Morrison v. Jack Richards Aircraft Co.
| Decision Date | 22 June 1971 |
| Docket Number | No. 70-576.,70-576. |
| Citation | 328 F. Supp. 580 |
| Parties | Keith MORRISON, Plaintiff, v. JACK RICHARDS AIRCRAFT CO., an Oklahoma Corporation, et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
John W. Norman and Edwin D. Abel, Okahoma City, Okl., for plaintiff.
John E. Beaven, Oklahoma City, Okl., for Jack Richards Aircraft Co.
Fowler, Rucks, Baker, Jopling, Gramlich & Mee, Oklahoma City, Okl., for Golden Eagle Aviation Inc. and Skipper.
B. J. Cooper, Oklahoma City, Okl., for Fairchild Hiller Corp.
Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., for Martin-Marietta Corp.
ORDER REMANDING CASE
The above Plaintiff sued the above Defendants in Oklahoma State Court as a result of an airplane crash in Colorado. Plaintiff was a passenger in the airplane and claims to have sustained personal injuries and certain losses as a result of said crash.
The citizenship of the parties appears to be as follows:
Plaintiff Morrison Texas
Defendant Jack Richards Aircraft Oklahoma
Defendant Golden Eagle Aviation Oklahoma
Defendant Fairchild Hiller Maryland
Defendant Martin-Marietta Maryland & New York
Defendant Skipper Oklahoma
Defendant Sizemore Wisconsin
The Defendant Sizemore has not been served with summons. All other Defendants have been served with summons or have entered an appearance.
The Defendant Fairchild Hiller removed the case to this Court. Martin-Marietta filed a consent to the said removal. Grounds for removal were: (1) diversity of citizenship, (2) separate and independent claim or cause of action against the removing Defendant, and (3) presence of a Federal question.
The Plaintiff has moved to remand the case to State Court. The Court finds and concludes that the case should be remanded for the following reasons:
DIVERSITY
28 U.S.C.A. § 1441(b) provides:
(Italics added.)
It is undisputed that three of the six Defendants are citizens of Oklahoma, they appear to have been properly joined (no claim is made to the contrary), two of them have been served and one has entered his appearance. In these circumstances, the case is not removable on diversity grounds. 28 U.S.C.A. § 1441 (b); Martin v. Snyder, 148 U.S. 663, 13 S.Ct. 706, 37 L.Ed. 602 (1893); Fine v. Philip Morris, Inc., 239 F.Supp. 361 (S.D.N.Y.1964); 1 Barron & Holtzoff (Wright Ed) § 103 and notes 31 and 31.2 thereunder.
28 U.S.C.A. § 1441(c) provides:
"(c) 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."
All Defendants are charged with improper inspection and maintenance of the airplane involved. In addition, Richards Aircraft, Golden Eagle, Skipper and Sizemore are charged with improper service and operation of the airplane. Martin-Marietta and Fairchild Hiller are additionally charged with a failure to adequately design and manufacture the airplane.
The leading case regarding the above statute after the 1948 amendment thereto is American Fire and Casualty Company v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, 19 A.L.R.2d 738 (1951). After stating that one of the purposes of the above law as amended was to limit removal from State Courts this case provides:
In the Finn case where two insurance companies and an insurance agent were sued, the Supreme Court stated that the single wrong was,
Our Circuit has said that:
"A pleading which alleges but one wrong, for which a single relief is sought, cannot constitute a separate and independent claim, no matter how many defendants are said to be liable therefor, or how diverse their basis of liability." Gray v. New Mexico Military Institute, 249 F.2d 28 at page 32 (10 Cir. 1957).
In the above case, the plaintiff sought recovery for injuries to his son on the basis of claimed negligence of employees of the defendant and alternatively on the basis that defendant's insurer, who was also named as a defendant, had wrongfully denied such negligence and threatened to assert the defense of its insured's governmental immunity. Although our Circuit's holding is somewhat diminished by the peculiar nature of the alternative count described, it was relied on in an airplane crash case where the plaintiff asserted causes of action against the manufacturer and carrier based on negligence, breach of warranty and the Warsaw Convention, 49 Stat. 3000 (1934), to support the conclusion that no separate and independent claims were stated. Zousmer v. Canadian Pacific Air Lines, Ltd., 307 F.Supp. 892 (D.C.N.Y.1969). The court said:
"That differing theories of negligence, breach of warranty and the Warsaw Convention underlie these claims cannot and does not lend `separate and independent' status to any one of them." 307 F.Supp. at page 903.
In another setting, it has been held that a claim based on negligent manufacture against the maker of coin operated laundry machines is not separate and independent from a claim of breach of warranty asserted against the distributor thereof. Moosbrugger v. McGraw-Edison Co., 215 F.Supp. 486 (D.C.Minn. 1963). In the case at bar the single wrong is the alleged failure to afford safe air passage to the Plaintiff. This alleged single wrong, for which relief is sought, must be considered, according to the foregoing authorities, as arising from an interlocked series of transactions involving all Defendants with the result that there is no separate and independent claim or cause of action stated against Fairchild Hiller. The case is not removable on this ground.
The Plaintiff states no Federal question in his Petition. The Movant provides information outside the Petition that the Defendant Sizemore (not served) inspected the aircraft as an agent and employee of the Federal Aviation...
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