Herzig v. TWENTIETH CENTURY-FOX FILM CORPORATION

• Decision Date: 25 March 1955
• Docket Number: No. 16849.,16849.
• Citation: 129 F. Supp. 845
• Court: U.S. District Court — Southern District of California
• Parties: Siegfried M. HERZIG, Plaintiff, v. TWENTIETH CENTURY-FOX FILM CORPORATION, a corporation, Leonard Goldstein, John Doe and John Doe Corporation, Defendants.

129 F. Supp. 845

Siegfried M. HERZIG, Plaintiff, v. TWENTIETH CENTURY-FOX FILM CORPORATION, a corporation, Leonard Goldstein, John Doe and John Doe Corporation, Defendants.

No. 16849.

United States District Court, S. D. California, Central Division.

March 25, 1955.

Fendler & Lerner, by Harold A. Fendler, Beverly Hills, Cal., for plaintiff.

Musick, Peeler & Garrett, by John P. Pollock, Los Angeles, Cal., for defendants.

HALL, District Judge.

The matter is before the Court on motion of defendant Twentieth Century-Fox Film Corporation to strike plaintiff's demand for jury trial.

Before giving consideration to that motion, however, a question of jurisdiction must be resolved.

The case was originally filed in the Superior Court of the State of California, in Los Angeles County, on October 26, 1953. After service of process on the defendant, Twentieth Century-Fox Film Corporation, and on November 13, 1953, Twentieth Century removed the case to the above court on the ground of diversity between it and the plaintiff. There is another named defendant, Leonard Goldstein, as well as John Doe and John Doe Corporation, all of whom are alleged to be residents of California.

The complaint is one for damages for unfair competition and unauthorized use of the title to a play called "Vickie."

The gravamen of plaintiff's complaint is set forth in Paragraphs V and VI thereof wherein it is alleged that "defendants, and each of them" committed the acts and did the things upon which plaintiff's cause of action is based. Thus, the acts of all defendants were concurrent and neither separately alleged, nor are they severable from reading the allegations of the complaint.

At the time of the removal to this court from State court, service of process had not been made on defendant Leonard Goldstein or on the Does. On the original removal, defendant Twentieth Century alleged that Leonard Goldstein was joined for the purpose of preventing Federal jurisdiction "in that no cause of action was alleged against him." Thereafter plaintiff made a motion to remand to the Superior Court, which motion was granted in view of the fact that from the allegations of the complaint, the acts of all defendants were concurrent, and thus the complaint did state a cause of action against Twentieth Century, Goldstein, and the Does.

After the matter was remanded to the State court, plaintiff brought the matter on for setting for trial, and in the memorandum for setting, made the following statement:

"I hereby represent to the Court that this cause is at issue; that no amended or supplemental complaint or cross-complaint or other affirmative pleading remains unanswered; that to my knowledge no other parties will be served with a summons prior to the time of trial, and I know of no further pleading to be filed and know of no reason why the cause should not be tried as soon as the calendar of the Court will permit."

Thereafter, and on June 14, 1954, the defendant Twentieth Century again filed a Petition for Removal based upon diversity of citizenship. No motion for remand has been made by the plaintiff.

Nevertheless, it becomes the duty of this Court to examine the pleadings to determine whether or not it has jurisdiction even though the question has not been raised by the parties. Cheyne v. Atchison, T. & S. F. Ry. Co., 9 Cir., 1942, 125 F.2d 49, 50. The lack of Federal jurisdiction can be raised at any time, and if the matter proceeded to trial and jurisdiction were raised by the Appellate Court of its own motion, the litigation of any issues in this court will have been futile.

The removing defendant still insists that no cause of action is alleged against the unserved defendants who are residents of California, and that, in itself, is sufficient to warrant the removal on the ground of fraudulent joinder. I do not find any merit in that contention in view of the allegations in the complaint of concurrent action of all defendants, hereinbefore adverted to.

The removing defendant strenuously contends, however, that the joinder of Leonard Goldstein (and I take it the same thing applies to John Doe and the John Doe Corporation) is demonstrated to be fraudulent in having been made only for the purpose of defeating Federal jurisdiction by reason of the fact that after removal, plaintiff's counsel set the case for trial in the State court, and made the representations in the memorandum for setting hereinabove referred to.

The question of removability is to be determined according to plaintiff's petition at the time it was filed. Pullman Co. v. Jenkins, 1938, 305 U.S. 534, 535-537, 59 S.Ct. 347, 83 L.Ed. 334.

In Wilson v. Republic Iron & Steel Co., 257 U.S. 92, at page 97, 42 S.Ct. 35, at page 37, 66 L.Ed. 144, the Court stated: "* * * this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 185-186, 27 S.Ct. 184, 51 L.Ed. 430. If in such a case a resident defendant is joined, the joinder, although fair upon its...