Rick v. Hedrick, 11001.

• Decision Date: 04 December 1958
• Docket Number: No. 11001.,11001.
• Court: U.S. District Court — Western District of Missouri
• Parties: Jerry Bishop RICK, a Minor, by his mother and next friend, Edna M. Rick, Plaintiff, v. Wesley Ray HEDRICK, Hudson Oil Company of Missouri, Inc., a Kansas corporation, and Hudson Oil Company, Inc., a Missouri corporation, Defendants.

167 F. Supp. 491

Jerry Bishop RICK, a Minor, by his mother and next friend, Edna M. Rick, Plaintiff, v. Wesley Ray HEDRICK, Hudson Oil Company of Missouri, Inc., a Kansas corporation, and Hudson Oil Company, Inc., a Missouri corporation, Defendants.

No. 11001.

United States District Court W. D. Missouri, W. D.

December 4, 1958.

Theodore C. De Feo, Kansas City, Mo., for plaintiff.

P. L. Edwards, Kansas City, Mo., for defendants.

R. JASPER SMITH, District Judge.

Plaintiff, a citizen of Missouri, originally brought this action in the Circuit Court of Jackson County, Missouri. The defendants are Wesley Ray Hedrick, whose citizenship is contested by the parties, Hudson Oil Company, Inc., a Missouri corporation, and Hudson Oil Company of Missouri, Inc., a Kansas corporation. Suit was instituted in state court on April 11, 1957. The petition alleges a joint cause of action against defendants for unlawful arrest and prosecution.

On May 3, 1957, defendant corporations jointly removed the litigation to this Court. The petition for removal alleges that the individual defendant Hedrick was a citizen of California at the time this action was commenced. It also states that Hedrick, who the corporate defendants maintain caused the warrant of arrest to be issued, had never been associated with Hudson Oil Company, the domestic corporation. With these allegations as a basis, it is then maintained that the joinder of the Missouri corporation was fraudulent. In essence the corporate defendants maintain that Hedrick was at the time this suit commenced a citizen of California; that Hedrick had no relationship with the Missouri corporation; and that the joinder of this entity was for the fraudulent purpose of defeating removal. This would leave a controversy between plaintiff, a citizen of Missouri, and the Hudson Oil Company of Missouri, a Kansas corporation, and Hedrick, a citizen of California.

The status of the individual defendant is interesting and novel for three reasons: (1) He has never been served with process; (2) his citizenship is contested; and (3) he died in California after the removal here. At the time the complained of acts occurred, February 7, 1957, Hedrick managed a gasoline service station which served as an outlet for Hudson Oil products at 4815 Independence Avenue, Kansas City, Missouri. The record does not disclose with certainty his prior affiliations with either the states of Missouri or California. He resided from December 19, 1956, to April, 1957, at 3311 East 12th Street in Kansas City, Missouri. The rental on his apartment was paid up to April 10, 1957. As indicated above, this action was commenced on April 11, 1957. A deputy sheriff of Jackson County attempted several times to serve the process issued out of state court on or after April 12, 1957. Service was never obtained. The next chronological step was removal to this Court. Hedrick died thereafter on August 31, 1958, in San Mateo County, California.

Plaintiff now moves to remand. The motion is predicated upon the theory that the case was improperly removed from the state court, and that this Court is therefore without jurisdiction. This is to be determined from the record as it stood at the time the petition for removal was filed. Pullman Co. v. Jenkins, 1939, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Saint Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845; Salem Trust Co. v. Manufacturers' Finance Co., 1924, 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628.

In order for an action to be removed from a state to a federal court on diversity grounds the diversity must have existed at the time of the commencement of the suit. Stamm v. American Telephone & Telegraph Company, D.C.W.D. Mo.1955, 129 F.Supp. 719. It is maintained on behalf of defendants that at the time this action was commenced Hedrick was a citizen of California. Plaintiff in the material submitted in support of the motion to remand denies this. A defendant who has removed a case from a state court has the burden of proving that a federal court has jurisdiction if the allegations of the petition for removal are contested. Wells v....