Lange v. Chicago, RI & PR Co.

• Citation: 99 F. Supp. 1
• Decision Date: 22 May 1951
• Docket Number: Civ. No. 1-82.
• Parties: LANGE v. CHICAGO, R. I. & P. R. CO.
• Court: U.S. District Court — Southern District of Iowa

99 F. Supp. 1

LANGE v. CHICAGO, R. I. & P. R. CO.

Civ. No. 1-82.

United States District Court S. D. Iowa, Davenport Division.

May 22, 1951.

Herschel G. Langdon (of Herrick & Langdon), Des Moines, Iowa, for plaintiff.

A. B. Howland (of Gamble, Read, Howland, Gamble & Riepe), Des Moines, Iowa, for defendant.

RILEY, District Judge.

This matter comes on to be heard upon the plaintiff's motion to remand the case to the District Court of Iowa in and for Muscatine County. The matter has been fully presented by counsel, both orally and in comprehensive written briefs.

It is recognized that the right of removal and the right initially for the defendant to have started its action in this court exists solely by reason of congressional enactment. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226.

Plaintiff commenced an action in the District Court of Iowa, in and for Muscatine County, for the recovery of $816 claimed as damages sustained in a collision with defendant's train at a railroad crossing. Defendant accompanied its answer with a counterclaim for $3300 damages alleged to have been sustained to its equipment. Each claim is bottomed on the negligence of the other party.

Plaintiff's action, in the absence of the counterclaim, did not permit removal because, despite diversity of citizenship, the jurisdictional amount was not initially stated. Defendant's counterclaim was compulsory under the Iowa Rules of Civil Procedure, Rule 29. By appropriate pleading in its answer and counterclaim, defendant absolved itself from the charge of voluntary submission to the jurisdiction of the State court, made appropriate allegations of its purpose to remove, filed a timely and sufficient petition and bond for removal, and did remove.

The diversity of citizenship is not questioned. The only question here is whether in determining the jurisdictional amount, consideration may be given to that asked in the defendant's counterclaim.

Plaintiff contends that the only amount to be considered in resolving the question of the right to remove is that claimed by plaintiff in his "initial pleading setting forth the claim for relief upon which such action or proceeding is based * * *." Title 28 U.S.C.A. § 1446(b). He urges that Congress limited the authorization by the language quoted above and we may not enlarge by interpretation. We believe that what we here decide does not enlarge — it but recognizes — the congressional purpose to confer the right of removal on a defendant when the prescribed diversity of citizenship and matter in controversy exist.

Title 28 U.S.C.A. § 1332 confers on this court the obligation to accept jurisdiction where the requisite tests are met. Certainly we may not avoid nor divest ourselves of that jurisdiction by an over-strict construction of the technique provided by Congress for getting from the State court to this court. It has been said that a duty declared by Congress does not evaporate for want of a formulated sanction. See in this connection, Texas & N. O. R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 569, 50 S.Ct. 427, 433, 74 L. Ed. 1034, where in discussing a definite prohibition inserted by Congress in an Act, the court said: "As the prohibition was appropriate to the aim of Congress, and is capable of enforcement, the conclusion must be that enforcement was contemplated."

Likewise, it may be said of Section 1332 that if the jurisdiction was appropriate to the aim of Congress and is capable of enforcement, the conclusion must be that enforcement was contemplated. Surely it may not be contended that it was the intention of Congress to confer jurisdiction on this court by Section 1332 to entertain civil actions of the nature there described, between citizens of different states, and then deprive them of the machinery to reach our jurisdiction.

In the instant case the defendant had no alternative under the Iowa practice, Rule 29, supra, but to assert or lose forever a right to assert the counterclaim in the action commenced in the State court. The "matter in controversy" here is not the amount which the plaintiff claims, but is also that which under necessity the defendant must assert to be litigated if it is to resist the plaintiff's demands and enforce its own. The protection of its rights compels the assertion of its demands. It is deprived of any choice.

The Iowa Rules of Civil Procedure, rule 29, made it compulsory for this defendant when sued in this action to assert "* * * a counterclaim for every cause of action then matured, and not the subject of a pending action, held by the pleader against any opposing party and arising out of the transaction or occurrence that is the basis of such opposing party's claim * * *. A final judgment on the merits shall bar such a counterclaim, although not pleaded."

This gave to the defendant no choice in the state court but to assert or lose its counterclaim. It...