Marking v. New St. Louis & Calhoun Packet Co.

• Decision Date: 04 February 1943
• Docket Number: No. 507.,507.
• Citation: 48 F. Supp. 680
• Parties: MARKING v. NEW ST. LOUIS & CALHOUN PACKET CO.
• Court: U.S. District Court — Western District of Kentucky

48 F. Supp. 680

MARKING v. NEW ST. LOUIS & CALHOUN PACKET CO.

No. 507.

District Court, W. D. Kentucky.

February 4, 1943.

Rollin Gibbs and Jones, Keith & Jones, all of Louisville, Ky., for plaintiff.

Leo J. Sandman, of Louisville, Ky., for defendant.

MILLER, District Judge.

This action is before the court on the plaintiff's motion to remand.

The petition, which was filed in the state court, seeks to recover damages from the defendant in the amount of $11,172 for personal injuries alleged to have been sustained by the plaintiff while a passenger on a river steamer owned and operated by the defendant on the Ohio River. The cause of action is based upon the alleged negligence upon the part of the defendant and is one in personam. The defendant's petition to remove to the United States District Court was originally defective in that neither the complaint nor the petition for removal showed any diversity of citizenship. It has now been amended to correct that defect and the parties have agreed that it may be considered on the present motion in its amended form. In addition to showing diversity of citizenship and matter in controversy in excess of $3,000 exclusive of interest and costs it specifically alleges that the cause involves a matter of admiralty and maritime cognizance which lies exclusively within the jurisdiction of the United States District Court.

If this action was one within the exclusive jurisdiction of the Federal Court neither the defendant's petition to remove nor the plaintiff's motion to remand would be well taken, but the court should on its own motion dismiss the action for lack of jurisdiction. If the state court in which an action is filed is without jurisdiction the United States District Court does not acquire jurisdiction over the subject-matter by the removal of the action to the District Court. "The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction." Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671; Venner v. Michigan Central R. R. Co., 271 U.S. 127, 131, 46 S.Ct. 444, 70 L.Ed. 868.

Such an action as the present one is, however, not one exclusively within the federal jurisdiction. While a proceeding in rem in admiralty is within the jurisdiction of the Federal Court, yet an action in personam for damages occurring on a navigable river is within the concurrent jurisdiction of the state court. Rounds v. Cloverport Foundry & Machine Co., 159 Ky. 414, 167 S.W. 384, Ann.Cas. 1915D, 40; Id., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 68 L.Ed. 582. The motion therefore presents the usual question of whether or not an action properly filed in the state court and thereafter removed to the United States District Court should be remanded to the state court under the provisions of Sections 71 and 72, Title 28 U.S.C.A.

Plaintiff contends that the action should be remanded because the petition for removal was not filed within the time required by the statute. Section 72, Title 28 U.S.C.A. provides that the petition for removal must be filed in the state court "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." Section 451.080 of the Kentucky Revised Statutes 1942 provides that "Defense to a civil action shall be filed within twenty days after actual service of the summons in the county where the court sits, or within thirty days after service elsewhere in the state, and the summons shall so state." For many years there has been a rule in the Jefferson Circuit Court where this action was filed to the effect that when the time for filing an answer has expired the plaintiff may place the action upon the call docket by leaving a written memorandum any Monday in the Clerk's office to that effect, following which the action will be called on the succeeding Friday, at which time the defendant is required to plead or a judgment can be taken against him by default. This procedure is constructive notice to all defendants before the court that a motion for a judgment by default will be entertained upon failure of the defendant to plead. The summons was served on the defendant on May 30, 1942. After the expiration of the 20 days required by the statute the plaintiff placed the action on the call docket of June 26, 1942, for an answer. On or about June 25, 1942, the present attorney for the defendant called the plaintiff's attorney on the phone and stated in substance that the arrangements for his representation of the defendant in the case had not been completed and that he would like for the plaintiff's attorney to take no order in the case when it was called on the following day. The plaintiff's attorney so agreed and when the case was called on June 26, 1942, it was dropped from the call docket without any action being taken. June 26, 1942, was the last call day before the summer recess, and the next call day following the summer recess was not until some time in September. On Monday, September 14, 1942, the plaintiff again filed the necessary notice to have the case called on the call docket of Friday September 18, 1942. On September 18, 1942, the defendant filed its petition and bond for removal. The order of removal was thereafter entered by the state court judge. The defendant contends that under the rules of court above referred to, coupled with his telephone conversation with the plaintiff's attorney, the petition for removal was filed in...