Parks v. New York Times Company, Civ. A. No. 1706-N

• Decision Date: 26 June 1961
• Docket Number: Civ. A. No. 1706-N,1707-N.
• Citation: 195 F. Supp. 919
• Parties: Frank W. PARKS, Plaintiff, v. NEW YORK TIMES COMPANY, a Corporation, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery, Defendants. John PATTERSON, Plaintiff, v. NEW YORK TIMES COMPANY, a Corporation, Martin Luther King, Jr., Fred L. Shuttlesworth, J. E. Lowery, Ralph D. Abernathy, and S. S. Seay, Sr., Defendants.
• Court: U.S. District Court — Middle District of Alabama

195 F. Supp. 919

Frank W. PARKS, Plaintiff, v. NEW YORK TIMES COMPANY, a Corporation, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery, Defendants.

John PATTERSON, Plaintiff, v. NEW YORK TIMES COMPANY, a Corporation, Martin Luther King, Jr., Fred L. Shuttlesworth, J. E. Lowery, Ralph D. Abernathy, and S. S. Seay, Sr., Defendants.

Civ. A. Nos. 1706-N, 1707-N.

United States District Court M. D. Alabama, N. D.

June 26, 1961.

Steiner, Crum & Baker and Calvin M. Whitesell, Montgomery, Ala., for plaintiff Parks.

Clinton E. Moore and Ralph Smith, Jr., Montgomery, Ala., for plaintiff Patterson.

Beddow, Embry & Beddow, Birmingham, Ala., and Lord, Day & Lord, New York City, for New York Times Co.

Charles S. Conley, Montgomery, Ala., for Martin Luther King, Jr.

JOHNSON, District Judge.

The above-captioned cases were submitted to this Court on April 26, 1961, upon the plaintiffs' separate and several motions, seeking to have this Court remand these causes to the Circuit Court of Montgomery, Alabama, State of Alabama, from whence each had been removed by the defendant The New York Times Company on April 13, 1961. Subsequent to this submission, this Court on May 24, 1961, ordered that Martin Luther King, Jr., one of the resident defendants in the case where John Patterson is a plaintiff, submit to oral interrogation by deposition. This action by the Court was necessitated by reason of the representations to this Court by counsel in the John Patterson case to the effect that they expected to prove—upon trial—that Martin Luther King, Jr., was the president of the Southern Christian Leadership Conference, of which the other individual defendants are members of the executive committee, and that the individual defendants in each of these cases, through the Southern Christian Leadership Conference, specifically or impliedly authorized or ratified the publication of the alleged libelous article that forms the basis for these two actions. The testimony of the witness King was taken as directed, and has been considered by this Court along with the other testimony in evidence upon the separate and several motions.

The plaintiff in each of these cases is a resident citizen of the State of Alabama and was such at the time of the institution of each of these cases. In the Frank W. Parks case, the plaintiff sued the defendant The New York Times Company, a New York corporation, and Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery, in the Circuit Court of Montgomery County, Alabama, for damages claimed to have been incurred on March 29, 1960, by reason of the publication of an alleged libelous article in The New York Times, a newspaper published by The New York Times Company. The New York Times Company is a nonresident corporation having its principal place of business in the City and State of New York. The individual defendants are resident citizens of the State of Alabama and were such at the time this suit was brought. In the John Patterson case, the plaintiff is a resident citizen of the State of Alabama and was such at the time of bringing this action. Plaintiff in that case sues the same defendants as are sued in the Parks case, with the addition of Martin Luther King, a resident citizen of the State of Georgia.

A brief chronological history of these cases is essential to an intelligent understanding of the questions presented by the motions to remand. In the Parks case, the action was filed in the Circuit Court of Montgomery County, Alabama, on April 19, 1960. Service is claimed to have been effected on the defendant The New York Times Company on or about April 21, 1960. The defendant The New York Times Company removed this case to this Court on April 13, 1961. On the same date, the plaintiff filed his motion to remand this action to the State court. In the Patterson case, the action was filed in the State court on May 30, 1960. Service was claimed to have been obtained on the defendant The New York Times Company on or about June 1, 1960. This case was removed to this Court by the defendant The New York Times Company on April 13, 1961, and the plaintiff on April 20, 1961, filed his motion to remand to the State court. A similar case styled L. B. Sullivan, Plaintiff v. The New York Times Company, a Corporation, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery, Defendants, was tried in the Circuit Court of Montgomery County, Alabama, commencing November 1, 1960. The Sullivan case terminated on or about November 3, 1960, with a verdict and judgment in favor of the plaintiff against all defendants. The basis for plaintiff's action in the Sullivan case was the same alleged libelous article that forms the basis for the plaintiff's action in each of these cases now before this Court. In the Sullivan case, the defendant The New York Times Company, subsequent to a jury verdict against it in the State court, filed with the State court a motion for a new trial, and that motion was denied by the State court on March 17, 1961.

