McMahan v. Fontenot

• Decision Date: 10 January 1963
• Docket Number: Civ. A. No. 1660.
• Citation: 212 F. Supp. 812
• Parties: Herman McMAHAN and Annie McMahan, Plaintiffs, v. Hurley A. FONTENOT and H. L. Langston, Defendants.
• Court: U.S. District Court — Western District of Arkansas

212 F. Supp. 812

Herman McMAHAN and Annie McMahan, Plaintiffs, v. Hurley A. FONTENOT and H. L. Langston, Defendants.

Civ. A. No. 1660.

United States District Court W. D. Arkansas, Fort Smith Division.

January 10, 1963.

Wayland Parker, Greenwood, Ark., Garner, Shaw & Kimbrough, Ft. Smith, Ark., for plaintiffs.

Warner, Warner & Ragon, Ft. Smith, Ark., for Fontenot.

J. Sam Wood, Ft. Smith, Ark., for Langston.

JOHN E. MILLER, Chief Judge.

On July 11, 1962, the plaintiffs filed their complaint in the Sebastian County Circuit Court, Greenwood District, to recover for personal injuries and property damage allegedly suffered by them on April 28, 1962, on account of the alleged negligence of said defendants in the operation of their automobiles on a public highway in Sebastian County, Arkansas.

In the prayer of the complaint the plaintiffs prayed "for judgment against the defendants, Hurley A. Fontenot and H. L. Langston, jointly and severally, and against each of them" for the alleged injuries and damages.

Summons was issued and duly served upon both defendants, and returned by the Sheriff or his Deputy to the Office of the Clerk of the State court on the same date, July 11, 1962.

On July 26, 1962, within twenty days after the service of summons upon the defendants, the defendant, Hurley A. Fontenot, filed his petition for removal in which he alleged that the matter in controversy exceeds the sum of $10,000, exclusive of interest and costs, and is between citizens of different states; that the plaintiffs at the time the action was commenced were citizens of the State of Arkansas, and "petitioner Hurley A. Fontenot and his co-defendant, H. L. Langston, were and are still citizens of the State of Texas and were not and are not citizens of the State of Arkansas."

On the same date, the defendant Fontenot filed his answer denying the allegations of the complaint and alleging that the injuries and damages, if any, suffered by the plaintiffs were the direct and proximate result of plaintiffs' own negligence and that plaintiffs' contributory negligence constitutes a complete or partial bar to plaintiffs' claim. That the plaintiff, Herman McMahan, assumed the risk of his injuries, if any, complained of, and that the plaintiff's assumption of the risk constitutes a complete bar to the claim of both plaintiffs.

The defendant Langston, although a citizen of the State of Texas, did not join in the petition for removal, but on August 1, 1962, twenty-one days after the filing of the complaint in the State court and the service upon him of the summons and the return of the summons to the Clerk of the State court, voluntarily appeared by his attorney and filed in this court his answer to the complaint of the plaintiffs. In his answer the defendant Langston simply denied "each and every material allegation contained in plaintiffs' complaint," and further pleaded that the plaintiffs' injuries, if any, were the direct and proximate result of the negligence of the plaintiff, Herman McMahan, and that such contributory negligence constitutes a complete or partial bar to the claims of both plaintiffs.

On October 31, 1962, the court directed the Clerk to give notice of a pretrial conference of this and other cases to be held on November 19, 1962. At the pretrial conference the plaintiffs appeared by their attorney, Mr. Wayland Parker, and the defendants appeared by Mr. Douglas O. Smith, Jr. The issues were discussed, as well as the issues in the case in Civil Action No. 1662, in which Mack Burton is plaintiff and Hurley A. Fontenot and H. L. Langston are defendants, and it appearing to the court that the instant case, No. 1660, and Civil No. 1662 involved a common question of law and fact, the cases were consolidated and set for trial at the January 1963 term. The cases were later set for trial on January 16, 1963, and all parties were notified.

