Scarborough v. Mountain States Telephone & Tel. Co.

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: BOYNTON
• Citation: Scarborough v. Mountain States Telephone & Tel. Co., 45 F. Supp. 176 (W.D. Tex. 1942)
• Decision Date: 05 May 1942
• Docket Number: Civ. No. 170.
• Parties: SCARBOROUGH et al. v. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.

45 F. Supp. 176

SCARBOROUGH et al. v. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.

Civ. No. 170.

District Court, W. D. Texas, El Paso Division.

May 5, 1942.

Ernest Guinn, Co. Atty., of El Paso, Tex., for plaintiffs.

Burges, Burges, Scott, Rasberry & Hulse, of El Paso, Tex., for defendant.

BOYNTON, District Judge.

Plaintiff, M. Scarborough, and three other plaintiffs, viz.: B. P. Sainz, Charles A. Ruiz and H. A. Carnes, all resident citizens of El Paso County, State of Texas, filed suit in the District Court of El Paso County, 41st Judicial District of Texas, each suing in his own behalf, and alleging also on behalf of others similarly situated, not named, against defendant, the Mountain States Telephone & Telegraph Company, a non-resident corporation, alleged as duly created, incorporated and existing under and by virtue of the laws of the State of Colorado, doing business in the State of Texas, El Paso County, Texas: each plaintiff seeking recovery of a money judgment, in a certain definite amount as alleged, against defendant, in refund or repayment to such plaintiff of funds aggregating amounts as alleged, alleged as wrongfully and unlawfully collected by defendant of such plaintiff, during period alleged, as unjust and unlawful discrimination and over-charge, or over-charges, in nature of telephone rates charged and collected by defendant of such plaintiffs, respectively, and praying for issuance of injunction enjoining defendant from collection of such alleged over-charge or unwarranted rate, in the future, and from cutting off telephone service to such plaintiffs because of non-payment of alleged excessive and unwarranted rate charged.

Defendant filed petition and bond for removal of the case to the United States District Court, on the ground of being a non-resident, diversity of citizenship, and alleging the amount in controversy, matter in controversy, as involving in excess of $3,000, the right to fix telephone rates, and that the rates fixed by defendant are reasonable and just, not discriminatory, and should not be enjoined or interfered with; and the case thereupon removed to this Court.

Plaintiffs file motion to remand, urging as ground that the case should be remanded, because the "amount in controversy", "matter in controversy", relief sought by each individual plaintiff, respectively, is less than $3,000, or even in the aggregate not as much as $3,000, an amount below the jurisdiction of this Court; and the Court therefore without jurisdiction, notwithstanding existence of diversity of citizenship between defendant and plaintiffs.

There is no question or controversy as to diversity of citizenship existing between defendant and plaintiffs; this being conceded.

The question involved, in determination of the motion to remand herein, therefore is a determination of the "amount or matter in controversy". This must be tested by the pleadings at the time of removal, plus any admissions and undisputed evidence on that point. In the absence of special facts, as distinguished from conclusions, alleged in the petition for removal, the allegations of the original petition control, and the Court is not entitled to consider any counterclaim or contention to be raised by defendant in its answer. Chesapeake & Ohio R. R. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544; Smith v. United Gas Public Service Co., D.C.W.D.La.1932, 2 F.2d 211.

On reading and analysis of plaintiffs' pleading and cause of action, as set forth in plaintiffs' original petition, the Court finds that each of the four plaintiffs named, joining in said petition, seeks recovery of a certain definite money judgment against the defendant, for a certain definite sum and amount, viz., as follows: Plaintiff M. Scarborough for the sum of $144 and interest thereon; plaintiff B. P. Sainz for the sum of $120 and interest thereon; plaintiff Charles A. Ruiz for the sum of $120 and interest thereon, and plaintiff H. A. Carnes for the sum of $3.50 and interest thereon; in refund or repayment of funds and amounts alleged as wrongfully and unlawfully collected by defendant of such plaintiffs during period alleged, as unjust and unlawful discrimination and over-charge, or over-charges, in nature of telephone rates charged and collected by defendant of such plaintiffs, each respectively, and praying for issuance of an injunction enjoining defendant from collection of such alleged over-charge or unwarranted rate in the future, and from cutting off telephone service to such plaintiffs, respectively, because of nonpayment of alleged excessive and unwarranted rates charged, and on behalf of other persons similarly situated, not named.

The Court finds, from the pleadings in the case, that the amount in controversy of each of said named plaintiffs, respectively, to be much less than $3,000; and to be for the exact sums and amounts as hereinabove specified. Held, that the claims and contentions of each plaintiff are each separate and distinct from that of any other plaintiff, or person, though they may have a common origin and may be collaterally affected by determination of the principles involved in the litigation; and that plaintiffs have joined as such herein as a matter of convenience and economy.

Distinct and separate interests of complainants in a suit for debt, damages or relief against further assessments or charges, whether they have been made or merely threatened, cannot be aggregated or united for the purpose of making up amount necessary to give jurisdiction to Courts of the United States. Wheless v. City of Saint Louis, 180 U.S. 379, 382, 21 S. Ct. 402, 45 L.Ed. 583; City of Ogden v. Armstrong, 168 U.S. 224, 18 S.Ct. 98, 42 L. Ed. 444; Pinel v. Pinel, 240 U.S. 594, 36 S. Ct. 416, 60 L.Ed. 817; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; Thomson, Trustee et al. v. Gaskill et al., 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. ___, Op. March 2, 1942; Small et al. v. Frick, D.C., 40 F.Supp. 778, 781.

The policy of the...