Crosby v. Paul Hardeman, Inc.

• Decision Date: 28 July 1969
• Docket Number: No. 19440.,19440.
• Citation: 414 F.2d 1
• Parties: Gene C. CROSBY as Administrator of the Estate of Ray Crosby, Deceased, Appellant, v. PAUL HARDEMAN, INC., a Michigan Corporation; Paul Hardeman, Inc., a Delaware Corporation; Arkansas Power & Light Company, Appellee, The Aetna Casualty and Surety Company; and Jelco, Incorporated, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

414 F.2d 1 (1969)

Gene C. CROSBY as Administrator of the Estate of Ray Crosby, Deceased, Appellant, v. PAUL HARDEMAN, INC., a Michigan Corporation; Paul Hardeman, Inc., a Delaware Corporation; Arkansas Power & Light Company, Appellee The Aetna Casualty and Surety Company; and Jelco, Incorporated, Appellees.

No. 19440.

United States Court of Appeals Eighth Circuit.

July 28, 1969.

John Harris Jones, Pine Bluff, Ark., for appellant.

Donald T. Jack, Jr., of House, Holmes & Jewell, Little Rock, Ark., for appellees.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

Floyd R. GIBSON, Circuit Judge.

This is an appeal from a summary judgment entered by Chief Judge Oren Harris, United States District Judge for the Eastern District of Arkansas, against the appellant Gene Crosby, Administrator of the estate of Ray Crosby, in a suit seeking compensation for the use or rental of certain heavy construction equipment.

Originally, Ray Crosby filed this complaint against Paul Hardeman, Inc., Aetna Casualty Insurance Company, Arkansas Power & Light Company, and Jelco, Incorporated, in the Arkansas state court. Crosby and Arkansas Power & Light (hereafter referred to as APL) were Arkansas citizens but all the other defendants were citizens of states other than Arkansas. The diverse defendants removed the suit to the federal district court. Crosby questioned the validity of the removal as there was a lack of complete diversity and he contended that there was no separate and independent claim or cause of action asserted against any of the diverse defendants so as to satisfy the requirements for removal when complete diversity is lacking under 28 U.S.C. § 1441(c) (1948). The motion to remand was denied.

After Ray Crosby's death Gene Crosby, as administrator of Ray Crosby's estate, was substituted as plaintiff. The plaintiff's claims against Paul Hardeman, Inc. and its surety Aetna were settled and a judgment of dismissal was accordingly entered against those defendants. Thereafter the motion of APL and Jelco for summary judgment was granted.

Two issues are raised on this appeal: (1) the validity of the District Court's action in overruling the motion to remand to the state court; and (2) the validity of the summary judgment.

We will first consider the remand issue. Plaintiff contends the removal of the case from the state court was improvidently granted as there was no diversity jurisdiction against APL and there was only one cause of action stated arising out of the interlocked series of transactions alleged in the complaint.

The right of removal is statutory and the party seeking removal must show that he comes within the provisions of the statute. Edwards v. E. I. Du Pont De Nemours & Co., 183 F.2d 165 (5 Cir. 1950). The allegations of the complaint as set forth at the time the petition for removal was filed are controlling. Pullman Co. v. Jenkins, 305 U.S. 534, 537-538, 59 S.Ct. 347, 83 L.Ed. 334 (1939).

The complaint as originally filed alleged a general contract between Hardeman and APL for the construction of approximately 141 miles of transmission line, with Aetna Casualty Insurance Company as surety for Hardeman, the execution of a performance bond by Hardeman and Aetna, and a sub-contract of Hardeman with the plaintiff for use of a piece of heavy equipment, called a dragline, at a rental of $590 per week which Hardeman agreed to pay until the dragline was returned to plaintiff's equipment yard at DeWitt, Arkansas, and asserted that the dragline was furnished August 22, 1964 and remained in the possession of defendants until July 22, 1965. Plaintiff claimed $28,025 for 47½ weeks' rental. In addition, plaintiff claimed $7,315.17 for other labor and equipment furnished to Hardeman under dates of September 10 and October 1, 1964, and some further sums for transportation and repair of the vehicle, bringing the total recovery sought to $39,022.17.

