Pabst v. Roxana Petroleum Co.

• Decision Date: 19 February 1929
• Docket Number: No. 977.,977.
• Citation: 30 F.2d 953
• Parties: PABST et al. v. ROXANA PETROLEUM CO.
• Court: U.S. District Court — Southern District of Texas

30 F.2d 953 (1929)

PABST et al. v. ROXANA PETROLEUM CO.

No. 977.

District Court, S. D. Texas, at Galveston.

February 19, 1929.

Stewart, Damiani & Harris, of Galveston, Tex., for plaintiffs.

Koerner, Fahey & Young, of Houston, Tex., for Roxana Petroleum Co.

HUTCHESON, District Judge.

This cause was removed to this court on petition of Roxana Petroleum Company, a foreign corporation, upon allegations that the bill contained separable controversies wholly triable between that defendant and the plaintiffs. Prior to the Act March 3, 1875, persons, parties to separable controversies, might remove their controversy into the federal court. Since the Act March 3, 1875 (section 2, as amended 28 USCA § 71), a separable controversy authorizes the removal of the whole cause.

The rule governing the existence of a separable controversy is plain and simple; its application, difficult. The rule is that a controversy is not separable unless it appears so to be from the plaintiff's own allegations. This must be tested by the terms of the pleadings in each particular case.

The defendant Roxana urges upon the court the opinion of Judge Sanborn in Boatmen's Bank v. Fritzlen (C. C. A.) 135 F. 650, that the true rule is that motions to remand should be decided, not by the existence of doubts, but by the preponderance of the facts, the law, and the reasons which condition them, in view of the fact that the right to invoke the jurisdiction of the federal court is a valuable constitutional one.

The right to remove is a constitutional right only in so far as Congress is authorized to give the right by statute; but, as Congress can give it, so it can take it away or restrict it, and I am not impressed with the view, urged here, that the fact that Congress has provided that there shall be no review of the action of the District Court in remanding a case should induce the court to take jurisdiction where jurisdiction is not clear.

This is the effect which judges in the Eighth Circuit have given, I think erroneously, to Judge Sanborn's opinion in the Fritzlen Case. In the other circuits the rule is quite the contrary; there it is that, where the jurisdiction of the federal court is doubtful, good judgment requires remand to the District Court of the state, the jurisdiction of which is beyond dispute. In Chunes v. Duluth, 292 F. 153 (8th Circuit), the court says: "If it were conceded that the question whether the facts alleged in the complaint state a cause of action within the provisions of the Federal Employers' Liability Act were a doubtful one, then, under the practice prevailing in this circuit, the motion should be denied."

The true and proper rule with reference to this matter is stated by Rose in his Federal Jurisdiction and Procedure: "The federal courts have by construction restricted rather than enlarged the classes of cases on which the right of removal can be exercised, on the ground that there is a separable controversy. Since the passage of the act of 1887 they have steadily sought to limit rather than extend their jurisdiction."

I am not impressed by the assertion that some valuable right which is given him in the federal court will be taken from him by trial in the state court. As I understand the jurisprudence of this state, it operates with an eye to justice, just the same as that of the federal court. I therefore approach the case as to whether the motion to remand should be granted or denied from the standpoint merely of whether the removing defendant has shown itself entitled to invoke the jurisdiction of this court. If it has the right to so invoke it, I have no option but to recognize that jurisdiction.

Courts do not grant decrees by favor, nor can they withhold them upon caprice. Certainly it is desirable in any case for the court to reach such a clear opinion as that he can say he has no doubts, and certainly it is not desirable to either take or refuse jurisdiction upon the ground of doubt.

I agree with the views of Judge Hough,...