Carson Construction Co. v. Fuller-Webb Construction, Civ. No. 2240.

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Writing for the Court: JAMESON
• Citation: 198 F. Supp. 464
• Parties: CARSON CONSTRUCTION CO., doing business as Helena Sand & Gravel Company, a corporation, Plaintiff, v. FULLER-WEBB CONSTRUCTION, a joint venture, consisting of George A. Fuller Co., a corporation, and Del E. Webb Corporation, a corporation; and George A. Fuller Co., a corporation, and Del E. Webb Corporation, a corporation, Defendants.
• Decision Date: 16 October 1961
• Docket Number: Civ. No. 2240.

198 F. Supp. 464

CARSON CONSTRUCTION CO., doing business as Helena Sand & Gravel Company, a corporation, Plaintiff,
v.
FULLER-WEBB CONSTRUCTION, a joint venture, consisting of George A. Fuller Co., a corporation, and Del E. Webb Corporation, a corporation; and George A. Fuller Co., a corporation, and Del E. Webb Corporation, a corporation, Defendants.

Civ. No. 2240.

United States District Court D. Montana, Great Falls Division.

October 16, 1961.

198 F. Supp. 465

Skedd, Harris & Massman and Hollis Gay Connors, Helena, Mont., for plaintiff.

Hall, Alexander & Kuenning, Great Falls, Mont., for defendants.

JAMESON, District Judge.

This action was commenced in the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark. It was removed to this court by the defendant corporations, George A. Fuller Co. and Del E. Webb Corporation.

Plaintiff has filed an amended motion to remand to the state court on two grounds: (1) " * * * that defendant Fuller-Webb Construction, a joint venture, or partnership association was properly joined and served as a defendant in this action and said association has its principal place of business and office within the State of Montana, where this action was originally brought * * * and that the controversy is not wholly between citizens of different states, as the defendant Fuller-Webb Construction, a joint venture or partnership, is an association organized for and operating principally or wholly within the State of Montana, the same state as that of which plaintiff is a citizen"; and (2) that the defendants Del E. Webb Corporation and George A. Fuller Co. "constitute each of the members of said joint venture, Fuller-Webb Construction, and each respectively consented to be sued in the courts of the State of Montana, and each has filed such consent in the office of the Secretary of State of the State of Montana".

It is admitted that the defendant George A. Fuller Co. is a New Jersey corporation and the defendant Del E. Webb Corporation, an Arizona corporation, and that each of them has qualified to do business in the State of Montana by complying with the provisions of Sections 15-1701 to 15-1713, inclusive, R.C.M. 1947, prescribing the requirements for foreign corporations to do business in the State of Montana. Section 15-1701 provides, inter alia, that a foreign corporation qualifying to do business in Montana shall file a certificate that the corporation "has consented to all the license laws and other laws of the state of Montana relative to foreign corporations and has consented to be sued in the courts of this state, upon all causes of action arising against it in this state", and that service of process may be made upon an agent within the state designated in the certificate. The requisite certificate was filed by each of the corporate

198 F. Supp. 466

defendants and the cause of action arises in the State of Montana. Plaintiff contends that by reason of the "consent to be sued in the courts of this state", these two defendants are on the same basis as domestic corporations and may not remove this cause to the federal court

Federal courts have jurisdiction over controversies between citizens of different states if the statutory amount is involved. U. S. Constitution, sec. 2, Art. III; 28 U.S.C.A. § 1332. For the purpose of this section and section 1441 of Title 28, "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business". Section 1332, as amended July 25, 1958, 72 Stat. 415. Section 1441 provides in pertinent part that, "* * * any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending, * * * only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought".

Insofar as the two corporate defendants are concerned, the controversy is clearly between "citizens of different states", i. e. the plaintiff, a citizen of Montana, and the defendants, citizens of New Jersey and Arizona respectively. Neither corporate defendant was incorporated in Montana, and neither has its principal place of business in Montana. Neither became a citizen of Montana by qualifying to do business and consenting to be sued in the courts of Montana. The right of removal given by a constitutional act of Congress cannot be taken away, restricted, or abridged by any state statute. The Supreme Court has spoken clearly on this subject in a long line of decisions.

In Southern Railway Company v. Allison, 1903, 190 U.S. 326, 337, 23 S.Ct. 713, 717, 47 L.Ed. 1078, 1083, the court said:

"So it seems that a corporation may be made what is termed a domestic corporation, or in form a domestic corporation, of a state in compliance with the legislation thereof, by filing a copy of its charter and by-laws with the secretary of state; yet such fact does not affect the character of the original corporation. It does not thereby become a citizen of the state in which a copy of its charter is filed, so far as to affect the jurisdiction of the Federal courts upon a question of diverse citizenship."

In Harrison v. St. Louis & S. F. R. Co., 1914, 232 U.S. 318, 34 S.Ct. 333, 335, 58 L.Ed. 621, the license of the defendant to do business in Oklahoma had been revoked by the Secretary of State, pursuant to a statute forbidding foreign corporations from asserting any...