APL terminated its contract with Hardeman on or about November 28, 1964, apparently because of unsatisfactory progress under the general contract, and APL proceeded to make arrangements with defendant Jelco, Incorporated, to complete the construction of the transmission line. The plaintiff had received no payment at all for his equipment and services and he contacted APL in early December 1964 concerning his problem. He was notified by letter of December 15, 1964 that APL was making arrangements with Jelco to take over and complete the construction work undertaken by Hardeman and that Jelco was in the process of making a survey of the equipment on the job to determine which equipment it desired to retain and use. The letter also stated that after the survey Jelco would get in touch with plaintiff if it desired to retain and use the equipment and, if Jelco determined to use the owner's equipment, Jelco would be responsible for future rental payments. The letter indicated a probability that Jelco would desire to retain and use plaintiff's equipment but stated, "Until Jelco advises you that it desires to use your equipment and you have made arrangements with them for the lease rental, all rental and other charges will be obligations of Paul Hardeman, Inc." The letter assured the plaintiff that APL would "do everything within its power both to collect what is already due you and to persuade Jelco to continue with the rental of your equipment." Jelco, however, never contacted plaintiff, and both APL and Jelco ignored monthly billings sent by plaintiff.

Plaintiff did not pick up the dragline until July 22, 1965 when Aetna wrote to plaintiff that the dragline might be removed from its location on the construction job. Thus, in addition to seeking the sum of $39,022.37 from Hardeman and Aetna, the complaint charged APL and Jelco with liability for $18,880 of the total sought (for rental during the period from December 15, 1964 to July 22, 1965) in the event full recovery was not obtained from Hardeman and Aetna.

Since the diversity jurisdiction of the federal district courts is statutory and there is obviously a lack of complete diversity, this case would be removable only if a separate cause of action is stated against one or more of the diverse defendants so as to make removal to the federal courts appropriate under 28 U.S. C. § 1441(c) (1948), which reads:

"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 nonremovable 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."

Present § 1441(c) is part of the 1948 amendments to the Judicial Code. This section, according to the Reviser's Note, by permitting removal only of a "separate and independent claim or cause of action", against a diverse defendant made a distinct change from the prior law that permitted a "separable controversy" to be removed. The amendment was intended to decrease the volume of federal litigation. The leading case interpreting this section, American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) fully substantiated the Reviser's observations.

In Finn, a Texas resident sought recovery for a fire loss againt two foreign insurance companies and the resident agent of the companies. A single wrong was alleged which was failure to compensate for the fire loss and there was some uncertainty as to who was liable for the loss. The Court in discussing the matter said at p. 12 of 341 U.S., at p. 539 of 71 S.Ct.:

"The effectiveness of the restrictive policy of Congress against removal depends upon the meaning ascribed to `separate and independent * * * cause of action.\' § 1441. Although `controversy\' and `cause of action\' are treated as synonymous by the courts in situations where the present considerations are absent, here it is obvious different concepts are involved. We are not unmindful that the phrase `cause of action\' has many meanings. To accomplish its purpose of limiting and simplifying removal, Congress used the phrase `cause of action\' in an accepted meaning to obtain that result."

In interpreting the meaning of "cause of action" the Court quoted from Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600, 71 L.Ed. 1069 (1927) which defined a "cause of action" as embracing "one actionable wrong with but one recovery" and as "a single wrongful invasion of a single primary right." The focus was on the concept of a violation of a single right as constituting a single cause of action. The Court in Finn concluded at p. 14 of 341 U.S., at p. 540 of 71 S.Ct.:

"* * * Where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)."¹

Plaintiff views the single wrong as the retention of his equipment without payment of rental for which he seeks a total sum from Hardeman and Aetna. He adds some other claims not asserted against the remaining defendants, and also seeks to impress or to obligate the remaining defendants, APL and Jelco, with at least a secondary liability for a portion of the alleged rental period, in the amount of $18,880. If plaintiff actually has suffered but a single wrong for which a single recovery is sought the case would not be removable. Gray v. New Mexico Military Institute, 249 F.2d 28 (10 Cir. 1957). Chief Judge Harris analyzed the factual situation as a claim asserted against Hardeman and its surety on the basis of a written agreement evidenced by an invoice stating the terms of the rental to be $590 per week until the dragline is returned to the plaintiff, so that legally Hardeman and Aetna at least would be responsible for the rental from August 22, 1964, and as a claim upon an implied contract or quasi contract for the use of the equipment after ...