Keating v. Pennsylvania Co.

• Decision Date: 11 September 1917
• Docket Number: 9526.
• Citation: 245 F. 155
• Parties: KEATING v. PENNSYLVANIA CO.
• Court: U.S. District Court — Northern District of Ohio

245 F. 155

KEATING v. PENNSYLVANIA CO.

No. 9526.

United States District Court, N.D. Ohio, Eastern Division.

September 11, 1917

S. V McMahon, F. W. Zimmerman, and C. W. Dille, all of Cleveland Ohio, for plaintiff.

Squire Sanders & Dempsey, of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

The plaintiff is an alien subject of the king of Great Britain and the defendant is a corporation organized and existing under the laws of the state of Pennsylvania, and having its principal office in that state. The defendant is, therefore, a citizen and resident of the state of Pennsylvania. This action was brought in the court of common pleas of Cuyahoga county, Ohio, and on application of the defendant, made in due time, was removed to this court. The plaintiff now appears specially, and moves to remand on the ground that, on the facts above stated, this action could not originally have been brought in this court, and cannot, therefore, be removed here.

The question of law thus raised is one respecting which much difference of opinion exists in the several United States District Courts.

In this forum it has been held, on exactly similar facts, that the action was not removable, and granted a motion to remand. Ivanoff v. Mechanical Rubber Co. (D.C.) 232 F. 173.

In other districts decisions have been rendered, holding on these facts that actions cannot be removed to this court. Mahopoulus v. Chicago, etc., Ry. Co. (C.C.) 167 F. 165, by District Judge Pollock; Odhner v. Northern Pacific Ry. Co. (C.c.) 188 F. 507, by Circuit Judge Coxe, holding the District Court; Sagara v. Chicago, etc., Ry. Co. (C.C.) 189 F. 220. by District Judge Lewis. In Louisville & N.R. Co. v. Western Union Tele. Co. (D.C.) 218 F. 91, Cochran, District Judge, expresses the opinion that the reasoning of these cases is sound, if Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, on which they were based, is still the law. But he denied the order to remand, because, in his opinion, Ex parte Wisner was decided wrong in the first place, and its authority has since been so far impaired that it is not to be regarded as controlling.

In other districts decisions have been rendered, holding on the same state of facts that such actions are removable. Barlow v. Chicago & N.W. Ry. Co. (C.C.) 164 F. 765, by District Judge Reed; also see same case on rehearing by District Judge Reed (C.C.) 172 F. 513; Bagenas v. Southern Pac. Co. (C.C.) 180 F. 887, by Van Fleet, District Judge; Rones v. Katalla Co. (C.C.) 182 F. 946, by Donworth, District Judge; Decker v. Southern Ry. Co. (C.C.) 189 F. 225, by Grubb, District Judge; Smellie v. Southern Pac. Co. (D.C.) 197 F. 641, by Van Fleet, District Judge.

The conflict between these decisions is irreconcilable. The several judges, rendering the opinions, have answered the same question in two different ways. The reasons supporting the holding that such an action is not removable are best stated in Sagara v. Chicago, etc., Ry. Co., supra. The reasons holding that such an action is removable are best stated in Barlow v. Chicago, etc., Ry. Co., supra, and in Decker v. Southern Ry. Co., supra. Counsel are referred to those cases for a more extended statement of the reasons supporting the different sides of the controversy. After mature reflection, I have reached the conclusion that this action is removable, and my holding will be in accord with the second group of cases above cited, which in my opinion is based on better reasoning.

This conflict of opinion is due to the different views entertained touching the force and effect of Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264. Prior to that decision, the accepted opinion was that the venue section of the Judicial Code (section 51) did not limit or restrict the right of removal conferred by section 28, but that any action of which a federal court might take jurisdiction under section 24 of the Judicial Code, or under the Judiciary Act of 1887, as amended in 1888, might be removed to the federal courts, even though under the venue section or provisions it might not originally have been brought in the federal court of that district against timely objection of the defendant. Dillon on Removal of Causes, 96; Moon on Removal of Causes, Sec. 65. See, also, Judge Cochran's statement of the prior holdings in 218 F. 95. In other words, the venue provisions of the Judiciary Act of 1887, as amended in 1888, prescribing the district within which a suit might be brought, were not regarded as conferring or withholding jurisdiction, but as conferring on the defendant a privilege respecting only the particular United States court in which he might be required to answer. This limitation was regarded like similar limitations in state Codes, applicable to the county within which a defendant might be served or required to answer.

