Bussey v. Seaboard Coast Line Railroad Company
| Decision Date | 09 November 1970 |
| Docket Number | Civ. A. No. 1530. |
| Citation | 319 F. Supp. 281 |
| Parties | George BUSSEY, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY doing business as the Georgia Railroad, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
Lamar C. Walter, Lindsay A. Hardin, Augusta, Ga., for plaintiff.
W. M. Fulcher, Augusta, Ga., for defendant.
Plaintiff has moved to remand this case to the court from which it was removed.
On November 21, 1969, plaintiff filed an action against The Georgia Railroad in the Superior Court of Columbia County. It was alleged that the defendant is a corporation but the place of incorporation was not shown. Defendant filed an answer on December 12, 1969, stating that The Georgia Railroad is not a legal entity, being a trade name of Seaboard Coast Line Railroad Company, a Virginia corporation.
On January 5, 1970, plaintiff filed an amendment to the complaint changing the name of the defendant to Seaboard Coast Line Railroad Company doing business as The Georgia Railroad. An objection to the amendment was overruled on January 20, 1970. On February 3, 1970, Seaboard Coast Line filed a petition for removal of the suit to this Court and plaintiff has moved to remand the action on the ground that the petition for removal was filed more than thirty days after service.
The question before me is whether the time for removal runs from the date of service where a non-existent corporation is sued and served as a corporation and where subsequently, upon ascertaining that The Georgia Railroad is the trade name of Seaboard Coast Line Railroad Company, the complaint was amended so as to make the latter the defendant. Does the fact that Seaboard Coast Line, when it answered the action in the state court, knew that The Georgia Railroad was not a corporation and the fact that Seaboard Coast Line did business in that name affect the rule that a petition for removal is not too late when by amendment the cause becomes a removable one? 28 U. S.C.A.Supp. § 1446(b); Fred Olsen & Co. v. Moore, D.C., 162 F.Supp. 82; Kelly v. Virginia Bridge & Iron Company, D.C., 203 F. 566; Baker v. Keebler, D.C., 29 F.Supp. 555; 76 C.J.S. Removal of Causes § 26; 32 Am.Jur. Federal Practice and Procedure § 506.
While I have been unable to put my hand upon a reported decision with similar facts, I do not think Seaboard Coast Line lost its right to removal when the removability of the case did not become clear until the complaint was amended. The filing of defensive pleadings in the state court prior to removal does not constitute a waiver of the right to remove if the petition is filed within thirty days after the case becomes removable. 1A Moore's Federal Practice §...
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Iulianelli v. Lionel, L.L.C.
...110 F.R.D. 424 (E.D.Wis. 1986); Bogiel v. Teledyne Industries, Inc., 542 F.Supp. 45 (N.D.Ill.1982). But see Bussey v. Seaboard Coast Line R.R. Co., 319 F.Supp. 281 (S.D.Ga.1970).6 A contrary conclusion would undermine the purpose of the statutory 30-day deadline for removal, as it would sup......
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Brizendine v. Continental Cas. Co., Civ. No. 91-HM-1549-NE.
...States District Court for the Southern District of Georgia which found removal to be proper, citing Bussey v. Seaboard Coast Line Railroad Company, 319 F.Supp. 281 (S.D.Ga.1970). In Bussey plaintiff had sued "The Georgia Railroad" in a Georgia state court on November 21, 1969. The defendant......
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Cantrell v. Great Republic Ins. Co., 88-6025
...that the change in parties rendered the action removable; both are distinguishable. Appellees rely on Bussey v. Seaboard Coast Line Railroad Co., 319 F.Supp. 281 (S.D.Ga.1970), for the proposition that a change in parties may make non-diversity actions removable. In Bussey, the plaintiff fi......
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Bogiel v. Teledyne Industries, Inc., 82 C 2124.
...omitted. Thus, the defendant does not have to speculate as to facts forming the basis for removal. Accord, Bussey v. Seaboard Coast Line Rr. Co., 319 F.Supp. 281 (S.D.Ga.1970) (on facts much like those presented here, court permitted removal within 30 days after plaintiff corrected the corp......