Marshall v. Navco, Inc.

• Citation: 152 F. Supp. 50
• Decision Date: 23 May 1957
• Docket Number: Civ. A. No. 10470.
• Parties: Little K. MARSHALL, Plaintiff, v. NAVCO, Inc., Defendant and Third Party Plaintiff (Mississippi Valley Barge Line Company, Defendant).
• Court: U.S. District Court — Southern District of Texas

152 F. Supp. 50

Little K. MARSHALL, Plaintiff, v. NAVCO, Inc., Defendant and Third Party Plaintiff

(Mississippi Valley Barge Line Company, Defendant).

Civ. A. No. 10470.

United States District Court S. D. Texas, Houston Division.

April 1, 1957.

Rehearing Denied May 23, 1957.

Mandell & Wright, F. S. Grossberg, Houston, Tex., for plaintiff.

Eastham & Dale, Clarence S. Eastham, Houston, Tex., for defendant and third-party plaintiff, Navco, Inc.

Baker, Botts, Andrews & Shepard, Frank G. Harmon, Houston, Tex., for defendant Mississippi Valley Barge Line Co.

KENNERLY, District Judge.

Plaintiff, Little K. Marshall, a seaman, filed this suit against his employer, defendant Navco, Inc., in a State Court under the Jones Act (Section 688, Title 46 U.S.C.A.). He sues for damages and maintenance because of injuries he claims to have received while working as a seaman for Navco, Inc. Navco, Inc. answered and in a third party proceeding in the case in the State Court sued the Mississippi Valley Barge Line Company (for brevity called "Barge Line Company"). Purporting to move under Section 1441, Title 28 U.S.C.A.¹ Barge Line Company has removed the case into this Court and plaintiff has moved to remand it to the State Court. This is a hearing under Local District Court Rule 25 of such motion to remand.

After such removal to this Court, Barge Line Company, invoking here the doctrine of forum non conveniens, has moved under Section 1404, Title 28 U.S. C.A., to transfer this case to a United States District Court nearer the place where plaintiff's alleged injuries occurred. Navco, Inc. has joined in such motion to transfer.

Both plaintiff's suit against Navco, Inc. and Navco, Inc.'s suit against Barge Line Company are suits in personam. From a review of the entire record in the case, including such motion to transfer, it appears to be doubtful whether either the State Court or this Court has acquired full jurisdiction over Barge Line Company, and whether any United States District Court to which this case might be transferred by this Court would acquire full jurisdiction over Barge Line Company. This, because Barge Line Company claims to be a citizen of the State of Delaware, and that it has never done business in Texas, etc. In view of this, and in view of the disposition here made of plaintiff's motion to remand, it does not seem either necessary or proper to now dispose of such motion to transfer.

Proceeding now to dispose of plaintiff's motion to remand.

(a) An examination of plaintiff's amended petition filed in the State Court discloses the following:

This suit brought, as stated, under the Jones Act was originally filed in the District Court of Harris County, Texas, 127th Judicial District. In his amended petition there filed, plaintiff alleges that on or about the 22nd day of December 1955, he sustained injuries while in the employ of defendant Navco, Inc. as a seaman and a member of the crew of the tug Marilyn, operated by Navco, Inc. That at the time of such injuries such tug had in tow, or was taking in tow, a barge. He claims that the injuries were caused by the negligence of Navco, Inc., its agents, servants and employees, and by the unseaworthiness of both such tug and barge. He sues for $102,850.

Plaintiff does not allege that there is diversity of citizenship between himself and Navco, Inc. He does not name his place of residence, nor say of what state, if any, he is a citizen. While he states that Navco, Inc. is a corporation doing business in Texas, etc., he does not allege that it is a citizen of Texas.

(b) An examination of the answer and third party petition of Navco, Inc. filed in the State Court discloses the following:

Defendant Navco, Inc., by its petition in the State Court, sought to bring into the State Court as a third party defendant, Barge Line Company, and seeks to recover from Barge Line Company, not a definite sum of money, but any sums of money which plaintiff may recover from Navco, Inc. In such petition it is not alleged that there is diversity of citizenship between it and plaintiff, or between it and Barge Line Company, or between Barge Line Company and plaintiff. It is alleged that each, Navco, Inc. and Barge Line Company, is duly incorporated and existing "under the laws of one of the States of the United States". It alleges that Barge Line Company had an agent in Houston upon whom process could be served.

