Roberts v. Underwood Typewriter Co.

• Decision Date: 13 May 1919
• Parties: ROBERTS v. UNDERWOOD TYPEWRITER CO.
• Court: U.S. District Court — District of New Jersey

257 F. 583

ROBERTS v. UNDERWOOD TYPEWRITER CO.

United States District Court, D. New Jersey.

May 13, 1919

Reed &amp Reynolds, of Newark, N.J., for plaintiff.

Pitney Hardin & Skinner, of Newark, N.J., for defendant.

RELLSTAB District Judge.

On the application of the Underwood Typewriter Company, a corporation of Delaware (hereinafter called the Delaware company), a suit brought against it and two other defendants by Lyman R. Roberts, in the Supreme Court of New Jersey, to recover the sum of $250,000 damages, was removed into this court on the ground that there was a separable controversy between it and the plaintiff. The plaintiff moves to remand the cause to the state court. He and the Underwood Typewriter Company of New Jersey (hereinafter called the New Jersey company), one of the other defendants, are citizens and residents of New Jersey, and the remaining defendant, Charles L. Davis, is a citizen and resident of the state of Illinois. No relief is prayed against Davis; he being made a party defendant for the reason that he declined to be joined as a coplaintiff.

The plaintiff contends that 'the allegations of the complaint show a joint contractual obligation upon both companies and the joint breach by both companies,' and the sole question on this motion is whether there is a separable controversy between the plaintiff and the Delaware company within the meaning of section 28 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1094 (Comp. St. Sec. 1010)). This section, so far as pertinent, provides that--

'When in any suit * * * there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.'

'To ascertain the removability of a cause on the ground of the existence of a separable controversy, these tests are established: (1) There must be a separable and distinct controversy between the removing party and his adversary which can be fully determined as between them; and (2) the whole subject-matter must be capable of being so determined and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the suit. ' Moloney v. Cressler (C.C.A. 7) 210 F. 104, 126 C.C.A. 618.

The plaintiff's complaint, which on this motion controls (Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514), in substance, and so far as pertinent to the cause of action sued upon, alleges that on or about April 3, 1908, the New Jersey company entered into a written agreement with the plaintiff and the defendant Davis (a copy whereof is annexed to and made a part of the complaint), whereby the New Jersey company agreed to manufacture a certain patented machine on a royalty and to use its best efforts to promote the sales thereof; that subsequently, after the acceptance by the New Jersey company of a model of such machine, plaintiff, at the request of both defendant corporations, made therein certain changes which were accepted by both companies; that on or about March 1, 1910, the Delaware company acquired the entire capital stock and assets of the New Jersey company and assumed all its obligations and liabilities, including the rights and obligations arising out of the written agreement that both of the corporate defendants failed 'to do and perform the things which they and each of them became obligated to do and perform under and by virtue of said agreement,' but that on the contrary they had each-- 'formed an alliance with a manufacturer of a competing machine under which they have advised prospective...