Groveville Sales Corporation v. Stevens
| Decision Date | 05 October 1936 |
| Citation | 16 F. Supp. 563 |
| Court | U.S. District Court — District of New Jersey |
| Parties | GROVEVILLE SALES CORPORATION v. STEVENS. |
Richard M. Glassner, of Newark, N. J., for plaintiff.
Quinn, Parsons & Doremus, of Red Bank, N. J., for defendant.
Plaintiff filed suit against defendant on two counts, one a claim for $1,700, being the balance due on an alleged loan, and another, a claim for $412.13, being the balance due on a running account.
The suit was instituted in the New Jersey Supreme Court. Defendant answered and counterclaimed in four counts. In the first count be claimed $500. for services rendered. In the remaining three counts he claimed $4,000, $2,500, and $3,000, respectively, for unpaid net profits in which he claimed a ten percent interest.
Plaintiff in the original complaint removed the cause to the federal court. Defendant in the original complaint and counterclaimant moves now to remand the cause to the state court on the ground that the plaintiff does not come within the purview of title 28 U.S.C.A. § 71, authorizing the removal of causes from the state courts to federal courts.
The question of whether a plaintiff, such as the one in this case, made by the answering pleading a defendant to a counterclaim, can avail himself of the benefits of this statute, has been much debated in the cases. See 28 U.S.C.A. § 71, note 668, beginning with the compiler's note as follows: "The authorities are in hopeless discord upon the question whether, when a counterclaim or cross-bill is filed, the plaintiff or the defendant to the original suit is to be regarded as defendant for the purpose of removal."
The more recent cases, however, trend toward the very logical position that where the original plaintiff cannot avail himself of the processes of the federal courts by reason of the insufficiency of the jurisdictional amount in question, sues in the state court, and thereafter is impleaded by a counterclaim in a sum which would have made it possible for him to remove the cause if the counterclaim were an original action, he shall in such case be permitted to take advantage of the statute and remove the cause to the federal court.
In the case of American Fruit Growers v. La Roche (D.C.) 39 F.(2d) 243, 244, Judge Cochran presented his view upon the subject. After stating facts similar in all respects to the case at bar, he said:
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Haney v. Wilcheck, 48
...F. 771. Among the later cases adopting this rule are San Antonio, etc., Farms v. Shandy, D.C.Kan., 29 F.2d 579; Grovesville Sales Corp. v. Stevens, D.C.N.J., 16 F.Supp. 563; American Fruit Growers v. LaRoche, D.C.S.C., 39 F.2d 243; Pierce v. Desmond, D.C.Minn., 11 F.2d 327; O'Neill Bros. v.......
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O'Neill Bros. v. Crowley
...Insurance Equities Corp., 3 Cir., 85 F.2d 856, 108 A.L.R. 960; Chambers v. Skelly Oil Co., 10 Cir., 87 F. 2d 853; Groveville Sales Corp. v. Stevens, D.C.N.J., 16 F.Supp. 563. I am, therefore, of the opinion that a proper construction of the Removal Act requires that as to the counterclaim i......
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Coastal Air Service, Inc. v. Tarco Aviation Service, Inc.
...against the non-resident in another court. It contends that it is the defendant in the Superior Court case. Cf. Groveville Sales Corporation v. Stevens, D.C., 16 F.Supp. 563 and American Fruit Growers v. LaRoche, D.C., 39 F.2d 243. This would exalt form over substance. Coastal filed what wa......
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In re Freitas
... ... 204, 33 S.Ct. 484, 57 L.Ed. 800; Page v. Arkansas Natural Gas Corporation (1932) 286 U.S. 269, 52 S.Ct. 507, 76 L.Ed. 1096; Schumacher v. Beeler ... ...