Kramer v. Jarvis
| Decision Date | 21 December 1948 |
| Docket Number | Civ. No. 54-48. |
| Citation | 81 F. Supp. 360 |
| Parties | KRAMER v. JARVIS. |
| Court | U.S. District Court — District of Nebraska |
Ladd J. Hubka (of Hubka & Hubka), of Beatrice, Neb., for plaintiff.
Fred Vette (of Jack, Vette & Elliott), of Beatrice, Neb., for defendant.
This action for the recovery of a judgment, in amount largely exceeding $3,000.00, on account of personal injuries and expenses allegedly resulting from an automobile collision attributable to the defendant's negligence, was instituted on September 4, 1948 in the District Court of Johnson County, Nebraska, by the plaintiff, a citizen of Nebraska and a resident of Johnson County, therein, against the defendant, a citizen of Michigan. It was removed to this court on the ground of diversity of citizenship by the defendant in pursuance of a Petition for Removal, and upon the filing of a Bond for Removal, both filed in the state court on October 9, 1948. Summons requiring the defendant to answer on or before October 11, 1948 had been issued by the clerk of the district court of Johnson County, Nebraska, on September 8, 1948 of which a copy was filed in the office of the Secretary of State of Nebraska on September 10, 1948 and a copy delivered by registered mail to the defendant on September 11, 1948.
This court, upon its own motion, and by an order dated December 7, 1948, directed the consideration of the validity of its jurisdiction over the case. Counsel for both parties appeared at a hearing and presented their respective views upon the question.
The procedure pursued by the defendant in accomplishing the assumed removal, otherwise formally regular, was that formerly authorized by Act of March 3, 1911, C. 231, Section 29, 36 Statutes at Large 1095, Title 28 U.S.C.A. § 72. However, on September 1, 1948 (see Act of June 25, 1948, C. 646, § 38, 62 Statutes at Large 869), by the newly amended Judicial Code, that mode of procedure was repealed and was replaced by an entirely different method for the removal to the United States District Courts, of cases instituted in the state courts. Title 28 U.S.C.A. § 1446.
It is unnecessary on this occasion to point out in detail the distinctions between the two courses of action severally directed by the repealed, and by the presently effective, statutes. It is sufficient to observe two vital distinctions between them. In the first place, by the former practice, the petition and bond by which removal was initiated were required to be filed in the state court. They must now be filed in the appropriate United States District Court. Secondly, the time for the institution of the removal proceeding has been altered. Formerly, the petition for removal had to be filed "at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff". Title 28 U.S. C.A. § 72, now repealed, ut supra. In the present practice, the time for that initial filing is "within twenty days after commencement of the action or service of process, whichever is later". Title 28 U.S.C.A. § 1446(b), as now effective.
It is, therefore, obvious that the defendant did not take any of the procedural steps for removal required by Title 28 U.S.C.A. § 1446, and also that he initiated his action to obtain removal in the state court, more than twenty days after the service of process upon him.
In harmony, therefore, with many controlling decisions requiring the faithful and seasonable pursuit of the statutory steps for removal as a condition to the peremptory termination of the jurisdiction of state courts over actions properly instituted in them, this court considers that the case was improperly, improvidently and invalidly removed to this court. Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; Marking v. New St. Louis & Calhoun Packet Co., D.C.Ky., 48 F.Supp. 680; Ex parte Bopst, 4 Cir., 95 F.2d 828; Peavey v. Reed Co., D.C.N.Y., 41 F.Supp. 351. See authorities cited upon the point in Ransom v. Sipple Truck Lines, D.C.Iowa, 52 F. Supp. 521, 523.
However, not every defect in the observance of the statutory prescriptions of procedure or time for removal may be regarded as adequate in all circumstances to compel remanding action. If a case be of such character that it is lawfully removable — and this action is manifestly of that sort — then the steps by which removal may be accomplished are held to be procedural, "modal and formal"; and irregularities in their pursuit, and, in the case of the bond, its entire omission, have been considered to...
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Manas y Pineiro v. Chase Manhattan Bank, NA
...motion for summary judgment in this court, plaintiff has many times over lost her right to insist upon remand. See Kramer v. Jarvis, 81 F.Supp. 360, 361 (D.Neb.1948). Conversely, having chosen the state forum initially, plaintiff cannot be heard to object to remand now even if, having comme......
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Gratz v. Murchison
...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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Kramer v. Jarvis
...21, 1948, of the action to the state court on the ground that it was not brought here in a valid or proper manner, Kramer v. Jarvis, D.C.Neb., 81 F. Supp. 360, the clerk, on her own motion, taxed the docket fee in the course of her general taxation of costs. The motion followed. It is well ......
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Feller v. National Enquirer
...in response to a matter initiated by defendant; plaintiff has not initiated any litigation in the federal court. Cf. Kramer v. Jarvis, 81 F.Supp. 360, 361 (D.Neb.1948) (plaintiff's filing of wholly unnecessary and unauthorized reply to defendant's answer did not constitute waiver of defenda......