1. I take it that it may be regarded as settled that the wording of plaintiff's amended petition in the State Court must be looked to in determining the removability into this Court of this case. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 93 L.Ed. 702; Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; Pullman Co. v. Jenkins, 305 U.S. 534, 538, 59 S.Ct. 347, 349, 83 L.Ed. 334.

2. Looking now to such amended petition, it appears that this suit, under the Jones Act (Section 688, Title 46 U.S.C.A.) was brought, and properly brought, in the State Court. It is not removable into a United States District Court under Section 1441, Title 28 U.S. C.A. It was not properly removed into this Court. For these reasons, among others, it should now be remanded to the State Court.

The case of Pate v. Standard Dredging Corporation, 5 Cir., 193 F.2d 498, is so clearly in point that I refer to it specially. Other cases are Engel v. Davenport, 1926, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Panama R. Co. v. Vasquez, 1926, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085; Great Northern Ry. Co. v. Alexander, 1918, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656; State of Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Chappell v. Waterworth, 155 U.S. 102, 15 S.Ct. 34, 39 L.Ed. 85; Texas & Pacific Ry. Co. v. Cody, 166 U.S. 606, 17 S.Ct. 703, 41 L.Ed. 1132; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218.

But Barge Line Company contends that this case became removable when Navco, Inc. filed its third party petition in the State Court in which it made Barge Line Company a third party defendant. It cites a line of cases² in which by action of the plaintiff himself therein, another cause of action was joined with the cause of action under the Jones Act, etc. Such cases are not applicable here.

In further support of such contention Barge Line Company filed supplemental brief citing additional cases.³ These cases apparently make it clear that the third party procedure in this case in the State Court was properly invoked, but it does not follow that this case thereby became removable into this Court.

3. But, independently of, and putting aside, the Jones Act, this case is not removable into this Court.

As has been pointed out, there is in plaintiff's amended petition no allegation of diversity of citizenship between plaintiff and Navco, Inc., and no allegation as to the citizenship of either plaintiff or Navco, Inc.⁴

Even if what is said in plaintiff's amended petition be regarded as an allegation that Navco, Inc. is a citizen of Texas, since the citizenship of plaintiff is not alleged, there is still no allegation of diversity of citizenship.

And if the citizenship of plaintiff had been alleged, this case would still not be removable because of Navco, Inc. being alleged to be of the same State where the action was brought.⁵

And if the wording of Navco, Inc.'s third party petition against Barge Line Company be looked to as well as plaintiff's amended petition, there is still to be found no allegation of diversity of citizenship between any of the three parties.⁶

But if diversity of citizenship be alleged, the case is still not removable and was not properly removed into this Court unless it be removable under Section 1441(c), Title 28 U.S.C.A. Barge Line Company contends that it is removable thereunder. I think it is not.

While Section 1441(c) has been variously construed by the courts, I think the construction given it by the Supreme Court in American Fire & Casualty Company v. Finn, supra, is controlling here and settles it that Navco, Inc.'s claim on cause of action against Barge Line Company is not a separate and independent claim or cause of action to plaintiff's claim or cause of action against Navco, Inc. Plaintiff in his amended petition against Navco, Inc.⁷ alleges a single wrong, i. e., injuries to his person, for which he seeks to recover from Navco, Inc. In its third party petition against Barge Line Company, Navco, Inc. seeks to recover any sums of money which plaintiff may recover against Navco, Inc.⁸ Under the rule stated in the Finn case I do not think the case is removable under Section 1441(c).

From what has been said it follows that plaintiff's motion to remand should be granted. Let appropriate order be drawn and presented.

On Motion for Rehearing

Barge Line Company's motion for rehearing is denied for all the reasons set forth in opinion filed April 1, 1957, and further because under Section 1441, Title 28 U.S.C.A., when 1441(a) and 1441(b) are considered together this case is not removable at all, if the citizenship of the parties is as alleged in Barge Line Company's petition for removal. See cases cited in Note 5 of such opinion.

Clerk will notify counsel to prepare and present proper order, quoting this memorandum.

1 Section 1441, Title 28 U.S.C.A., is as follows:

"Actions removable generally

"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United...