Bar may think about our position, we are merely federal justices of the peace, in that there is no presumption in favor of the jurisdiction of our court.

As Mr. Justice Harlan said in Lehigh Mining & Manufacturing Company v. Kelly, 1895, 160 U.S. 327, at pages 336, 337, 16 S.Ct. 307, at page 311, 40 L.Ed. 444: "But when the inquiry involves the jurisdiction of a federal court, — the presumption in every state of a cause is that it is without the jurisdiction of a court of the United States, unless the contrary appears from the record."

In United States v. Green, 9 Cir., 1939, 107 F.2d 19, at page 22, Judge Garrecht says: "The District Courts of the United States are courts of limited jurisdiction, and the presumption at every stage of a cause is that the cause is outside the jurisdiction of a court of the United States unless the contrary appears from the record."

But this is not all. The Judicial Code has made it the continuing duty of the judge of a District Court to inquire into jurisdiction, whether he has before him a case begun in his court or one removed to it. This is the well-known section 37 of the Judicial Code, which is codified as Section 80, 28 U.S.C.A.

Mr. Chief Justice Hughes, in McNutt v. General Motors Acceptance Corporation, 1936, 298 U.S. 178, at page 189, 56 S.Ct. 780, at page 785, 80 L.Ed. 1135, has interpreted this duty. The opinion says: "The prerequisites to the exercise of jurisdiction are specifically defined and the plain import of the statute is that the District Court is vested with authority to inquire at any time whether these conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing. If he does make them, an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence."

The trial court need not wait until the cause is tried. It may, upon affidavits or evidence dehors the record, before trial, determine the absence of jurisdiction, and thus, never enter upon a trial of the cause. Acquiescence or even stipulation of counsel, oversight or a positive finding on the part of the court, will not help, if, in fact, jurisdiction does not exist.

If the question be not raised in the lower court, it may be raised, for the first time, by either litigant or by the court, on appeal. More, the litigant, who invoked the court's aid, may, if dissatisfied with the judgment, challenge its jurisdiction, and, if successful, snatch victory from defeat.

My own experience in Kataoka v. May Department Stores Company, 9 Cir., 1940, 115 F.2d 521, is illustrative. Kataoka, a Japanese minor, through his guardian ad litem, brought an action for injuries suffered while he was playing at the foot of an escalator in the defendant's store. His right hand was caught in the plate at the bottom of the escalator, and the ends of several fingers were crushed. He invoked the jurisdiction of the court, presumably, upon the theory that there was a separable controversy between the plaintiff and the employee, who was charged with negligence, and the plaintiff and his employer, The May Company, a foreign corporation. At that time, the Supreme Court had not yet decided a case which originated in my court, and in which it ruled that separability does not exist under such circumstances.¹ The case was tried. The question of jurisdiction was not raised. I decided in favor of the defendant, on a motion for non-suit, in which I held that there was no evidence of negligence, and that the doctrine of attractive nuisance did not apply to escalators. The plaintiff filed a motion for a new trial. Before this motion was heard, the plaintiff employed new counsel, who averred, for the first time, that I had no jurisdiction to try the case. I wrote an opinion, denying the motion upon the ground that there was a separable controversy and that, having granted a non-suit, the judgment of dismissal which followed was a dismissal for all purposes. And that it could be argued later, if the plaintiff desired to sue in the state courts, that the dismissal did not bar him². I relied, as to the latter point, on a decision of the Fifth Circuit Court of Appeals³, to the effect that, if a court had dismissed a case upon an unjustifiable ground, the dismissal would stand, if it could have been granted on another (and justifiable) ground. But our Circuit Court of Appeals sent the case back to me with direction to redismiss it.

This time for lack of jurisdiction.

We have, therefore, a situation where the losing party, after having invoked the court's jurisdiction, extricated himself out of defeat by challenging the jurisdiction of the court into which he had come for relief.

Soon after, another case arose, Atchison, T. & S. F. R. Co. v. Francom, 9 Cir., 1941, 118 F.2d 712. This was an action for damages for death, begun in the Superior Court for Los Angeles County, California, against the railway company and two of its employees. It was removed to the District Court on motion of the railway company. A motion by plaintiffs to remand to the state court was denied. Trial resulted in a verdict for $35,000 against the railway only. On appeal, the railway company insisted that the removal, which it had sought and obtained from the state court, was erroneous as there was no separable controversy. The court held that, although the railway company had sought removal and had opposed remand, the case was within the jurisdiction of the state court. It, therefore, reversed the judgment upon the ground that the District Court never acquired jurisdiction to hear and determine the matter.

More recently, another case arose, — Cheyne v. Atchison, T. & S. F. R. Co., 9 Cir., 1942, 125 F.2d 49. In that case, an action for damages for death, brought in the state court against the same railway company and three of its employees, was removed, on motion of the railway company, to the District Court. Trial in the district court resulted in a verdict of $12,500 for the plaintiff against the railway company only. On motion of the railway company, the judgment against it was set aside and judgment entered in its favor. The parties, on appeal, did not question the correctness of the removal. But the court did. And it reversed the case and remanded it to the District Court with directions to remand it to the Superior Court for Orange County, California.

These cases illustrate the rigour with which the higher courts apply the rule which denies us presumption of jurisdiction. And it matters not whether the challenge to jurisdiction involves diversity of citizenship or relates to the jurisdictional minimum. As to neither, will they allow stipulations to take the place of proof.

A case involving the constitutionality of an ordinance of the City of Los Angeles, levying a tax on oil of certain gravity, came before me, on a stipulation that the ordinance, if enforced, would require the payment of a tax and penalties over $4,000 during the year.

Jurisdiction was, thus, conceded. The sole question I was asked to decide was, whether the ordinance was constitutional. This I did. The case went to the Circuit Court of Appeals. None of the litigants questioned jurisdiction, on appeal. But the court did. And it held that, because penalties had been added to the demand, the jurisdictional minimum did not exist. Again I received directions to dismiss the case.⁴

I cite these cases, many of them out of my own experience as a trial judge, in order to emphasize the rigour in the application of the principle that there is no presumption that we have jurisdiction. Add to this Section 37 of the Judicial Code, which bids us inquire into jurisdiction at all stages of a case, and you can see the importance of jurisdiction in any case coming before us.

The question of jurisdiction arises in this case in the form of a...