Herrmann v. Braniff Airways, Inc.

• Decision Date: 06 November 1969
• Docket Number: No. 69 Civ. 2320.,69 Civ. 2320.
• Citation: 308 F. Supp. 1094
• Parties: Betty S. HERRMANN and Bertram Geller, as Executors of the Estate of Frederick Herrmann, deceased and Dorothy Dinwiddie, as independent Executrix of the Estate of J. Howard Dinwiddie, deceased, individually, as parent, natural guardian and best friend of James H. Dinwiddie, an infant, Forrest Dinwiddie and Jay H. Dinwiddie, and for the use of Maude Dinwiddie Burk, Plaintiffs, v. BRANIFF AIRWAYS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

308 F. Supp. 1094

Betty S. HERRMANN and Bertram Geller, as Executors of the Estate of Frederick Herrmann, deceased and Dorothy Dinwiddie, as independent Executrix of the Estate of J. Howard Dinwiddie, deceased, individually, as parent, natural guardian and best friend of James H. Dinwiddie, an infant, Forrest Dinwiddie and Jay H. Dinwiddie, and for the use of Maude Dinwiddie Burk, Plaintiffs, v. BRANIFF AIRWAYS, INC., Defendant.

No. 69 Civ. 2320.

United States District Court, S. D. New York.

November 6, 1969.

Kreindler & Kreindler, New York City, for plaintiffs; Stanley J. Levy, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for defendant; Maurice L. Noyer, James J. Sentner, Jr., New York City, of counsel.

OPINION

LASKER, District Judge.

Plaintiffs move under the provisions of 28 U.S.C.A. § 1447(c) to remand this action to the New York State Supreme Court. The suit arises out of the crash of a Braniff Airways aircraft in the vicinity of Dawson, Texas, on May 3, 1968.

Frederick Herrmann, a New York citizen, and J. Howard Dinwiddie, a citizen of Texas, were fare-paying passengers on the Braniff airplane and died in the crash. Plaintiffs Betty S. Herrmann and Bertram Geller, executors of the estate of Frederick Herrmann, are both New York citizens. Plaintiff Dorothy Dinwiddie, independent executrix of the estate of J. Howard Dinwiddie, is a citizen of Texas. Defendant Braniff Airways, Inc. ("Braniff") is a Nevada corporation with its principal place of business in the State of Texas.

Prior hereto, Braniff has moved in the state court to dismiss the causes of action of the Texas plaintiff Dinwiddie on the ground of forum non conveniens. That motion was denied, and immediately after denial the defendant filed a timely petition removing the entire action to this court, pursuant to 28 U.S.C. A. § 1441(c). Plaintiffs now seek remand.

The complaint contains eight causes of action, the first four on behalf of plaintiffs Herrmann and Geller seeking damages for the alleged wrongful death and pain and suffering of Frederick Herrmann; the remaining four on behalf of plaintiff Dinwiddie seeking damages for the alleged wrongful death and pain and suffering of J. Howard Dinwiddie. Plaintiffs assert that the deaths of their respective decedents were caused by defendant Braniff's negligent operation and control of the aircraft and its breach of warranties. The New York and Texas plaintiffs demand separate judgments for the amount of their respective damages.

Plaintiffs contend that the action was improvidently removed to this court in that (1) the requisite diversity of citizenship under 28 U.S.C.A. § 1332(a) is lacking, and (2) the action constitutes a single, indivisible controversy in which the claims of the New York plaintiffs are not "separate and independent" from those of the Texas plaintiff as required by § 1441(c).

As to the diversity question, § 1332(a) of course requires that all parties plaintiff be of different citizenship from all parties defendant if the federal court is to be vested with original diversity jurisdiction. See, e. g., Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806). In the instant case, the requisite complete diversity between the parties plaintiff and defendant does not exist, since at least one of the plaintiffs — Dinwiddie — is a citizen of the same state as defendant Braniff. However, the plaintiffs misread the defendant's position. Defendant does not claim that the court has original jurisdiction under § 1332(a), but argues, rather, that the court has "removal" jurisdiction under § 1441(c). That complete diversity is not required to vest jurisdiction under § 1441(c) was made clear by Judge Weinfeld in Reynolds v. Bryant, 107 F.Supp. 704, footnote 3, p. 705 (S.D.N.Y.1952), when he stated:

"Plaintiffs also assert that the motion to remand must be granted because defendant's petition is defective in alleging diversity of citizenship. Obviously, there is not complete diversity between the parties plaintiff and defendant, at least one of the plaintiffs being a resident of the same state as defendant. But as plaintiffs themselves recognize, defendant is trying to assert a ground for removal under Section 1441(c), which does not require complete diversity."

