Bradshaw v. Bowden
| Decision Date | 29 December 1914 |
| Docket Number | 2905. |
| Parties | BRADSHAW v. BOWDEN et al. |
| Court | U.S. District Court — Western District of Washington |
H. E Foster, of Seattle, Wash., for plaintiff.
George W. Korte, of Seattle, Wash., for defendants.
This is an action for damages for alleged malicious prosecution commenced in the state court and removed to this court upon the petition of the defendant E. C Bowden, an alien citizen of England. Plaintiff--
'moves the court to remand this cause to the state court, for the reason that it affirmatively appears from the complaint and petition of the defendant that this court did not have original jurisdiction of this action, and that the state court is the proper tribunal where this cause of action should be tried and determined.'
Defendant's verified petition alleges as grounds for removal: (a) That a separate controversy exists between himself, as an alien citizen of England, and plaintiff, a citizen of Illinois, which exceeds the sum or value of $3,000; and (b) that his codefendants, Chicago, Milwaukee & St. Paul Railway Company and J. Wernick, residents, respectively, of Wisconsin and Washington, have been joined as defendants, for the sole and fraudulent purpose of depriving petitioner of his right to have this action removed into the United States District Court. Defendant then denies and declares false each and every of the allegations in the complaint in any way connecting his codefendants with the alleged false imprisonment, or conspiracy to cause such imprisonment, and alleges affirmative matter to show that neither the defendant Wernick, nor any officer or agent of the defendant Milwaukee Railway Company, who had authority to bind the company, had anything to do with the arrest or prosecution of plaintiff, but that he was the sole prosecutor of the plaintiff, whom he believed had wrongfully taken from his certain moneys, and that, after presenting the facts of the case fully and fairly to the prosecuting attorney of King county, Wash., he was advised that there was probable cause for arresting and prosecuting plaintiff for larceny, and that it was upon the advice of said public prosecutor, and at his direction, that petitioner signed a complaint for the purpose of securing plaintiff's arrest.
The first question for decision here is whether there is a separable controversy, wholly between plaintiff, a citizen of Illinois, and this defendant. If there is such a separable controversy, and the action is one of which this court has original jurisdiction, the action is removable. Section 28, Judicial Code. If there is not a separable controversy, is the uncontroverted petition for removal sufficient to remove the case to this court?
Plaintiff, in his complaint, after alleging jurisdictional facts, states (paragraph II):
'That on the 15th day of August, 1914, the defendants herein, the defendant corporation through its duly accredited officers, agents, and servants, and its codefendants, wrongfully and maliciously and without color of authority whatsoever, and in furtherance of a confederation and scheme wrongfully and unlawfully entered into, arrested the plaintiff and imprisoned the plaintiff in the common jail of the city of Seattle, and kept him imprisoned in said jail without color of authority, and in furtherance of said scheme and confederation as aforesaid, until August 19, 1914, when plaintiff was liberated in manner and form hereinafter set out'
-- and further sets out that, upon a hearing in court upon such alleged unlawful and fraudulent charge, plaintiff was fully exonerated and discharged, and that he was compelled to go to large expense, and alleges injury to his good name and reputation in the sum of $25,000, which he seeks to recover from each of the defendants.
The plaintiff, in his complaint, has elected to sue the defendants jointly, and upon the face of the complaint, which was the only pleading on file at the time the removal was ordered, there is no separable controversy between the plaintiff and the petitioning defendant, and the cause is therefore not removable upon that ground. C., B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521.
The petition for removal denies that the Chicago, Milwaukee & St. Paul Railway Company and Wernick were in any way connected with the alleged malicious prosecution, and alleges affirmatively that the petitioning defendant was the sole prosecutor of the plaintiff, and that his codefendants were fraudulently joined for the sole purpose of defeating the removal of the cause to the federal court. Plaintiff has in no way controverted these affirmative allegations. The motion to remand, in the absence of denials, is in the nature of a demurrer to the petition for removal. Phillips v. Western Terra Cotta Co. (C.C.) 174 F. 874.
A petition for removal, filed by one of the defendants to an action commenced in the state court, which charges that no grounds of action exist against his codefendants, and that they were fraudulently joined to deprive petitioner of his right to remove, shows a right of removal upon its face, where the requisite jurisdictional facts are stated; and if the allegations of the petition are uncontroverted by the plaintiff the cause is removable, and if they are controverted the issue must be tried in the federal court.
A petition for removal in many respects performs the function of a pleading. A motion to remand operates as a demurrer, and the truth of the allegations of the petition are thereby confessed, and if the petition states a cause for removal the motion to remand must be denied. Donovan v. Wells Fargo Co., 169 F. 367, 94 C.C.A. 609, 22 L.R.A. (N.S.) 1250; Carlisle et al. v. Sunset Telephone & Telegraph Co (C.C.) 116 F. 896. The averments of the petition for removal were not confined to denials of the allegations of the complain, but were affirmative allegations of fact of a specific character, which, if true, clearly make out a charge of fraudulent misjoinder of parties for the purpose stated, and, no issue being taken upon the truth thereof, must, within the practice of the court, be accepted as true. Kelly v. Chicago & A. Ry. Co. (C.C.) 122 F. 286; Dishon v. Cincinnati, N.O. & T.P. Ry. Co., 133 F. 474, 66 C.C.A. 345; Dow v. Bradstreet Co. (C.C.) 46 F. 824; Ross v. Erie R. Co. C.C.) 120 F. 704; ...
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