Murphy v. Kodz, No. 19508.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPOPE, KOELSCH and BROWNING, Circuit
Citation351 F.2d 163
Docket NumberNo. 19508.
Decision Date21 September 1965
PartiesL. C. MURPHY, as Special Administrator of the Estate of Arthur G. Goodnow, now deceased, Viola Goodnow and A. H. Davidson, Appellants, v. Ruth H. KODZ, as surviving widow of Constantine Kodz, deceased, Appellee.

351 F.2d 163 (1965)

L. C. MURPHY, as Special Administrator of the Estate of Arthur G. Goodnow, now deceased, Viola Goodnow and A. H. Davidson, Appellants,
v.
Ruth H. KODZ, as surviving widow of Constantine Kodz, deceased, Appellee.

No. 19508.

United States Court of Appeals Ninth Circuit.

September 21, 1965.


351 F.2d 164

Charles L. Hardy, Kramer, Roche, Burch & Streich, Phoenix, Ariz., for appellant.

Anthony D. Terry, Hull, Terry & Ford, Tucson, Ariz., for appellee.

Before POPE, KOELSCH and BROWNING, Circuit Judges.

351 F.2d 165

KOELSCH, Circuit Judge.

This appeal presents a thorny question going to the jurisdiction of the District Court of a case removed to it from a state court after the removal predicate is subsequently dropped from the proceedings.

Plaintiff Ruth H. Kodz commenced a wrongful death action in the Superior Court of the State of Arizona against Howard Shupe, the Estate of Arthur Goodnow, Goodnow's employer A. H. Davidson, and another. Plaintiff's decedent was killed in a midair plane collision occurring while the aforementioned were engaged in forest fire suppression activities.

Shupe, alleging that he was an officer of the United States Forest Service, acting in his official capacity at the time of the accident, sought and obtained removal of the entire case to the United States District Court, pursuant to 28 U.S.C. § 1442(a) (1).1

Parenthetically we note that no other head of federal jurisdiction was alleged or appears as to the remaining parties.

Trial in the District Court resulted in judgment in favor of Shupe. The jury was unable, however, to agree as to the liability of Goodnow and Davidson, and a new trial was had resulting in judgment against them.

Defendants then filed several motions, including for the first time a motion to remand the case to the state court. They argued that federal court lost further jurisdiction of the case upon entry of the judgment for Shupe, the sole party entitled to invoke that court's jurisdiction. The motions were denied, and defendants appeal.

Appellants do not and cannot question the propriety of removing the case insofar as it concerned liability of the Forest Service Officer Shupe. 28 U.S.C. § 1442(a) (1); State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880); and see Gay v. Ruff, 292 U.S. 25, 33-34, 54 S.Ct. 608, 78 L.Ed. 1099 (1934). The constitutional supremacy accorded the general government in its sphere requires, or at least permits, that federal officers acting pursuant to federal law have a federal tribunal to vindicate themselves, free from any potential restraint by the state sovereignty. Tennessee v. Davis, supra, 100 U.S. at 263, 266-267.

But appellants contend that the purpose of the rule was fully served when the action terminated in favor of the federal defendant Shupe, and that the District Court was without jurisdiction to proceed to a retrial of the non-federal defendants. Reasoning on the pattern of cases arising under 28 U.S.C. § 71 (1946 ed.) involving "separable controversies" removed to federal court, appellants urge that the District Court should have remanded the case to the Arizona court at the point where only non-federal parties and claims were before it. See cases cited in St. Paul Mercury Indemnity Company v. Red Cab Company, 303 U.S. 283, at 295, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

The analogy is not entirely inapposite. These cases implicitly recognize, that absent some independent head of federal jurisdiction, retention of the non-federal claims involves the court with subject matter at the periphery of United States judicial power. For the Constitution ordains that judicial power shall only extend to those cases specifically enumerated. United States Constitution,

