Kearney v. Dollar
| Decision Date | 16 January 1953 |
| Docket Number | Civ. A. No. 1503. |
| Citation | 111 F. Supp. 738 |
| Parties | KEARNEY et al. v. DOLLAR et al. |
| Court | U.S. District Court — District of Delaware |
David Snellenburg, II, Killoran & Van Brunt, Wilmington, Del., for plaintiffs.
Hugh M. Morris, E. D. Steel, Jr., and George T. Coulson (Morris, Steel, Nichols & Arsht, Wilmington, Del.), for defendants.
This is an action instituted in the Court of Chancery of the State of Delaware in and for New Castle County and removed to this court by certain of the defendants. The present questions arise on a motion by the plaintiff to remand the action to the State Court.
The complaint filed in the State Court and removed here is a lengthy pleading of some 84 paragraphs. Since the questions here involved primarily concern the parties to the action, first attention will be directed to such parties.
The plaintiffs are Michael M. Kearney as an individual and allegedly as a general or special partner with Clinton M. Hester in the practice of law in Washington, D. C. While paragraph 3 of the complaint specifically denominates Hester as a "plaintiff" and he is also listed as a defendant, yet at the argument the plaintiff conceded and the parties agreed that Hester should be considered only as a defendant and as such he is considered in this opinion.
An epitome of the complaint shows in general terms that the plaintiff claims that he and Hester, as members of a general or limited partnership, performed legal services for certain of the defendants in connection with a dispute and litigation in the District of Columbia in connection with the Maritime Commission and concerning shares of stock of the American President Lines, Inc., Ltd., and allegedly owned by certain of the defendants. The plaintiff alleges that the services were performed pursuant to an express contract for a contingent fee and which provided that if the said attorneys were successful in sustaining the right to the shares of stock in question, the attorneys would be entitled to a fee of 225,000 of such shares. The plaintiff alleges the performance of the services and a successful conclusion of the litigation. As the present questions do not concern the merits of the action, they will not be further considered.
The parties to the action as given by the plaintiff and the citizenship and residence as recited by him are:
Plaintiff
Michael M. Kearney, a citizen and resident of Florida
Defendants
R. Stanley Dollar, a citizen and resident of California
H. M. Lorber, a citizen and resident of California
Dollar Steamship Line, a corporation of California and citizen and resident of California
Robert Dollar Company, a corporation of California and citizen and resident of California
American President Lines, Inc., Ltd., a corporation of Delaware and citizen and resident of Delaware
Riggs National Bank, as a National Banking Association organized under the laws of the United States and doing business in the District of Columbia
Clinton M. Hester, a resident of the District of Columbia.1
The action in the Court of Chancery of the State of Delaware allegedly is brought pursuant to the provisions of Section 4374 of the Revised Code of Delaware 1935, being Section 8 of Chapter 117 (10 Del.C. §§ 365, 366). In the State Court of Chancery the writ of summons was returned "non sunt inventi" as to all the nonresident defendants and was served only on American President Lines, Inc., Ltd. Pursuant to a motion, an order of service by publication was made which publication was had and copies sent to nonresident defendants.
A petition for removal of the cause pursuant to 28 U.S.C. § 1446 was filed October 17, 1952, by R. Stanley Dollar, H. M. Lorber, Dollar Associates, Inc. and Robert Dollar Co. The petition asserts that Dollar Steamship Line, a corporation of California, named as a defendant in the complaint, on August 28, 1952, merged into Dollar Associates, Inc. and thereafter its separate existence ceased and Dollar Associates, Inc., succeeded to all the rights and properties of Dollar Steamship Line.
From the foregoing it appears that all the defendants in the complaint joined in the petition for removal except American President Lines, Inc., Ltd., a Delaware corporation, Riggs National Bank, a corporation of the United States doing business in the District of Columbia, and Clinton M. Hester.
No question has been raised as to the noninclusion of Hester in the removal proceedings as an interested defendant under any rule requiring that interested defendants be treated collectively.
The plaintiff made a motion to remand the case, but the removing defendants contend that by his actions the plaintiff has waived his right to remand. This matter should be considered preliminary because if the right to remand has been waived, then there is no reason to consider the merits of the motion to remand itself or the propriety of the removal of the case to this court.
