Morris v. EI Du Pont De Nemours & Co.

Decision Date01 February 1934
Docket NumberNo. 9639.,9639.
Citation68 F.2d 788
PartiesMORRIS v. E. I. DU PONT DE NEMOURS & CO. et al.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Francis R. Stout, of St. Louis, Mo. (Karl P. Spencer, of St. Louis, Mo., on the brief), for appellant.

Sears Lehmann and Frank Y. Gladney, both of St. Louis, Mo. (Jones, Hocker, Sullivan, Gladney & Reeder and Lehmann & Lehmann, all of St. Louis, Mo., on the brief), for appellees.

Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment dismissing, for want of prosecution, an action at law brought by the appellant against the appellees in the circuit court of the city of St. Louis, Mo., from which it was removed by the nonresident corporate defendant on the grounds of diversity of citizenship, a separable controversy, and the fraudulent joinder of the resident defendant Raithel. The plaintiff moved to remand the case, denying the existence of a separable controversy and a fraudulent joinder. The court below denied the motion to remand. It also denied a motion of Raithel to dismiss as to him. The plaintiff assigns the denial of his motion to remand as error.

Reduced to its lowest terms, the plaintiff's petition charges that he lost his eyesight as the result of a premature explosion of dynamite which was manufactured and sold by the defendant Du Pont Company, the employer of Raithel, the resident defendant; that the explosion was due to the fact that in the process of the manufacture of the dynamite the nitroglycerin, which was its active element, was improperly mixed with the inert material, and that the resulting product was more temperamental than it should have been; that the Du Pont Company was negligent in its manufacture and sale; and that Raithel had improperly mixed the dynamite and was also guilty of negligence in its manufacture and sale. The plaintiff asks for a joint judgment upon his charge of joint negligence.

The defendant Du Pont Company contends that the petition states no cause of action against Raithel, but that, if it does, the allegations of the petition as to him are false and fraudulent because this is the fourth suit which the plaintiff has brought upon the same cause of action; that three former suits, in two of which the defendant Raithel was not joined, were removed to the federal court by the Du Pont Company and were dismissed upon the plaintiff's own motion; that all that the plaintiff knows about Raithel is what he learned from a deposition taken in one of the former actions, in which deposition Raithel disclosed that he was the employee of the Du Pont Company who mixed the dynamite; that he did not disclose that he had anything else to do with the manufacture of the dynamite or with its sale or that he was in any way negligent or was not carrying out his master's instructions in mixing the dynamite as he did.

A civil case presenting a controversy between citizens of different states and involving the requisite jurisdictional amount may be removed from a state court into the District Court of the United States by a nonresident defendant, and the right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 185, 186, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 97, 42 S. Ct. 35, 66 L. Ed. 144. If in such a case a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal, but the showing must consist of a statement of facts leading to that conclusion apart from the pleader's deductions. Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 152, 34 S. Ct. 278, 58 L. Ed. 544; Wecker v. National Enameling & Stamping Co., supra, 204 U. S. 176, 182, 183, 185, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Wilson v. Republic Iron & Steel Co., supra, 257 U. S. 92, 97, 42 S. Ct. 35, 66 L. Ed. 144. The statements in the petition must be accepted as true by the state court Illinois Central R. Co. v. Sheegog, 215 U. S. 308, 316, 30 S. Ct. 101, 54 L. Ed. 208.

If removal is effected, the plaintiff may, by a motion to remand, plea, or answer, take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the Federal District Court. Stone v. South Carolina, 117 U. S. 430, 432, 6 S. Ct. 799, 29 L. Ed. 962; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 113, 33 S. Ct. 684, 57 L. Ed. 1090; Chesapeake & Ohio R. Co. v. Cockrell, supra, 232 U. S. 146, 154, 34 S. Ct. 278, 58 L. Ed. 544; Wilson v. Republic Iron & Steel Co., supra, 257 U. S. 92, 97, 42 S. Ct. 35, 66 L. Ed. 144.

At the hearing the removing defendant must take and carry the burden of proof. Carson v. Dunham, 121 U. S. 421, 425, 426, 7 S. Ct. 1030, 30 L. Ed. 992; Boyle v. Chicago, R. I. & P. R. Co. (C. C. A. 8) 42 F.(2d) 633, 635; Davis v. Standard Oil Co. of Indiana (C. C. A. 8) 47 F.(2d) 48, 52.

