Lee Foods Division, Consolidated Grocers Corp. v. Bucy

• Decision Date: 19 June 1952
• Docket Number: No. 671.,671.
• Citation: 105 F. Supp. 402
• Parties: LEE FOODS DIVISION, CONSOLIDATED GROCERS CORP. v. BUCY.
• Court: U.S. District Court — Western District of Missouri

105 F. Supp. 402

LEE FOODS DIVISION, CONSOLIDATED GROCERS CORP. v. BUCY.

No. 671.

United States District Court, W. D. Missouri, St. Joseph Division.

June 19, 1952.

John W. Newhart of Latham & Newhart, Savannah, Mo., Henry G. Eager of Blackmar, Newkirk, Eager, Swanson & Midgley of Kansas City, Mo., for plaintiff.

Theodore M. Kranitz of Kranitz & Kranitz of St. Joseph, Mo., for defendant.

DUNCAN, District Judge.

The legal question involved in this controversy is apparently one of first impression, and has not heretofore been before the court in so far as the parties to the action and the court have been able to determine.

The cause of action was instituted by the non-resident plaintiff in a Magistrate's Court of Andrew County, Missouri, by filing with the clerk of that court on March 2, 1952, a statement of account in the sum of $402.13. Service was duly had on the defendant Raymond W. Bucy in accordance with the laws of the state.

Thereafter on March 26, 1952 the defendant filed application and affidavit for change of venue from the Magistrate's Court, and in accordance with § 517.520, RSMo 1949, V.A.M.S. the Magistrate certified and transferred the case to the Circuit Court of Andrew County, Missouri, where it was duly docketed.

Under the laws of the State of Missouri, where there is but one magistrate in any county, a change of venue taken from said magistrate requires the certification of the cause to the Circuit Court.

Thereafter on April 3, 1952 defendant filed and caused to be served upon the plaintiff, an answer and counterclaim in two counts. Count I alleges a claim against the plaintiff on account of an alleged publication by the plaintiff of purported false and libelous words contained in an alleged advertisement appearing in the Savannah Reporter and Andrew County Democrat, newspapers, and fixes damages at the sum of $20,000.

Count II of the counterclaim claims damages against the plaintiff because of the breach of an alleged contract, constituting and recognizing the defendant as the exclusive agent, seller and dealer for plaintiff's products and merchandise in Savannah, Missouri, and seeks damages on account thereof, in the sum of $15,000.

Thereafter, and within the time fixed by law, plaintiff caused the case to be removed to this court. The defendant has filed Motion to Remand, and that is the question now before the court.

It is the contention of the defendant that under § 1441, Title 28 U.S.C.A. only a defendant or defendants may remove a case from a state to a federal court. Plaintiff contends that under subsection (c) of the above statute, a plaintiff under circumstances recited in this case, may avail itself of the jurisdiction of the United States Courts by removal. The subsection provides:

"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

It is conceded by the plaintiff that prior to the addition of this subsection to the removal statute by the revision of the Code in 1948, a non-resident plaintiff who had availed itself of the jurisdiction of a state court, could not thereafter remove such case to the Federal court upon the filing by a defendant or defendants of a counterclaim involving an amount of $3000 or more.

With the exception of a comparatively short period of time, the removal statute has limited the right to remove to nonresident defendants since the judiciary Act of 1789.

"During the period from 1875 to 1887 the statute governing removals, 18 Stat. 470, 28 U.S.C.A. § 71 note, specifically gave to `either party' to the suit the privilege of removal. At all other periods since the adoption of the judiciary Act of 1789 the statutes governing removals have in terms given the privilege of removal to `defendants' alone, * * *." Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214.

There was one exception to this rule. This was in the amendment of 1867, 14 Stat. 558, when there was added to the statute the additional ground of removal for prejudice and local influence. Under this provision, either party was granted the right to remove.

Prior to 1941 some courts had held that a plaintiff under such circumstances as described in this case, had the right to remove. They held in effect that a plaintiff became a defendant insofar as the jurisdictional amount was concerned, and permitted the cause to be removed.

But this question was definitely settled by the Supreme Court of the United States in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214. In that case the facts were almost identical with the facts involved here * * * a non-resident plaintiff had instituted suit in the state court against a resident defendant in an amount not sufficient to confer jurisdiction on the Federal court.

Thereafter the defendant filed counterclaim for an amount in excess of the jurisdictional amount, and the plaintiff sought to remove. The District Court denied the motion to remand, the case was tried, and on appeal the Fifth Circuit 115 F.2d 880, reversed the District Court, and on certiorari to the Supreme Court of the United States, the action of the Court of Appeals was affirmed. The court stated:

"We granted certiorari March 10, 1941, 312 U.S. 675, 61 S.Ct. 739, 85 L. Ed. 1116, to resolve the conflict of the decision of the court below and that of Waco Hardware Co. v. Michigan Stove Co., 5 Cir., 91 F. 289; * * *."

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