351 F.2d 166
Article III, Section 2. See International Brotherhood, etc. v. W. L. Mead, Inc., 230 F.2d 576, 579 (1st Cir. 1956), cert. dismissed 352 U.S. 802, 77 S.Ct. 21, 1 L.Ed.2d 37; Texas Employers Insurance Ass'n v. Felt, 150 F.2d 227, 234, 160 A.L.R. 931 (5th Cir. 1945); see also State of Tennessee v. Davis, supra, 100 U.S. at 290, (dissenting opinion) Textile Workers, etc. v. Lincoln Mills, 353 U.S. 448, 475-484, 77 S.Ct. 912, 1 L.Ed.2d 972 (dissenting opinion 1957); Lewin, 66 Harvard Law Rev. 423 (1953). But it bears emphasis that cases arising under a particular statute do not define the jurisdictional limits Congress or the Constitution may set under another statute. As an example, removal jurisdiction under 28 U.S.C. § 1441(c), the successor to the separable controversy statute, was motivated by a Congressional desire to narrow federal court jurisdiction. American Fire & Casualty Co. v. Finn, 341 U.S. 6, at p. 10, 71 S.Ct. 534, 95 L.Ed. 702 (1951). Compare 28 U.S.C. § 1441(c) (1948 ed.) with 28 U. S.C. § 71 (1946 ed.). But see Lewin, Op. Cit. supra, 66 Harvard Law Rev. at 431

Thus, while cases involving separable controversies are not without persuasion as analogous, neither do they necessarily define the full reach of federal jurisdiction under 28 U.S.C. § 1442 (a). And we find other analogies more impressive. It has long been recognized that cases in the penumbral area of federal jurisdiction, so-called ancillary or pendant jurisdiction, are properly cognizable under the judicial power. To illustrate, in the leading case of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), the Supreme Court indicated that a state claim may be so related to a federal claim that the two may be said to represent the same cause of action though resting upon different grounds, and in that situation the state or non-federal claims will be within the pendant jurisdiction of the District Court. See also Siler v. Louisville & Nashville R.R., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909)....

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74 practice notes
  • Rosado v. Wyman, No. 711
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 1969
    ...cert. denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038 (1959); Travers v. Patton, supra, 261 F.Supp. 110, at 116; cf. Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965), or mooted. Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. The reasons Judge Weinstein gave for retention of ju......
  • Rothner v. City of Chicago, Nos. 88-1999
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 5, 1989
    ...law claims after the federal claim drops out of the lawsuit--had been held lawful by some courts for a long time too. See Murphy v. Kodz, 351 F.2d 163 (9th Cir.1965); Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d 1197 (8th Cir.1983); Fox v. Custis, 712 F.2d 84 (4th Cir.1983)......
  • Kroger v. Owen Equipment & Erection Co., No. 76-1187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 16, 1977
    ...34 Page 426 A situation similar in principle and with similar results in the retention of jurisdiction is found in Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965). There the plaintiff's decedent was killed in a mid-air collision, plaintiff bringing action in state court against one Shupe and o......
  • Romulus Community Schools, In re, COUNTY-MEA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 1984
    ...and directed the district court to decide whether to hear the remaining claims or to remand the case to state court. In Murphy v. Kodz, 351 F.2d 163 (9th Cir.1965), an action against a federal official and two private defendants was removed to district court. After a jury verdict for the of......
  • Request a trial to view additional results
74 cases
  • Rosado v. Wyman, No. 711
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 1969
    ...cert. denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038 (1959); Travers v. Patton, supra, 261 F.Supp. 110, at 116; cf. Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965), or mooted. Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. The reasons Judge Weinstein gave for retention of ju......
  • Rothner v. City of Chicago, Nos. 88-1999
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 5, 1989
    ...law claims after the federal claim drops out of the lawsuit--had been held lawful by some courts for a long time too. See Murphy v. Kodz, 351 F.2d 163 (9th Cir.1965); Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d 1197 (8th Cir.1983); Fox v. Custis, 712 F.2d 84 (4th Cir.1983)......
  • Kroger v. Owen Equipment & Erection Co., No. 76-1187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 16, 1977
    ...34 Page 426 A situation similar in principle and with similar results in the retention of jurisdiction is found in Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965). There the plaintiff's decedent was killed in a mid-air collision, plaintiff bringing action in state court against one Shupe and o......
  • Romulus Community Schools, In re, COUNTY-MEA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 1984
    ...and directed the district court to decide whether to hear the remaining claims or to remand the case to state court. In Murphy v. Kodz, 351 F.2d 163 (9th Cir.1965), an action against a federal official and two private defendants was removed to district court. After a jury verdict for the of......
  • Request a trial to view additional results

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