Kraus v. Chicago, B. & QR Co.

• Decision Date: 12 January 1925
• Docket Number: No. 1490.,1490.
• Citation: 3 F.2d 277
• Parties: KRAUS v. CHICAGO, B. & Q. R. CO. et al.
• Court: U.S. District Court — District of Wyoming

3 F.2d 277 (1925)

KRAUS v. CHICAGO, B. & Q. R. CO. et al.

No. 1490.

District Court. D. Wyoming.

January 12, 1925.

H. C. Brome and Thomas M. Hyde, both of Basin, Wyo., and W. L. Walls, of Cheyenne, Wyo., for plaintiff.

E. T. Clark, of Billings, Mont., and A. C. Campbell, of Cheyenne, Wyo., for defendants.

KENNEDY, District Judge.

This cause is before the court upon a motion to remand. It appears that the suit was instituted in the district court of the Fifth judicial district in and for the county of Big Horn, state of Wyoming, against the Chicago, Burlington & Quincy Railroad Company and one F. D. Stone, one of its locomotive engineers, seeking damages against the defendants on account of their joint negligence in the operation of a train of cars at Grey-bull, in said county of Big Horn, in consequence of which plaintiff suffered injuries.

Within the time permitted by statute, the defendant Chicago, Burlington & Quincy Railroad Company filed its petition for removal of the cause to this court, duly verified, and the plaintiff in turn here filed his motion to remand. The grounds of the removal, as alleged in the removal petition, are that the defendant Stone is fraudulently joined as a party to the cause for the purpose of defeating the other defendant in its right of removal, and that a separable controversy exists between the plaintiff and the railroad defendant.

The substance of the motion to remand is that it appears upon the face of the record that this court has no jurisdiction for the reason that the plaintiff and the defendant Stone are both residents of the state of Wyoming, that the suit was properly brought in the state court, and that it appears from the face of the record that the suit is not one which may be properly removed from the state court to the United States court.

Fraudulent joinder in this class of cases as a cause for removal does not appear to be a statutory ground, but has grown up to the stature of a full-fledged doctrine through court decision. In Rose on Federal Jurisdiction and Procedure (2d Ed.) at section 285, page 334, is found the following language:

"A much more common way, however, of preventing the removal of a case from the state to the federal courts, is for the plaintiff to join in one action the nonresident defendant with others who are residents. This has become not unusual in negligence cases. Where, for example, some one has suffered an injury upon a railroad operated by a nonresident corporation, the plaintiff may bring suit against the railroad, uniting as defendants some of its employees who happen to be citizens of the state."

In speaking of this subject the Supreme Court, through Mr. Justice Day, in the case of Alabama Southern Ry. v. Thompson, 200 U. S. 206, at page 218, 26 S. Ct. 161, 165, 50 L. Ed. 441, 4 Ann. Cas. 1147, says:

"It is to be remembered that we are not now dealing with joinders, which are shown by the petition for removal, or otherwise, to be attempts to sue in the state courts with a view to defeat federal jurisdiction. In such cases entirely different questions arise, and the federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the federal courts of the protection of their rights in those tribunals."

Where questions of fact arise in connection with the removal of a cause, those questions are determinable by the federal courts. Burlington, Cedar Rapids and Northern Railway Company v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159. Manifestly the question of fraudulent joinder is a question of fact, which in no way appears from the original declaration in the cause, or otherwise upon the record, except in the allegation of the petition for removal. This verified petition, alleging the fraudulent joinder in the case at bar, therefore tenders an issue to the plaintiff; but the issue appears to be in no way met by the plaintiff, in its motion to remand or otherwise, as in the motion to remand the plaintiff relies solely upon his legal rights, which may appear upon the face of the declaration or the record in the cause. In regard to a similar situation, the Circuit Court of Appeals of the Sixth Circuit, in the case of Dishon v. Cincinnati, N. O. & T. P. Ry. Co., 133 F. 471, at page 475, 66 C. C. A. 345, 349, says:

"No answer was filed; no issue in any other way was taken. The plaintiff contented himself with making a motion to remand, and which only raised a legal question, namely, whether, upon the facts stated in the petition for removal, taken in connection with the record, a case for removal was made out."

That court then enters upon a discussion of the holding of various courts in the cases there cited, to the effect that, if no issue is joined upon the question of fraudulent joinder, there is no question of fact before the court to be determined, and that the verified petition for removal, alleging such fraudulent joinder for the purpose of defeating the right of removal, is sufficient to sustain the charge. Upon this ground, therefore, the motion to remand must be overruled.

In the view which the court has taken upon the question of fraudulent joinder, it would seem to be unnecessary to consider the question of separable controversy, and yet it is a matter which has been so frequently before this court that an indication of the court's views for the information of future litigants might be advisable, as in such former cases, where the question has been extensively presented, situations have arisen which likewise made a decision upon the point unnecessary. In approaching this question it becomes apparent that the first matter to be considered is where to look for the rule governing joint and separable controversies. Rose on Federal Jurisdiction and Procedure (2d Ed.) at section 385, page 335, lays down the following rule:

"Whether the declaration makes out a...