The basis for the motion to remand in each of these cases is that this Court is without jurisdiction to hear and determine each case for the reason that the petition of The New York Times Company for removal was not filed in this Court, as required by statute, within twenty days after the receipt by the defendant The New York Times Company of a copy of the pleading setting forth the claim for relief by plaintiff in each case; further, that the individual defendants, with the exception of King in the Patterson case, are resident citizens of the State of Alabama and therefore there is no diversity within the meaning of Title 28, § 1332, United States Code Annotated. No question arises by reason of either of these motions as to the amount in controversy.

The theory of the defendant The New York Times Company in removing each of these cases to this Court is that at all times material to this litigation the defendant The New York Times Company was a corporation organized and existing under the laws of the State of New York with its principal place of business in New York City; that these cases are actions for damages against the defendants arising out of an alleged libel of the plaintiff in each case by the defendants on or about March 29, 1960; that this Court has jurisdiction in each of these cases under § 1332, Title 28, United States Code Annotated, by reason of the diversity of citizenship between the plaintiff in each case and the defendant The New York Times Company but for the fraudulent joinder of the individual defendants (with the exception of King, a resident of the State of Georgia), who are resident citizens of the State of Alabama; that the joinder by the plaintiff in each case of the defendants Abernathy, Shuttlesworth, Seay, Sr., and Lowery, was fraudulent, because there was at the time of the commencement of each of these actions and also at the time of the removal of same no reasonable basis under the law of Alabama upon which the liability of said individual defendants to the plaintiff in either case could be established for and on account of the alleged libelous publication made the basis for each action; and that the said resident defendants were joined in each of these cases for the sole purpose of fraudulently preventing the petitioner The New York Times Company from removing these cases to the United States District Court for trial. The New York Times Company says, further, that it did not sufficiently appear that either of these cases was removable because of the fraudulent joinder of the resident defendants until after the trial in the Circuit Court of Montgomery County, Alabama, of the Sullivan case and until after the State court had overruled the motion of The New York Times Company for a new trial in that case and, further, until it became apparent that the plaintiff in each of these cases had no reasonable basis upon which the liability of said individual defendants could be established.

This Court, in each of these cases, in an effort to determine whether there is any legal basis whatsoever for the claim asserted against the resident defendants, has painstakingly studied all the evidence submitted and available, including a transcript of the trial in the Sullivan case. This Court reaches the conclusion that from the evidence presented upon the motion to remand in each of these cases there is no legal basis whatsoever for the claim asserted against the resident defendants Abernathy, Shuttlesworth, Seay, Sr., and Lowery. From the facts available to this Court, no liability on the part of the four resident defendants existed under any recognized theory of law; this is true even with the application of the Alabama "scintilla rule." Their joinder in each of these cases was therefore fraudulent as that term is applied in removal cases. The use of the term "fraudulent" in such instances is in the legal sense and not in the ordinary sense. Whenever in any case a plaintiff joins resident and nonresident defendants, the nonresident is privileged by statute to remove the action to the district court and challenge the good faith of the plaintiff in joining the resident defendants. In such instances, the removing defendant has the burden of showing that the joinder was made without any reasonable basis and solely to defeat removal; this was the procedure followed by this Court in these cases. The defendant The New York Times Company in each of these cases sustained that burden by clear and convincing evidence that compels the conclusion that the joinder in each of these cases of the resident defendants was without any reasonable legal ground. In such cases, where it is clear from the evidence that the resident defendants cannot be liable to the plaintiff on any reasonable legal ground, the plaintiff is suing improperly and the federal court should not hesitate to retain jurisdiction after removal by the...