Matarazzo v. Hustis

• Decision Date: 18 March 1919
• Citation: 256 F. 882
• Parties: MATARAZZO v. HUSTIS.
• Court: U.S. District Court — Northern District of New York

256 F. 882

MATARAZZO v. HUSTIS.

United States District Court, N.D. New York.

March 18, 1919

Leary &amp Fullerton, of Saratoga Springs, N.Y., for plaintiff.

Jarvis P. O'Brien, of Troy, N.Y., for defendant.

RAY District Judge.

The plaintiff, Emilio Matarazzo, is, as yet, a citizen and subject of the kingdom of Italy, but now is and for some years has been an actual resident and inhabitant of the county of Saratoga state of New York. He has applied for citizenship by filing his first papers. He was appointed administrator of the estate of his deceased son, Ruffelo Matarazzo, by the surrogate and Surrogate's Court of the said county of Saratoga, N.Y., and as such brought this action under the provisions of the New York Code of Civil Procedure to recover damages alleged to have been sustained by him by reason of the death of said son, a resident of said county, caused, as alleged, by the negligence of the defendant, who as receiver appointed by the federal court in the state and district of Massachusetts was and is operating the Boston & Maine Railroad, which is a corporation of the said state, and of which state the defendant James H. Hustis is a citizen and a resident. The damages are laid at the sum of $15,000. The said railroad operates to some extent in the state of New York. The venue of the action so brought was laid in the said county of Saratoga, N.Y., which county is in the Northern district of New York. In the complaint the plaintiff stated he was a resident of said county of Saratoga.

The defendant, from the allegations of the complaint and the information he then had, assumed that the plaintiff was a citizen of the United States and of the state of New York and such were the allegations of the petition of removal. On this motion to remand the plaintiff states he is not a citizen of the United States, but an alien, a citizen and subject of the kingdom of Italy, and a resident and an inhabitant of said county of Saratoga, N.Y. The defendant moves to amend his petition of removal to accord with the facts, and that motion to amend is granted. Wilbur v R.J.C.C. & C. Co. (C.C.) 153 F. 662, 664; Southern Pac., etc., v. Stewart, 245 U.S. 359, 363, 38 Sup.Ct. 130, 203, 62 L.Ed. 345, 472.

On the main question the plaintiff contends that the cause is not a removable one, as the plaintiff is not a citizen of the United States or of the state of New York, but, as stated, a citizen and subject of the kingdom of Italy.

Under the Constitution of the United States (section 2, art. 3) the judicial power extends to all cases in law and equity 'between a state, or the citizens thereof and foreign states, citizens or subjects. ' The Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 (Comp. St. Sec. 968 et seq.)) provides (section 24 (Comp. St. Sec. 991)) that--

'The District Courts shall have original jurisdiction as follows: * * * Where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, * * * or * * * is between citizens of different states, or * * * is between citizens of a state and foreign states, citizens, or subjects.'

Hence this is a case to which the judicial power of the United States extends, and one of which the United States District Court has original jurisdiction. There is no chance for quibble over this language. The plaintiff is a citizen and a subject of the kingdom of Italy, a foreign state, and defendant is a citizen of the state of Massachusetts. The cause of action alleged arose in the Northern district of the state of New York, of which the plaintiff is an actual resident and inhabitant, and the suit is of a civil nature. The plaintiff brought his action in the county of Saratoga in that judicial district.

What suits may be removed from the state court to the United States court? The Judicial Code, defining removable causes, provides:

'Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. ' Section 28, Judicial Code, subdivision 2, title, The Judiciary, c. 3 (Comp. St. Sec. 1010).

The first subdivision of the section relates to 'any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority of which the District Courts of the United States are given original jurisdiction by this title,' etc. This suit, clearly, is one of the class 'any other suit of a civil nature,' and it is an action at law, and one of which the District Courts of the United States is given jurisdiction by 'this title.' Title, 'The Judiciary.'

Section 53 of the Judicial Code (Comp. St. Sec. 1035) provides:

'In all cases of the removal of suits from the courts of a state to the District Court of the United States such removal shall be to the United States District Court in the division in which the county is situated from which the removal is made.'

