Ostrom v. Edison

• Citation: 244 F. 228
• Court: U.S. District Court — District of New Jersey
• Decision Date: 27 July 1917
• Parties: OSTROM v. EDISON.

244 F. 228

OSTROM v. EDISON.

United States District Court, D. New Jersey.

July 27, 1917

Dos Passos Bros. and Chas. T. Cowenhoven, all of New York City (Cyril F. Dos Passos, of New York City, of counsel), for plaintiff.

Seibert Paddock & Cochran, of New York City (Arthur f. Egner, of Newark, N.J., of counsel), for defendant.

RELLSTAB District Judge.

This suit is founded upon an assigned claim for commissions exceeding in amount the sum of $3,000, and was begun in the Supreme Court of the state of New York held in the county of New York. The plaintiff is a citizen of said state and a resident of said county. The suit was removed to this court by the defendant, a citizen and resident of the state of New Jersey, after the state court refused to order such transfer. The plaintiff moves to remand the suit to the New York court 'upon the ground that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the United States District Court for the District of New Jersey.'

The claim was twice assigned. The original assignor is an alien residing in New York City, and the plaintiff's immediate assignor is a corporation of the state of New York, and a citizen and resident of that state. The state court refused to transfer the suit to this court upon the ground that it was not pending in the district of New Jersey.

The ground for removal, as stated by the defendant, is:

'That the controversy is (within the meaning of the federal statutes) between an alien and a citizen, a resident of the state of New Jersey, * * * that the right to remove * * * is given by section 28 of the Judicial Code, and that, as the case is not removable to the district where the action was pending in the state court, the right to remove the case to this district exists, even though no process for removal to this district is in terms provided by the Judicial Code.'

By the Constitution of the United States (article 3, Sec. 2) the judicial power extends, inter alia, to controversies between citizens of different states and between citizens of a state and foreign states, citizens, or subjects. Congress, however determines how and to what extent this power is to be exercised. Stevenson v. Fain, 195 U.S. 165, 167, 25 Sup.Ct. 6, 49 L.Ed. 142; Mahopoulus v. Chicago, R.I. & P. Ry. Co. (C.C.) 167 F. 165, 168. Its last enactment on this subject-- a codification-- is embodied in the act entitled 'An act to codify, revise, and amend the laws relating to the Judiciary,' approved March 3, 1911 (36 Stat. 1087, c. 231), designated the 'Judicial Code' (1 U.S.Comp.Stat. 1916, Ann., p. 532). Sections 24, 28, 29, and 51 of this Code are controlling, and they, so far as pertinent, provide:

Section 24 that:

'The District Courts shall have original jurisdiction as follows:

'First. Of all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and * * * (b) is between citizens of different states or (c) is between citizens of a state and foreign states, citizens, or subjects. No District Court shall have cognizance of any suit * * * to recover upon any * * * chose in action in favor of any assignee * * * unless such suit might have been prosecuted in such court to recover upon said * * * chose in action if no assignment had been made. ' Comp. St. 1916, Sec. 991(1).

Section 28 that:

Any 'suit of a civil nature, at law or in equity, * * * of which the District Courts of the United States are given * * * jurisdiction by this title, and which * * * may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.'

Section 29 that:

'Whenever any party entitled to remove any suit mentioned in the last preceding section * * * may desire to remove such suit from a state court to the District Court of the United States, he may make and file a petition, duly verified, in such suit in such state court * * * for the removal of such suit into the District Court to be held in the district where such suit is pending.'

Section 51 that:

'No civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. ' Comp. St. 1916, Sec. 1033.

Whether this suit shall remain here or be remanded to the state court depends upon the legislative meaning of the words 'proper district' in section 28. The cases are in conflict. Of those holding that the suit is improperly removed to a District Court whose territory does not embrace the place where the suit brought in the state court is pending are Murdock v. Martin (C.C.) 178 F. 307; St. John v. United States Fidelity & Guaranty Co. (D.C.) 213 F. 685; St. John v. Taintor (D.C.) 220 F. 457; Pavick v. Chicago, M. & St. P. Ry. Co. (D.C.) 225 F. 395; Eddy v. Chicago & N.W. Ry. Co., (D.C.) 226 F. 120. Of those holding that the removal may be made to the District Court of the district where the defendant resides, even though the suit was brought in another state or district, are Mattison v. Boston & M.R.R. (D.C.) 205 F. 821; Stewart v. Cybur Lumber Co. (D.C.) 211 F. 343; Park Square Automobile Station v. American Locomotive Co. (D.C.) 222 F. 979. This holding in the Mattison Case is dictum, but it was accepted in the Stewart Case as embodying the true doctrine. The opinion in the Park Square Automobile Case is by the learned judge who decided the Mattison Case, and is directly in point. For other cases showing the division on this question see citations by Judge Sanborn in Eddy v. Chicago & N.W. Ry. Co. (D.C.) 226 F. 120, 126, 127. In my judgment, the cases which deny the right of removal to a district other than that in whose territory the suit is pending pronounce the correct rule.

