Marsh v. Tillie Lewis Foods, Inc.

• Decision Date: 31 August 1966
• Docket Number: Civ. No. 66-58W.
• Citation: 257 F. Supp. 645
• Parties: Max F. MARSH, Plaintiff, v. TILLIE LEWIS FOODS, INC., Defendant.
• Court: U.S. District Court — District of South Dakota

257 F. Supp. 645

Max F. MARSH, Plaintiff, v. TILLIE LEWIS FOODS, INC., Defendant.

Civ. No. 66-58W.

United States District Court D. South Dakota, W. D.

August 31, 1966.

Costello, Porter, Hill, Banks & Nelson, Rapid City, S. D., for plaintiff.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for defendant.

DECISION

BECK, District Judge.

The plaintiff postures his motion to remand on the premise that the amended complaint filed in this court after the filing of the petition to remove and the bond and this court's order approving both and accepting the petition, but before that removal proceeding had been effected, 28 U.S.C.A. Sec. 1446(e), gives rise to a necessary deduction, that the amendment reducing the amount in controversy below the jurisdictional $10,000 requirement, 28 U.S.C.A. Sec. 1332(a), actually operated as an amending procedure in the state court and since such an amendment there, under Cavanaugh v. Atchison, T. & S. F. Ry. Co., 103 F.Supp. 855 (D.C.Mo.1952), was held to defeat federal jurisdiction, like effect should be given to an amendment when made in the court to which it is removed.¹

Controlling, instead, according to the defendant, is the thesis in Shenandoah Chamber of Progress v. Frank Associates, 95 F.Supp. 719 (D.C.Pa.1950) that:

"* * * the removal is effective for all purposes as of the time of the filing of the removal petition in the United States Courts."

Also the rule therein espoused that compliance with the requirements of that subsection operated retroactively to the date of the filing of the petition and bond for removal and in conjunction therewith, another argument against the motion, that the plaintiff lost whatever rights he may have had in the state court under Cavanaugh, when he proceeded after the filing of the petition to amend pursuant to Fed.R.Civ.P. 15(a).

Neither one of those cases can be held authoritative, however, since the pronouncements in Shenandoah were dictums only, and the amendment under Cavanaugh treated as if it had wrought no change.

Subsection (e) in its original form,² particularly that part thereof which specifies that compliance "* * * shall effect the removal and the State court shall proceed no further unless the case is remanded", implicitly gave rise to an inference, that jurisdiction during the interim between the filing of the removal petition and compliance with the subsection, was dual in character and that relevant state court procedure when initiated during that time period was permissive as well as operative. (emphasis supplied). The subsection before the amending, even so according to the cases, poses ambiguities, conflicts and divergencies too, on the part of the courts as to its meaning and generally the existence of removal proceeding uncertainties not only as to the extent of a state court's jurisdiction during the removal period, but also as to the time when its powers under such jurisdiction could be exercised.

Dolan v. F. H. McGraw & Co., 81 F. Supp. 599 (D.C.N.Y.1948) and Cavanaugh, as instances of such variations in the case law status before the amendment, held the removal period to be more than twenty days. Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 717, 85 L.Ed. 1044 (1941) commenting on the earlier case of Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed. 1036³, makes the observation:

"There we held that an order of a federal district court remanding the cause to the state court was not reviewable directly or indirectly, and affirmed the judgment of the state court even though it had been secured by default. While the opinion does not expressly consider the effect of a petition for removal on subsequent proceedings in the state court, the clear import of the decision is that the proceedings are valid if the case was not in fact removable. See Southern Pacific Co. v. Waite, D.C., 279 F. 171; Commodores Point Terminal Co. v. Hudnall, D.C., 279 F. 606, 607; First National Bank of Manhattan v. King Wrought Iron Bridge Co., 9 Fed.Cas. p. 88, No. 4,803",

and to this the court adds another, p. 569, 61 S.Ct. p. 718:

"If in cases like the present one, the state court is assured that the federal court will decide promptly the question of removability, it is better practice to await that decision (Chesapeake & Ohio Ry. Co. v. McCabe, 213 U.S. 207, 29 S.Ct. 430, 53 L.Ed. 765; Baltimore & Ohio R. Co. v. Koontz, supra 104 U.S. 5, 26 L.Ed. 643), but we can not say that failure to do so is a denial of a federal right if the cause was not removable."

Such case law history was before the Congress as it passed the amendment on May 24, 1949, which since and now is in the following form:

"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded."

Thus, in promptly after the filing, substituted...