McFadden v. Grace Line, Inc.

• Decision Date: 30 December 1948
• Citation: 82 F. Supp. 494
• Parties: McFADDEN et al. v. GRACE LINE, Inc.
• Court: U.S. District Court — Southern District of New York

82 F. Supp. 494

McFADDEN et al. v. GRACE LINE, Inc.

United States District Court S. D. New York.

December 30, 1948.

Hill, Rivkins & Middleton, of New York City, for plaintiffs.

Kirlin, Campbell, Hickox & Keating, of New York City, for defendant.

HULBERT, District Judge.

On November 26, 1948 plaintiffs' motion to remand certain specified causes of action was granted.

Counsel for the respective parties have since appeared before me informally upon defendant's request for a reconsideration.

The action was brought in the New York Supreme Court, New York County, on September 23, 1948, and removed to this court pursuant to 28 U.S.C.A. § 1446.

Eleven causes of action are set forth in the complaint.

The defendant is alleged in the complaint to be a New York corporation, operating a fleet of ocean going vessels between the Port of New York and various South American ports, and undertakes to transport merchandise for hire between such ports. In the petition for removal it is alleged to be a Delaware corporation, which governs.

Causes of action "One" and "Eight" relate to shipments made on September 11, 1947, from Paita, Peru, to New York, by S.S. Santa Elisa. The amounts involved are, respectively, $60,000 and $30,000. There is also the required diversity of citizenship.

Causes of action "Two", "Three", "Four", "Five", "Nine", "Ten" and "Eleven" all involve shipments made on September 26, 1947, from New York to Venezualian ports by S.S. Santa Paula. The amounts involved in causes of action "Two" and "Nine" are, respectively, $10,000 and $3,500, and there is also the required diversity of citizenship.

There is no motion to remand as to causes of action "One", "Two", "Seven", "Eight" and "Nine".

In causes of action numbers "Three", "Four", "Five", "Ten" and "Eleven", the amounts involved are, respectively, $750, $600, $750, $15,000 and $200. The required diversity of citizenship is lacking only as to "Tenth" because the coplaintiff Heyden Chemical Corporation and the defendant are both citizens of Delaware and as to the others the motion was made because of the amount involved.

Causes of action "Six" and "Seven" relate to shipments made from Barranquilla, Columbia, to New York, on September 18, 1947 and September 10, 1947, respectively. Diversity of citizenship is present, and the amounts involved are $2,500 in number "Six" and $3,000 in number "Seven".

28 U.S.C.A. § 1441(c), effective September 1, 1948, provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

Reviser's Notes, page 1855, state:

"Subsection (c) has been substituted for the provision in section 71 of title 28, U.S. C., 1940 Ed., `and when in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of...