Dri Mark Products, Inc. v. Meyercord Co.

• Decision Date: 21 April 1961
• Citation: 194 F. Supp. 536
• Parties: DRI MARK PRODUCTS, INC., and Dri Mark Trading Corporation, Plaintiffs, v. MEYERCORD CO., Defendant.
• Court: U.S. District Court — Southern District of New York

194 F. Supp. 536

DRI MARK PRODUCTS, INC., and Dri Mark Trading Corporation, Plaintiffs, v. MEYERCORD CO., Defendant.

United States District Court S. D. New York.

April 21, 1961.

Joseph Goldberg, New York City, for plaintiffs.

Kenyon & Kenyon, New York City, for defendant.

EDELSTEIN, District Judge.

Plaintiff moves to remand this action, which was commenced on November 4, 1960, in the Supreme Court of the State of New York, Westchester County, back to the State court. The complaint alleges trade mark infringement, unfair competition and violation of Section 964 of the New York Penal Law. Plaintiff prays for an injunction restraining the use of the name "Dri Mark". An order to show cause, moving for a temporary injunction, was served with the summons and complaint, returnable November 9, 1960. A written stipulation adjourning the hearing of the motion to November 22, 1960, was entered into between the parties. On November 17, 1960, prior to the adjourned return date of the motion, defendant removed the action to this court on the grounds of diversity of citizenship. 28 U.S.C. §§ 1441, 1332.

Plaintiff concedes the diverse citizenship of the parties, but sets forth, in its moving papers, three grounds for remand: (1) that the matter in controversy does not exceed $10,000; (2) that the defendant has waived its right to removal; and (3) that the petition for removal is defective due to a failure to include all of the papers and pleadings filed in the state court.

Plaintiff contends that the "determinative factor of jurisdictional amount in any cause is what is claimed by the plaintiff in the complaint." Since the complaint here lacks a statement of the monetary value of the matter in controversy, it is contended that defendant's allegation in the removal petition of an amount in controversy in excess of $10,000 is insufficient to establish the jurisdictional amount. Plaintiff's position cannot be sustained.

"Removability is determined by the allegations of the complaint if it sets up the amount in controversy, and, if it does not, the court may look to the petition for removal." Davenport v. Procter & Gamble Mfg. Co., 2 Cir., 1957, 241 F.2d 511, 514, 63 A.L.R.2d 1350; see Daland v. Hewitt Soap Co., D.C.S.D. N.Y.1939, 27 F.Supp. 482, 483; Seber v. Spring Oil Co., D.C.N.D.Okl.1940, 33 F.Supp. 805. The "plaintiff-viewpoint" concept for determining jurisdictional amount is also applicable to actions for an injunction. "Thus, in actions seeking to enjoin unfair competition the amount in controversy has been held to be the value of the right to be protected or the value to the complainant of the business or good will to be protected." 1 Moore, Federal Practice 870 (2d ed. 1960). An examination of the complaint supported by the necessary inferences drawn therefrom, Daland v. Hewitt Soap Co., supra, the uncontradicted jursidictional averment in the petition and the affidavit submitted in opposition to the motion to remand, Davenport v. Procter & Gamble Mfg. Co., supra, persuades this court that the value of the matter in controversy exceeds the jurisdictional amount. Possidenti v. Mechanics & Traders Ins. Co., D.C.Md.1955, 136 F.Supp. 544 cited by plaintiff, is inapposite. That case involved an action for a money judgment and held that the claims against two defendants could not be aggregated to establish the jurisdictional amount. Lorraine Motors, Inc., v. Aetna Cas. & Surety Co., D.C.E.D.N.Y.1958, 166 F.Supp. 319, expressing the policy which favors remand when there is doubt as to the right of removal, is not applicable here where there is no doubt.

The second ground of plaintiff's motion is based on a stipulation between the parties entered into while the action was pending in the State court.¹ It is urged that by agreeing to have the motion heard on the adjourned day in the Supreme Court of Westchester County, defendant waived its right to Federal jurisdiction.

"That a defendant may waive the right to remove a cause is conceded, but the intent to so waive and to submit to the jurisdiction of the State court must be clear and unequivocal. Where it is sought to show an intent to waive the right to remove from the actions of a defendant, the actions relied upon must be clearly inconsistent with a purpose to pursue the right to remove." Davila v. Hilton Hotels International, Inc., D.C. P.R.1951, 97 F.Supp. 32, 34. Thus, it has been held that it is not a waiver of the right to remove when a defendant enters a general appearance, Levy v. Joseph S. Finch & Co., D.C.E.D.N.Y.1934, 9 F. Supp. 255, answers and serves a notice to examine plaintiff, Markantonatos v. Maryland Drydock Co., D.C.S.D.N.Y. 1953, 110 F.Supp. 862, or even takes depositions prior to removal. McMillen v. Indemnity Ins. Co., D.C.W.D.Mo.1925, 8 F.2d 881. The court in McMillen pointed out that the right of removal should not be foreclosed to a defendant because he takes steps to protect his rights, prepares for trial or uses the processes of the State court while the case is still pending there. In Houlton Sav. Bank v. American Laundry Mach. Co., D.C.Me. 1934, 7 F.Supp. 858, cited by both parties, the...