K. Shapiro, Inc. v. NEW YORK CENTRAL RAILROAD COMPANY
| Decision Date | 10 July 1957 |
| Docket Number | No. 16119.,16119. |
| Citation | 152 F. Supp. 722 |
| Parties | K. SHAPIRO, Inc., a Michigan Corporation, Plaintiff, v. NEW YORK CENTRAL RAILROAD COMPANY, a Michigan Corporation, and New York, New Haven & Hartford Railroad Company, a Foreign Corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Friedman, Meyers & Keys, Detroit, Mich., for plaintiff.
George H. Wyatt, Jack I. Alspector, Detroit, Mich., for New York Cent. R. Co.
William A. Alfs, Detroit, Mich., for New Haven & H. R. Co.
Motion by New York, New Haven & Hartford Railroad Company hereinafter referred to as "New Haven" to quash service and dismiss.
Plaintiff originally commenced action against the New York Central Railroad Company, a Michigan corporation, pursuant to Section 20, Paragraph (11) Title 49 U.S.C.A. The complaint alleged that on September 10, 1954, plaintiff delivered to said defendant a shipment of fresh veal destined for Harlem River, New York, routed over the lines of New York Central and New Haven Railroad Companies. The complaint further alleged that due to negligence of either or both railroads the veal spoiled enroute and was rejected by the consignee.
After the New York Central answered and after a pretrial, plaintiff's motion to add New Haven as a party defendant was granted. Thereupon plaintiff filed an amended complaint, paragraphs 1, 2, and 3 of which read as follows:
Subsequently a summons and copy of the amended complaint were served on Thomas Joseph Gilhooly, General Traffic Agent for New Haven in Detroit. The latter is not incorporated in this state, has not been admitted to business, nor does it operate any lines within Michigan but maintains a small two room office in the General Motors Building in Detroit staffed with two employees, Mr. Gilhooly and a stenographer. These two employees serve as agents for New Haven. However, while New Haven's representatives do not make contracts, sell tickets or handle funds, they do make or help customers make arrangements for the same. They do solicit, and have in the past, secured a considerable amount of freight and passenger business for the railroad so that their activity in the latter's behalf may be characterized as continuous and concerted; they do trace lost shipments and give advice on freight and passenger routings; they do keep close observation of business trends and conditions, such as loss of business and forecasts of future conditions and report to their supervisors; they do attend educational tours in order to keep well informed on the facilities of New Haven available to customers so they can advise the latter accordingly; and the New Haven does have some equipment such as box cars and gondolas available in Michigan. But New Haven has no tracks in Michigan.
Each side filed two briefs and plaintiff's first brief stated that:
"N.Y. N.H. & H.'s brief quite properly proceeds on the theory that the issue presented by its motion must be decided under the controlling Federal authorities. This is true, not only because (as Defendant points out) this suit arises under the Carmack Amendment (49 U.S.C.A. Sec. 20 (11) * * *."
It appears, therefore, that plaintiff, although paragraphs 2 and 3 of its amended complaint alleged diversity and jurisdictional amount in its action against New Haven, nevertheless first intended its action to be based exclusively on Section 20 (11) of the Carmack Amendment —Section 20 (11) of which is as follows:
"* * * all actions brought under and by virtue of this paragraph against the delivering carrier shall be brought, and may be maintained, if in a district court of the United States, only in a district, * * * through or into which the defendant carrier operates a line of railroad."
Noting that plaintiff in paragraph 8 of its amended complaint had alleged that New Haven was only the "connecting or delivering carrier", and it being agreed that the New Haven does not operate a line of railroad in this state, gave us pause and an examination of the briefs revealed that both plaintiff and defendant had neglected to discuss this point or to mention the above quoted provision. Believing this might have been an oversight, the court, through its clerk, directed this matter to counsels' attention, whereupon each filed a supplemental brief, but again ignored the above cited section, while each seemingly reversed its position assumed in their respective first briefs.
In view of paragraphs 1, 2, and 3 of plaintiff's amended complaint, we believe its action against New Haven is now based upon diversity of citizenship. Paragraph 1 specifically states that as to defendant New York Central the action arises under Title 49 U.S.C.A., but when setting forth the necessary jurisdictional allegations as to New Haven, the amended complaint alleges diversity and the jurisdictional amount, without mentioning Title 49 U.S.C.A.
Nor is the right to maintain the action affected because joined with another which arises under the laws of the United States. We interpret Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, to permit the...
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...in First Flight Co. v. National Carloading Corp., 209 F.Supp. 730 (E.D.Tenn.1962) and Picard, J., in K. Shapiro, Inc. v. New York Central Railroad Co., 152 F.Supp. 722, (E.D.Mich.1957) with Friendly, J., in Jaftex Corp. v. Randolph Mills, 282 F.2d 508, 516 (2nd Cir.1960); Goodrich, J., in P......
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