Ryan v. Ohmer

• Decision Date: 24 April 1916
• Citation: 233 F. 165
• Parties: RYAN v. OHMER et al.
• Court: U.S. District Court — Southern District of New York

233 F. 165

RYAN v. OHMER et al.

United States District Court, S.D. New York.

April 24, 1916

William A. Barber and Joseph D. Fackenthal, both of New York City for plaintiff.

Walter C. Noyes, of New York City, and H. A. Toulmin, of Dayton Ohio, for defendants Ohmer and Recording Co.

T Ludlow Chrystie, of New York City, for defendant Canadian Co.

MAYER District Judge.

First. The most interesting feature of this motion is the fact that, with a wide diversity of opinion outstanding, the question of jurisdiction has never been passed on by the Supreme Court. The first motion is to dismiss for want of jurisdiction because plaintiff is a citizen of New York, two of the defendants citizens of Ohio, and the third defendant an alien corporation; in other words, because a New York plaintiff has sued in New York and joined as defendants two Ohio citizens and a Canadian alien corporation. The question presented arises under section 24 of the Judicial Code of 1912 (Comp. St. 1913, Sec. 991), which reads:

'Sec. 24. The District Courts shall have original jurisdiction as follows:

'First. Of all suits of a civil nature, at common law or in equity * * * (b) * * * between citizens of different states, or (c) * * * between citizens of a state and foreign states, citizens, or subjects.'

The same language is found in Act Aug. 13, 1888, c. 866, 25 Stat. 433, and Act March 3, 1887, c. 373, 24 Stat. 552. Defendants' position is that this is not 'a controversy between citizens of different states,' because one of the parties defendant is not a citizen, but an alien, and that this is not 'a controversy between citizens of a state and foreign states, citizens or subjects,' because two of the defendants are neither a foreign state, citizen, nor subject, but are citizens of a different state. In support of this view defendants cite from cases and leading text-books.

Hughes, in his work on Federal Procedure (section 119, p. 299), states the situation as follows:

'There is a conflict of decision on the question whether a federal court would have jurisdiction in a case where citizens of a state are plaintiffs and citizens of a different state and aliens are defendants. In Tracy v. Morel (C.C.) 88 F. 801, it is held that this latter is a casus omissus in the statute, and that the federal courts would not have jurisdiction. On the other hand, in Roberts v. Pacific & A.R. & Nav. Co. (C.C.) 104 F. 577, Judge Hanford, in a well-considered opinion, holds that such a case would fall within the federal jurisdiction. It seems to the author that, however liberally the Removal Act ought to be construed, the line of decisions holding that the case does not fall within the jurisdiction of the federal courts best accords with the statute. If a federal court has jurisdiction, it must be under one of two phrases in the first section of the act of August 13, 1888--either on the language, (1) 'in which there shall be a controversy between citizens of different states'; or (2) 'a controversy between citizens of a state and foreign states, citizens or subjects.' If the rulings of the federal courts in other connections to the effect that a 'controversy between citizens of different states' means a controversy in which all the citizens on one side and all the citizens on the other are citizens of different states, jurisdiction in the case supposed could certainly not be supported upon that, for one of the parties defendant in such case is not a citizen, but an alien. On the other hand, if that same principle of construction is applied to the second class, a controversy in the case supposed is not between citizens of a state and foreign state, citizen, nor or subjects, for one of the defendants is neither a foreign state, citizen, nor subject, but a citizen of a different state. This would seem to be the necessary construction of the statute, and this is the view taken by the standard work on the subject. Black, Dill. Rem. Causes, Sec. 34.'

See Black's Dillon on Removal of Causes, Secs. 66-84; Simkins, Federal Suit in Equity, pp. 86, 87; Tracy v. Morel (C.C.) 88 F. 801, 803; Hervey v. Railway Co., 7 Biss. 103, Fed. Cas. No. 6,434; King v. Cornell, 106 U.S. 395, 1 Sup.Ct. 312, 27 L.Ed. 60; Pooley v. Luco (C.C.) 72 F. 561; Meyer v. Herrera (C.C.) 41 F. 65, 66; Gage v. Riverside Trust Co. (C.C.) 156 F. 1002; Sawyer v. Switzerland, 21 Fed.Cas. 589, No. 12,408, 14 Blatchf. 451, also by way of analogy; Smith v. Lyon, 133 U.S. 315, 10 Sup.Ct. 303, 33 L.Ed. 635.

Per contra, plaintiff relies on the following cases: Roberts v. Pacific, etc., Co., 121 F. 785, 58 C.C.A. 61 (C.C.A. Ninth Circuit); Ballin v. Lehr (C.C.) 24 F. 193; Ladew v. Tennessee Copper Co. (C.C.) 179 F. 245, at p. 256; Baker v. Pinkham (D.C.) 211 F. 728; Bradshaw v. Bowden (D.C.) 226 F. 323. Reference is also made to Ladew v. Tennessee Copper Co., 218 U.S. 367, 31 S.Ct. 81, 54 L.Ed. 1069. Roberts v. Pacific, etc., Co., supra, fully discusses the view urged by plaintiff.

An analysis of the reasoning which has led the various courts and text-book writers to come to their conclusions will not be profitable. The question will continue to be one as to which marked differences of opinion will exist until the Supreme Court has occasion to construe the statute. Of course, the question is close, and, ordinarily, a doubt will be resolved against jurisdiction; but as between the narrow view, well supported by close reasoning, and the broader view, which seeks to escape too fine a distinction, I choose the latter. I do this the more willingly...