Under the Judiciary Act of 1887-88, prior to Ex parte Wisner, supra, as under the state Codes, the view entertained and followed was that an appearance, or any act of a defendant thus sued in the wrong forum, other than to appear specially to claim the exemption accorded him, would waive his right to object; but the jurisdiction of the court itself over the subject-matter and cause of action was ample and beyond question. In this apparent state of the law Ex parte Wisner, supra, was decided. This state of the law was developed, it is true, prior to the Judiciary Act of 1887-88. many decisions had been rendered prior thereto, holding that the act of 1887-88 had as one of its important purposes the limiting of the jurisdiction of the United States courts, but the exact point presented in Ex parte Wisner had not been previously considered by the United States Supreme Court.

This case holds, in brief, that the limitation of the venue provisions of the act of 1887-88, respecting the particular court within which an action must be brought, is jurisdictional in the same sense as the provisions defining the subject-matter of the jurisdiction of the United States courts, and that, therefore, if the action could not, in the first instance, have been brought in the federal court of the particular district to which it was removed, it could not be removed to that court. Mr. Chief Justice Fuller, delivering the opinion, also says that consent of parties could not waive this defect in jurisdiction. The facts were that Wisner, a citizen of Michigan, sued in a state court of Missouri a citizen of Louisiana, and the defendant, by timely application, removed the action to the United States court for the Eastern district of Missouri. The plaintiff thereupon, appearing specially for the purpose, moved to remand, which motion was overruled. An application was thereupon made to the United States Supreme Court for a writ of mandamus to compel the lower court to remand the case, and it was adjudged, as already stated, that the action was not removable, and that it should be remanded.

In the later case of In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164, the same facts were present, except that, after removal from the state court to the United States court, the plaintiff had appeared and filed an amended petition before making his motion to remand. It was held that he had, by this action, waived his privilege of objecting to the further exercise of jurisdiction by the United States court. Ex parte Wisner, in which the opinion had been expressed that the limitations of the venue provisions were jurisdictional in the strict sense and could not be waived, was overruled to this extent.

Several cases had been previously decided, holding that a party might waive the objection that the suit was brought in the wrong district, and several cases in conformity to In re Moore have since been decided. See Central Trust Company v. McGeorge, 151 U.S. 129, 132, 14 Sup.Ct. 286, 38 L.Ed. 98; Interior Construction Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; Western Loan Co. v. Butte Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101; Kreigh v. Westinghouse & Co., 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984. This is now undoubtedly the settled law.

As a result, however, of Ex parte Wisner and In re Moore, and numerous decisions of subordinate United States courts, following and applying the same, it seems to be settled law that an action brought in a state court may not be removed to a United States court, unless it could, in the first instance, have been brought in that court, despite the timely objection of a nonconsenting party, even though, by failure to object after removal, the right so to do is waived, and the United States court may, as a result of such waiver, acquire ample jurisdiction to proceed to final judgment.

In a case in which an alien is a plaintiff or defendant, a different question of law is involved, which is not settled or controlled by the same rules. The Judicial Code does not differ from the Judiciary Act of 1887, as amended in 1888, in the provisions pertinent to a determination of this question. Some changes have been made in the phraseology, and the three sections of the Judiciary Act have been divided into numerous sections in the Judicial Code. For practical purposes, however, it does not seem to me that any change of law was intended, and cases decided under the act of 1887-88 have the same weight as authority as those decided under the Judicial Code. I shall therefore make use only of the sections of the Judicial Code.

Section 24 of the Judicial Code, so far as pertinent to this question, provides, in substance, that District Courts shall have original jurisdiction of all suits (1) between citizens...