Johnston v. OREGON ELECTRIC RAILWAY COMPANY

• Citation: 145 F. Supp. 143
• Decision Date: 04 October 1956
• Docket Number: Civ. No. 8779.
• Parties: Art JOHNSTON and Veda Johnston, husband and wife, Plaintiffs, v. OREGON ELECTRIC RAILWAY COMPANY, a corporation, Union Tank Car Company, a corporation, and Standard Oil Company of California, a corporation, Defendants.
• Court: U.S. District Court — District of Oregon

145 F. Supp. 143

Art JOHNSTON and Veda Johnston, husband and wife, Plaintiffs, v. OREGON ELECTRIC RAILWAY COMPANY, a corporation, Union Tank Car Company, a corporation, and Standard Oil Company of California, a corporation, Defendants.

Civ. No. 8779.

United States District Court D. Oregon.

October 4, 1956.

Barzee, Leedy & Erwin, Herman L. Lind, Jr., Portland, Or., for plaintiff.

Koerner, Young, McColloch & Dezendorf, Portland, Or., for defendant Standard Oil Co. of California.

Hart, Spencer, McCulloch, Rockwood & Davies, Cleveland C. Cory, Portland, Or., for defendant Oregon Electric Railway Co.

EAST, District Judge.

This matter came on for hearing upon the following matters:

1. The plaintiffs' motion for order under Rule 21, Fed.Rules Civ.Proc. 28 U.S.C.A. to drop defendant, Oregon Electric Railway Company as a party-defendant;

2. Defendant, Oregon Electric Railway Company's motion for an order dismissing the above entitled action on the ground that the Court lacks jurisdiction on the ground that diversity of citizenship between the plaintiffs and the defendant is not present in this action; and

3. Defendant, Standard Oil Company of California's motion for an order dismissing the above entitled action on the same grounds urged by the defendant, Oregon Electric Railway Company.

The Court having heard the statements of counsel and read their respective briefs in the matter, and now being fully advised, makes this determination.

It appears from all the papers and files in the matter that the plaintiffs are both residents of the State of Oregon. That the defendant, Oregon Electric Railway Company is a corporation duly organized and existing under the laws of the State of Oregon and a "citizen" of the State of Oregon. That the remaining corporate defendants are foreign corporations to Oregon and are citizens of other states than Oregon.

The plaintiffs contend first that the defendant, Oregon Electric Railway Company is not an "indispensable party" and that, therefore, the Court should in its discretion allow them to drop as a party-defendant herein, said defendant. It appears that under the theory of plaintiffs' complaint all three of the corporate defendants are joint tort-feasors and, paraphrasing the language of District Judge Campbell, in McGrier v. P. Ballantine & Sons, D.C., 44 F.Supp. at pages 762, 763, the affirmative allegations of the complaint show that this court does not have jurisdiction of this action because while there is a diversity of citizenship between the plaintiffs and the defendants, Union Tank Car Company, a corporation, and Standard Oil Company of California, a corporation, there is no diversity of citizenship between the plaintiffs and the defendant, Oregon Electric Railway Company, a corporation, but on the contrary the...