Evans-Hailey Company v. Crane Company
| Decision Date | 28 June 1962 |
| Docket Number | 3032,3060,2828,2909,Civ. No. 2730,2978,2886,2874,2906,3058,2901,2985,2782,2836,3052,2761,3059,2835,2837,3156,2759,3050,2781,2760,3167.,2847 |
| Citation | 207 F. Supp. 193 |
| Parties | EVANS-HAILEY COMPANY, Inc. v. CRANE COMPANY. Mrs. Herman MERRITT v. John H. WOODY et al. Herman MERRITT v. John H. WOODY et al. Steven Eugene MERRITT v. John H. WOODY et al. John L. MANNING v. LION OIL, INC. Lucy MANNING v. LION OIL, INC. Fred D. SULLIVAN v. LOUISVILLE & NASHVILLE RAILROAD CO. Mrs. Mary Bell REHORN v. TERMINAL TRANSPORT CO., Inc. Samuel Ralph REHORN v. TERMINAL TRANSPORT COMPANY, Inc. Edward Earl REHORN v. TERMINAL TRANSPORT COMPANY, Inc. Reba FALSTER v. TRAVELERS INSURANCE CO. Mrs. Josephine CHEEK v. CHESTERS, INC. Robert MURDIC v. LOUISVILLE & NASHVILLE RAILROAD CO. George B. FLIPPEN et ux. v. TEXAS EASTERN TRANSMISSION CORP. et al. Mrs. Robert M. STRUBE, Sr. v. LOUISVILLE & NASHVILLE RAILROAD CO. et al. Elroy ROWLETT, b/n/f v. Oscar J. KILBURN et al. Mary Ruth BURGESS, Administratrix v. LOUISVILLE & NASHVILLE RAILROAD CO. Mrs. D. L. WARREN, Sr., et al. v. UNITED STATES FIDELITY & GUARANTY CO. Mrs. Muriel M. SEYFERT, Executrix v. NEWARK INSURANCE CO. T. W. TAYLOR v. GREAT AMERICAN INSURANCE CO. T. W. TAYLOR v. STATE FARM FIRE & CASUALTY CO. John L. JENNINGS, Administrator v. LOUISVILLE & NASHVILLE RAILROAD CO. (three cases). John Henry BUCHANAN, Jr. v. CONTINENTAL SOUTHERN LINES, INC. Edward MUNDY v. LOUISVILLE & NASHVILLE RAILROAD CO. |
| Court | U.S. District Court — Middle District of Tennessee |
COPYRIGHT MATERIAL OMITTED No. 2730:
Hofstetter & Hofstetter, Nashville, Tenn., for plaintiff.
Cecil Sims, Bass, Berry & Sims, Nashville, Tenn., for defendant, Crane Co.
Charles H. Warfield, Warfield & Entrekin, Nashville, Tenn., for third-party defendant, Modern Welding Co., Inc.
Jack Norman, Jr., Nashville, Tenn., for plaintiffs.
Watkins, McGugin & Stewart, Nashville, Tenn., for defendants.
Collier Goodlett, Sr., Goodlett & Goodlett, Clarksville, Tenn., and Williams, Howser & Thomas, and Z. T. Osborn, Jr., Nashville, Tenn., for plaintiffs.
Frank C. Gorrell, Bass, Berry & Sims, Nashville, Tenn., for defendant.
Joseph L. Lackey and Karl Bishop, Nashville, Tenn., for plaintiff.
S. McP. Glasgow, Jr., Glasgow & Adams, and David M. Keeble, Nashville, Tenn., for defendant.
Jack Norman and Williams, Howser & Thomas, Nashville, Tenn., and McAllester & McAllester, Chattanooga, Tenn., for plaintiffs.
Glasgow & Adams, Nashville, Tenn., for defendant.
Charles F. Galbreath and Joseph L. Lackey, Nashville, Tenn., for plaintiffs.
S. McP. Glasgow, Jr., Glasgow & Adams, Nashville, Tenn., for defendant.
James B. Ross, Columbia, Tenn., for plaintiff.
H. Francis Stewart, Watkins, McGugin & Stewart, Nashville, Tenn., for defendant.
Harris Gilbert, Barksdale & Hudgins, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
Elmer Woolard, Lebanon, Tenn., and Solon Fitzpatrick, Carthage, Tenn., for plaintiffs.
Tom Stewart and George H. Armistead, Jr., Nashville, Tenn., for defendants.
William S. Bruce, Jr., and J. C. Summers, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
C. Allen High and Dan Garfinkle, Nashville, Tenn., for plaintiff.
J. Ross Cheshire, Jr., and T. T. McCarley, Nashville, Tenn., for defendants.
Clement, Sanford & Fisher, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
Frank L. Hollis, Peeler & Hollis, Camden, Tenn., for plaintiffs.
Wirt Courtney, Jr., Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., for defendant.
Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., for plaintiff.
Charles L. Cornelius, Jr., Nashville, Tenn., for defendant.
James Cunningham, Jr., and Marks & Fleming, Clarksville, Tenn., for plaintiff.
Goodpasture, Carpenter, Woods & Courtney, Nashville, Tenn., and Malcolm Y. Marshall, Ogden, Brown, Robertson & Marshall, Louisville, Ky., for defendant, Great American Insurance Co.
