Barnes v. Parker

• Decision Date: 30 December 1954
• Docket Number: 1256.,No. 1255,1255
• Citation: 126 F. Supp. 649
• Parties: L. B. BARNES, Marvin Barnes and Denzil Barnes, d/b/a Barnes Rural Gas and Plumbing, Plaintiffs, v. C. O. PARKER, d/b/a Parker Construction Company, W. R. Cron, d/b/a Cron Electric Company, and Kraft Foods Company, a corporation, Defendants. L. B. BARNES, Marvin Barnes and Denver Barnes, co-partners, doing business under the name of Barnes Rural Gas and Plumbing, Plaintiffs, v. C. O. PARKER, doing business under the name of Parker Construction Company, Defendant.
• Court: U.S. District Court — Western District of Missouri

126 F. Supp. 649

L. B. BARNES, Marvin Barnes and Denzil Barnes, d/b/a Barnes Rural Gas and Plumbing, Plaintiffs, v. C. O. PARKER, d/b/a Parker Construction Company, W. R. Cron, d/b/a Cron Electric Company, and Kraft Foods Company, a corporation, Defendants.

L. B. BARNES, Marvin Barnes and Denver Barnes, co-partners, doing business under the name of Barnes Rural Gas and Plumbing, Plaintiffs, v. C. O. PARKER, doing business under the name of Parker Construction Company, Defendant.

Nos. 1255, 1256.

United States District Court, W. D. Missouri, S. D.

December 30, 1954.

John M. Bragg, Ava, Mo., for plaintiffs.

Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Mo., for defendants.

RIDGE, District Judge.

Defendant Parker has perfected removal proceedings in both of the above causes which were originally filed in the Circuit Court of Douglas County, Missouri, on the alleged ground of diverse citizenship of the parties, and requisite jurisdictional amount being involved. Although no motion to remand has been filed, we have examined each of the actions to ascertain the extent of our jurisdiction. If it appears that the removals herein were "improvident and without jurisdiction", we must sua sponte remand these causes to the state court. 1441(c), 28 U.S.C.A.; Pittsburgh, C. & St. L. R. Co. v. Ramsey, 22 Wall. 322, 22 L.Ed. 823; Wabash Ry. Co. v. Lindley, 8 Cir., 29 F.2d 829.

Case No. 1255

In Case Number 1255, entitled "Action to Enforce Materialmen's Lien," plaintiffs claim that the defendants Parker and Cron are jointly indebted to them in the amount of $4,063.62, for materials furnished them in the construction of a certain building which those defendants had contracted to build for the defendant Kraft Foods Company. Service by mail was had upon both defendants Parker and Cron under Missouri state court procedure. The removal proceeding was brought in the sole name of defendant Parker.

Such removal is, and was on the face of the pleadings, improper. Since the cause of action alleged in the complaint asserts a joint liability, the petition for removal must be joined in by all of the defendants. 28 U.S.C.A. § 1446(a); Chicago, R. I. & P. R. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Wright v. Missouri Pac. R. Co., 8 Cir., 98 F.2d 34; Warner v. Dunmyer, D.C., 108 F.Supp. 757. If such joinder is not clearly shown, the District Court must remand the cause sua sponte. Highway Construction Co. v. McClelland, 8 Cir., 14 F.2d 406. Since defendant Cron has not joined in the present removal proceeding, Cause No. 1255, supra, must be remanded to the state court for all further proceedings.

Case No. 1256

In Case Number 1256, an action for breach of contract is alleged. The total damages prayed for in the petition, exclusive of interest and costs, is the sum of $2,161.30. While the cause was pending in the state court, the defendant, "for the sole purpose of establishing diversity of citizenship and "establishing the requisite amount necessary to render the cause removable to the United States District Court," filed a counterclaim in the amount of $4,876.84. The petition for removal was submitted with such counterclaim.

We had thought that it was now established beyond all debate that, in determining the amount in controversy in actions sought to be removed, the Court to which removal is sought determines the question solely by looking to the amount in good faith prayed for as damnum in the complaint, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, regardless of subsequent events in the action; Kirby v. American Soda Fountain Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911, and that, accordingly, if the amount therein claimed was less than the jurisdictional requirement, amounts claimed by way of counterclaim could not be considered as increasing the amount of the required sum. Falls Wire Mfg. Co. v. Broderick, C.C.Mo., 6 F. 654; Gates v. Union Central Life Ins. Co., D.C., 56 F.Supp. 149; Stuart v. Creel, D.C., 90 F.Supp. 392.

However, there are decisions by other District Courts, Wheatley v. Martin, D.C.Ark., 62 F.Supp. 109; Lange v. Chicago, R. I. & P. R. Co., D.C.S.D. Iowa, 99 F.Supp. 1; Rosenblum v. Trulliger, D.C.Ark., 118 F.Supp. 394, which apparently create an exception to the above rule when a counterclaim is asserted and classified as "compulsory" under the local state practice. We can agree with neither the reasoning nor the confusion which would result if such holdings are followed. To recognize such an exception is to make the federal removal practice dependent on state court procedure and will, if extended, effectively preclude attaining that orderly procedure and uniformity of practice which has been the goal of all the removal acts and which...