Doherty v. Smith

• Decision Date: 10 July 1915
• Citation: 233 F. 132
• Parties: DOHERTY et al. v. SMITH.
• Court: U.S. District Court — Southern District of New York

233 F. 132

DOHERTY et al. v. SMITH.

United States District Court, S.D. New York.

July 10, 1915

Frueauff & Robinson, of New York City, for the motion.

Elkus Gleason & Proskauer, of New York City, opposed.

LEARNED HAND, District Judge.

In Jackson v. Wm. Kenefick Co. and Wm. Kenefick, 233 F 130, filed July 21, 1913, I held that an alien might remand a case where he had brought it in the state court against nonresident citizens and they had removed. I followed Judge Lacombe in Kamenickey v. Cattarall Printing Co (C.C.) 188 F. 400, and Judge Coxe in Odhner v North. Pac. Ry. Co. (C.C.) 188 F. 507, against my own judgment. It seems to me probable that Ex parte Tobin, 214 U.S. 506, 29 Sup.Ct. 702, 53 L.Ed. 1061, and Ex parte Nicola 218 U.S. 668, 31 Sup.Ct. 228, 54 L.Ed. 1203, were intended to overrule Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, especially after the language of In re Moore, 209 U.S. 490, 28 Sup.Ct. 586, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; but the matter has given rise to great confusion. Judge Cochran, in Louisville & Nashville R. Co. v. West. Un. Tel. Co. (D.C.) 218 F. 91, has written a most admirable opinion, in the reasoning of which I altogether concur, just as I concurred in the same reasoning in Jackson v. Wm. Kenefick et al., supra.

So far as there is any difference between suit by aliens against nonresident citizens and suits by nonresident citizens against nonresident citizens, the right to remand seems more certain to belong to nonresident citizen plaintiffs, as I tried, perhaps not very clearly, to show in Jackson v. Wm. Kenefick et al., supra. Any authority allowing an alien plaintiff to remand, if anything, makes more strongly in favor of a nonresident citizen plaintiff's similar right. Perhaps Judge Cochran is right in saying that the same considerations govern each. I am aware that under the rule of Ex parte Wisner, supra, no citizen defendant can remove to the federal court anywhere, except in the district of the citizen plaintiff's residence, and, if the plaintiff be an alien, then not at all. I do not feel free to disregard a decision of the Supreme Court for those reasons, till they have more clearly overruled their last expression.

The matter is especially one in which certainty is as important as anything else, there being no essential matter of justice or injustice in it. I shall adhere to the rule which has been laid down until it is...