On January 7, 1963, the court examined the files in both cases preparatory to drawing instructions to the jury to be used in the trial of said cases, and at that time discovered that the defendant, H. L. Langston, did not join in the petition for removal filed by his co-defendant, Hurley A. Fontenot. The writer immediately advised by telephone the attorneys for the defendants that because of the failure of the co-defendant Langston to join in the petition for removal, that the court was of the opinion that the case should be remanded to the State court. The attorneys for the defendants requested an opportunity to submit a brief and argument in opposition to the remand. At that time the plaintiffs had not filed a motion to remand. In fact, nothing had been done by any of the parties insofar as the record of the court discloses except to attend the pretrial conference.

Following the statement which the writer made to the attorneys for the defendants, the defendants filed a motion on January 8, 1963, for leave to amend their separate answers, which motion was granted and on the same date the amendments to the answers were filed. In the amended answer filed by Langston, he reiterates the allegations contained in numbered paragraphs I and II of the original answer and adds a new paragraph numbered III, in which he alleged:

"Pleading further, defendant states that in and by his original answer herein he did intend to enter his appearance in this Court and to consent to the removal of this cause to this Court and that he did intend by said original answer herein to waive any right which he might have to cause said action to be remanded to state court, and he does hereby specifically allege and reaffirm his said intent to join in and consent to said petition for removal and to waive any right to cause said action to be remanded to the state court."

Title 28 U.S.C. Sec. 1446(a), provides:

"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."

Where several defendants are jointly sued on a joint cause of action in the State court, such suit cannot be removed to a federal court unless all the defendants join in the removal. Wright v. Mo. Pac. R. R. Co., (8 Cir., 1938) 98 F.2d 34; Heckleman v. Yellow Cab Transit Co., (E.D.Ill.1942) 45 F.Supp. 984; Board of Directors of Crawford County Levee District v. Whiteside, (W.D.Ark. 1949) 87 F.Supp. 69; State of Colorado ex rel. Land Acquisition Comm. v. American Machine & Foundry Co., (D.Colo. 1956) 143 F.Supp. 703, 711; Barnes v. Parker, (W.D.Mo.1954) 126 F.Supp. 649; Gratz v. Murchison, (D.Del.1955) 130 F.Supp. 709; Universal Surety Co. v. Manhattan Fire & Marine Ins. Co., (D.S.D.1958) 157 F.Supp. 606.

It should be borne in mind that the nonremoving defendant, H. L. Langston, was served with summons the same day that the removing defendant, Fontenot, was served, and the petition for removal does not disclose any reason why Langston did not join therein.

In Wright v. Missouri Pac. R. Co., supra, the court, at page 36 of 98 F.2d, referred to the fact that the petition for removal contained "no allegation that the joint defendant Stacey Edwards had not been served with summons prior to the attempted removal. The petition gave no intimation to plaintiff that the other defendants were claiming to have the right on that ground to invoke federal jurisdiction without joining their joint co-defendant."

In Heckleman v. Yellow Cab Transit Co., supra, Judge Lindley, who was appointed United States Circuit Judge for the Seventh Circuit on October 24, 1949, stated at page 985 of 45 F.Supp.:

"`Yellow' failed to disclose in its petition any reason why the other defendant had not joined. In Wright v. Missouri Pac. R. Co., 8 Cir., 98 F.2d 34, 36, of three defendants only two joined in the petition. They omitted all excuses for not joining the third defendant. Because of this defect, the court held the record insufficient to sustain federal jurisdiction. So, here, there was no showing in either record or petition of any reason for not including `Liberty.' As the court said in the Wright case: `The petition gave no intimation to plaintiff that the other defendants were claiming to have the right on that ground (that the third defendant was not properly served) to invoke federal jurisdiction without joining their joint co-defendant.'

"In the language of Judge Van Devanter in Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 151, 34 S.Ct. 278, 279, 58 L.Ed. 544: `The right of removal from a state to a Federal court, as is well understood, exists only in certain enumerated classes of cases. To the exercise of the right, therefore, it is essential that the case be shown to be within one of those classes; and this must be done by a verified petition setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable or belongs to one of the enumerated classes, or otherwise to rest the right upon mere legal conclusions. As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition.'

"The petition to remove is fatally defective in that it failed to include any reason for not including `Liberty' and the record discloses no such reason."

In Gratz v. Murchison, supra, the court at page 713 of 130 F.Supp. said:

"Moreover, the petition for removal by all the individual defendants failed to allege corporate-defendant Taylor had

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