Hernandez v. Watson Bros. Transportation Co.
Decision Date | 25 September 1958 |
Docket Number | Civ. No. 6031. |
Parties | Sadie Barela HERNANDEZ, Plaintiff, v. WATSON BROS. TRANSPORTATION CO., Inc., and Homer Lee Oldfield, Defendants. |
Court | U.S. District Court — District of Colorado |
Harry K. Nier, Jr., Denver, Colo., for plaintiff.
Myron H. Burnett, Denver, Colo., for defendants.
Plaintiff promptly filed her motion to remand the cause to the State Court and upon the hearing of that motion, the Court held that diversity was sufficiently alleged as to the defendant Oldfield, and took under advisement the question whether defendant was entitled to amend to properly allege diversity of citizenship concerning the corporate defendant.
First, it is clear that the allegation that a corporation is a citizen of a particular state, without more, is insufficient; it should also contain the statement that it was incorporated under the laws of a particular state. See Thomas v. Board of Trustees of Ohio State University, 1904, 195 U.S. 207, 25 S.Ct. 24, 49 L.Ed. 160, and cases cited in Note 96 to 28 U.S.C.A. Sec. 1446.
This Section was generally interpreted to permit defendant to amend his removal petition to properly allege citizenship and diversity where such diverse citizenship in fact existed. Weber v. Wittmer Co., D.C.N.Y.1935, 12 F.Supp. 884; Western Mutual Fire Insurance Co. v. Lamson Bros. & Co., D.C.Iowa 1941, 42 F.Supp. 1007; Beneficial Industrial Loan Corp. v. Kline, D.C.Iowa 1941, 41 F.Supp. 854; Northern Trust Co. v. Anderson, D.C.Iowa 1933, 5 F.Supp. 390; Van Sant v. American Express Co., 3 Cir., 1948, 169 F.2d 355.
The present version of the above quoted statute reads as follows:
See also 45 Am.Jur. Sec. 218 (Rem of C. p. 961) to the same effect.
Therefore, it is our opinion that Section 1653 of Title 28 U.S.C.A., is applicable to a petition for removal.
The present rule apparently is that the petition can be freely amended until the time passes when removal could have been effected, but that after that time it can be amended only to state more specifically the ground for removal already imperfectly stated.
To continue reading
Request your trial-
Yarbrough v. Blake
...would have had to have been filed within the statutory time allowed for the filing of a petition for removal. Hernandez v. Watson Bros. Transportation Co., D.C., 165 F.Supp. 720. "28 U.S.C.A. § 1446(b) provides that a petition for removal of a civil action shall be filed within twenty days ......
-
Hendrix v. New Amsterdam Casualty Company, 9689.
...as well as to original complaints or petitions. 1A Moore's Federal Practice ¶ 0.1683.4, pp. 1204-1205. Hernandez v. Watson Bros. Transportation Co., 165 F.Supp. 720 (D.C. Colo., 1958). 11 See National Surety Corporation v. Dotson, 270 F.2d 460 (6th Cir. 1959). See also Cliborn v. Lincoln Na......
-
Barrow Development Co. v. Fulton Insurance Co.
...this statute applies to removed action as well as to those initiated in United States District Courts. Hernandez v. Watson Bros. Transportation Co., 165 F.Supp. 720 (D.C.D.Colo.1958); Firemen's Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5th Cir. 1961), cert. den. 368 U.S. ......
-
S. & H. GROSSINGER, INC. v. HOTEL & RESTAURANT E. & BIU
...removal are not challenged, they may be taken as true." Table Talk Pies v. Strauss, supra 237 F.Supp. at 518; Hernandez v. Watson Bros. Transp. Co., 165 F.Supp. 720 (D.Colo.1958). 28 U.S.C. § 1337 gives the district courts original jurisdiction of actions "arising under `any Act of Congress......