FIRST NAT. BANK, ETC. v. Johnson & Johnson, LR-C-78-202.
| Decision Date | 08 August 1978 |
| Docket Number | No. LR-C-78-202.,LR-C-78-202. |
| Citation | 455 F. Supp. 361 |
| Parties | FIRST NATIONAL BANK IN LITTLE ROCK, guardian of the Estate of Eli Esau, an incompetent, and Marilyn Esau, Individually and as guardian of the person of Eli Esau, an incompetent, Plaintiffs, v. JOHNSON & JOHNSON, d/b/a Chicopee Manufacturing Co., a division of Johnson & Johnson, Defendant, Northwestern National Insurance Company, Intervenor. |
| Court | U.S. District Court — Eastern District of Arkansas |
Gary L. Eubanks, Haskins, Eubanks & Wilson, Little Rock, Ark., for plaintiffs.
William H. Sutton, Friday, Eldredge & Clark, Little Rock, Ark., for defendant.
Dan F. Bufford, Laser, Sharp, Haley, Young & Huckabay, Little Rock, Ark., for intervenor.
Pending before this Court is an unusual removal case in which defendant-remover desires a "dismissal" of its removal petition while plaintiffs argue that the case should remain in this Court.
Plaintiffs, both citizens of Arkansas, as guardians of the estate of an incompetent, brought a personal injury action against a New Jersey corporation and against a citizen of Arkansas in Pulaski County Circuit Court. Shortly before the case was submitted to the jury, on June 19, 1978, plaintiffs, on the record, made an oral motion to dismiss the Arkansas resident defendant. The trial judge announced that the motion was granted because the court had no discretion to deny plaintiffs' motion for a voluntary non-suit. At this point, the remaining defendant announced to the judge and the plaintiffs that he was giving notice of his intention immediately to remove the case to federal court, the requisite diversity of citizenship jurisdiction having just been created. See 28 U.S.C. § 1446(b) ¶ 2.1 An attorney for defendant was thereupon dispatched to prepare and file the necessary removal petition.
Plaintiffs immediately made another oral motion to withdraw the non-suit just granted, and after some protest by defendant, the trial judge did grant this motion and vacated his order approving the voluntary non-suit. This action was taken before any removal papers had been filed in either state or federal court. Later that same day defendant carried through with its original announced intention of removing the case to federal court by filing an appropriate removal petition and bond with this Court, copies that date also being filed with the state court and served on plaintiffs. Proceedings in the state court continued apace, however, the jury returning a verdict in favor of defendant after the removal papers had been filed. Defendant then sought to have its own removal petition "dismissed," which this Court did, by order obtained, on June 22, 1978. This dismissal was later set aside and an evidentiary hearing held on June 30, 1978.
Although this case represents unusual procedural twists and demonstrates the potential havoc that removal jurisdiction may wreak on state court proceedings where plaintiff opens the federal door at a late stage, the resolution of the case is not difficult.
As an initial matter, it is clear that defendant at least filed an effective removal petition, complying with the requirements that the petition sufficiently demonstrate the grounds for federal jurisdiction, that proper bond be effected, and that proper notice and state-court filing be effected. The filing of the removal petition in state court having "effected the removal," the federal jurisdiction attached as of the time that the original removal petition was filed in federal court. 1A Moore's Federal Practice ¶ 0.1683.—8 at 510. It is elementary that this federal jurisdiction attached regardless of the actual merits of the petition for removal. Id. at 511, n.27.
Defendant believed...
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Entrekin v. Fisher Scientific Inc.
...328, 332-37 (D.S.C.1979), dismissed, 622 F.2d 584 (4th Cir.1980) (unpublished table decision); First Nat'l Bank in Little Rock v. Johnson & Johnson, 455 F.Supp. 361, 362 & n. 1 (E.D.Ark.1978). Other decisions have adopted a similar attitude with respect to deposition testimony. See, e.g., H......
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Entrekin v. Fisher Scientific Inc., Civil Action No. 00-4363 (MLC) (D. N.J. 6/11/2001), Civil Action No. 00-4363 (MLC)
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