The plaintiff's failure to take issue with what is stated in the petition for removal is equivalent to admitting the truth of the facts therein stated, and relieves the defendant from the necessity of producing proof. Kentucky v. Powers, 201 U. S. 1, 33, 34, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692; Wilson v. Republic Iron & Steel Co., supra, 257 U. S. 92, 97, 98, 42 S. Ct. 35, 66 L. Ed. 144.

In determining removability the case must be deemed to be such as the plaintiff has in good faith made it in his petition, and if the record discloses an assertion of a joint cause of action, the action is not removable unless the claim of joint liability is shown to be a sham or fraudulent device to prevent removal. Alabama Great Southern R. Co. v. Thompson, 200 U. S. 206, 218, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 193, 194, 33 S. Ct. 250, 57 L. Ed. 473; Breymann v. Pennsylvania, O. & D. R. Co. (C. C. A. 6) 38 F.(2d) 209, 210.

The court is not required to "consider more than whether there was a real intention to get a joint judgment, and whether there was a colorable ground for it shown as the record stood when the removal was denied." It is not to decide whether a flaw could be picked in the declaration on special demurrer. Chicago, R. I. & P. R. Co. v. Schwyhart, supra, 227 U. S. 184, 194, 33 S. Ct. 250, 57 L. Ed. 473.

Even though the plaintiff has misconceived his cause of action and has no right to maintain it against the defendants jointly, that does not change an alleged joint cause of action into a separable controversy for the purpose of removal. The law looks to the case made in the pleadings and determines whether the state court shall be required to surrender its jurisdiction to the federal court. Alabama Great Southern R. Co. v. Thompson, supra, 200 U. S. 206, 218, 219, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 426, 427, 31 S. Ct. 460, 55 L. Ed. 521.

Whether liability is joint or several is to be determined by the law of the state where the action is brought. Kelly v. Robinson et al. (D. C.) 262 F. 695, 697; Davis v. Standard Oil Co. of Indiana, supra (C. C. A.) 47 F.(2d) 48, 50; Watson v. Chevrolet Motor Company et al. (C. C. A. 8) 68 F.(2d) 686, opinion filed January 22, 1934.

Where there is a prima facie joint liability, proof that the resident and nonresident tort-feasors are joined for the purpose of preventing removal will not justify removal from a state court. Illinois Central R. Co. v. Sheegog, supra, 215 U. S. 308, 316, 30 S. Ct. 101, 54 L. Ed. 208; Chicago, B. & Q. R. Co. v. Willard, supra, 220 U. S. 413, 427, 31 S. Ct. 460, 55 L. Ed. 521; Chicago, R. I. & Pac. R. Co. v. Schwyhart, supra, 227 U. S. 184, 193, 33 S. Ct. 250, 57 L. Ed. 473; Mecom v. Fitzsimmons Drilling Co., 284 U. S. 183, 189, 52 S. Ct. 84, 76 L. Ed. 233; Jacobson v. Chicago, R. I. & Pac. R. Co. (C. C.) 176 F. 1004, 1005.

The federal courts will, however, take such action as will defeat attempts wrongfully to deprive parties entitled to sue in those courts of the protection of their rights in those tribunals. Alabama Great Southern R. Co. v. Thompson, supra, 200 U. S. 206, 218, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Wecker v. National Enameling & Stamping Co., supra, 204 U. S. 176, 182, 183, 185, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757.

If there is no basis for the assertion of liability as against the resident defendant, a conclusion that he was joined fraudulently is justified. Wecker v. National Enameling & Stamping Co., supra, 204 U. S. 176, 185, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757.

Much of what has thus far been said in this opinion is almost literally the language of the Supreme Court in the cases referred to. The general statement that a case must be deemed to be such as the plaintiff has in good faith made it in his petition, and that if stated to be joint it cannot be removed unless the resident defendant is joined fraudulently or in bad faith, leaves something to be desired by those who are faced with the practical application of the rule.

We have reached the following conclusions:

To bring suit against resident and nonresident defendants jointly is not a fraud upon the jurisdiction of the federal court if some reasonable basis exists for believing that there is a joint liability. The joinder of such defendants is fraudulent if it is clear that, under the law of the state in which...

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