Bradley v. Halliburton Oil Well Cementing Co., Civ. No. 2957.

• Decision Date: 27 September 1951
• Docket Number: Civ. No. 2957.
• Citation: 100 F. Supp. 913
• Parties: BRADLEY v. HALLIBURTON OIL WELL CEMENTING CO. et al.
• Court: U.S. District Court — Eastern District of Oklahoma

100 F. Supp. 913

BRADLEY v. HALLIBURTON OIL WELL CEMENTING CO. et al.

Civ. No. 2957.

United States District Court E. D. Oklahoma.

September 27, 1951.

Lawrence H. Green, Ada, Okl., Dudley, Duvall & Dudley, Oklahoma City, Okl., and Bishop & Driscoll, Seminole, Okl., for plaintiff.

Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, Okl., and Robert O. Brown, Duncan, Okl., for defendants.

WALLACE, District Judge.

On December 5, 1950, the plaintiff, Daphna Francis Bradley, commenced a tort action in the Superior Court of Seminole County, Oklahoma, for injuries received in an automobile accident due to the alleged negligence of one K. R. Munger, an employee of the Halliburton Oil Well Cementing Company. Munger and the Halliburton Company were named as joint defendants in the state court petition. Said petition in the state court in addition to other things also stated: that plaintiff is a citizen and resident of the State of Oklahoma; that the defendant Munger is a citizen and resident of the State of Oklahoma; and that the defendant Halliburton Company is a citizen of the State of Delaware being a corporation organized and existing under the laws of Delaware and having been licensed to do business in the State of Oklahoma.

On February 15, 1951, the defendant Munger died and an administrator, a citizen of the State of Nebraska, was appointed on March 5, 1951. Two days later, March 7, 1951, the Halliburton Company filed its petition for removal setting out the death of the resident defendant Munger and alleging that the controversy is now one solely between citizens of different states and involves more than $3,000.00, exclusive of interest and costs. Subsequent to the filing of the petition for removal, notice and bond for removal were filed, interrogatories were propounded by both plaintiff and defendant pursuant to Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C., and finally plaintiff filed a motion suggesting lack of jurisdiction of the federal district court and seeking remand to the state court.

The issue presented by the removal proceeding and motion to remand is one concerning the question of jurisdiction of the federal court. It must be decided upon consideration of the removal statutes contained in Title 28 of the United States Code as amended in October, 1949. Although the present removal statutes govern this case, it will be an aid to refer to some of the early cases decided under prior removal statutes in order to get an insight into the fundamental principles and development of this phase of American jurisprudence.

It is elementary that Federal Judicial Power has its origin in the United States Constitution. It is also well settled by abundant authority that the right of removal and jurisdiction of federal courts in removal cases exists only where Congress has so designated it, or concisely stated, "The right of removal is entirely statutory." Gaines v. Fuentes, 92 U.S. 10, 23 L.Ed. 524. See annotations, 28 U.S.C.A. § 1441, note 11.

It has undoubtedly been the policy through the years to restrict federal jurisdiction. This is born out by legislation increasing the value or sum necessarily involved in the controversy, the making of certain types of actions nonremovable and judicial construction of removal statutes. Ex parte Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264; Missouri Pacific R. Co. v. Fitzgerald, 160 U.S. 556, 16 S.Ct. 389, 40 L.Ed. 536; Ransom v. Sipple Truck Lines, Inc., D.C., 52 F.Supp. 521; Cochran v. Montgomery County, 199 U.S. 260, 26 S.Ct. 58, 50 L.Ed. 182. However, assuming the intention of Congress has been to restrict jurisdiction of the federal courts, one cannot ignore the express language of the statutes. Jackson & Sharp Co. v. Pearson, C.C., 60 F. 113. It has also been held that the intention of Congress to deprive a litigant of the right to remove a case otherwise removable should be clearly expressed by appropriate language. Young & Jones v. Hiawatha Gin & Mfg. Co., D.C., 17 F.2d 193; Owens v. Greenville News-Piedmont, D.C., 43 F.Supp. 785.

As seen by the above cases there was a tendency, within certain limits, to restrict the jurisdiction of federal courts in removal cases. Notwithstanding this, removal cases still presented a perplexing problem. This is quite aptly shown in the early case of Hagerla v. Mississippi River Power Co., D.C., 202 F. 771, 773, where it was stated by Judge Smith McPherson:

"That there is no other phase of American jurisprudence with so many refinements and subleties, as relate to removal proceedings, is known by all who have to deal with them.