John T. Conners, Jr., Davis, Boult, Hunt & Cummings, Nashville, Tenn., for defendant, State Farm Fire & Casualty Co.
Rupert W. Leslie, Waller, Davis & Lansden, Nashville, Tenn., for plaintiff.
David M. Keeble, Nashville, Tenn., for defendant.
Karl L. Bishop, Nashville, Tenn., for plaintiff.
Phillips, Gullett & Steele, Nashville, Tenn., for defendant.
Harsh, Kelly & Harsh, Gallatin, Tenn., for plaintiff.
Woodall Murrey, Gallatin, Tenn., and David M. Keeble, Nashville, Tenn., for defendant.
All of these twenty-six cases have been brought here from various state courts by petitions for removal in which defendants sought to invoke this court's diversity jurisdiction under 28 U.S.C. §§ 1332, 1441 and 1446.
On its own motion June 1, 1962, the court ordered all of the defendants to appear June 15, 1962, to show why the cases should not be remanded because of failure of the allegations of the citizenship of corporate parties to meet the requirements of 28 U.S.C. § 1332 Public Law 85-554, 72 Stat. 415, effective July 25, 1958.
The order called the attention of counsel to F. & L. Drug Corp. v. American Central Ins. Co., 200 F.Supp. 718 (D. Conn.1961), wherein the problem involved was discussed at length. In the covering letter to counsel, those removing defendants "desiring to file either motions to amend their petitions, with accompanying briefs, or briefs in support of the petitions as presented" were asked to do so by June 8, 1962. Plaintiffs were given until the hearing to file briefs as they might be advised. A few defendants submitted motions to amend, some of them accompanied by briefs as required by the standing rules of the court, and a few submitted briefs in support of unamended petitions within the time requested. At the hearing, others presented similar papers or asked leave to do so. A few plaintiffs responded with briefs, none with motions to remand. To get the benefit of maximum assistance from counsel on the problem, the court allowed additional time to those requesting it for the filing of motions and briefs, and all of these have now been received and fully considered.
In four of the cases, the court has found it unnecessary to reach the issue that gave rise to the order of June 1, 1962, because further examination of the records discloses affirmatively that the court does not have jurisdiction. These will be disposed of first.
In the companion cases Nos. 2759, 2760, and 2761, (Merritt v. Woody) the record discloses that the cases were removed before the declarations were filed in the state court. In Tennessee the time for removing a case begins to run from the filing of the declaration, not the summons. Munsey v. Testworth Laboratories, 227 F.2d 902 (6 Cir. 1956). These cases were therefore prematurely removed. Milton A. Jacobs, Inc. v. Manning Mfg. Corp., 171 F.Supp. 393 (D.C. 1959). Since this court has no jurisdiction in these cases, except the limited jurisdiction necessary to determine whether it has jurisdiction, Beleos v. Life & Casualty Ins. Co. of Tennessee, 161 F.Supp. 627, 628 (D.S.C.E.D.1956), they must be remanded to the state court.
In No. 2874 (Cheek v. Chesters, Inc.), the record affirmatively shows that the defendant is a Tennessee corporation. As such, it is not entitled to remove a diversity case to this court. 28 U.S.C. § 1441(b). It must therefore be remanded.
The other twenty-two cases depend upon the effect to be given the 1958 amendment, Public Law 85-554, supra, of the diversity jurisdiction statute, 28 U.S.C. § 1332, in gauging the jurisdictional sufficiency of a removal petition. The particular provision involved is that added as § 1332(c):
"(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business."
All of the cases considering allegations under this paragraph seem to agree that this section must be given effect in the "short and plain statement of facts" required in complaints by Rule 8(a) (1), Federal Rules of Civil Procedure, 28 U.S.C., and in verified removal petitions by 28 U.S.C. § 1446(a). Minimum allegations are sought to be indicated by Form 2(a), Appendix of Forms, Federal Rules of Civil Procedure, as amended April 17, 1961, effective July 19, 1961, 28 U.S.C.App. ().1
Similarly, there seems to be no disagreement that under 28 U.S.C. § 1653,2 and Rule 15(a), Federal Rules of Civil Procedure,3 complaints in cases of original jurisdiction may be amended freely to perfect defective jurisdictional allegations where facts supporting jurisdiction do exist. Even in such cases, however, it is the duty of any federal court, trial or appellate, not to proceed with a case after defects in jurisdictional allegations come to its attention, by motion of the parties or otherwise, until the defects have been cured, Emmons v. Smitt, 149 F.2d 869 (6th Cir. 1945), cert. den. 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446; Miller v. Weller, 286 F.2d 172 (3rd Cir. 1961); and the presumption is always against jurisdiction, Bell v. Gray, 191 F.Supp. 328 (D.E.D. Ky.1960), affirmed 287 F.2d 410 (6th Cir. 1960).
But the problem is more difficult where the defective allegations are in a removal petition, where considerations of state sovereignty, comity, and traditional judicial respect for the jurisdiction of other courts invoke the rule of caution on questions of conflicting jurisdiction, Metcalf Bros. & Co. v. Barker, 187 U.S. 165, 176, 23 S.Ct. 67, 47 L.Ed. 122 (1902). Added to this is the fact that a remand of such a case does not deprive either party of his day...
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