Guess v. Kellogg Switchboard & Supply Company

Decision Date08 August 1956
Docket NumberCiv. No. 35102.
Citation143 F. Supp. 807
PartiesSheldon H. GUESS, Plaintiff, v. KELLOGG SWITCHBOARD AND SUPPLY COMPANY, a corporation, International Telephone and Telegraph Corporation, a corporation, C. A. Mitchell, Malcolm Jafferies et al., Defendants.
CourtU.S. District Court — Northern District of California

Hadsell, Murman & Bishop, San Francisco, Cal., for plaintiff.

Pillsbury, Madison & Sutro, San Francisco, Cal., for International Telephone & Telegraph Corp.

J. Joseph Sullivan, San Francisco, Cal., for Malcolm Jafferies.

C. A. Mitchell, San Anselmo, Cal., pro se.

CARTER, District Judge.

Plaintiff brought suit in the Superior Court of the State of California against a corporate defendant and two individual defendants, alleging generally that he was wrongfully suspended as an employee by the corporation, and that the individual defendants wrongfully induced the corporation to suspend him. The suit was removed to this Court by the corporate defendant and plaintiff now moves to remand.

The complaint is in seven counts, and contains allegations that the defendants negligently, wrongfully and maliciously caused plaintiff to be suspended from his employment, and contains a prayer for declaratory relief, for an injunction against plaintiff's further suspension from his employment, an accounting, compensatory damages, and punitive damages. Although the amount in controversy is in excess of $3,000 and there is diversity of citizenship between plaintiff and the corporate defendant, the two individual defendants are citizens of the same state as the plaintiff. The corporation bases its removal on the ground that the joinder of the individual defendants is a sham, and on the ground that in any case there is a separate cause of action stated against the corporation which renders the entire case removable under 28 U.S.C.A. § 1441(c). The latter statute provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

The contention that joinder of the individual defendants by the plaintiff is a sham, cannot be supported. The complaint is designed to obtain a joint judgment against all of the defendants, and at least "colorable" grounds for such a judgment have been pleaded. In Smith v. Southern Pacific Co., 9 Cir., 187 F.2d 397, 401, the court said:

"But this is not the test in removal cases. The only question we have to determine is whether the complaints evidence a real intention to secure a joint judgment, and colorable ground for it was shown as the record stood when the causes were removed from the state court."

The corporation argues that plaintiff's motive in joining the individual defendants was to defeat removal. It is clear, however, that plaintiff's motive is immaterial. See Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310, 312, where the court said:

"* * * it is universally thought that the motive for joining such a defendant is immaterial. It is only where the plaintiff has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing he has, and yet joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal."

Since the corporation has failed to show that plaintiff does not have a cause of action against the individual defendants, it is the conclusion of this Court that the joinder of those defendants was proper.

Defendant corporation relies almost entirely on the case of Hamilton v. Empire Gas & Fuel Co., 8 Cir., 297 F. 422, certiorari denied 266 U.S. 607, 45 S.Ct. 92, 69 L.Ed. 465, to support its argument that the complaint discloses a separate cause of action against it. In that case the plaintiff had granted an oil lease to the corporate defendant. The complaint alleged that the corporate defendant also held oil leases on property surrounding that of plaintiff; that the individual defendants were the managing agents of the corporation; and that the defendants refused to develop plaintiff's land although they had drilled wells on adjoining lands, thereby draining oil from under plaintiff's property. There were allegations that the defendants acted negligently and wilfully, and that ill will existed between plaintiff and the defendants. The court held that the complaint set forth two causes of action, in effect, one for breach of contract against the corporate lessee for violation of an implied covenant of the oil lease, and another in tort against all the defendants jointly for negligent management of the pumping of wells on plaintiff's land.

The corporate defendant here seeks to analogize the Hamilton case to the case at bar, claiming that the complaint in the instant case in reality comprises one cause of action against the corporation for breach of a contract of employment, and another cause of action in tort against the individual d...

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7 cases
  • Paxton v. Weaver
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 10, 1977
    ...Co., 187 F.2d 397, 401 (9th Cir.), cert. denied, 342 U.S. 823, 72 S.Ct. 42, 96 L.Ed. 622 (1951); Guess v. Kellogg Switchboard & Supply Company, 143 F.Supp. 807, 808 (N.D.Cal.1956). Taking the quoted Restatement section as the general rule, we have no doubt that appellants arguably have stat......
  • City of New York v. New York Jets Football Club, Inc., 77 Civ. 1440 (DNE).
    • United States
    • U.S. District Court — Southern District of New York
    • April 14, 1977
    ...Corp., 184 F.2d 537 (3d Cir. 1950); Gustaveson, Inc. v. Graybar Elec. Co., 222 F.Supp. 473 (W.D.Mo. 1963); Guess v. Kellogg Switchboard & Supply Co., 143 F.Supp. 807 (N.D.Cal.1956); Knight v. Chrysler Corp., 134 F.Supp. 598 (D.N.J.1955). 11 239 F.Supp. 913 (S.D.N.Y.1965). Defendants also re......
  • Griebel v. JI Case Credit Corporation
    • United States
    • U.S. District Court — District of Minnesota
    • June 6, 1968
    ...71 S.Ct. 610, 95 L.Ed. 1342 (1951); Gustaveson, Inc. v. Graybar Elec. Co., 222 F.Supp. 473 (W.D. Mo.1963); Guess v. Kellogg Switchboard & Supply Co., 143 F.Supp. 807 (N.D. Cal.1956) and Knight v. Chrysler Corp., 134 F.Supp. 598 The court considers that under the Finn decision and its progen......
  • Union Planters Nat. Bank of Memphis v. CBS, Inc.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 21, 1977
    ...Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969); Staples v. O'Day Corp., 224 F.Supp. 576 (D.N.H.1963); Guess v. Kellogg Switchboard & Supply Co., 143 F.Supp. 807 (D.Cal.1956). See Sessions v. Chrysler Corp., 517 F.2d 759, 761 (9th Cir. The cause of action against it, CBS contends, not on......
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