Olan Mills, Inc., of Tenn. v. Enterprise Pub. Co.

• Citation: 210 F.2d 895
• Decision Date: 29 March 1954
• Docket Number: No. 14616.,14616.
• Parties: OLAN MILLS, Inc., OF TENN. v. ENTERPRISE PUB. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

210 F.2d 895 (1954)

OLAN MILLS, Inc., OF TENN. v. ENTERPRISE PUB. CO. et al.

No. 14616.

United States Court of Appeals Fifth Circuit.

February 23, 1954.

Rehearing Denied March 29, 1954.

Bascom D. Talley, Jr., James D. Johnson, Jr., Talley & Anthony, Bogalusa, La., Joe Van Derveer, Chattanooga, Tenn., for Olan Mills, Inc. of Tenn.

Ashton Phelps, New Orleans, La., Henry N. Richardson, Bogalusa, La., Woodrow W. Erwin, Franklinton, La., A. J. Jones, Bogalusa, La., John G. Weinmann, New Orleans, La., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

This is an action by the appellant, a Tennessee corporation, against the appellees, all of whom are citizens of Louisiana. The suit is of a civil nature, wholly between citizens of different states, and the matter in controversy exceeds in value the sum of three thousand dollars exclusive of interest and costs. Federal jurisdiction of the case depends solely upon diversity of citizenship and the requisite jurisdictional amount. A motion to dismiss for want of federal jurisdiction was filed by the defendants, but this motion was impliedly overruled by the action of the court below in dismissing the complaint for failure to state a claim upon which relief could be granted.

Olan Mills, Inc., of Tennessee, a foreign corporation engaged in the photography business, was doing business in Louisiana, and was planning to canvass the Bogalusa trade area. The local photographers, of which there were three in number, objected to the entry of Olan Mills into this area. In the interest of harmony, a meeting was held in the office of the Mayor of Bogalusa on Thursday, June 5, 1952. At this meeting, the alleged defamatory remarks were orally made by the two individual defendants. The next morning, the defendant Enterprise Publishing Company printed and published said defamatory utterances. In its complaint, the appellant set forth the facts constituting said libel and slander, its business reputation, and the deliberate intention of the appellees to injure plaintiff. It failed to allege malice.

Defendants White and Mornhinveg filed motions to dismiss the complaint for lack of jurisdiction, misjoinder of parties, and failure to state a claim upon which relief could be granted. The Enterprise Publishing Company raised the same objections, and, in addition, urged that its communications were privileged. After consideration of the matter upon briefs and oral argument, the court dismissed the complaint for failure to state a claim upon which relief could be granted.

We think that the court committed no error in not sustaining the motion to dismiss for lack of federal jurisdiction. With respect to the requisite jurisdictional amount, the allegation of the complaint is that the matter in controversy exceeds the sum of three thousand dollars exclusive of interest and costs, and this is sufficient unless it appears elsewhere in the complaint or by proof aliunde that less than that amount is involved. We find nothing in the complaint, or elsewhere in the record, to indicate a lack of good faith on the part of the plaintiff in seeking to recover damages in excess of three thousand dollars; and, so far as the amount in controversy is concerned, the determination of the right to invoke federal jurisdiction lies in the good faith of the plaintiff. Bell v. Preferred Life Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15; Turmine v. West Jersey & Seashore R. R., D.C., 44 F.2d 614; Associated Press v. Emmett, D.C., 45 F.Supp. 907; 1 Barron and Holtzoff, Federal Practice and Procedure, pp. 47, 426; Dobie on Federal Procedure, Sec. 56, p. 133. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845, the court said: "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal."

Neither do we think that the court erred in not dismissing the action on the ground of a misjoinder of parties. Under Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C.A., misjoinder of parties is not a ground for dismissal of an action, but parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action, and on such terms as may be just. Under Rule 20 of said rules of civil procedure, all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect...