Midland Mortg. Co. v. Winner
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Citation | 532 F.2d 1342 |
| Docket Number | No. 75-1983,75-1983 |
| Parties | MIDLAND MORTGAGE CO., Petitioner, v. Honorable Fred M. WINNER, United States District Judge for the District of Colorado, Respondent. |
| Decision Date | 06 April 1976 |
Page 1342
v.
Honorable Fred M. WINNER, United States District Judge for
the District of Colorado, Respondent.
Tenth Circuit.
Page 1343
Robert E. Benson and Luke J. Danielson of Holland & Hart, Denver, Colo., for petitioner.
Joel C. Davis of Dietze & Davis, Boulder, Colo., for respondent Transamerica Title Ins. Co.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
PER CURIAM.
This original action seeks a writ of mandamus commanding the respondent Judge to vacate an order of remand. We have considered the petition, together with proceedings from the Colorado Court from which the case was removed, and a memorandum in opposition to plaintiff's motion to remand and a motion for rehearing, setting out arguments and authorities of petitioner Transamerica in support of federal jurisdiction. We are satisfied that the dispositive issue of our jurisdiction is sufficiently presented by the record and thus proceed to make disposition on the petition and the response filed by Midland Mortgage Co.
The petition for mandamus alleges that the action in the Colorado Court was one which may properly be removed under 28 U.S.C. § 1441(a), since the case was one within original diversity jurisdiction conferred by 28 U.S.C. § 1332. Attached to the petition is the complaint in the Colorado suit, averring five claims for relief, all relating to a Colorado construction project for an apartment complex with related parking and recreational facilities.
Claims in the complaint need not, for our purposes, be recited in detail. They are outlined in the Memorandum Opinion sustaining the motion for remand and we need only paraphrase that outline. Petitioner Midland made a construction loan to King Investment Co. to construct the apartment complex and Transamerica issued a title policy. King issued a promissory note, and Transamerica acted as disbursing agent of the funds advanced by Midland. After King defaulted, mechanics' liens suits commenced in the Colorado courts.
Transamerica assumed defense of these suits under a reservation of rights. Transamerica's complaint was then filed in the Colorado Court asserting the five claims:
(1) Against Midland only, a declaratory judgment was sought to interpret the title insurance policy;
(2) Against Midland only a declaratory judgment claim to determine nonliability;
(3) Against Midland only, for...
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...who is a citizen of the forum state, Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Midland Mfg. Co. v. Winner, 532 F.2d 1342 (10th Cir.). These clearly are but additional examples of the courts interpreting "improvidently" to mean improperly in the sense of procedurally...
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