Gillette v. Koss Construction Company
| Citation | 149 F. Supp. 353 |
| Decision Date | 14 March 1957 |
| Docket Number | No. 10681.,10681. |
| Parties | Asa R. GILLETTE, Plaintiff, v. KOSS CONSTRUCTION COMPANY et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Dubiner, Gregg & Lewis, Kansas City, Mo., for plaintiff.
Watson, Ess, Marshall & Enggas, John J. Manning, Kansas City, Mo., for defendants.
Plaintiff brought this suit originally in the Circuit Court of Jackson County, Missouri, against Koss Construction Company, an Iowa corporation, Dale M. Wilkinson and Arthur Barnes as co-defendants. Plaintiff and defendants Wilkinson and Barnes are citizens of Missouri. The corporate defendant removed this action here on the ground that the individual defendants were joined as parties defendant merely to destroy diversity of citizenship and prevent removal of the cause to this Court. Plaintiff moves to remand the case, denying that Wilkinson and Barnes were joined fraudulently. In addition, defendant Wilkinson moves for summary judgment in his favor and against plaintiff.
Plaintiff's petition for damages alleges that on May 23, 1953, he was struck and injured by a concrete mixer and subgrader operated by an agent of defendant corporation; that the agent was careless and negligent in the operation of this machine; that it is the custom and practice on concrete paving projects for all employees working near any paving machine to warn other persons nearby of the movement or intended movement of the machine; and that Wilkinson and Barnes, agents of defendant corporation, aware of the movement of the paving machine near which plaintiff was standing, failed to warn plaintiff of the approach of the machine in disregard of their duty under the customary practice.
Defendant Koss Construction Company's petition for removal alleges diversity of citizenship between it and the plaintiff, and the jurisdictional amount in controversy; that plaintiff's petition fails to state a cause of action for negligence against defendants Wilkinson and Barnes; and that there exists no custom or practice on concrete paving projects as alleged by plaintiff. In essence, defendant Koss Construction Company charges that Wilkinson and Barnes were joined fraudulently and in bad faith as defendants, and that their joinder was a fraudulent device for the sole purpose of preventing removal to the federal court.
An attempt to ascertain the good faith of a plaintiff in joining parties defendant raises vexing questions. Constantly, courts must be mindful of the right of a citizen of another state, when sued in a state court, to have the action transferred to a federal court, a right which cannot be nullified by plaintiff's fraudulent joinder of a resident defendant. On the other hand, we cannot ignore plaintiff's right of protection from any course which may constitute a virtual denial of his right to select his own adversaries in court. The vital issue in these cases is the good or bad faith of plaintiff in making citizens of his state parties defendant. The issue is difficult of solution because it is impossible to establish a clear delineation between wrongful and justifiable joinder. Each case must be examined alone and determined individually.
In every case of joinder of resident and non-resident defendants, the non-resident is privileged by removal to challenge the good faith of the plaintiff in joining the resident defendants. However, he has the heavy burden of showing that the joinder was made without any reasonable legal basis and solely to defeat removal. Clear and convincing evidence is needed compelling the conclusion that the joinder is without right and is made in bad faith. Adkins v. Blakey, D. C., 88 F.Supp. 473; Norwalk v. Air-Way Electric Appliance Corp., 2 Cir., 87 F.2d 317, 110 A.L.R. 183; Davis v. Standard Oil Co. of Indiana, 8 Cir., 47 F.2d 48.
In order to declare a fraudulent joinder, a court must be convinced that plaintiff, intentionally or otherwise, joined as a party defendant one who cannot be liable to plaintiff on any reasonable legal ground on the cause of action set out in the complaint. Where it is clear from the evidence that legally the defendant who is a resident of the same state as plaintiff cannot be liable to plaintiff on any legal ground pleaded, the plaintiff is suing improperly and...
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Bobby Jones Garden Apartments, Inc. v. Suleski
...colorable and is not fraudulent in fact or in law. Albi v. Street & Smith Pub., Inc., 9 Cir., 1944, 140 F.2d 310; Gillette v. Koss Const. Co., W.D.Mo., 1957, 149 F. Supp. 353; Richardson v. Southern Idaho Water Power Co., 9 Cir., 1913, 209 F. 949.13 Thus we get to the question: Is there a r......
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Town of Freedom, Okl. v. Muskogee Bridge Co., Inc.
...1955). In order to be deemed a fraudulent joinder, there cannot be any reasonable ground of liability. Gillette v. Koss Construction Co., 149 F.Supp. 353 (W.D.Mo. 1957). There need be only a possibility that a right to relief exists to avoid this conclusion, and a plaintiff's ultimate failu......
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Harris Diamond Co. v. ARMY TIMES PUBLISHING COMPANY
...frivolous." To the same effect, see Hancock v. Missouri-Kansas-Texas R. Co., 28 F.2d 45, 46 (W.D.Okl.1928); Gillette v. Koss Construction Co., 149 F.Supp. 353, 355 (W.D. Mo.1957). The frame of reference, therefore, based on the issue presented to the court on this motion, is the complaint. ......
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Marsden v. Southern Flight Service, Inc.
...Allegations that might have been made, or relief that might have been sought, are not to be considered. Gillette v. Koss Construction Company, D.C.W.D.Mo.1957, 149 F.Supp. 353. It is concluded that the motion to remand the action to the state court should be 1 Sections 1-253 through 1-267, ......