McAfee v. PHILLIPS PETROLEUM COMPANY, 1716.

• Decision Date: 17 June 1969
• Docket Number: No. 1716.,1716.
• Citation: 300 F. Supp. 651
• Parties: Lyle E. McAFEE, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, a Corporation, Defendant.
• Court: U.S. District Court — District of Montana

300 F. Supp. 651

Lyle E. McAFEE, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, a Corporation, Defendant.

No. 1716.

United States District Court D. Montana, Helena Division.

June 17, 1969.

John V. Potter, Jr., White Sulphur Springs, Mont., Patrick F. Hooks, Townsend, Mont., for plaintiff.

Jack L. Lewis, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendant.

OPINION AND ORDER

RUSSELL E. SMITH, Chief Judge.

For the reasons stated plaintiff's motion to remand is granted.

Plaintiff, a Montana citizen, the employee of Castle Mountain Livestock Company, alleges that he was injured by breathing ammonium nitrate fertilizer which had spilled from a broken sack. Plaintiff's employer had ordered the fertilizer from Teslow, Incorporated, (Teslow) of Bozeman, a Montana corporation. Teslow had purchased the fertilizer from Phillips Petroleum Company (Phillips), a Delaware corporation, the manufacturer. The fertilizer was delivered in a truck owned by Milwaukee Motor Transport and driven by Myron F. Papke, its employee. The sack of fertilizer was broken while unloading. Plaintiff was directed by Papke (named Doe in the complaint) to sweep up the spilled fertilizer and put it in an empty sack furnished by Papke. Plaintiff receipted for the fertilizer on an instrument showing Teslow as the consignee and Phillips as the shipper. Plaintiff later advised his lawyers that Teslow had delivered the fertilizer.

The complaint, in two counts, negligence and breach of warranty, was filed in the District Court of Meagher County, naming Teslow and Phillips as defendants. Teslow, by answer, denied that it had delivered the fertilizer and that Papke was its agent. When Papke's deposition was taken it became clear that Papke was employed by Milwaukee Transport Company. Teslow made a motion for summary judgment and filed a brief in support of it. The motion was denied. At the pre-trial conference Teslow's motion for summary judgment was renewed. Plaintiff was granted time to file a brief; none was filed and the motion for summary judgment was granted, leaving Phillips as the sole defendant. A timely petition for removal was then filed by Phillips. Phillips urges that the removal is proper because the dismissal as to Teslow, the party whose citizenship prevented a diversity, was voluntary, and, in any event, Teslow was fraudulently joined.

If the case as filed was non-removable it remains so, unless the removability was brought about by the voluntary act of the plaintiff, and that fact appears from the record in the state court, or unless there was a fraudulent joinder. Lauf v. Nelson, 246 F.Supp. 307 (D.C.Mont.1965). In this case the record shows that the plaintiff did not file a brief opposing the motion for summary judgment, and did not file a brief when the motion for summary judgment was renewed. The state court record does not show that the plaintiff requested or consented to the summary...