Harper v. Sonnabend
| Decision Date | 25 April 1960 |
| Citation | 182 F. Supp. 594 |
| Parties | Elmer B. HARPER and Joseph H. Kraus, Plaintiffs, v. A. M. SONNABEND, Defendant and Third-Party Plaintiff, v. B. H. HADLEY, INC., Third-Party Defendant. |
| Court | U.S. District Court — Southern District of New York |
Shearman & Sterling & Wright, New York City, for plaintiffs (Robert L. Clare, Jr., Morton M. Maneker, New York City, of counsel).
Hays, Sklar & Herzberg, New York City, for third-party defendant (Ben Herzberg, Alvin H. Schulman, New York City, of counsel).
The third-party defendant removed this case from the New York Supreme Court and plaintiffs bring this motion to remand.
Plaintiffs, one of whom is a citizen of Massachusetts, sued defendant Sonnabend, also a citizen of Massachusetts, in the State Court for broker's commissions. Defendant Sonnabend impleaded the third-party defendant, claiming that by reason of an agreement it would be liable over to him if plaintiffs succeed.
While no diversity exists between plaintiffs and defendant Sonnabend, diversity does exist between defendant Sonnabend and the third-party defendant since it is a Delaware corporation with its principal office in California. Relying on such diversity the third-party defendant removed the entire case to this court.
The statutory authority since 1948 for such removal is 28 U.S.C. § 1441(c), which reads as follows:
"(c) 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 non-removable 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 Supreme Court has had only one occasion to construe this section. In American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, we are told that the new statutory test of removability requires that the controversy be not merely separate or separable but that it also must be independent of the nonremovable controversy.
The Tenth Circuit (Snow v. Powell, 189 F.2d 172) and many district courts have had occasion to pass on the problem and it is not an exaggeration to say that at least on the surface the field luxuriates in a riotous uncertainty. Rather than add to it by further discussion we hold, after reviewing all these cases that plaintiffs' motion should be granted. We have come to this determination by finding that...
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Sterling Homes, Inc. v. Swope
...announced, "it is not an exaggeration to say at least on the surface the field luxuriates in a riotous uncertainty." Harper v. Sonnabend, 182 F.Supp. 594, 595 (S.D.N.Y.1960). The Third Circuit Court of Appeals has not spoken directly to the question before the court. However, in a case invo......
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Ford Motor Credit Co. v. Aaron-Lincoln Mercury
...that "it is not an exaggeration to say that at least on the surface the field luxuriates in a riotous uncertainty." Harper v. Sonnabend, 182 F.Supp. 594, 595 (S.D.N.Y.1960). 6 See Continental Resources & Mineral Corp. v. Continental Ins. Co., 546 F.Supp. 850 (S.D.W. Va.1982); Knight v. Hell......
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Marsh Inv. Corp. v. Langford
...see Central of Georgia Railway Co. v. Riegel Textile Corp., 426 F.2d 935 (5th Cir. 1970) (track agreement). Contra, Harper v. Sonnabend, 182 F.Supp. 594 (S.D.N.Y.1960) (broker's Marsh's original claim in the instant case was to cancel allegedly fraudulent mortgages. The Bank's third party c......
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Patient Care, Inc. v. Freeman
...could remove an action to federal court described the case law as a "field luxuriating in a riotous uncertainty." Harper v. Sonnabend, 182 F.Supp. 594, 595 (S.D.N.Y.1960). It is truly lamentable that this description remains accurate today. Despite the issuance of dozens of decisions during......