Hughes Const. Co., Inc. v. Rheem Mfg. Co.

• Decision Date: 27 February 1980
• Docket Number: No. EC 79-251-S-P.,EC 79-251-S-P.
• Citation: 487 F. Supp. 345
• Parties: HUGHES CONSTRUCTION CO., INC., a Mississippi Corporation on behalf of itself and all others similarly situated and circumstanced, Plaintiff, v. RHEEM MFG. CO., Robert B. Gilbert, Donald W. Proulx, W. L. Jackson Mfg. Co., State Industries, Inc., John R. Undahl, Paul G. Talley, Bradford White Corp., Alfred J. Pellegrini, Michale R. Deluca and John Doe and Richard Roe, fictitious names, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

487 F. Supp. 345

HUGHES CONSTRUCTION CO., INC., a Mississippi Corporation on behalf of itself and all others similarly situated and circumstanced, Plaintiff, v. RHEEM MFG. CO., Robert B. Gilbert, Donald W. Proulx, W. L. Jackson Mfg. Co., State Industries, Inc., John R. Undahl, Paul G. Talley, Bradford White Corp., Alfred J. Pellegrini, Michale R. Deluca and John Doe and Richard Roe, fictitious names, Defendants.

No. EC 79-251-S-P.

United States District Court, N. D. Mississippi, E. D.

February 27, 1980.

Dewitt T. Hicks, Jr., Gholson, Hicks & Nichols, Columbus, Miss., for plaintiff.

Christy D. Jones, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., for defendants.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court upon the motion of the named plaintiff, Hughes Construction Company, Inc., to remand this cause, pursuant to 28 U.S.C. § 1447(c). The plaintiff's original complaint was filed in the Chancery Court of Oktibbeha County, Mississippi, on October 25, 1979. That complaint alleges that the defendants have violated certain provisions of the antitrust laws of Mississippi, Miss.Code Ann. §§ 75-21-1, et seq.¹ The plaintiff is a corporation organized and existing under the laws of the State of Mississippi, with its principal place of business in Mississippi, and is seeking to represent a class of all indirect purchasers of water heaters within Mississippi, who purchased a heater manufactured by any one of the defendants from 1963 to 1977. Plaintiff alleges that during this period of time, the total volume of sales by the defendants within Mississippi would amount to $40,000,000.00. The complaint charges that the defendants entered into a combination or conspiracy to fix the price of water heaters at unreasonable and noncompetitive levels, depriving the class of the benefits of free and open competition. To remedy this alleged violation, the plaintiff demands that the defendants be made to disgorge the profits made by reason of this conspiracy, and to pay to each of the class members the sum of $500.00, pursuant to Miss.Code Ann. § 75-21-9. Additionally, plaintiff requests that the defendants be enjoined permanently from violating or continuing to violate the state antitrust statutes.

On November 13, 1979, some of the defendants joined in filing a timely petition for removal to this court. All of these defendants are citizens of states other than Mississippi, and the corporate defendants have their principal places of business in states other than Mississippi. The petition also states that those defendant who did not join in the petition for removal had not yet been served with process.² Defendants maintain that this court has jurisdiction over the action sub judice, in that there is diversity of citizenship, and the amount in controversy exceeds $10,000.00, exclusive of interest and costs.³ Plaintiff filed its motion to remand on November 17, 1979, claiming that this action is not one over which this court has removal jurisdiction. Plaintiff alleges first, that the presence of certain fictitious defendants destroys diversity jurisdiction, and secondly, that because some of the class members on whose behalf the plaintiff sues have claims for less than $10,000.00, the action may not be maintained in federal court. Defendant, however, claims that the presence of these fictitious defendants is insufficient to destroy diversity, so that the action is properly removable on the basis of diversity of citizenship. Defendant also contends that the amount in controversy exceeds $10,000.00, but that even if this amount is lacking as to all class members, the named plaintiff has a "separate and independent" cause of action, which allows the entire case to be removed. See 28 U.S.C. § 1441(c).⁴

The plaintiff has named in its original complaint, "John Doe" and "Richard Roe" as defendants, the intent being to substitute these fictitious names with other persons, whose identity will be ascertained through discovery. The caption of the complaint states that these fictitious defendants are residents of the State of Mississippi, and Paragraph VII of the complaint states that

Defendants maintain, on information and belief, officers, directors and/or agents within the State of Mississippi, which officers, directors and/or agents have participated in the unlawful acts involved herein. Said parties or some of them can be found in Oktibbeha County, Mississippi.

