McCURTAIN CTY. PRODUCTION CORP. v. Cowett

• Decision Date: 15 June 1978
• Docket Number: No. 78-81-C.,78-81-C.
• Citation: 482 F. Supp. 809
• Parties: McCURTAIN COUNTY PRODUCTION CORP., Plaintiff, v. R. B. COWETT and Shelba Cowett, husband and wife; Willie John Blair, d/b/a B & B Automotive; John Deere Company, a corporation, and Clarksville Grain and Elevator Co., Inc., a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

482 F. Supp. 809

McCURTAIN COUNTY PRODUCTION CORP., Plaintiff, v. R. B. COWETT and Shelba Cowett, husband and wife; Willie John Blair, d/b/a B & B Automotive; John Deere Company, a corporation, and Clarksville Grain and Elevator Co., Inc., a corporation, Defendants.

No. 78-81-C.

United States District Court, E. D. Oklahoma.

June 15, 1978.

COPYRIGHT MATERIAL OMITTED

George Walters, Broken Bow, Okl., for plaintiff.

John C. Harrington, Jr., Oklahoma City, Okl., for defendant John Deere Co.

Other defendants did not enter an appearance in Federal Court.

ORDER REMANDING CASE

DAUGHERTY, Chief Judge.

Plaintiff commenced this action in the District Court of McCurtain County, Oklahoma seeking to recover on a promissory note. Contending that the federal court has original jurisdiction of the action by reason of diversity of citizenship and amount in controversy, Defendant John Deere Company (John Deere) removed the case to this Court. The matter is now before the Court for consideration of Plaintiff's Motion to Remand the case to the state court. John Deere has filed a Brief in support of Removal and in Opposition to Motion to Remand.

In its Petition and Amended Petition (hereinafter referred to as "complaint") filed in the state court, Plaintiff alleges that Defendants R. B. Cowett and Shelba Cowett executed a promissory note to the Plaintiff in the amount of $15,215.59 and secured the note by giving Plaintiff a security interest in a two-thirds share of 130 acres of soybeans in McCurtain County and in a 1972 John Deere combine. Plaintiff asserts that the Cowetts have defaulted on the note and that the aforementioned soybeans were sold to Defendant Clarksville Grain and Elevator Co., Inc. (Clarksville Grain) for the sum of $10,948.27. Plaintiff alleges that Clarksville Grain issued three checks in payment for the soybeans. One of the checks was issued to Lester Boden, the owner of a one-third share in the soybeans, and the other two checks were issued to R. B. Cowett. Cowett endorsed one of the checks, in the amount of $4,394.90, to B & B Automotive, and converted the other check, in the amount of $2,903.94, into a money order and gave the same to John Deere. Plaintiff seeks a judgment in the amount of $15,215.59 against the Cowetts on the promissory note. It further seeks a judgment in the amount of $7,298.84 against Clarksville Grain for that portion of the proceeds from the sale of the soybeans which Clarksville Grain conveyed to R. B. Cowett. In the alternative, Plaintiff seeks a judgment against Defendant Willie John Blair, d/b/a B & B Automotive Company, for $4,394.90, and against John Deere for $2,903.94.

In its Motion to Remand, Plaintiff asserts that the removal of this case to federal court was improvident as all Defendants herein did not join in the removal petition filed by John Deere and as Plaintiff's claim against John Deere was for an amount less than the jurisdictional amount required for a federal court to have diversity jurisdiction.

In opposition to Plaintiff's Motion to Remand, John Deere asserts that the Court lacks jurisdiction over any of the Defendants except John Deere, and that by reason of such a lack of jurisdiction, John Deere is entitled to remove the action without the consent of the remaining Defendants. John Deere maintains that although the other Defendants have been served, there has been no determination that the state court has jurisdiction over those Defendants and that they apparently do not want to risk submitting themselves to the jurisdiction of the court by joining in the removal petition. With regard to Plaintiff's contention that there is an insufficient amount in controversy, John Deere takes the position that the total amount of the soybeans sold to Clarksville Grain is the true amount in controversy and that such value exceeds the jurisdictional amount required.

