Sagara v. Chicago, R. I. & P. Ry. Co.

Decision Date12 June 1911
Docket Number5,682.
Citation189 F. 220
PartiesSAGARA v. CHICAGO, R.I. & P. RY. CO.
CourtU.S. District Court — District of Colorado

Stark &amp Martin, for plaintiff.

Chas W. Waterman and Caldwell Martin, for defendant.

LEWIS District Judge.

The plaintiff, an alien and a subject and citizen of the Empire of Japan, brought this action in the state court against the defendant, a resident and citizen of the states of Illinois and Iowa, to recover damages for personal injuries resulting from being struck by one of defendant's engines while he was at work on the railway track over which the engine was being operated. His right foot was so crushed as to render amputation necessary above the ankle, his left arm was broken, and for these injuries, physical pain suffered, and reduced earning capacity he asks judgment against the defendant in the sum of $10,000.

In due time the defendant caused the suit to be removed to this court on the ground that the action involved a controversy between a citizen of a state and a foreign citizen in which the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2,000. The transcript was filed in this court on May 1st last and on the third day thereafter the plaintiff first appeared in the action here and moved for an order remanding it to the state court.

It cannot be doubted that the circuit courts of the United States have jurisdiction of this action. Act March 3, 1875 c. 137, 18 Stat. 470, as amended by Act March 3, 1887, c 373, 24 Stat. 552, corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508). The sole inquiry on the motion to remand is whether or not that part of section 1 of said act which 'distributes among the particular districts the general jurisdiction fully and clearly granted in the earlier part of the section' (In re Hohorst, 150 U.S. 653, 14 Sup.Ct. 221, 37 L.Ed. 1211), considered in connection with section 2 of the act, prohibits the exercise of that jurisdiction by this particular court unless both of the parties to the action give their consent.

The circuit court of the district either in Illinois or Iowa of which the defendant is an inhabitant is the court designated in the 'distributive part' of section 1 in which the action could have been brought by original process. It is likewise established that if plaintiff had instituted the action in a circuit court in any other district the defendant might have waived its right to be sued in the district of which it is an inhabitant, and have submitted itself to the jurisdiction of such court (Central Trust Co. v. McGeorge, 152 U.S. 129, 14 Sup.Ct. 286, 38 L.Ed. 98; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904), or it could have prevented the exercise of jurisdiction by such court by claiming the right to be sued only in the Circuit Court sitting in the district of which it is an inhabitant (G.H. & S.A. Ry. Co. v. Gonzales, 151 U.S. 497, 14 Sup.Ct. 401, 38 L.Ed. 248; Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, supra).

By removing the action from the state court to this court the defendant has waived its right to insist here upon being sued in the district of which it is an inhabitant, is thereby precluded from claiming that privilege and has submitted this controversy on its part to the jurisdiction of this court for final determination. Cowley v. N.P. Co., 159 U.S. 569, 16 Sup.Ct. 127, 40 L.Ed. 263; In re Moore, supra; Western L. & S. Assn. v. B.M. Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101.

The cause stated in the complaint is within the concurrent jurisdiction of this court and the state court in which the action was brought, and the defendant having, by removal, submitted itself to the jurisdiction of this court the inquiry remains, Has the alien plaintiff the option to consent or not to consent to the exercise of the jurisdiction of this court over the cause which by section 1 of the act is given to all circuit courts?

Prior to the action of the Supreme Court in the Wisner and Moore Cases the decisions answered the question in the negative: Iowa, etc. Co. v. Bliss (C.C.) 144 F. 446; Morris v. Clark Const. Co. (C.C.) 140 F. 756; Whitworth v. Ry. Co. (C.C.) 107 F. 557; Creagh v. Assurance Soc. (C.C.) 83 F. 849; Stalker v. Pullman's Co. (C.C.) 81 F. 989; Sherwood v. Newport N. & M.V. Co. (C.C.) 55 F. 1; Uhle & Fischl v. Burnham (C.C.) 42 F. 1; Kansas City Co. v. Lumber Co. (C.C.) 37 F. 3; Burck v. Taylor (C.C.) 39 F. 581-- although Harold v. Iron Co. (C.C.) 33 F. 529, is to the contrary, but from which Circuit Judge Brewer later withdrew his assent there given, as appears in 37 Fed., supra. Since, however, the opinions in the Wisner and Moore Cases were delivered, District Judge Pollock in Mahopoulus v. C., R.I. & P. Ry. (C.C.) 167 F. 165, and District Judge Marshall in Zerba v. Gilson Asphaltum Co., (opinion not published), have answered the question in the affirmative, and District Judge Reed in Barlow v. C. & N.W. Ry. Co. (C.C.) 164 F. 765, and 172 F. 513, in the negative. I concur in the conclusions reached by Judges Poolock and Marshall, and believe they are sustained by Ex parte Wisner and In re Moore, supra. Of course it appears in the Wisner and Moore Cases that the jurisdiction of the circuit court was 'founded only on the fact that the actions were between citizens of different states,' and section 1 of the act provides, under such conditions, that 'suits shall be brought only in the district of the residence of either the plaintiff or defendant,' but it is held in both of those cases that where an action between citizens of different states is brought into a circuit court on removal from a state court it should be remanded, where the circuit court is not one of the two particular circuit courts designated, unless both plaintiff and defendant consent that it should be retained. No reason has been assigned which justifies the conclusion that an alien plaintiff should not have the same right to give or withhold consent that a non-resident has who sues in a district of which neither he nor the defendant is an inhabitant.

The designation of the particular Circuit Court in which the suit shall be brought found in section 1 of the act is as clearly stated in the one instance as in the other. The only discoverable difference is that there are two districts in either one of which a suit between citizens of different states may be brought, by original process, whereas if the plaintiff be an alien there is only one district in which such suit may be brought. Section 2 of the act adopts the limitations in section 1 as to the Circuit Court into which a case can be properly removed. Cochran v. Montgomery Co., 199 U.S. 260, 26 Sup.Ct. 58, 50 L.Ed. 182. Under the Wisner and Moore Cases the...

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