Colman v. Shimer, Civ. A. No. 3227.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtSTARR
Citation163 F. Supp. 347
Docket NumberCiv. A. No. 3227.
Decision Date23 June 1958
PartiesRobert D. COLMAN, Ancillary Administrator of the Estate of Thomas Webb, Deceased, Plaintiff, v. Uyleau SHIMER, Executor of the Estate of Elizabeth Kehlman, Deceased, Elsie Hunt, Margaret Krumer and David Anderson, Defendants.

163 F. Supp. 347

Robert D. COLMAN, Ancillary Administrator of the Estate of Thomas Webb, Deceased, Plaintiff,
v.
Uyleau SHIMER, Executor of the Estate of Elizabeth Kehlman, Deceased, Elsie Hunt, Margaret Krumer and David Anderson, Defendants.

Civ. A. No. 3227.

United States District Court W. D. Michigan, S. D.

June 23, 1958.


163 F. Supp. 348

Eric V. Brown, Kalamazoo, Mich., for plaintiff.

Dorothy M. Hunt, Chicago, Ill., and Schmidt, Smith, Howlett & Halliday and Walter K. Schmidt, Grand Rapids, Mich., for defendants.

STARR, Chief Judge.

This action was begun in the circuit court of Van Buren county, Michigan, by plaintiff Robert D. Colman as ancillary administrator of the estate of Thomas Webb, deceased, against Uyleau Shimer, executor of the estate of Elizabeth Kehlman, deceased, and David Anderson, Elsie Hunt, and Margaret Krumer as defendants. Plaintiff Colman and defendants Shimer and Anderson are citizens of Michigan, defendant Hunt is a citizen of Illinois, and defendant Krumer is a citizen of Ohio. In his complaint plaintiff alleged that Thomas Webb prior to his death was aged, senile, and mentally incompetent and that he was induced by the false and fraudulent statements and representations of his sister, defendant Elsie Hunt, and her attorney, to execute and enter into an inequitable

163 F. Supp. 349
and fraudulent agreement dated October 21, 1955, with defendant Elsie Hunt and his sister Margaret Krumer for the division of certain property which the three of them were to share equally as legatees under the will of their mother, Elizabeth Kehlman, deceased. In his complaint plaintiff asked that the agreement of October 21, 1955, be declared null and void and that defendants Hunt, Shimer, and Anderson be restrained from distributing or otherwise disposing of certain property in the estate of Elizabeth Kehlman described in the complaint, pending the further order of the court

Defendant Hunt has removed this action from the circuit court of Van Buren county to this Federal district court on the ground of diversity of citizenship. 28 U.S.C.A. § 1441. It appears from the record that the action has been discontinued as to defendant Anderson and that defendant Krumer has not been served with process or entered her appearance. Plaintiff Colman has filed a motion to dismiss the petition for removal and to remand the action to the circuit court on the ground that defendant Shimer is an indispensable party to the action and that, as plaintiff and Shimer are both citizens of Michigan, there is no diversity of citizenship and, therefore, no Federal jurisdiction. On the other hand, defendant Hunt contends that defendant Shimer is not an indispensable party to this action but is only a nominal party, or a stakeholder, whose citizenship should not be considered in determining this court's jurisdiction.

Counsel for plaintiff and defendant Hunt have filed a stipulation of the facts to be considered by the court in its determination of the plaintiff's motion to remand, and have also agreed that the motion may be determined on briefs filed, without further hearing or oral argument. It is clear that under the facts and circumstances involved this court would have had original jurisdiction of this action. 28 U.S.C.A. § 1332. The Federal statute relating to removal of actions, 28 U.S.C.A. § 1441, provides:

"(a) Except as otherwise expressly provided by Act of Congress, 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.
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other action shall be removable 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.
"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

The law is well established that in determining whether or not the requisite diversity of citizenship exists for the removal of an action to a Federal court, the courts will consider only the citizenship of the real parties in interest and not that of merely formal or nominal parties. As stated in 2...

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13 practice notes
  • Picard Chemical Inc. Profit Sharing Plan v. Perrigo, No. 1:95-CV-141.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 25, 1996
    ...matter of the litigation `in a subordinate or possessory capacity as to which there is no dispute.'" Id. (quoting Colman v. Shimer, 163 F.Supp. 347, 351 (W.D.Mich. In Cherif, the Seventh Circuit explained that "[b]ecause the nominal defendant is a trustee, agent, or depositary who has posse......
  • Armstrong Cover Co. v. Whitfield, Civ. No. C76-795A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 29, 1976
    ...supra; Bacon v. Rives, 106 U.S. 99, 1 S.Ct. 3, 27 L.Ed. 69 (1882); Farmers' Bank v. Hayes, 58 F.2d 34 (6th Cir. 1932); Colman v. Shimer, 163 F.Supp. 347 (W.D.Mich.1958). See Tri-Cities Newspapers, supra. Specifically applicable to this case is the fact that both the Farmers' Bank and Bacon ......
  • S.E.C. v. Cherif, Nos. 90-1688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 7, 1991
    ...holds the subject matter of the litigation "in a subordinate or possessory capacity as to which there is no dispute." Colman v. Shimer, 163 F.Supp. 347, 351 (W.D.Mich.1958) (quoting 2 J. Palmer, Cyclopedia of Federal Procedure, Sec. 3.63 (3rd ed.)). Because the nominal defendant is a "trust......
  • Evergreen School Dist. v. N.F., No. 05-5067 FDB.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • May 4, 2005
    ...nominal parties ... A defendant is a nominal party where his role is limited to that of a stakeholder or depositary"); Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich.1958) ("This excludes from consideration a resident defendant ... whose relation to the suit is merely incidental and to wh......
  • Request a trial to view additional results
13 cases
  • Picard Chemical Inc. Profit Sharing Plan v. Perrigo, No. 1:95-CV-141.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 25, 1996
    ...matter of the litigation `in a subordinate or possessory capacity as to which there is no dispute.'" Id. (quoting Colman v. Shimer, 163 F.Supp. 347, 351 (W.D.Mich. In Cherif, the Seventh Circuit explained that "[b]ecause the nominal defendant is a trustee, agent, or depositary who has posse......
  • Armstrong Cover Co. v. Whitfield, Civ. No. C76-795A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 29, 1976
    ...supra; Bacon v. Rives, 106 U.S. 99, 1 S.Ct. 3, 27 L.Ed. 69 (1882); Farmers' Bank v. Hayes, 58 F.2d 34 (6th Cir. 1932); Colman v. Shimer, 163 F.Supp. 347 (W.D.Mich.1958). See Tri-Cities Newspapers, supra. Specifically applicable to this case is the fact that both the Farmers' Bank and Bacon ......
  • S.E.C. v. Cherif, Nos. 90-1688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 7, 1991
    ...holds the subject matter of the litigation "in a subordinate or possessory capacity as to which there is no dispute." Colman v. Shimer, 163 F.Supp. 347, 351 (W.D.Mich.1958) (quoting 2 J. Palmer, Cyclopedia of Federal Procedure, Sec. 3.63 (3rd ed.)). Because the nominal defendant is a "trust......
  • Evergreen School Dist. v. N.F., No. 05-5067 FDB.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • May 4, 2005
    ...nominal parties ... A defendant is a nominal party where his role is limited to that of a stakeholder or depositary"); Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich.1958) ("This excludes from consideration a resident defendant ... whose relation to the suit is merely incidental and to wh......
  • Request a trial to view additional results

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