Metcalf v. Bardo Coal Co.
| Decision Date | 26 June 1939 |
| Docket Number | No. 22.,22. |
| Citation | 28 F. Supp. 1 |
| Parties | METCALF et al. v. BARDO COAL CO. et al. |
| Court | U.S. District Court — Eastern District of Kentucky |
Cleon K. Calvert, of Pineville, Ky., for plaintiffs.
Thomas C. Townsend, of Charleston, W. Va., Golden & Lay, of Pineville, Ky., and J. B. Snyder, of Harlan, Ky., for defendants Black Mountain Corporation and Perkins-Harlan Coal Co.
William Sampson, of Harlan, Ky., for other defendants.
Upon the petition of two out of thirty four defendants, this case was removed to this Court from the Circuit Court of Harlan County, Kentucky, on the sole ground that it is a suit of a civil nature arising under the constitution and laws of the United States of which the District Courts of the United States are given original jurisdiction. Judicial Code, § 28, 28 U.S.C.A. § 71.
The plaintiffs and nine of the defendants have filed motions to remand on the ground that the removal, at the instance of only two of the thirty four defendants, is not authorized by the applicable provisions of the Statute.
In order to accomplish the removal of a suit from a State Court to a Federal Court on the ground that it involves a substantial federal question, all defendants must join in the application for removal, unless there is in the suit "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 the United States for the proper district." Judicial Code, § 28, 28 U.S.C.A. § 71. Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Bailen v. Deitrick, 1 Cir., 84 F.2d 375.
The petitioners for removal are the defendants Black Mountain Corporation, which is a corporation organized and existing under the laws of the State of Virginia, and Perkins-Harlan Coal Company, a Kentucky corporation. The removal is sought to be sustained only by the Black Mountain Corporation upon the theory that there is in the suit a separate and distinct controversy as between it and the plaintiffs and, since diversity of citizenship exists as between them, its application alone is sufficient to sustain removal of the case as a separable controversy within the meaning of the Statute. Thus the only question for determination is whether the suit contains a separable controversy as between the plaintiffs and the non-resident defendant, Black Mountain Corporation.
It appears from the petition that this is a suit by four citizens of Harlan County, Kentucky against thirty four corporations (many of which are Kentucky corporations) engaged in the business of mining bituminous coal in Harlan and Bell Counties, seeking to enjoin all the defendants from executing, entering into, enforcing or carrying out a certain particular provision embodied in contracts alleged to have been already entered into by some defendants and about to be entered into by others with a single labor union. The provision is as follows: "It is agreed that as a condition of employment, all employees shall be members of the United Mine Workers of America except in those exempted classes of employment, as provided in this contract."
It is alleged that none of the plaintiffs are within any exempt classification of employment referred to; that they are not members of the labor union nor do they desire or intend to become such members; that by choice, education and experience, each of them has fitted himself to engage exclusively in the occupation of coal mining and all are now so engaged in the mines operated by some of the defendants in Harlan and Bell Counties, and that they are each wholly and totally unfitted to follow any other occupation; that substantially all other producers of bituminous coal throughout the United States have entered into agreements containing the same provision and, consequently, if these defendants enter into and carry out such contract, the effect is and will be to arbitrarily deprive the plaintiffs of the right to work and labor in the pursuit of the only calling and profession in which they are able to engage; to deny them the exercise of freedom of will as to whether they shall or shall not affiliate with a labor union; to bring about their discharge from present employment leaving them entirely without...
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Rodriguez v. Union Oil Co. of Cal.
...D.C.E.D.Ill.1942, 45 F. Supp. 984, 986; Edelstein v. New York Life Ins. Co., D.C.S.D.N.Y.1939, 30 F. Supp. 1, 2; Metcalf v. Bardo Coal Co., D.C.E.D.Ky.1939, 28 F.Supp. 1, 2; Hillis v. Rice, D.C.E.D.Mo.1939, 25 F.Supp. 813, 815; but cf. Mitchell v. Smale, 1891, 140 U.S. 406, 407-410, 11 S.Ct......