It is well established that in a case where the original jurisdiction of a District Court is unexceptional and a case could have been instituted either in a State Court or in a District Court, but is brought in a State Court and removed into a District Court, the plaintiff may waive his right to remand. Lopata v. Handler, 10 Cir., 121 F.2d 938, and cases there cited. The defendants cite as cases sustaining the waiver of the right to remand In re Moore, 209 U.S. 490, 28 S.Ct. 706, 52 L.Ed. 904; Mellon v. International Shoe Co., D.C., 32 F.2d 390; Clark v. Southern Pacific Co., C.C., 175 F. 122, to which may be added Philadelphia & Boston Face Brick Co. v. Warford, C.C., 123 F. 843. In all of these cases it was held that the plaintiffs had accepted and adopted the jurisdiction of the District Courts and had waived their rights to remand. In Re Moore the plaintiff, prior to a motion to remand, had filed an amended petition and agreed to continuances of trial in the District Court; in the Clark case, prior to a motion to remand, the plaintiff had filed interrogatories and given notice of their intended use for trial in the Federal Court; in the Philadelphia & Boston case the plaintiff waited for a year after a general appearance and after a motion to amend before making any motion to remand; in the Mellon case the plaintiff waited two and one-half months before moving to remand and then ordered the Clerk to put the case on the trial list of the District Court.
The defendants, removants, cite three incidents as sustaining the plaintiff's waiver of right to remand: (1) that he applied after removal to the District Court for an injunction; (2) that he moved for a decree pro confesso against one nonremoving defendant who had not appeared according to an order of the Chancellor prior to removal; and (3) that he has filed certain interrogatories.
I am of the opinion that no act of the plaintiff has operated as his acceptance of the jurisdiction of this Court and as a waiver of his motion to remand. Within 48 hours after removal he moved to remand and has continuously pressed the motion for hearing. The motion for injunction, afterwards withdrawn, was merely to preserve the matter in controversy and the interrogatories were filed after the argument of the motion to remand and while the matter was being considered by the court.
The motion to remand itself brings into sharp focus the right of removal and the character of the parties as bearing upon the right of removal.
28 U.S.C. § 1441(a) provides generally that "any civil action" brought in the State Court of which the District Courts of the United States would have original jurisdiction may be removed to the appropriate District Court. Concededly, the District Court of the United States for the District of Delaware would have had original jurisdiction of the cause of action set out in the complaint and the plaintiff could have brought his case originally either in the State Court or in the District Court of the United States for the District of Delaware. While the plaintiff contends that the case as brought by him in the State Court was peculiarly and solely within the jurisdiction of the Delaware Chancery Court by reason of Sec. 4374, and as such is not subject to removal, yet the plaintiff concedes that his cause of action was cognizable in the District Court which would then have operated by virtue of 28 U.S.C. § 1655 in obtaining jurisdiction of the nonresident defendants.
28 U.S.C. § 1441(b) provides that any civil action of which the District Court has original jurisdiction shall be removable without regard to the citizenship or residence of the parties where the action is founded on a claim or right arising under the Constitution, treaties or laws of the United States. The present cause of action is not covered by the preceding clause.
28 U.S.C. § 1441(b) continues and provides, in the second sentence, "Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." It is around this provision that the difficulties cluster.2
American President Lines, Inc., Ltd., is a named defendant and is a corporation of and resident of the State of Delaware. The plaintiff contends that such company is a party in interest properly joined and served and consequently that such suit is not removable.
Since the removal of the case from the State Court to this Court, the American President Lines, Inc., Ltd., has filed an answer in which such company alleges that it "has no corporate interest in the subject matter of the controversy referred to in the complaint and hereby disclaims any corporate interest in the controversy."
It must be conceded that the joinder of formal, nominal or unnecessary parties in the proceedings in the State Court has no effect upon the jurisdiction of the Federal Court in removal or remand proceedings where such jurisdiction otherwise attaches.3
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Dollar v. General Motors Corp.
...citizenship may be safely disregarded because the defendant has no rights to be contravened by a removal. See, e.g., Kearney v. Dollar, 111 F.Supp. 738 (D.Del.1953). 5 Louisiana Civil Code article 2315.3 provides that exemplary damages may be awarded if it is proved that plaintiff's injurie......
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...2 Cir., 140 F.2d 550, 554, 152 A.L.R. 966. 16 Other courts have refused to find a waiver under such circumstances. Kearney v. Dollar, D.C.Del., 111 F.Supp. 738; Kramer v. Jarvis, D.C.Neb., 81 F.Supp. 360; Parkinson v. Barr, C.C. Nev., 105 F. 81, ...
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...if plaintiff prevailed was to perform purely ministerial tasks inconnection with transfer of securities deemed a nominal defendant); Kearney (corporation held nominal party where its "only connection" to the controversy was a request that it "be enjoined from transferring the shares upon it......
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...already effectuated in the state court proceeding, pending this Court's disposition of the motion to remand. See Kearney v. Dollar, 111 F.Supp. 738 (D.Del.1953). Even applying the more liberal federal view of the doctrine of forum non conveniens rather than the more limited view followed by......