Prensa Grafica Cubana SA v. Osle

• Decision Date: 20 June 1961
• Citation: 195 F. Supp. 636
• Parties: PRENSA GRAFICA CUBANA S.A. and Editorial Carteles S.A., Plaintiffs, v. Hector OSLE, Defendant.
• Court: U.S. District Court — Southern District of New York

195 F. Supp. 636

PRENSA GRAFICA CUBANA S.A. and Editorial Carteles S.A., Plaintiffs, v. Hector OSLE, Defendant.

United States District Court S. D. New York.

June 20, 1961.

Alfred S. Julien, New York City, for plaintiffs.

Rabinowitz & Boudin, New York City, for defendant.

FREDERICK van PELT BRYAN, District Judge.

This is a motion by plaintiffs to remand a civil action commenced in the New York Supreme Court and removed by defendant to this court under 28 U.S. C. § 1441(b).¹

Defendant claims that the action is removable because it arises under the treaties and laws of the United States, the matter in controversy exceeds $10,000, and the District Court has original jurisdiction under 28 U.S.C. § 1331(a).

Plaintiffs contend that the claims stated in their complaint are not based on, nor do they involve, federal laws or treaties, and that therefore this court is without jurisdiction to entertain the action. It is their position that this is merely an action under state law based on the theory of implied agency and money had and received.

The complaint alleges that plaintiffs Prensa Grafica Cubana S. A. and Editorial Carteles S. A. are Cuban corporations and the owners and publishers of three magazines, Bohemia, Vanidades and Carteles, published in Havana in plants which have been seized by the Cuban Government, that defendant has sold and distributed copies of these magazines, and that he has received money from such sales belonging to them. They sue for an accounting and to recover the net sales price of the magazines, less any commissions to which defendant may be entitled. Defendant is currently enjoined by order of the New York Supreme Court from transferring any of the funds received from such sale and distribution.

Defendant readily admits that the complaint does not expressly rely on any federal law or treaty. However, he claims that it is clear that the claims alleged in the complaint are based on rights arising under the Lanham Act, 15 U.S. C.A. § 1051 et seq., and international conventions for the protection of industrial property and trademarks, and that the complaint is "artfully drawn" so as to avoid disclosing the basis of the claim. Plaintiffs disclaim any such reliance on these or any other federal laws or treaties. They claim to rely upon state common law remedies only.

Plaintiffs' motion to remand must be granted. It is well settled that "the presence of a Federal question which will authorize the removal of a suit from a state to a Federal court must be disclosed by the plaintiff's complaint, unaided by the petition for removal." Romick v. Bekins Van & Storage Co., 5 Cir., 197 F.2d 369, 370. The standards to be applied are stated by Mr. Justice Cardozo in the leading case of Gully v. First National Bank, 299 U.S. 109, at page 112, 57 S.Ct. 96, at page 97, 81 L. Ed. 70:

"How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. Starin v. New York, 115 U.S. 248, 257 6 S.Ct. 28, 29 L.Ed. 388; First National Bank of Canton, Pa. v. Williams, 252 U.S. 504, 512 40 S. Ct. 372, 374, 64 L.Ed. 690. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. Id.; King County Wash. v. Seattle School District, 263 U.S. 361, 363, 364 44 S.Ct. 127, 128, 68 L.Ed. 339. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (New Orleans v. Benjamin, 153 U.S. 411, 424 14 S.Ct. 905, 38 L.Ed. 764; Defiance Water Co. v. Defiance, 191 U.S. 184, 191 24 S.Ct. 63, 48 L.Ed. 140; Joy v. St. Louis, 201 U.S. 332 26 S.Ct. 478, 50 L.Ed. 776; City and County of Denver v. New York Trust Co., 229 U.S. 123, 133 33 S.Ct. 657, 57 L.Ed. 1101), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. (Tennessee v. Union & Planters Bank, 152 U.S. 454 14 S.Ct. 654, 38 L.Ed. 511; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74 34 S.Ct. 724, 58 L.Ed. 1218). Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense. Devine v. Los Angeles, 202 U.S. 313, 334 26 S.Ct. 652, 50 L.Ed. 1046; The Fair v. Kohler Die & Specialty Co., supra."

See, also, Pan American Petroleum Corp. v. Superior Court of State of Delaware, 81 S.Ct. 1303; Andersen v. Bingham & G. Ry. Co., 10 Cir., 169 F.2d 328, 14 A.L. R.2d 987; Louisiana State Board of Medical Examiners v. Boyd, D.C.W.D. La., 151 F.Supp. 402.

There is nothing on the face of this complaint which indicates that any essential element of these claims is based upon a...