Marsden v. Southern Flight Service, Inc.
| Decision Date | 10 March 1961 |
| Docket Number | No. C-152-G-60.,C-152-G-60. |
| Citation | 192 F. Supp. 418 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Lawrence A. MARSDEN, Plaintiff, v. SOUTHERN FLIGHT SERVICE, INC., Aircraft Finance Company and First National Bank of Springfield, Defendants. |
Schoch & Schoch, High Point, N. C., for plaintiff.
Grier, Parker, Poe & Thompson, Charlotte, N. C., for defendants Aircraft Finance Co. and First Nat. Bank of Springfield.
This matter is before the court on the motion of the plaintiff to remand the action to the state court for trial.
The plaintiff, Lawrence A. Marsden, a citizen and resident of North Carolina, instituted this declaratory judgment action in the Superior Court of Guilford County, North Carolina, High Point Division, seeking a declaration that a chattel mortgage held by the defendants, Aircraft Finance Company and First National Bank of Springfield, is inoperative against the plaintiff. The defendant, Aircraft Finance Company, is a Delaware corporation, with its principal office and place of business in Springfield, Illinois, and the defendant, First National Bank of Springfield, is a banking corporation with its principal office and place of business in Springfield, Illinois. Southern Flight Service, Inc., a North Carolina corporation with its principal place of business in Mecklenburg County, North Carolina, was joined as a defendant on the allegation that the plaintiff purchased the aircraft in question from said defendant on January 21, 1960.
The two non-resident corporations timely filed a petition for removal and caused the case to be removed to this court, showing diversity of citizenship between the petitioners and plaintiff, and a jurisdictional amount in controversy. The plaintiff thereafter moved to remand the case to the Superior Court of Guilford County, High Point Division, on the grounds that it was not a removable action by reason of the fact that there was no diversity of citizenship between the plaintiff and all the defendants.
The plaintiff alleges in his complaint that on January 21, 1960, by bill of sale, the defendant, Southern Flight Service, Inc., sold and transferred to him a 1958 Beachcraft Airplane for the sum of $20,400, and that the bill of sale was duly recorded with the Federal Aviation Agency on October 6, 1960; that on or about May 18, 1960, the defendant, Southern Flight Service, Inc., executed a note in the amount of $33,497.28 to the defendant, Aircraft Finance Company, and secured same by a chattel mortgage on the same 1958 Beachcraft Airplane which had previously been purchased by the plaintiff; that on the same day, May 18, 1960, the defendant, Aircraft Finance Company, assigned said note and chattel mortgage to the defendant, First National Bank of Springfield, and that the chattel mortgage and assignment were recorded with the Federal Aviation Agency on May 23, 1960; that the Southern Flight Service, Inc., is in default on the note and the First National Bank of Springfield has made demand upon the plaintiff for possession of said aircraft; that the defendants, Aircraft Finance Company and First National Bank of Springfield, before the acquisition of their lien, had actual notice of the prior sale of said aircraft to plaintiff; and that by reason of actual notice of the prior sale of said aircraft to the plaintiff, the subsequent chattel mortgage does not constitute a valid lien. The complaint prays that the chattel mortgage held by the non-resident defendants be declared inoperative against the plaintiff.
In their removal petition, filed on November 14, 1960, the non-resident defendants assert that the controversy is entirely between them and the plaintiff; that no relief is sought against Southern Flight Service, Inc., and said resident defendant is not a real party in interest in the dispute, and is at most a formal or nominal party. As an additional ground for removal, the non-resident defendants assert that the action involves a controversy in which their rights are founded on laws of the United States, to-wit, the Aviation Act of 1958 (49 U.S. C.A. § 1403), which provided for the recordation of aircraft ownership.
The question of whether the case arises under the laws of the United States must be decided on the basis of whether a federal question is present on the face of the complaint, unaided by answer or removal petition. The fact that in subsequent proceedings it might be possible or probable that a federal question will arise is not a basis to support federal jurisdiction. Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, and Louisville & National R. R. Co. v. Motley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126. Unless a federal question appears from the face of the complaint, the defendants must rely upon the state courts for protection of their rights, which courts are "just as much bound as are the federal courts to give effect to the laws of the United States, and in a case involving those laws are subject to review by the Supreme Court of the United States." Allen v. Southern Ry. Co., D.C., 114 F.Supp. 72, 75. Also see Nello L. Teer Company v. J. A. Jones Construction Co., D.C.M.D.N.C.1958, 160 F.Supp. 345, and the authorities therein cited.
An examination of the complaint reveals that the plaintiff has nowhere laid claim to any right or remedy given him by federal law. No reference is made to anything other than a bill of sale executed and delivered by the Southern Flight Service, Inc., a North Carolina corporation, to the plaintiff, a citizen and resident of this State, and the subsequent execution of a note and chattel mortgage by the Southern Flight Service, Inc., to the non-resident defendants. The plaintiff simply contends that its bill of sale has priority over the subsequently executed chattel mortgage, particularly when the non-resident defendants had actual notice of plaintiff's ownership of the aircraft.
It is concluded that no federal question appears upon the face of the complaint and that the case was not removable upon that ground.
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Folts v. City of Richmond
...be disregarded. Tri-Cities Newspaper, Inc. v. Tri-Cities P.P. & A. Local 349, 427 F.2d 325 (5th Cir. 1970); Marsden v. Southern Flight Service, Inc., 192 F.Supp. 418 (M.D.N.C. 1961). The Court finds, however, that the Kemp defendants are not merely formal or nominal parties. Each is a membe......