O. M. Greene Livestock Co. v. Azalea Meats, Inc., 75-1989
| Decision Date | 28 July 1975 |
| Docket Number | No. 75-1989,75-1989 |
| Citation | 516 F.2d 509 |
| Parties | O. M. GREENE LIVESTOCK COMPANY, Plaintiff-Appellant, v. AZALEA MEATS, INC., et al., Defendants-Appellees. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ben Kirbo, George W. Stacey, Bainbridge, Ga., for plaintiff-appellant.
Roy M. Lilly, Thomasville, Ga., for American Bank & Trust and Hartford.
Richard M. Kirby, Atlanta, Ga., for First National Bank of Atlanta.
Hobart E. Early, Atlanta, Ga., for Fed. Reserve.
Allen B. Fields, Jr., Palatka, Fla., for H. F. and H. C. Stillwell.
John R. Strother, Jr., Atlanta, Ga. for Finstad.
W. Hensell Harris, Jr., Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Don A. Langham, Alfred L. Evans, Jr., Asst. Attys. Gen., Atlanta, Ga., for Thomas T. Irvin, as Commissiner of Dept. of Agriculture.
Appeal from the United States District Court for the Middle District of Georgia.
Before WISDOM, BELL and CLARK, Circuit Judges.
The plaintiff, O. M. Greene Livestock Company, sued several Georgia and non-Georgia parties seeking redress for nonpayment, when the plaintiff delivered $93,000 worth of hogs to an insolvent buyer, Azalea Meats, Inc., in South Carolina. Buyers are in some circumstances required to be bonded, both under federal and state law. The plaintiff alleges, among other things, that it relied on a bulletin entitled "Livestock Dealers and Brokers With Effective Bonds" published by the Georgia Commissioner of Agriculture, when it sold to Azalea on credit.
The jurisdictional defect was obvious complete diversity was not present. To remedy this situation, Greene dropped all Georgia residents as defendants, including the Commissioner of Agriculture. The commissioner's insurer, however, remained a party defendant, and the commissioner remained in the case as a third-party defendant of his insurer, Hartford Accident & Indemnity Company, who had cross-claimed against the commissioner.
The district court granted summary judgment to Hartford, holding that Greene was not covered by the bond in any case, and could not have relied on the bond as a matter of law. We reverse and dismiss the complaint for lack of subject matter jurisdiction. 28 U.S.C. § 1332(c) reads:
For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided Further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.
This amendment was passed to remedy the congestion in the district courts arguably caused by Louisiana's and Wisconsin's Direct Action Statutes, which allow suits directly against an insurer without joining the insured as a party defendant. See Lumbermen's Mutual Casualty Co. v. Elbert, 1954, ...
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...finds no answer. Fortunately or unfortunately, the panel in Fortson did not mention, much less deal with, O.M. Greene Livestock Co. v. Azalea Meats, Inc., 516 F.2d 509 (5th Cir.1975), case that, unless and until overruled by the Supreme Court or by an en banc Eleventh Circuit, is the law of......
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...statute to effect the legislative intent that nominally diverse actions be denied a federal forum. See O. M. Greene Livestock Co. v. Azalea Meats, Inc., 516 F.2d 509 (5th Cir. 1975); McMurry v. Prudential Property & Cas. Ins., 458 F.Supp. 209 (E.D.Mich.1978). Yet this statutory construction......
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Broyles v. Bayless, 88-8607
...51, 75 S.Ct. at 154 (insurance company real party in interest when plaintiff brings direct action); O.M. Greene Livestock Company v. Azalea Meats, Inc., 516 F.2d 509, 510 (5th Cir.1975) (insurance company real party in interest when plaintiff voluntarily dismissed insured). This paradoxical......
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McMurry v. Prudential Property & Cas. Ins. Co.
...withdrawing federal jurisdiction in the defined cases, and in most cases, the courts have done so. See O. M. Greene Livestock Co. v. Azalea Meats, Inc., 516 F.2d 509, 510 (5th Cir. 1975); Hernandez v. Travelers Insurance Co., 489 F.2d 721, 723 (5th Cir. 1974), cert. denied, 419 U.S. 844, 95......