Parkhill Produce Co. v. Pecos Valley Southern Ry. Co., Civ. A. No. 1979-1981
| Decision Date | 10 August 1961 |
| Docket Number | Civ. A. No. 1979-1981,1983. |
| Citation | 196 F. Supp. 404 |
| Parties | PARKHILL PRODUCE COMPANY v. PECOS VALLEY SOUTHERN RAILWAY COMPANY (four cases). |
| Court | U.S. District Court — Southern District of Texas |
Ward & Brown, Howell Ward and Margaret B. Brown, Corpus Christi, Tex., for plaintiffs.
Kleberg, Mobley, Lockett & Weil, Leslie S. Lockett, Corpus Christi, Tex., and John F. Tomlin, Pecos, Tex., for defendants.
All of the above civil actions were removed to this Court by the defendant, Pecos Valley Southern Railway Company, from the District Court of Nueces County, Texas. Originally said causes had been filed in the State Court in separate actions, none of which actions involved the jurisdictional amount necessary for removal. Each cause of action as originally filed sought damages to interstate shipments of either cantaloupes or onions from Pecos, Texas, to some midwestern or mid-eastern point. The defendant in each case filed its answer, and in some filed counterclaims, and even took depositions. Requests for admissions were filed and answered. The defendant then filed a motion which was opposed by the plaintiff, asking the State Court to consolidate certain of the counts in said causes of action, so that all shipments going to one destination would be in the same docketed cause rather than in separate lawsuits. The State Court entered its order of consolidation on December 6, 1960, and when consolidated, the four causes before us amounted, in each case, to damages being claimed in excess of $3,000. Immediately thereafter the defendant removed to this Court said causes, basing jurisdiction on 28 U.S.C.A. § 1337 (Interstate Commerce section), and 28 U.S.C.A., § 1445 which provides that actions involving carriers moving in interstate commerce become removable to the Federal Court when the amount in controversy exceeds $3,000.
After the petition for removal had been perfected, the defendant Railroad filed in each of said several actions a motion to transfer the cause to the Pecos Division of the United States District Court for the Western District of Texas, basing its grounds for transfer on Sec. 1404(b), Tit. 28 U.S.C.A.
The plaintiff then filed its motion to remand said causes to the State Court, basing its motion on the following grounds: (1) The removal proceedings were not timely filed by the defendant; (2) the right to remove was waived by the defendant by its own acts occurring before the entry of the order of consolidation; and (3) the order of consolidation did not make the cases removable because it was not the result of a voluntary act or action on the part of the plaintiff.
So, there are before the Court two motions, one on the part of the plaintiff to remand, and the other on the part of the defendant to transfer.
The Court will first consider the motion to remand.
In attempting to rule upon plaintiff's first contention that the removal proceedings were not timely filed by defendant, it is necessary to first examine the language of the statute, 28 U.S.C.A. § 1446(b), which reads as follows:
"* * * If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." (Emphasis supplied.)
There is no question that these causes were not removable until the order of consolidation by the State Court on December 6, 1960. When said order was entered, it could first be ascertained that the cases were ones which had become removable. If the order of consolidation is held to be good, there is no question that defendant has timely filed its motion within the period provided by the statute.
Plaintiff's second contention in its motion to remand is that the right to remove had been waived by acts of the defendant, occurring prior to consolidation, mainly because the defendant had filed counterclaims for freight charges and the like. Plaintiff contends that the filing of the cross-claim or cross-action by defendant was a submission to jurisdiction and thereby constituted a waiver. Plaintiff also contends that it was unnecessary for defendant to file a cross-action.
The requirements of compulsory counterclaims or cross-actions are well established in Texas. In order to preserve its cross-action, it was necessary that defendant file the same. The rule is clearly stated in Rule 97(a), Texas Rules of Civil Procedure, as follows:
Plaintiff has cited to the Court the case of Briggs Const. Co. v. Miami Window Corporation, D.C., 158 F.Supp. 229 to support its contention that defendant had invoked the jurisdiction of the State Court and thereby waived its right of removal. This case involved a voluntary counterclaim that the defendant did not have to file under the State law of Georgia; and the Court, in the Briggs case, expressly limited its decision to voluntary cross-actions or counterclaims.
Rosenblum v. Trullinger, D.C., 118 F. Supp. 394, held that the filing of an involuntary answer is not a waiver of the right to remove. Compulsory cross-claims and setoffs should stand on the same level, and are not a waiver of the right to remove.
The authorities uniformly hold that a waiver is an intentional relinquishment of a known right. 56 Am.Jur. 102.
In 56 Am.Jur. 113, the law is stated thusly:
"To constitute a waiver, the right or privilege alleged to have been waived must have been in existence at the time of the alleged waiver."
In order for defendant to waive the right of removal, this right must have first been in existence. There was no right in existence until the order of consolidation had been entered; and the defendant having done nothing after said order of consolidation had been entered, there was no waiver.
Plaintiff's third contention urged in its motion to remand that the order of consolidation did not make the cases removable because it was not the result of a voluntary act or action on the part of plaintiff, but that said order was entered by the State Court over the objection of plaintiff, will now be...
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