Not only is removal jurisdiction under § 1441(c) not coterminous with original jurisdiction, but, as Professor Moore has pointed out,

"* * * removal jurisdiction is broader than original jurisdiction, since subsection (c) provides that whenever a separate and independent claim, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims the entire case may be removed. In other words, removability of the entire case is not keyed to original jurisdiction; but removability of the separate claim is, and, if that claim is removable, the entire case is removed into the federal district court * * *" 1A Moore's Federal Practice (2d Ed.), ¶0.157(5), p. 254.

We come, then, to the determination of whether the case at bar is removable under § 1441(c), which 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 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."

Obviously, were this an action solely between plaintiff Dinwiddie and defendant, both citizens of Texas, it would be nonremovable since both parties are citizens of the same state. It is equally true that if the claims of the New York plaintiffs Herrmann and Geller were brought alone, they would be removable on the basis of diversity between all the parties plaintiff and defendant and the existence of the requisite jurisdictional amount.

Thus, the issue is whether the diversity claims (of Texas plaintiff Dinwiddie) are "separate and independent" from the non-diversity claims (of New York plaintiffs Herrmann and Geller) within the meaning of § 1441(c). If the two sets of claims are "separate and independent," then the entire case is removable unless the court exercises its discretion to remand the nonremovable claim to the state court.

Prior to the passage in 1948 of § 1441(c), which superseded 28 U.S.C. § 71, the presence of a "separable controversy" constituted an adequate ground for removal of a suit. However, a separable controversy is no longer removable unless it also constitutes a separate and independent claim or cause of action. American Fire & Cas. Co. v. Finn, 341 U.S. 6, 11, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In Finn, the Supreme Court's leading construction of § 1441(c) to date, the Court emphasized that one of Congress' motivating purposes in adopting the "separate and independent" test for removability was to "abridge the right of removal" from state courts. Id. at 10, 71 S.Ct. 534. The Court stated:

"Of course, `separate cause of action' restricts removal more than `separable controversy.' In a suit covering multiple parties or issues based on a single claim, there may be only one cause of action and yet be separable controversies. The addition of the word `independent' gives emphasis to congressional intention to require more complete disassociation between the federally cognizable proceedings and those cognizable only in state courts before allowing removal." Id. at 12, 71 S.Ct. at 539.

This language, however, must be viewed in its factual context. In the Finn case, a Texas citizen sued in state court to recover for nonpayment of insurance on her house, which had been destroyed by fire. She joined as defendants a local insurance agent and two foreign insurance companies, alleging in the alternative that either the agent was liable for failure to keep the property insured or the companies were wrongfully refusing to pay. The Court found that removal had been improper, concluding that "where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." Id. at 14, 71 S.Ct. at 540.

At least one commentator has described the effect of this holding as follows:

"Few, if any, diversity cases can properly be removed under this statute in the light of the construction placed on it in the Finn case * * *

* * * * * *

"It is not surprising that few cases meet the Finn test. Under the most liberal state joinder rules, parties are not properly joined unless there is some question of law or fact common to all of them, and some claim asserted for or against all arising out of a single transaction or occurrence or series of transactions or occurrences. The relation which the joinder of parties rules require is just the kind of relation which, according to the Finn case, bars resort to § 1441(c)." Wright, Federal Courts, 117-118 (1963). Accord, 1 Barron & Holtzoff, § 105, p. 494 (1960).

Nevertheless, nowhere in Finn did the Court rule out the removal of any and every diversity case. Nor does anything contained in the legislative history of the 1948 revision or the Reviser's Note to 28 U.S.C. § 1441(c) evidence any such congressional intention. Furthermore, a number of courts have declined to accept Wright's severely restrictive view of removal in that there have been numerous diversity cases since the Finn decision in which removal has been permitted. See 1 Barron & Holtzoff, supra, at n. 73.13; 1A Moore's Federal Practice (2d Ed.) ¶0.163(4.-5), n. 27. See, e. g., Griebel v. J. I. Case Credit Corp., 285 F.Supp. 621 (D.Minn.1968), a case in which it was held that, notwithstanding the existence of multiple defendants, removal was proper under § 1441(c).

It may be that at first glance the facts of the instant case seem to fall within the restrictive language of the Finn opinion. Such a determination is,...