The suit removed here is one over which a United States District Court would have cognizance. It is for more than $3,000, and as the plaintiff's original assignor is an alien and the defendant is a citizen and resident of New Jersey, it could have been brought in a United States District Court in the first instance. Section 24, supra. If, however, the original assignor had sought to institute the suit in a federal court, he would have been constrained to bring it in this district unless the defendant waived his privilege of being sued in the district of his residence-- New Jersey. Sections 24, 51, supra; Galveston, etc., Ry. Co. v. Gonzales, 151 U.S. 496, 14 Sup.Ct. 401, 38 l.ed. 248; In re Moore, 209 U.S. 490, 28 Sup.Ct. 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; Hall v. Great Northern Ry. Co. (D.C.) 197 F. 488. As the original assignor could have brought the suit in this court, the plaintiff likewise could have done so, and, like that assignor, would have been under the same constraint to come here, if he had desired to invoke the jurisdiction of a United States court.

The right to remove a suit from a state to a federal court is purely statutory. Gumbel v. Pitkin, 124 U.S. 131, 153, 8 Sup.Ct. 379, 31 L.Ed. 374; Mahopoulus v. Chicago, R.I. & P.R. Co. (C.C.) 167 F. 165, 168; Park Square Automobile Station v. American Locomotive Co. (D.C.) 222 F. 979. And where suits of the character now considered-- a class over which the United States courts have but concurrent jurisdiction with the state courts--are brought in a state court, the right to remove must be clear. It cannot rest upon a doubtful basis. If doubtful, it should for that reason alone be remanded. Fitzgerald v. Missouri Pac. Ry. Co. (C.C.) 45 F. 812; Fishblatt v. Atlantic City (C.C.) 174 F. 196; Shawnee Nat. Bank v. Missouri, K. & T. Ry. Co. (C.C.) 175 F. 456; Odhner v. Northern Pac. Ry. Co. (C.C.) 188 F. 507, 508; Jackson v. Hooper (C.C.) 188 F. 509; Western Union Tel. Co. v. Louisville & N.R. Co. (D.C.) 201 F. 932, 945; Eddy v. Chicago & N.W. Ry. Co. (D.C.) 226 F. 120, 125. The idea that appears to have been largely influential, if not controlling, in the Park Square Automobile Station Case, mainly relied upon here to sustain the removal, is that any other conclusion would leave it within the power of the plaintiffs to prevent any United States court from taking cognizance, through removal proceedings, of suits over which a federal court was given general jurisdiction, and that it could not have been the purpose of Congress to permit such a result. On application of the plaintiff in that case the Supreme Court refused to mandamus the District Court to remand the cause to the state court. Ex parte Park Square Automobile Station, 244 U.S. 412, 37 Sup.Ct. 732, 61 L.Ed. 1231, decided June 11, 1917. This is not an indication, however, that the District Court was right in maintaining jurisdiction. The Supreme Court merely followed its previous decisions in Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392, and Ex parte Roe, 234 U.S. 70, 34 Sup.Ct. 722, 58 L.Ed. 1217, that no extraordinary relief was necessary, and that the question of jurisdiction should be determined on a writ of error to final judgment. Consolidated Rubber Tire Co. v. Ferguson, 183 F. 756, 106 C.C.A. 330; Sagara v. Chicago, R.I. & P. Ry. Co. (C.C.) 189 F. 220, 223; Western Union Tel. Co. v. Louisville & N.R. Co. (D.C.) 201 F. 932, 941.

In regard to suits over which the United States and state courts have concurrent jurisdiction, the rights of a plaintiff to bring and of a defendant to...