Nello L. Teer Company v. JA Jones Construction Co.
| Decision Date | 04 April 1958 |
| Docket Number | No. C-1-D.,C-1-D. |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | NELLO L. TEER COMPANY, Plaintiff, v. J. A. JONES CONSTRUCTION CO., Defendant. |
Basil M. Watkins and Charles B. Nye, Durham, N. C., for plaintiff.
H. Haywood Robbins and William H. Abernethy, Charlotte, N. C., for defendant.
This civil action was commenced in the Superior Court of Durham County, North Carolina, on the 25th day of November, 1957, by plaintiff, Nello L. Teer Company, a corporation organized and existing under the laws of the State of Delaware and maintaining its principal office in Durham County, North Carolina, against the defendant, J. A. Jones Construction Company, a corporation organized and existing under the laws of the State of Delaware and maintaining its principal office in Mecklenburg County, North Carolina.
The plaintiff alleges in its complaint that in 1956 it entered into a verbal contract and agreement with the defendant whereby the plaintiff agreed to sell and the defendant agreed to purchase various items of construction equipment and supplies which the plaintiff owned and had stored at the Keflavik Airport in Iceland; that all the negotiations leading up to the contract and agreement finally reached between the parties were conducted in the State of North Carolina; that plaintiff fully and completely complied with the terms and conditions of its contract and agreement with the defendant and, on April 24, 1956, delivered possession of the equipment and supplies to the defendant at the Keflavik Airport in Iceland to the fullest extent that was possible and expected under the terms of the contract and agreement; and that the defendant has failed and refused, upon demand, to pay the plaintiff the agreed contract price of said equipment and supplies in the amount of $342,951.95. The plaintiff prays for the recovery of said contract price.
On January 3, 1958, the defendant filed a petition for removal to this court and removal was effected in accordance with the provisions of 28 U.S.C.A. § 1446. In its petition for removal the defendant contends that this action arises under the Constitution, laws or treaties of the United States, and is an action of which the United States District Courts are given original jurisdiction, by reason of the fact that a determination of the rights of the parties depends upon the construction and interpretation of a Treaty Annex on the status of United States personnel and property contained in the Iceland Defense Agreement with the United States of America, dated May 5, 1951, and the construction of a contract between the defendant and the United States of America which was to be performed in the country of Iceland by the defendant pursuant to said treaty. The defendant further contends that the court is required to take judicial notice of the existence and provisions of said Treaty Annex and contract.
The plaintiff thereafter filed an answer to the defendant's petition and moved to remand the case to the State Court. The plaintiff denies that the cause of action arises out of, under or depends upon the provisions or interpretations of said Treaty Annex. The plaintiff further alleges that it was not a party to the contract between the defendant and the United States of America which was to be performed in the country of Iceland by the defendant, and that the plaintiff has no cause of action, right or duty arising out of the construction or interpretation of said contract and that same forms no basis or bar to the plaintiff's cause of action.
The pleadings in this action clearly establish that the only possible ground for federal jurisdiction is that the controversy arises under the Constitution, laws or treaties of the United States. It is conceded that there is no diversity of citizenship.
Except in a few rare instances, such as in cases where federal jurisdiction is obviously present and the plaintiff...
To continue reading
Request your trial
-
Pacific Far East Line, Inc. v. Ogden Corp.
...Construction Co. v. Great Northern Railway Co., 291 F.Supp. 44, 47 (D.Minn.1968). See also Nello L. Teer Company v. J. A. Jones Construction Co., 160 F.Supp. 345, 347-348 (M.D.N. C.1958). Where, as here, removal is predicated upon federal question jurisdiction, "a right or immunity created ......
-
Strauss v. INTERNATIONAL BROTHER. OF TEAMSTERS, ETC.
...987; (but see St. Louis, I. M. & S. R. Co. v. Taylor, 1908, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061); Nello L. Teer Co. v. J. A. Jones Const. Co., D.C.M.D. N.C.1958, 160 F.Supp. 345; Allen v. Southern Ry. Co., D.C.W.D.N.C.1953, 114 F.Supp. 72; Jacobson v. New York, New Haven & H. Ry. Co.,......
-
Marsden v. Southern Flight Service, Inc.
...Supreme Court of the United States." Allen v. Southern Ry. Co., D.C., 114 F.Supp. 72, 75. Also see Nello L. Teer Company v. J. A. Jones Construction Co., D.C.M.D.N.C.1958, 160 F.Supp. 345, and the authorities therein An examination of the complaint reveals that the plaintiff has nowhere lai......
-
Burton Lines, Inc. v. Mansky
...Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). This is the conclusion reached by this Court in Nello L. Teer Co. v. J. A. Jones Construction Co., 160 F.Supp. 345 (M.D. N.C., 1958). In Cyclopedia of Federal Procedure, Third Edition, Volume 1, § 2.194, it is "For the purpose of removal,......