Croy v. Buckeye Intern., Inc.

• Decision Date: 20 December 1979
• Docket Number: Civ. No. K-79-1175.
• Citation: Croy v. Buckeye Intern., Inc., 483 F.Supp. 402 (D. Md. 1979)
• Parties: Gabriel Paul CROY, etc., et al. v. BUCKEYE INTERNATIONAL, INC., t/a Peterson Baby Products v. APEX MILLS, INC., et al. HOUSE OF FOAM, INC. v. The FIRESTONE TIRE & RUBBER COMPANY, etc., t/a Corry Foam Products Company.
• Court: U.S. District Court — District of Maryland

483 F. Supp. 402

Gabriel Paul CROY, etc., et al. v. BUCKEYE INTERNATIONAL, INC., t/a Peterson Baby Products v. APEX MILLS, INC., et al.

HOUSE OF FOAM, INC. v. The FIRESTONE TIRE & RUBBER COMPANY, etc., t/a Corry Foam Products Company.

Civ. No. K-79-1175.

United States District Court, D. Maryland.

December 20, 1979.

Jerome J. Seidenman and Henry E. Dugan, Jr., Baltimore, Md., for plaintiffs.

Phillips L. Goldsborough, III, Jon H. Grube and Smith, Somerville & Case, Baltimore, Md., for defendant Buckeye Intern., Inc.

Donald C. Allen, Baltimore, Md., for defendant Apex Mills, Inc.

James E. Gray and Semmes, Bowen & Semmes, Baltimore, Md., for defendant Harte & Co., Inc.

A & Z Knitting Mills, Inc., defendant pro se.

E. Dale Adkins, III, Baltimore, Md., for defendant Knickerbacker Toy Co., Inc.

William B. Whiteford and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., for defendant House of Foam, Inc.

Edward S. Digges, Jr., Baltimore, Md., for defendant The Firestone Tire & Rubber Co.

FRANK A. KAUFMAN, District Judge.

Fourth party defendant Firestone Tire & Rubber Co., trading, insofar as this case is concerned, as Corry Foam Products Co. (Firestone), seeks to remove this case to this Court from the Superior Court of Baltimore City. Plaintiffs Gabriel Paul Croy, infant, and his mother (as next friend and as an individual), citizens of Maryland, who initially filed this suit against Peterson Baby Products (Peterson), an Ohio corporation with its principal place of business in Ohio, in the Superior Court of Baltimore City on or about April 12, 1978, have moved to remand. Plaintiffs allege injury to the infant plaintiff from a fire in his playpen and claim damages in excess of three million dollars.

In the year following April 12, 1978, five third party defendants were joined in the suit by Peterson: (1) third party defendant Apex Mills, Inc., a New York corporation with its principal place of business in New York; (2) third party defendant Harte & Co., Inc., a New York corporation with its principal place of business in New York; (3) third party defendant House of Foam, Inc., an Ohio corporation with its principal place of business in Ohio; (4) third party defendant A & Z Knitting Mills, Inc., a New York corporation with its former principal place of business in New York (apparently it is no longer doing business); and (5) third party defendant Knickerbacker Toy Co., a New Jersey corporation with its principal place of business in New Jersey. Neither defendant Peterson nor any third party defendant petitioned for removal. Discovery proceeded, with several depositions being taken in California and Maryland. Thereafter, on or about May 25, 1979, third party defendant House of Foam, Inc. named Firestone as a fourth party defendant in the Superior Court of Baltimore City. Firestone seemingly then learned for the first time of the institution of the case by plaintiffs. Firestone is an Ohio corporation with its principal place of business in Ohio. On June 22, 1979, Firestone removed the entire within case to this Court, apparently pursuant to 28 U.S.C. § 1441(a). On June 29, 1979, plaintiffs moved for remand of the case to the Superior Court of Baltimore City.

28 U.S.C. § 1441(a) provides:

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.

28 U.S.C. § 1441(c) provides:

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 latter does not constitute a basis for removal in this case. That is because the suit between House of Foam and Firestone would not be "removable if sued upon alone" since both House of Foam and Firestone are Ohio corporations. In addition, even if diversity existed between them, House of Foam's claim against Firestone is not a "separate and independent claim or cause of action," but rather one for indemnification and/or contribution. Holloway v. Gamble-Skogmo, Inc., 274 F.Supp. 321, 322 (N.D.Ill.1967).¹ Firestone does not contend that removal pursuant to 28 U.S.C. § 1441(c) is permitted² but instead argues that removal is proper under section 1441(a).

