Fiumara v. Texaco, Inc., Civ. A. No. 36386.
| Decision Date | 05 April 1965 |
| Docket Number | Civ. A. No. 36386. |
| Parties | Pasquale FIUMARA v. TEXACO, INC., Sinclair Refining Company, Humble Oil & Refining Company, Gulf Oil Corporation, Richfield Oil Corporation of New York. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
A. E. Hurshman, Philadelphia, Pa., for plaintiff.
Henry T. Reath, Duane, Morris & Heckscher, Philadelphia, Pa., James O. Sullivan, Paul B. Wells, New York City, for Texaco, Inc.
Miles W. Kirkpatrick, Morgan, Lewis & Bockius, Philadelphia, Pa., Henry F. Hartmann, New York City, for Humble Oil & Refining Co.
John T. Clary, Philadelphia, Pa., for Gulf Oil Corp.
Robert W. Sayre, Philadelphia, Pa., Frank R. Clampitt, New York City, for Sinclair Refining Co. and Richfield Oil Corp. of New York.
The plaintiff in this case, Pasquale Fiumara, has filed a motion requesting the constituting of a three-judge court pursuant to 28 U.S.C. § 2284 to determine the constitutionality of the Removal Statute, 28 U.S.C.A. § 1441, and the District Judge to whom the application was made has written me respecting the duty imposed on him by Section 2284, citing the opinions written by me as Chief Judge of the Third Circuit in Miller v. Smith, 236 F.Supp. 927 (1965), and Kirk v. State Board, 236 F.Supp. 1020 (1964). The District Judge with expertness and clarity has posed the issue as to whether or not a chief judge of a circuit must make a determination that a case is one to be determined by a three-judge court under Section 2284 whether or not the district judge to whom the application was made has or has not so decided.
On reviewing the opinions in the two cited cases I find that I have caused unnecessary confusion and that what I stated respecting the duties of a district judge to whom a Section 2284(1) application is made and the duties of the chief judge in respect to that application was very far from clear.
In the Kirk case, supra, 236 F.Supp. 1021-1022, it was stated: "He the district judge to whom the application was made does not state that a three-judge statutory court is necessary in his opinion, but even had he done so, the question of whether the issues raised are justiciable by a three-judge statutory court is one which also must be determined by the Chief Judge of the Circuit." (Emphasis added.)
In the Miller case, supra, 236 F.Supp. at 931, it was said: (Note 8 omitted.)
The language quoted from the two opinions, when read together, is ambiguous. And that ambiguity should be corrected. It was my intention to make it clear that the district judge to whom...
To continue reading
Request your trial
-
Majuri v. United States
...372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L. Ed. 152 (1933); Fiumara v. Texaco, Inc., 240 F.Supp. 325, 326 (E.D.Pa. 1965); Miller v. Smith, supra note 2. Its function is analagous to that of a court reviewing a complaint for legal suffic......
-
Liveright v. Joint Committee of Gen. Assem. of State of Tenn.
...of the applicability of Section 2281. Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928); Fiumara v. Texaco, Inc., 240 F.Supp. 325 (E.D.Pa.1965). If he decides that a Section 2281 court is not called for, and federal jurisdiction is otherwise present, the district court must ......
-
Bussie v. Long, Civ. A. No. 3345.
...279 F.2d 853 (CA 2, 1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (1960); Fiumara v. Texaco, Inc., 240 F.Supp. 325 (E.D.Penn., 1965); Morrison v. State of California, 238 F.Supp. 22 (S.D.Cal., 1964); Christian v. United States, 235 F.Supp. 382 (S.D.Fla.,......
-
Safeguard Mut. Ins. Co. v. Commonwealth of Pennsylvania, Civ. A. No. 70-1969.
...must make the initial determination whether or not the prerequisites for convening a three-judge court have been met. Fiumara v. Texaco, Inc., 240 F.Supp. 325 (E.D.Pa.1965). Moreover, the law is clear that the statute itself must be substantially challenged in order to warrant or permit the......