Fine v. Braniff Airways, Incorporated, Civ. No. 69-167.

• Decision Date: 18 August 1969
• Docket Number: Civ. No. 69-167.
• Citation: 302 F. Supp. 496
• Parties: Ruth FINE and Sam Fine, Plaintiffs, v. BRANIFF AIRWAYS, INCORPORATED, and Young Doggett, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

302 F. Supp. 496

Ruth FINE and Sam Fine, Plaintiffs, v. BRANIFF AIRWAYS, INCORPORATED, and Young Doggett, Defendants.

Civ. No. 69-167.

United States District Court W. D. Oklahoma.

August 18, 1969.

John W. Norman, Oklahoma City, Okl., for plaintiffs.

Burton J. Johnson, Robert L. Huckaby, Oklahoma City, Okl., for defendants.

ORDER REMANDING CASE

DAUGHERTY, District Judge.

Plaintiffs sue the Defendants for damages for their alleged negligence causing certain injuries and losses to Plaintiffs when one of the Plaintiffs deplaned from a Braniff aircraft in Oklahoma City. The suit was brought in state court against Braniff Airways and Young Doggett, Director of Passenger and Cargo Services in Oklahoma City for Braniff.

Braniff removed the case to this Court claiming a fraudulent joinder of the Defendant Doggett. Plaintiff moved to remand. The Court has conducted an evidentiary hearing on the remand matter to ascertain if Doggett was, "in control, or active charge, of the particular sphere of activity complained of by the respective Plaintiffs," the pertinent Oklahoma test according to J. C. Penney Company v. Barrientez, 411 P.2d 841 (Okl. 1965).

The evidence discloses that Walter E. Bowden is District Director for Braniff for Western Oklahoma and is located in the Liberty Bank Building in downtown Oklahoma City. He is responsible for all Braniff operations in Western Oklahoma. The Oklahoma City Airport operation is within his authority. Doggett, as Director of Passenger and Cargo Services, is located at the Oklahoma City Airport where the alleged accident occurred. Other employees under Doggett actually attend to passenger unloading operations for Braniff aircraft at the Oklahoma City Airport. However, on occasion Doggett would observe the unloading operations and was responsible to see that proper passenger unloading procedures were enforced. He was responsible for training personnel charged with unloading passengers and supervised such operations at the Oklahoma City Airport. At the time of the accident involved herein Doggett was temporarily on business in the Braniff General Office in Dallas, Texas.

The issue of a claim of fraudulent joinder of a non-diverse Defendant in connection with a removed case essentially involves a determination of whether a cause of action is stated against the non-diverse Defendant under applicable state law. If a cause of action is stated against a non-diverse Defendant, the case should be remanded to state court as there is no fraudulent joinder of said Defendant and diversity is lacking. If no cause of action is stated against the non-diverse Defendant, the removed case should be entertained and eventually the non-diverse Defendant should be eliminated from the suit on his motion to dismiss for failure of the Plaintiff to state a claim against him on which relief may be granted.

The Oklahoma Supreme Court in J. C. Penney Company v. Barrientez, supra, held that a retail store manager, as custodian of the store premises in his possession or under his control and for which he is responsible to the store owner, is liable to an invitee injured on the premises. In this case, a business invitee fell on a stairway in the retail store which was littered with cigarette butts and papers. The invitee sued the store and the store manager. The court held the store manager, as custodian or possessor of the...