Noethe v. Mann
| Decision Date | 09 July 1928 |
| Citation | 27 F.2d 451 |
| Parties | NOETHE et al. v. MANN et al. |
| Court | U.S. District Court — District of Minnesota |
Chas. Dealy, of Pipestone, Minn., and Fred. H. Free, of Sioux City, Iowa, for plaintiffs.
Hall & Gislason, of Marshall, Minn., Frank L. Brady, of Lake Benton, Minn., and Brown, Somsen & Sawyer, of Winona, Minn., for defendant Walter L. Mann.
It appears that there is diversity of citizenship between the plaintiffs and all of the defendants, and that more than $3,000 is involved, but that the defendants did not join in the petition for removal, and that some of them are residents of the state of Minnesota; that the case was therefore improperly removed to this court; that at the time of its removal there was an attachment issued out of the state court; that this attachment was continued in effect after removal, and, with the consent of all parties, the sheriff of Lincoln county, who levied the attachment, sold some of the attached property; that the defendants noticed the case for trial at the June term of this court in the Second division; that the plaintiffs admitted due service of the notice of trial; that the case was not tried and is still pending; that on June 12, 1928, the plaintiffs informed the defendant Walter L. Mann that a motion to remand would be made, and it was agreed that no laches would be claimed for delay in making such motion after that date.
The case was removed on or about October 22, 1927, and the motion must be treated as having been made June 12, 1928. The sole question presented is whether the motion comes too late — in other words, whether the plaintiffs, by their conduct or neglect, must be held to have consented and acquiesced to a trial of the cause by this court.
The general rule seems to be that, where a federal court would have jurisdiction of a cause which has been commenced in a state court and improperly removed to the federal court, the plaintiffs may, by waiver, acquiescence, or consent, lose the right to have the case remanded because of matters not involving the jurisdiction of the federal court. Handley-Mack Co. v. Godchaux Sugar Co. (C. C. A.) 2 F.(2d) 435; Guarantee Co. v. Hanway (C. C. A.) 104 F. 369; White v. Chase (C. C. A.) 201 F. 896; Toledo, St. L. & W. R. Co. v. Perenchio (C. C. A.) 205 F. 472; Fienup v. Kleinman (C. C. A.) 5 F. (2d) 137. No general appearance was made by the plaintiffs in this court, unless it could be held that the admission of due service...
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Holbein v. TAW Enterprises, Inc.
...our sister circuits have followed this logic and concluded that the forum-defendant rule is nonjurisdictional. Accord Noethe v. Mann , 27 F.2d 451, 452 (D. Minn. 1928). Additionally, outside of Hurt and Horton , we have done the same for comparable prohibitions on removal. For example, in 1......
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Midwestern Distribution v. Paris Motor Freight Lines
...Prod., 274 F.Supp. 719, 723 (D.P.R.1967) (there is no time limit within which plaintiff must file its petition for remand); Noethe v. Mann, 27 F.2d 451 (D.Minn. 1928) (mere delay, without prejudice is insufficient for ordering remand). See also American Oil Co. v. Egan, 357 F.Supp. 610, 614......
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Essington Metal Works v. RETIREMENT PLANS OF AMER.
...seeking remand has done something or enjoyed something which would make it inequitable to remand the case at this time, Noethe v. Mann, 27 F.2d 451 (D.Minn. 1928). In the RPA case, the RPA parties contend that the Essington parties have waived their objections to removal because (a) they wa......
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Monroe v. United Carbon Co., 13717.
...complaint, because of the presence on each side of a citizen of Texas." 341 U.S. 16-17, 71 S.Ct. 541, 95 L.Ed. 702. See also Noethe v. Mann, D.C., 27 F.2d 451; Carpenter v. Baltimore & O. R. Co., 6 Cir., 109 F.2d 375; Jackson v. Missouri, Kansas & Oklahoma Coach Lines, D.C., 63 F.Supp. Ther......