"Those who doubt this statement should but read my opinion in Kirby v. Chicago & N. W. Railroad Co., C. C., 106 F. 551, followed on the same record in Myers v. Chicago & N. W. Railroad Co., 118 Iowa 312, 91 N.W. 1076, citing my decision with approval. Then there is my decision in the Boynton Case, in which I reversed my own decision in the Kirby Case, and then the affirmation of my Boynton decision Mason City & Fort Dodge R. Co. v. Boynton (204 U.S. 571, 27 S.Ct. 321, 51 L.Ed. 629). Then turn to the Wisner Case, Ex parte Wisner 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264, followed by the criticism and partial overruling In re Moore, 209 U.S. 490, 28 S.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164, and In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873, and then see Ex parte Harding, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252, 37 L.R.A.,N.S., 392, overruling the Wisner and Winn cases.

"I call attention to those cases not by way of criticism, but to show the late decisions, and to show the vexing questions judges on the circuit have had to consider."

Jurisdiction in removal proceedings continued to pose many intricate problems. As a result, a rule has been applied in the majority of the federal courts to the effect that where jurisdiction of the federal court is doubtful the case should be remanded to the state court where jurisdiction is unquestioned. Eddy v. Chicago & N. W. Ry. Co., D.C., 226 F. 120; Sullivan v. Lloyd, D.C., 213 F. 275; Siler v. Morgan Motor Co., D.C., 15 F.Supp. 468; Reeves v. American Brake Shoe Co., D.C., 74 F.Supp. 897. There is without doubt merit to the rule; however, there is some authority to the contrary. Strother v. Union Pac. R. Co., D.C., 220 F. 731; McLaughlin v. Western Union Telegraph Co., D.C., 7 F.2d 177; and as stated in Kline v. Murray, D.C., 7 F.2d 404, 406: "Federal jurisdiction, removal, and remand often are questions of difficulty. That to remand is safer than to retain has not contributed to a settled and consistent course of precedent. Too often has overcaution ceded jurisdiction which ought to be jealously maintained — within valid statutory limits. That much is due, not only to litigants, but also to the co-ordinate and equal judicial branch of government, to people, and government as a whole."

Since there is no means for reviewing an order remanding a case to a state court, Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 36 S.Ct. 637, 60 L.Ed. 1084, careful consideration should be given to any removed case for if erroneously remanded the petitioner is without remedy. Boatmen's Bank of St. Louis, Mo. v. Fritzlen, 8 Cir., 135 F. 650; Niccum v. Northern Assur. Co., D.C., 17 F.2d 160; McLaughlin v. Western Union Telegraph Co., supra.

In the foregoing discussion I have endeavored to cover briefly a few of the principles applicable to removal cases. Of necessity many of the cases cited are early ones and do not solely govern the present case, but many of the general principles enunciated still remain applicable. Two other cases which arose before the enactment of the present judicial code and which have been carefully considered for any light they might shed on this particular proceeding are Halsey v. Minnesota-South Carolina Land & Timber Co., D.C., 54 F.2d 933 and Savell v. Southern Ry. Co., 5 Cir., 93 F.2d 377, 114 A.L.R. 1261. In the former case there was a situation somewhat paralleling the factual situation in the present case; however, the resident defendant who would correspond to the defendant Munger in this case did not die until after the case was tried and an appeal entered. The federal court held there was no jurisdiction and remanded the case to the state court, but it was a proper case for remand since the nonresident defendant invoked the jurisdiction of the state court by a motion for rehearing long after the death of the resident defendant and before the petition for removal was filed. In the latter case an action was begun against two defendants, one a resident of the same state as the plaintiff and the other a nonresident. The resident defendant died before the trial and when the case was called for trial, plaintiff suggested the death of the defendant. There was no voluntary dismissal, but plaintiff did choose to proceed against the remaining defendant. Upon petition for removal the federal court took jurisdiction of the case. It should be noted here that the primary question involved in this latter case concerned a different issue, but the federal court did take jurisdiction under the circumstances.

Let us review the facts in the case presently under consideration. Defendants Munger and the Halliburton Company were correctly joined in the state court action as principal and agent and there being no diversity of citizenship between the plaintiff and the defendant Munger, the case was clearly not removable at the time the action was commenced. Shortly after the commencement of the suit defendant Munger died. True, the action is one which could be revived against the administrator of the estate of the deceased as provided for by the Oklahoma Statutes, but no proceedings have been undertaken to do so. This leaves the status of the case at the time of removal a controversy wholly between the plaintiff, a citizen of the State of Oklahoma, and the defendant Halliburton Company,...