Industrial Lithographic Co. v. Mendelsohn
| Decision Date | 24 February 1954 |
| Docket Number | Civ. A. No. 965-52. |
| Parties | INDUSTRIAL LITHOGRAPHIC CO., Inc. v. MENDELSOHN et al. (McKESSON & ROBBINS, Inc., Third-Party Defendant). |
| Court | U.S. District Court — District of New Jersey |
Hein, Smith & Mooney, by Seymour A. Smith, Hackensack, N. J., for plaintiff.
Paul Rittenberg, Paterson, N. J., for third party plaintiffs. Max Mehler, Newark, N. J., of counsel.
Pitney, Hardin & Ward, by William P. Reiss, Newark, N. J., for third party defendant.
The question before the court on this motion is whether a claim introduced into an action by a third party should afford the basis for removal.
Industrial Lithographic Co. Inc., a New York corporation, originally began this action by bringing suit in the courts of the State of New Jersey against defendants, Louis H. Mendelsohn and Abram C. Mendelsohn, individually and trading as Excello Hosiery Mills, citizens of New Jersey. Defendants filed an answer to the complaint and a third party complaint against McKesson & Robbins, Inc., a Maryland corporation, who thereafter removed the proceedings to this court.
The suit between plaintiff herein and third party plaintiffs (Mendelsohn, et al.) arises out of the alleged breach of an agreement entered into on November 30, 1950, whereby the third party plaintiffs agreed to purchase from plaintiff a specified quantity of paper boxes. The suit between third party plaintiffs and third party defendant (McKesson & Robbins, Inc.) concerns the alleged breach of an agreement of September 5, 1950, dealing with the manufacture and delivery of stockings.
At the argument of a prior motion in this cause this court decided that it considered the action between plaintiff and third party plaintiffs to be so separate, distinct and unrelated to that between third party plaintiffs and third party defendant as to require a denial of third party defendant's right to demand of plaintiff the answers to certain interrogatories.
28 U.S.C.A. § 1441(c), under which the entire case was removed to the federal court, states:
"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."
It is now left to this court to decide whether to retain all or part of the cause before it.
As pointed out, the controversy between the third party plaintiffs and the third party defendant is of a separate and distinct nature from the primary controversy involved herein. It is, moreover, a controversy between citizens of different states and as such would have been within the original jurisdiction of this court. Consequently, the removal of this cause was proper and the motion for remand must be denied. President and Directors, etc. v. Monogram Associates, D.C.E.D.N.Y.1949, 81 F.Supp. 739.
The court is aware of the view of Professor Moore in his Commentary on the U. S. Judicial Code, p. 252, wherein...
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...279 F.Supp. 803, 806 (D.Mont.1968); Rafferty v. Frock, 135 F.Supp. 292, 293 (D.Md.1955) (Thomsen, J.); Industrial Lithographic Co. v. Mendelsohn, 119 F.Supp. 284, 286 (D.N.J. 1954); see also Alifieras v. American Airlines, Inc., 523 F.Supp. 1189, 1192 (E.D.N.Y. 1981) (allowing a third-party......
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