Upon examination of the record in this case, the Court concludes that the action was improvidently removed to this Court and should be remanded to the state court pursuant to 28 U.S.C. § 1447(c).

The right to remove a case from a local forum into federal court is solely one conferred by statute, rather than one which is constitutionally derived. Inasmuch as the removal statutes represent Congressionally-authorized encroachments by the federal courts into the various states' sovereignties, those provisions must be strictly construed, and their established procedures rigidly adhered to. People v. Muka, 440 F.Supp. 33 (N.D.N.Y.1977). In a case where the basis for jurisdiction is doubtful, the Court should resolve such doubt in favor of remand. Greenshields v. Warren Petroleum Corp., 248 F.2d 61 (Tenth Cir. 1957), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Dane v. Southwestern Bell Telephone Co., 352 F.Supp. 257 (W.D.Okl.1972). In the instant case, the cause has been improperly removed both by reason of a defect in the removal procedure employed by John Deere and by the cause's failure to meet the criteria of the invoked removal statute.

The procedure to remove a case from a state court to the federal court is set forth in 28 U.S.C. § 1446, which reads in part:

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

§ 1446(a) has been interpreted to mean that all defendants in multi-defendant cases must join in the petition for removal or consent to such action within the 30 day time limitation applicable to removal procedures. On petition to remove a case to federal court, the defendants are to be treated collectively, and as a general rule, all defendants who may properly join in the removal petition must do so. Gableman v. Peoria, D. & E. R. Co., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900); Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Pressman & Assistants' Local 349, 427 F.2d 325 (Fifth Cir. 1970); P. P. Farmers' Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546 (Seventh Cir. 1968); Pettit v. Arkansas Louisiana Gas Co., 377 F.Supp. 108 (E.D. Okl.1974).

There are exceptions to this requirement. When a separate and independent claim that is removable under 28 U.S.C. § 1441(c) is joined with other nonremovable claims, only the defendant or defendants to the separate and independent claim need seek removal. See 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3731, at 719 (1976). Nominal or formal parties may be disregarded. Tri-Cities Newspapers, Inc. v. Tri-Cities Pressman & Assistants' Local 349, supra; see Reed v. Safeway Stores, Inc., 400 F.Supp. 702 (N.D.Okl.1975). An improperly joined party is not required to join in the removal petition. Williams v. Atlantic Coast Line Railroad Co., 294 F.Supp. 815 (S.D.Ga.1968); Derry v. Roadway Express, Inc., 248 F.Supp. 843 (E.D.Ky.1965); 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3723, at 610 (1976). A nonserved, nonresident defendant need not join in the removal petition. DiCesare-Engler Productions, Inc. v. Mainman Ltd., 421 F.Supp. 116 (W.D.Pa.1976).

In the instant case, the failure of all Defendants to join in the petition for removal filed herein by John Deere or to consent to such action within the 30 day time limitation makes the removal of this case improper. From an examination of the record herein, the Court is unable to apply any of the aforementioned exceptions to this case. There is not a separate and independent claim stated against John Deere. The Defendants who have not joined in the removal petition are not nominal or formal parties, nor is there any indication that they have been improvidently joined in this action. As John Deere has stated in its removal petition that the other Defendants have been served, they were required to join in the removal. Under modern pleading rules, the technical distinctions between a special appearance and a general appearance have vanished and a defendant waives nothing by removing the case and may move to dismiss for lack of personal jurisdiction after the removal. 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3738, at 749-50 (1976). The fact that a defendant has removed does not act as a general consent to jurisdiction to defeat the motion. Id. Accordingly, all Defendants in this case could properly have joined in the removal petition of John Deere. Their failure to so join constitutes a defect in the removal procedure employed by John Deere and warrants the remand of the case to the state court from which it was removed.

In addition, inasmuch as the jurisdiction of the federal courts on removal of an action from a state court is, in a limited sense, a derivative jurisdiction, if the state court lacks jurisdiction of the parties the federal court acquires none upon removal. If, as John Deere contends, the state court did...