Duncan v. Associated Press

• Decision Date: 10 May 1897
• Citation: 81 F. 417
• Court: U.S. District Court — Southern District of California
• Parties: DUNCAN v. ASSOCIATED PRESS.

81 F. 417

DUNCAN v. ASSOCIATED PRESS.

United States Circuit Court, S.D. California.

May 10, 1897

Blanton Duncan and D. Allen, for plaintiff.

Henry T. Gage and White & Monroe, for defendant.

WELLBORN District Judge.

This action, for the recovery of damages laid in the complaint at $50,000, was brought originally in the superior court of Los Angeles county, Cal. Service of the summons was duly made in the city of San Francisco on the 27th day of June, 1896. On the 24th day of July next following, defendant filed in the state court a demurrer, and also a petition, with bond, for the removal of the suit into the federal court, which bond was approved and petition granted by said state court, and a certificate of the record duly filed in this court. The ground of removal, as set forth in the petition, is as follows, to wit:

'That your petitioner was at the time of the bringing of this suit and still is, a corporation organized under the laws of the state of Illinois, and a citizen of the state of Illinois and that said suit and the controversy in said suit is between citizens of different states; that your petitioner was at the time of the commencement of this suit, and still is, a citizen of the state of Illinois; and that plaintiff was at the time of the commencement of this suit, and still is, a citizen of the state of California.'

Plaintiff now moves to remand the case to the state court upon the ground, as specified in the motion to remand and accompanying affidavits, that this court is without jurisdiction, because the plaintiff is, and was when the action was commenced, a citizen of the state of Kentucky, and had his residence in the city of Louisville, in said last-named state. Plaintiff urges as a further reason why the case should be remanded that a demurrer to the complaint was filed in the state court before the petition and bond for removal. At the hearing of the motion, evidence was offered by both parties as to the citizenship and residence of plaintiff; that is, whether such citizenship and residence were in California or Kentucky,-- defendant insisting upon the former, and plaintiff upon the latter, state. In the view, however, which I now take of the law of the case, it is unnecessary to review this evidence for plaintiff's residence does not affect the right of removal, and, while I think his citizenship has been shown to be in Kentucky, yet a finding either way on the issue of citizenship would sustain the material allegation of the petition for removal, namely, 'that said suit, and the controversy in said suit, is between citizens of different states,' or, to express the situation in other language, the fact that defendant is a citizen and resident of Kentucky, if it be conceded, is no ground for remanding the case. Sections 1 and 2 of the act of congress of August 13, 1888 (1 Supp. Rev. St. U.S. pp. 611, 612), regulating the removal of cases from the state courts, are as follows:

'Section 1. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * * But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. * * *

'Sec. 2. That any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. * * *'

It is authoritatively settled that the provisions of section 1 in relation to the particular district in which a suit must be brought do not go to the question of jurisdiction, but only confer upon the defendant a personal privilege or exemption, which may be waived, and that the circuit courts of the United States have jurisdiction, the other requisites being present, whenever there is a controversy between citizens of different states. Railroad Co. v. McBride, 141 U.S. 127, 11 Sup.Ct. 982; Ex parte Schollenberger, 96 U.S. 369; Trust Co. v. McGeorge, 151 U.S. 129, 14 Sup.Ct. 286. In the case last cited the court says:

'But the defendant company did not choose to plead that provision of the statute, but entered a general appearance, and joined with the complainant in its prayer for the appointment of a receiver, and thus was brought within the ruling of this court, so frequently made, that the exemption from being sued out of the district of its domicile is a personal privilege, which may be waived, and which is waived by pleading to the merits.'

The court then refers to a number of cases which the doctrine it announced is approved, and proceeds as follows:

'The court below suggested that the present case is distinguishable from the others in which it was held that the right of exemption might be waived, in that neither the plaintiff nor the defendant resided in the district in which the suit was brought; that is, the Mercantile Trust Company, the plaintiff, had its residence in New York, and the Virginia, Tennessee & Carolina Company, the defendant, was a corporation of New Jersey. But a similar state of facts existed in the case of Shaw v. Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, inasmuch as Shaw, the plaintiff, was a citizen of Massachusetts, and the mining company was a corporation of the state of Michigan, and the suit was brought in the circuit court for the Southern district of New York. Nor do we see any reason for a different conclusion as to the subject of waiver when the question arises where neither of the parties are residents of the district from that reached where the defendant only is such resident.'

In a later case the supreme court of the United States, following the principle of the cases above cited, that the jurisdiction of the circuit courts, as defined in section 1, depends upon diverse citizenship, unaffected by the question of the residence of the parties, has expressly held that the provisions of section 2, authorizing removals in cases where the circuit courts of the United States are given jurisdiction by section 1, refer to the first part of section 1, which in terms confers jurisdiction, and not to the clause which prescribes the district in which the suit may be brought. Railroad Co. v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563. Some years before the decision in the case of Railroad Co. v. Davidson, supra, the doctrine therein announced was suggested as probably the true construction of the sections in question in Gavin v. Vance, 33 F. 88, as follows:

'Moreover, the primary grant of jurisdiction contained in the first clause of the first section-- to which it is possible the removal section refers, rather than to the more restricted clause relating to the locality of the suit-- is of the most extensive character, and broad enough to give the court jurisdiction by removal of any suit between citizens of different states brought in a state court, although the locality might not be available for original jurisdiction of the federal court under the subsequent restrictive clauses of the first section. So that the restrictions of locality as to suits originally brought may not apply to the jurisdiction by removal at all. In other words, we must look alone to the restrictions of the removal section for the qualifications of that jurisdiction, and treat those relating to the locality of original suits as wholly inapplicable to the entirely different subject of jurisdiction by removal. Whether this be a proper construction, we need not say, but it is neither impossible nor improbable, nor yet an unreasonable construction.'

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