Rafferty v. Frock, Civ. No. 8475.
| Decision Date | 09 November 1955 |
| Docket Number | Civ. No. 8475. |
| Citation | 135 F. Supp. 292 |
| Parties | Daniel Irving RAFFERTY v. Harry Franklin FROCK and Robert Menchey Milligan, Third-Party Plaintiff (CITIZENS' CASUALTY COMPANY OF NEW YORK, Third-Party Defendant). |
| Court | U.S. District Court — District of Maryland |
Gould Gibbons, Sachs & Sachs, Baltimore, Md., for plaintiff.
Stanford I. Hoff and Sponseller & Hoff, Westminster, Md., for Robert Menchey Milligan, third-party plaintiff.
David K. Ebersole, Jr., Baltimore, Md., for Citizens Casualty Co., third-party defendant.
Rafferty brought a tort action in the Circuit Court for Carroll County, Maryland, against Frock, the driver, and Milligan, the owner, of an automobile. Milligan filed a third-party complaint against Citizens' Casualty Company of New York, alleging that he was the holder of an "Automobile Liability" policy issued by that company, a copy of which was filed with the third-party complaint, and brief portions of which were quoted therein.
Citizens' Casualty Company filed a petition for removal, together with the customary bond and a copy of the process and pleading served upon it. The petition alleged that both the original plaintiff and the third-party plaintiff are citizens of Maryland and that the Casualty Company is a New York corporation. Shortly thereafter Rafferty, the original plaintiff, filed a motion to remand on the ground that the action is not removable, and the Casualty Company filed a motion to dismiss the third-party complaint.
A. Section 1441(c) of Title 28 U.S. C.A., as enacted by the Act of June 25, 1948, c. 646, 62 Stat. 937, provides:
"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."
The new statute is quite different from the old provisions authorizing the removal of "separable controversies", which controlled the decision in Brown v. Hecht Co., D.C.Md.1947, 78 F.Supp. 540, in which Judge Chesnut discussed the difference between a "separable controversy" and a "separate controversy".
The controversy between Milligan and the Casualty Company is "a separate and independent claim or cause of action, which would be removable if sued upon alone". Therefore, the entire case was properly removed to ...
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