Marks v. Pennsylvania R. Co., Civil Action No. 4012.

• Decision Date: 10 October 1944
• Docket Number: Civil Action No. 4012.
• Parties: MARKS et al. v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Eastern District of New York

57 F. Supp. 2

MARKS et al. v. PENNSYLVANIA R. CO.

Civil Action No. 4012.

District Court, E. D. New York.

October 10, 1944.

T. Bernard Eisenstein, of New York City, for plaintiffs.

Burlingham, Veeder, Clark & Hupper, of New York City, for defendant, appearing specially.

BYERS, District Judge.

The defendant moves to reargue a motion to dismiss on the ground that the Court should refuse to take jurisdiction of the controversy, as a matter of discretion.

The action, which was removed to this Court, was brought in the Supreme Court of the State of New York by residents of California as plaintiffs against a Pennsylvania corporation, in order to recover damages upon an alleged cause of action arising outside of the state. So much and no more is stated in the defendant's notice of motion; there is no affidavit in support thereof containing a statement of facts relied upon to induce the Court to grant the same relief which it says would have been afforded to it by the New York Supreme Court.

The theory of the defendant's motion is that, since as a matter of discretion the State Court could have refused to entertain jurisdiction of the case (Murnan v. Wabash R. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Gregonis v. Philadelphia & R. Coal & Iron Co., 235 N.Y. 152, at page 160, 139 N.E. 223, 32 A.L.R. 1), this Court should similarly decline to entertain the cause.

A memorandum decision was filed, denying the motion as follows:

"9/9/44 In the absence of any explanation of defendant's failure to seek dismissal in the State Court before removal, this motion will be denied since it purports to be addressed to a kind of ancillary discretion."

In behalf of reargument, it is pointed out that, had the motion been made in a State Court and denied, the defendant would have lost its opportunity to remove the cause to this Court, according to: Martin v. Baltimore & O. R. Co., 151 U.S. 673, at pages 686 and 687, 14 S.Ct. 533, 38 L.Ed. 311; Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517; Arrigo v. Commonwealth Casualty Co., D.C., 41 F. 2d 817; Wofford v. Hopkins, D.C., 45 F. Supp. 257, at page 260; and Seager v. Maney, D.C., 13 F.Supp. 617.

Todd v. S. A. Healy Co., D.C., 49 F.Supp. 584, is perhaps to the contrary; there a special appearance was involved on the part of a non-resident defendant corporation in a Kentucky Court.

Here the defendant was unwilling to hazard its right to remove the cause to this Court, in face of a possibly adverse outcome of an attempt to induce the State Court to decline to exercise jurisdiction.

In none of the cases cited by defendant was this precise question involved, for in all of them the basis of the motion in the State Court was that as a matter of law the controversy could not there proceed because of an underlying infirmity such as a divided corporate domicile of the defendant, or the dissolution of the defendant prior to suit, or failure to effect service on the proper corporate official, and the like. Manifestly it would be improper to condone any...