This is the only language in the plaintiff's complaint which alleges that any defendant, real or fictitious, is a resident of, or may be found within the State of Mississippi. The defendants contend that the mere fact that plaintiff has alleged these fictitious defendants to be residents of the forum state is insufficient to destroy diversity jurisdiction. This court agrees with that contention.

Whether or not the defendant has the right to remove an action on the basis of diversity of citizenship must be determined solely from the allegations in the complaint at the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939); Holloway v. Pacific Indemnity Co., 422 F.Supp. 1036, 1037 (E.D. Mich.1976). Therefore, the court must necessarily disregard the plaintiff's assertion in its memorandum that "there must be" officers, agents, or employees of the defendant corporations within Mississippi. The only allegations which may be properly considered are those in the complaint. These allegations, however, must be sufficient for the court to determine that the "John Doe" defendants are more than nominal or disinterested parties. In other words, as the Supreme Court noted in Pullman, "it is always open to the non-resident defendant to show that the resident defendant has not been joined in good faith." 305 U.S. at 541, 59 S.Ct. at 350. If such proof were not allowed, then litigants would be able "to destroy the federal court's removal jurisdiction by merely naming a sham co-defendant alleged to reside in the forum state." Holloway v. Pacific Indemnity Co., 422 F.Supp. at 1038. Where no cause of action is stated against the fictitious resident defendant, his joinder may be disregarded for purposes of removal. In Asher v. Pacific Power & Light Co., 249 F.Supp. 671 (N.D.Cal.1965), the plaintiff's complaint contained general allegations which applied to all "defendants". The court in that case concluded that

If an examination of the allegations in the complaint reveals them to be so general that they give no clue as to whom they could pertain, then the parties sought to be joined under those allegations should be disregarded for the purposes of determining diversity jurisdiction.

249 F.Supp. at 676. Similarly, in Herrera v. Exxon Corp., 430 F.Supp. 1215 (N.D.Calif. 1977), the court found that the pleadings contained no specific description of the individual fictitious defendants, and no specific allegation as to their involvement in the alleged activity. Where the "John Doe" defendants were "unidentified, indefinite, and ineffectual," the case was properly removable. 430 F.Supp. at 1220, quoting Scurlock v. American President Lines, 162 F.Supp. 78, 81 (N.D.Calif.1958). The court in Herrera held that

A plaintiff who wishes to sue unnamed defendants must articulate with greater particularity than notice pleading might otherwise demand the claimed involvement, capacity, and perhaps physical characteristics of the Doe defendants, or risk removal to federal court.

430 F.Supp. at 1220.

The defendants have alleged, by way of affidavits, that the corporations have no officers, agents, or employees residing in Mississippi. Because the plaintiff's complaint makes no other allegations which would identify the fictitious defendants or describe their involvement in the activity complained of, the court is of the opinion that the defendant has met any burden it might have of proving that the John Doe defendants are not joined in good faith. Therefore, removal jurisdiction under 28 U.S.C. § 1441(b), is not defeated by the joinder of unidentified John Doe defendants.

An even greater difficulty exists, however, in determining whether or not the requisite jurisdictional amount has been met. Plaintiff contends that since some of the potential class members have claims for less than $10,000.00, the action is not removable on grounds of diversity, under the standard of Zahn v. International Paper Company, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). In Zahn, the named plaintiffs brought a diversity action, seeking to recover damages from defendant for its pollution of a lake, beside which the plaintiffs owned property. The plaintiffs also sought to maintain the action as a class action pursuant to Rule 23(b)(3), Fed.R. Civ.P. The court held that it has long been the rule in federal practice that "multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement . . .." 414 U.S. at 294, 94 S.Ct. at 508, 38 L.Ed.2d at 515. In other words, these claims may not be aggregated, simply because multiple plaintiffs are asserting their claims in a single suit. The court went on to follow its previous ruling in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), holding that the same rule must be applied to all class members in a potential class action under Rule 23:

None of the plaintiffs in Snyder v. Harris alleged a claim exceeding $10,000, but there is no doubt that the rationale of that case controls this one. As previously indicated, Snyder invoked the well-established rule that each of several plaintiffs asserting separate and distinct claims must satisfy the jurisdictional-amount requirement if his claim was to survive a motion to dismiss. This rule plainly mandates not only that there may be no aggregation and that the entire case must be dismissed where none of the plaintiffs claims more than $10,000 but also requires that any plaintiff without the

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