Duffy v. Duffy

• Decision Date: 17 March 1950
• Docket Number: Civ. No. 1-54.
• Citation: 89 F. Supp. 745
• Parties: DUFFY v. DUFFY et al.
• Court: U.S. District Court — Southern District of Iowa

89 F. Supp. 745

DUFFY v. DUFFY et al.

Civ. No. 1-54.

United States District Court S. D. Iowa, Central Division.

March 17, 1950.

Lehan T. Ryan, Des Moines, Iowa, for plaintiff.

John P. Harper (of Brody, Charlton, Parker & Roberts), Des Moines, Iowa, for defendant.

SWITZER, District Judge.

Plaintiff presents a motion to remand this suit to the District Court of Iowa in and for Polk County, from whence it was heretofore removed to this court upon the petition of the defendant, United States Rubber Company, a New Jersey corporation, which will be hereinafter referred to as the "U. S. Rubber Company."

The defendant, Duffy Tire Company, is an Iowa corporation with its principal place of business in Des Moines, Polk County, Iowa, and the defendant Louis M. Duffy is a natural person, resident of Des Moines, Polk County, Iowa.

The presence of an action involving the jurisdictional amount is granted; the contention in the motion to remand being that this is an action against joint tortfeasors, some of whom are residents, and some non-residents, of Iowa; that the defendants are jointly liable and that there is no separable controversy as to the defendant U. S. Rubber Company.

The applicable statute is Title 28 U.S. C.A. § 1441(c), which 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."

It is fundamental that in the absence of a fraudulent joinder the existence of a separable controversy within the language of the statute is to be determined from the complaint (here petition), when the petition for removal is filed; and that the nature of the controversy arises under the pleadings and the right to allege a joint, and therefore non-separable, controversy is to be determined by the law of the State in which the pleading is filed. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Southern R. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473; McAllister v. Chesapeake & O. R. Co., 243 U.S. 302, 37 S.Ct. 274, 61 L.Ed. 735. There is no element of fraudulent joinder here.

It is fundamental that in this State a party plaintiff may, if he properly couches the language in his pleadings, bring an action sounding in tort against two or more defendants jointly or severally and the sole test is whether from a fair construction of the petition it can be found that the pleader has made an election as to which type of action was intended. This conclusion is likewise true of causes of action based upon contract or the breach thereof. McDonald v. Robinson, 207 Iowa 1293, 224 N.W. 820, 62 A.L.R. 1419. It has also been universally held that whether a given cause of action might have been predicated upon breach of contract but rather sounded in tort is not material, but that the plaintiff's right to elect the nature of the cause pleaded is optional, as was stated by the court in Hennock v. Silver, D.C., 34 F.Supp. 894, at page 897: "For the purposes of the present motion the allegations of the bill of complaint must be taken at their face value. `The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings'. Louisville & N. R. Co. v. Ide, 114 U.S. 52, 56, 5 S.Ct. 735, 737, 29 L.Ed. 63. (and additional authorities). Even if plaintiff might have pleaded a cause of action against the Massachusetts defendants for damages based on a breach of contract, she did not choose to do so, but has pleaded a claim based on a tort, the alleged participation of all four defendants in a common scheme to defraud the plaintiff out of her share of the proceeds, benefits and considerations received by the Massachusetts defendants from the bankers."

It also seems settled that even though a plaintiff might have brought his suit against defendants separately he may do so jointly and this fact is no test as to the separability of the causes of action. Hay v. May Department Stores Co., 271 U.S. 318, 321, 46 S.Ct. 498, 499, 70 L.Ed. 965: "It is well settled by the decisions of this court, that an action brought in a State court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a Federal court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature of the controversy in the absence of a showing that one of the defendants was fraudulently joined for the purpose of preventing the removal."

See Bolstad v. Central Surety & Ins. Corp., 8 Cir., 168 F.2d 927.

I must likewise conclude as did the defendant, U. S. Rubber Company, in its brief and argument, filed herein, that the petition of the plaintiff should be construed for the purposes of this motion in the light most favorable to the pleader. At least, the allegations of the petition must be taken at their face value and, unless the contrary clearly appears, this court must follow the often repeated rule laid down in Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 727, 36 L.Ed. 528, wherein the court on discussing this subject, said: "The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings."

Again, in DeVan v. Tobacco Products Corp., D.C., 19 F.Supp. 714, 716, the court said: "For the purposes of the present motion (to remand) the allegations of the bill of complaint must be taken at their face value."

Reading through the entire petition and amendment thereto of the plaintiff here and taking it as a whole, the theory upon which it was drawn becomes apparent, namely, that there was a joint participation by all of the defendants named in a common scheme, each of the defendants are alleged to be the actors, all having separate entities, and together in concert they are alleged to have worked to a common unlawful purpose, and that the fruits from such joint participation and common scheme were unlawfully participated in by U. S. Rubber Company and Louis M. Duffy. And...