Comstock v. Morgan

• Decision Date: 25 September 1958
• Docket Number: No. 11387.,11387.
• Parties: Kenneth COMSTOCK, Plaintiff, v. Ralph MORGAN and Thomas Miller, Defendants.
• Court: U.S. District Court — Western District of Missouri

165 F. Supp. 798

Kenneth COMSTOCK, Plaintiff, v. Ralph MORGAN and Thomas Miller, Defendants.

No. 11387.

United States District Court W. D. Missouri, W. D.

September 25, 1958.

Combs Denney, Kansas City, Mo., for plaintiff.

Deacy & Deacy, Kansas City, Mo., for defendant.

R. JASPER SMITH, District Judge.

Plaintiff, a resident and citizen of Missouri, initiated this action in the Circuit Court of Jackson County, Missouri, against defendants Morgan and Miller, both residents and citizens of Kansas. According to the allegations in the pleadings the plaintiff was driving west along the Intercity Viaduct in Kansas City when defendant Morgan, driving east on the same road, crossed the center line and struck plaintiff's car head on. Defendant Miller, who was driving west and apparently was immediately behind plaintiff, was unable to stop and collided with plaintiff from the rear.

Both defendants joined and removed the action from the state court to this Court under Title 28 U.S.C.A. Section 1441, on diversity of citizenship grounds. There is no question but that there is a sufficient amount in controversy for federal jurisdiction. Each defendant filed a separate answer. Thereafter, with leave of Court, defendant Miller filed a cross-claim in the amount of $10,000 against defendant Morgan. The basis of this cross-claim is that the collision was the result of the negligence of Morgan and that he is liable for the injuries which Miller received.

On May 29, 1958, by stipulation of the parties, plaintiff's claim against both defendants was dismissed with prejudice. The cross-claim was expressly reserved as being unaffected by the dismissal. Miller, the cross-claimant, has now moved to remand the case to state court on the ground that there is no longer diversity of citizenship between the parties and this Court therefore no longer has jurisdiction.

The motion to remand presents an unusual question of law.

The great bulk of the case law concerning a subsequent change in the nature of a case after its removal to a federal court was decided prior to the passage in 1948 of Section 1447(c) of Title 28 U.S.C.A. In order to determine whether these cases are still controlling, it is first necessary to ascertain the nature and extent of the change made by the statutory revision. The old code provision concerning remand, Title 28 U.S. C.A. (1946 ed.) Section 80, was as follows:

"If in any suit commenced in a district court, or removed from a State Court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just."

With minor changes in phraseology, this is substantially the remand statute as it existed for three quarters of a century. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, 852. The 1948 revision, Section 1447(c), now provides:

"If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case."

Defendant Morgan, who opposes remand, contends that this statutory change in wording has accomplished a major change in the law of remand of removed cases. Emphasis is placed upon the phrase "If * * * it appears that the case was removed improvidently and without jurisdiction * * *." From this the conclusion is drawn that the character of a case as indicated by the record at the time the petition for removal was filed determines remand. If the case was properly removable at that time, subsequent changes cannot affect the jurisdiction of the federal courts. Under this theory the nature of the case at removal, regardless of the changes which might thereafter occur, is completely controlling to the exclusion of other considerations. While this principle may be true in certain cases, and it certainly results in a simple rule of law, it is not correct categorically to apply it to all situations. This principle is too rigid. And adopting this rule as absolute discards one of the basic considerations in the case law on remand, i. e., a consideration of the character or nature of the change which has occurred and its effect upon jurisdiction.

Two reasons support the view that the 1948 revision has not worked the complete transformation in the law advocated by defendant Morgan. The first is a matter of determining legislative intent. The Reviser's Note, Title 28 U.S. C.A. Section 1447, states in reference to subsection (c):

"Subsection (e) (now subsec. (c)) was derived from sections 71 and 80 of Title 28 U.S.C., 1940 ed. Such subsection was rewritten to eliminate the cumbersome procedure of remand." (Emphasis mine.)

No further reason for the revision is given. There is no mention of an intent to restrict the right to remand only to those cases improvidently removed in the first instance. The legislative intent gleaned from this note is to establish simple, expeditious machinery for remand. An expressed purpose to facilitate remand is not consistent with a severe restriction upon the power to do so. At least it does not lead to the emphatic conclusion that jurisdiction once attached may not be divested.

The second reason is based upon statutory interpretation. The remand statute as passed in 1875, Act of March 3, 1875, 18 Stat. 470, did not provide in express terms for remand of cases in which a change in character had occurred. Yet case law developed the concept that certain types of changes would result in remand even though the case had been properly removed. Since a substantial body of case law developed under the earlier statute which did not in clear terms provide for remand in cases like the present, and since there was no expressed legislative intent to change this law, it follows that Section 1477(c), supra, has not worked a radical departure from the prior law of remand. Conflicts on certain questions may have been clarified, but to hold that this revision signifies that jurisdiction once attached may not be lost is unwarranted.

Here federal jurisdiction was validly invoked. At the time the case was removed a controversy properly cognizable before a federal court was involved. Thereafter some change relating to jurisdiction occurs. We must determine what change, if any, will result in a remand of the case. It is to be emphasized that different types of changes lead to different results. Each case must be analyzed on the basis of the specific change which has occurred. I have found at least three categories into which the cases in this area fall:

(1) Those in which a party has taken some deliberate action in an effort to oust the court of jurisdiction.

(2) Those in which the change relates to some matter which is ancillary to jurisdiction.

(3) Those cases in which the subsequent change goes to the very essence of federal jurisdiction.

The first group includes several types of cases. The common element in all of them is that a party, generally the plaintiff, attempts to change the nature of a case so that some element of federal jurisdiction will fail. Although there has been some deviation, the generally accepted rule is that the plaintiff cannot act so as to oust a court of a case which has been properly removed. The underlying premise in these cases is that the right of removal has been conferred by statute and that the plaintiff cannot defeat this statutory right by some unilateral gesture. The transformation is characterized by the fact that it is a deliberate act to divest jurisdiction. Thus it is an established principle that a plaintiff cannot by amendment or stipulation reduce the amount in controversy below the minimum standard. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283,...