Hence this case, if removable, was removed to the proper District Court. It is now settled that the words 'for the proper district,' used in section 28 of the Judicial Code, refer to the 'proper district' to which a cause may be removed as stated in section 53 of the Judicial Code, and not to the 'proper district' for bringing such a suit originally, if brought in the District Court of the United States in the first instance. Ostrom v. Edison (D.C.) 244 F. 228. It would seem that the decided cases settle the question of the removability of the instant case. Matter of Tobin, Petitioner, 214 U.S. 506, 29 Sup.Ct. 702, 53 L.Ed. 1061. See, also, Matter of Nicola, 218 U.S. 668, 31 Sup.Ct. 228, 54 L.Ed. 1203; Rones v. Katalla Co. (C.C.) 182 F. 946, 947; Morris v. Clark Construction Co. (C.C.) 140 F. 756; Sherwood et al. v. Newport News & M.V. Co. et al. (C.C.) 55 F. 1; Manufacturers' Com. Co. v. Brown A. Co. (C.C.) 148 F. 308; Iowa L.G.M. co. v. Bliss et al. (C.C.) 144 F. 446; James v. Amarillo C.L. & W. Co. (D.C.) 251 F. 337; Louisville & N.R. Co. v. Western Union Tel. Co. (D.C.) 218 F. 91.

The Judicial Code not only fixes the place or district in which suits in the United States District Court are to be brought or commenced (sections 40 to 56 inclusive (Comp. St. Sec. 1022-1038)), but fixes the place or District Court into which a cause commenced in the state court of a state must be removed, if removed (section 53, Judicial Code).

The right to remove a cause commenced in a state court is purely statutory. Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; Ostrom v. Edison (D.C.) 244 F. 228. The place where suits brought in the United States courts must be brought is fixed by statute.

The right to be sued in a particular District Court of the United States is a personal privilege, and may be waived so far as jurisdiction of the person is concerned.

When the suit is of a local nature and involves reaching real estate or property of a fixed nature or character, it must be brought in the district in which such property is situated, if wholly in one district, but if such property is partly one one district and partly in another district of the same state, then the suit may be brought in either of such districts, and the court in which such suit is brought has jurisdiction of all the property in both districts. Section 55, Judicial Code (Comp. St. Sec. 1037).

In the case of actions of a local nature neither consent of the parties nor assumption of jurisdiction by the court, nor both together, can confer it. Minnesota v. Northern Securities Co., 194 U.S. 48, 62, 24 Sup.Ct. 598, 48 L.Ed. 870; Mansfield v. Swan, 111 U.S. 379, 4 Sup.Ct. 510, 28 L.Ed. 462; Parker v. Ormsby, 141 U.S. 81, 11 Sup.Ct. 912, 35 L.Ed. 654.

But this is outside the questions here.

If the plaintiff sues in the state court outside the jurisdiction in which he must have brought suit had he sued in the United States District Court, he cannot thereby defeat removal pursuant to section 53 of the Judicial Code for 'in all cases of the removal of suits from the courts of a state to the District Court of the United States such removal shall be to the United States District Court in the division in which the county is situated from which the removal is made. ' In this case the removal was made from the state court in Saratoga county in the Northern district of New York, in which county the plaintiff resided and in which county he laid the venue and commenced his action to the United States District Court of the Northern District of New York, and this was done pursuant to and in strict accordance with the provisions of section 53, Judicial Code. The right of removal was absolute even if the plaintiff could not have sued in that district. M. Hohenberg & Co. v. Mobile Liners (D.C.) 245 F. 169. In that case plaintiff sued defendant in the state court in a state of which defendant was not a resident. The defendant removed it to the United States District Court of the district in which the county in which the suit was brought was situated. The plaintiff moved to remand the cause. Held, he could not contest the removal on the ground that he could not have brought the suit in the District Court of the United States of that district over the defendant's objection.

Where an alien sues a citizen in a state court in which state such defendant does not reside, the defendant may remove the case into the United States court, and it will not be remanded. H. J. Decker, Jr., & Co. v. Southern Ry. Co. (C.C.) ...