Cline v. Belt

• Decision Date: 26 February 1942
• Docket Number: No. 47.,47.
• Citation: 43 F. Supp. 538
• Parties: CLINE v. BELT.
• Court: U.S. District Court — Eastern District of Kentucky

43 F. Supp. 538

CLINE v.BELT.

No. 47.

District Court, E. D. Kentucky, Catlettsburg.

February 26, 1942.

H. R. Wilhoit, of Grayson, Ky., for plaintiff.

Stoll, Muir, Townsend, Park & Mohney and John L. Davis, all of Lexington, Ky., for defendant.

SWINFORD, District Judge.

This case is before me on the plaintiff's motion to remand and on the defendant's motion to amend his petition for removal.

The plaintiff, a resident of Kentucky, seeks to recover damages from the defendant, a resident of the State of Pennsylvania, growing out of an alleged automobile accident in Kentucky.The original action was filed in the state court and was brought here on the defendant's petition for removal.The sole jurisdictional ground on which the defendant relies is diversity of citizenship, 28 U.S.C.A. § 41(1)(a), and that the action is subject to removal by reason of the provisions of 28 U.S.C.A. § 71.The allegations of the petition for removal on which the defendant relies to show the necessary diversity of citizenship are:

"That he was, at the commencement of this action, and has been ever since and is now a citizen and resident of the State of Pennsylvania and of no other state.

"That the plaintiff Ed. Cline, is a citizen and resident of the state of Kentucky; that the plaintiff is a citizen and resident of a state other than the State of Pennsylvania, and that the plaintiff is not a citizen and resident of the State of Pennsylvania.

"That the controversy in this action was at the time of the commencement thereof and is now wholly between citizens of this state, to-wit: the plaintiff, who is a citizen of the State of Kentucky, and the defendant, who is a citizen and resident of the State of Pennsylvania, and that the said controversy can be fully determined between the said plaintiff and the said defendant."

It will be seen from a careful reading of the language quoted that there is no allegation of the requisite diversity of citizenship at the commencement of the action.This jurisdictional ground must exist not only at the time of filing the petition for removal, but at the commencement of the action.One might gather from the whole context of the petition that the failure to so allege was an oversight or inadvertence.However, it might be equally inferred that this necessary jurisdictional fact did not exist at the commencement of the action and a failure to so allege was deliberate.It is with a view of making unnecessary such inferences, which might be entirely erroneous, that a strict construction of the language employed is required.This language should be clear and unequivocal.It should be so positive that it does not admit of doubt in the mind of the judge.He should be able to say positively that from the record before him at the time this action was commenced the plaintiff was a citizen of Kentucky and the defendant was a citizen of Pennsylvania.The language here used is not of that character.

The rule requiring positive allegations of such diversity of citizenship is based upon sound principles and well established by the authorities.

Vol. 4Hughes Federal Practice Jurisdiction & Procedure, § 2662, says: "An amendment of the removal petition in the federal court to show that the case might have been removed, not that in law it ever has been so removed, is not allowable.If it is not alleged in the petition for removal, nor shown elsewhere in the record, that the complainants are citizens of any state, an amendment of the removal petition to supply the want cannot be allowed.So, also, if it does not appear in the removal petition, or elsewhere in the record, that the defendant was a nonresident of the state at the time of the filing of the petition."

In support of this text there is cited in the footnote the following cases: Crehore v. Ohio & M. R. Co., 1889, 131 U.S. 240, 9 S.Ct. 692, 33 L.Ed. 144.SeeMurphy v. Payette Alluvial Gold Co., C.C.Or.1899, 98 F. 321, holding that a removal petition could not be amended to show the requisite diversity of citizenship.Cameron v. Hodges, 1888, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132.To the same effect seeJackson v. Allen, 1889, 132 U.S. 27, 10 S.Ct. 9, 33 L.Ed. 249.Freeman v. Butler, C.C.Ky.1889, 39 F. 1.

A leading Supreme Court case on this question is Mattingly v. Northwestern Virginia Railroad Co., 158 U.S. 53, 15 S.Ct. 725, 726, 39 L.Ed. 894.In delivering the opinion, Mr. Chief Justice Fuller said: "The petition for removal was insufficient, as has been repeatedly determined, because it does not show of what state the plaintiff was a citizen at the time of the commencement of the action.Stevens v. Nichols, 130 U.S. 230, 9 S.Ct. 51832 L. Ed. 914;Jackson v. Allen, 132 U.S. 27, 10 S.Ct. 933 L.Ed. 249;La Confiance Compagnie v. Hall, 137 U.S. 61, 11 S.Ct. 534 L.Ed. 573;Kellam v. Keith, 144 U.S. 568, 12 S.Ct. 92236 L.Ed. 544."

Counsel for the defendant urges that the question made is purely technical.That is not entirely true as no one could be positive from the allegation of the petition that at the time that the action was commenced Ed Cline was not a resident of Pennsylvania.Even though considered technical it should not therefore destroy the necessity of observing a strict compliance.The right to remove at all is a purely technical right, a statutory right or gratuity whose scope and limitations were fixed by the Congress.Congress could just as easily have given the right as of the time of filing the petition for removal but it did not see fit to do so.Its reasons are obvious.Jurisdiction of the state court could have been defeated after the action was begun.Such an attempt might be being made here judging from the allegations of the petition for removal on which the defendant's rights to federal jurisdiction must rest entirely.

The defendant, relying upon section 274c of the judicial code,28 U.S.C.A. § 399, offers to amend.Section 29 of the Judicial Code,28 U.S.C.A. § 72, provides that a petition for removal must be filed at any time before answer is due.The amendment was not offered within the time allowed by this section.Consequently since the petition for removal was in reality not a petition for removal because of its failure to allege a jurisdictional fact the amendment would have had to have been filed within the...