H.J. Decker, Jr., & Co. v. Southern Ry. Co.
| Decision Date | 20 May 1911 |
| Docket Number | 1,804. |
| Citation | 189 F. 224 |
| Court | U.S. District Court — Northern District of Alabama |
| Parties | H. J. DECKER, JR., & CO. v. SOUTHERN RY. CO. |
Percy Benners & Burr, for plaintiff.
L. E Jeffries, for defendant.
This cause comes on to be heard upon a motion to remand to the state court. The plaintiffs are nonresident aliens, subjects of Great Britain, and the defendant, a corporation, organized under the laws of Virginia, doing business in Alabama. The suit was originally brought in a state court in Alabama. The basis of removal is the existence of a controversy between a citizen of this country and of a foreign state. The inquiry is whether a corporation organized under the laws of a state other than that of the forum can remove a cause brought against it by an alien from a state into a federal court.
The Supreme Court's decisions have settled the rule that a cause instituted in a state court by a citizen of a state of the United States other than that of the forum against a citizen of such a state other than that of the forum relating to a matter of venue rather than of general jurisdiction, can be removed with the consent of both parties, and only with such consent, into the federal court for that district. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct 150, 51 L.Ed. 264, as qualified by In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904; Western Loan Co. v. Butte Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101; Kreigh v. Westinghouse, 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984.
In cases where jurisdiction depends upon diversity of state citizenship alone, the cause may be instituted in the district of the residence of either the plaintiff or defendant, at the option of the plaintiff. The provision limiting venue, so far as it applies to the district of the defendant's residence, is for the benefit of the defendant, and may, therefore, be waived by defendant, alone.
There is also a restrictive provision which was intended for the benefit of the plaintiff, viz., that authorizing venue in the district of the residence of the plaintiff. In causes instituted by a plaintiff in a federal court of a district other than that of either plaintiff or defendant's residence, the plaintiff, of course, waives the wrong venue by there instituting suit.
In removal cases, however, this is not the case.
If the plaintiff sues in a state court in a district other than that of his residence or that of his defendant's residence, and the defendant attempts to remove into the federal court for that district, while the defendant, by so doing, consents to be sued in the federal court of the wrong district, the plaintiff, unless by subsequent appearance, does not so consent, and is entitled to a remand into the state court. Choosing the venue of the state court in that district is held not to be a consent to the jurisdiction of the federal court of that district on removal, and, consequently, the plaintiff's consent, as well as that of defendant, is essential to jurisdiction.
In cases where jurisdiction depends upon the fact that the plaintiff is an alien and defendant a citizen of a state of the United States, the provision as to venue is merely that the suit must be brought in the district in which the defendant is an inhabitant. This provision is clearly for the benefit of the defendant alone. The plaintiff, an alien, is presumed to have no interest in having venue laid in the district of the residence of the defendant, and the plaintiff's waiver is not necessary to give proper venue in a district other than that of the residence of defendant. The defendant's consent is alone essential for this purpose. An alien has no district of inhabitancy and an alien plaintiff is given no option as to venue as between the district of residence of plaintiff and that of the defendant as in cases where jurisdiction depends upon diversity of citizenship as between the states. An alien plaintiff is presumed to have no choice as to districts and no provision is therefore made in his favor as to venue in that respect. Consequently, an alien plaintiff who institutes a suit in a state court in a district in which defendant does not reside has no complaint because the defendant removes the cause into the federal court of that district; since the law confers on the alien plaintiff no privilege of selection as to districts. In cases of alien plaintiff, consent of the defendant to the venue is alone requisite, and such consent is implied in the...
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George Weston, Ltd. v. N.Y. Cent. R. Co.
...the right to removal of an action brought in a state court by an alien against a citizen of a sister state. H. J. Decker, Jr., & Co. v. Southern R. Co. (C. C.) 189 F. 224; Cuban Trading Co. v. Black Diamond S. S. Corporation (D. C.) 277 F. 857; Bagenas v. Southern Pacific Co. (C. C.) 180 F.......
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