In this case, the original defendant did not petition for removal, although diversity jurisdiction pursuant to 28 U.S.C. § 1332 has at all times existed and continues to exist and defendant could have removed under 28 U.S.C. § 1441(a) if defendant had so desired and acted timely.³ During the year after plaintiffs commenced this case, five third party defendants were brought into the suit by defendant, and discovery proceeded under the aegis of the state court. More than one year after the case was filed by plaintiffs, fourth party defendant Firestone was sued, and timely filed its petition to remove the entire case to this Court. In so doing, Firestone stated that its petition was filed "with the consent" of the defendant and the third party defendants, although the petition was filed by Firestone alone and was not signed by any other defendant.⁴

The question presented herein is whether or not a fourth party defendant is a defendant within the meaning of section 1441(a). The treatises and all the cases speak of third party defendants, and not of fourth party defendants. Apparently, the question of whether or not a fourth party defendant is entitled to removal of an entire case to federal court may be one of first impression. However, all considerations applicable to third party defendants would appear applicable to fourth party defendants, and perhaps become even stronger when so applied.⁵ The leading treatises answer the question in the negative and conclude that a third party defendant is not a defendant within the meaning of section 1441(a), even if a third party defendant may in certain circumstances remove (as Firestone may not do herein) under section 1441(c). Wright, Miller & Cooper, supra § 3724 at 643-45, § 3731 at 716-18; see also id. § 3721 at 530, § 3723 at 590. See 1A Moore's Federal Practice ¶ 0.1577 at 115 n.8, ¶ 0.16710 at 413-20; see also id. at ¶¶ 0.1611, 0.1634.-6. A fortiori, a fourth party defendant is likewise not a defendant within that statute. The statute neither explicitly includes nor excludes third party or fourth party defendants. The statute, however, must be read in the light of the principle requiring "strict construction" of removal jurisdiction, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (Stone, J.), the principle requiring rejection of federal jurisdiction in doubtful removal cases, Irving Trust Co. v. Century Export & Import, S. A., 464 F.Supp. 1232, 1236 (S.D.N.Y.1979) (case remanded); Greater New York Mutual Insurance Co. v. Anchor Construction Co., 326 F.Supp. 245, 248 (E.D.Pa.1971) (case remanded), the entirely statutory nature of removal jurisdiction, Shamrock Oil, supra 313 U.S. at 104, 61 S.Ct. 868, and considerations of comity, id. at 108-09, 61 S.Ct. 868, Irving Trust, supra at 1236. Read in the light of the above-mentioned considerations, this Court agrees that

Sec. 1441(a) does not utilize the words "third-party defendant" but merely uses the word "defendant." To define the word defendant to mean not only the defendant in an original complaint but in addition a third-party defendant would be an unwarranted act of judicial legislation.

White v. Baltic Conveyor Co., 209 F.Supp. 716, 719 (D.N.J.1962).⁶

In Greater New York Mutual Insurance Co. v. Anchor Construction Co., 326 F.Supp. supra at 248-49, a third party defendant argued that it should not be restricted to the state forum by the fact that the defendant did not petition for removal. The Court, in remanding the case, rejected that contention, stating:

Lasker-Goldman further argues, and not without appealing logic and persuasion, that as a third-party defendant or "additional defendant" it stands in a no different position than one who was joined originally as a defendant. Like an original defendant, a non-resident third-party defendant does not choose to litigate in the foreign forum and, it is argued, should not, therefore, be precluded from removing by the mere fortuity that it was joined as a third-party instead of as an original party.

This argument, while appealing as a matter of logic, does not overcome the policy considerations which militate against judicial expansion of removal jurisdiction. The Reviser's notes to the removal statute clearly indicate that the argument that there is local prejudice against non-resident litigants has in great part fallen by the wayside * * *.

Furthermore, we are persuaded by Professor Moore's analysis that Section 1441(c) is also limited to claims joined by the plaintiff. Citations omitted. This position is consistent with the well-established rule that the existence of a removable separate and independent claim or controversy is to be determined from the well-pleaded allegations of the plaintiff's complaint. * * *

In Burlingham, Underwood, Barron, Wright & White v. Luckenbach Steamship Co., 208 F.Supp. 544, 547 (S.D.N.Y.1962), in the course of remanding, the Court wrote: "This construction, allowing removal only by a plaintiff's defendant, is in full keeping with the directive of the Supreme Court in Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 104, 61 S.Ct. 868, 85 L.Ed. 1214 * * *."

Perhaps the case most similar to the one at bar is Fiblenski v. Hirschback Motors Lines, Inc., 304 F.Supp. 283 (E.D.Ark.1969)....