Sexton v. Allday

• Decision Date: 09 September 1963
• Docket Number: Civ. No. PB-63-C-30.
• Citation: 221 F. Supp. 169
• Parties: Emory D. SEXTON, Plaintiff, v. Mary L. ALLDAY, Walter D. McCormick, and the Estate of James D. Allday, Dec'd., Defendants. Walter D. McCormick and Ramsey Towing, Inc. (Formerly McCormick-Ramsey, Inc.), Cross-Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

221 F. Supp. 169

Emory D. SEXTON, Plaintiff, v. Mary L. ALLDAY, Walter D. McCormick, and the Estate of James D. Allday, Dec'd., Defendants Walter D. McCormick and Ramsey Towing, Inc. (Formerly McCormick-Ramsey, Inc.), Cross-Defendants.

Civ. No. PB-63-C-30.

United States District Court E. D. Arkansas, Pine Bluff Division.

September 9, 1963.

William H. Drew, Lake Village, Ark., for plaintiff.

John F. Gibson, Dermott, Ark., for defendant.

Alston Jennings, of Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., for cross-defendants.

HENLEY, Chief Judge.

This action for personal injuries and wrongful death is now before the Court on the motion of plaintiff to remand the cause to the Circuit Court of Chicot County, Arkansas, whence it was removed to this Court by the defendant Walter D. McCormick and by the cross-defendant Ramsey Towing, Inc. (formerly McCormick-Ramsey, Inc.). Although the motion to remand is not accompanied by a separate statement of reasons and authorities in support thereof, as required by Local Rule 8 of this Court, the motion itself sets out its basis fully. Moreover, the Court is required to notice on its own motion defects in its jurisdiction both in original actions and in removed causes.

The litigation stems from a three car collision which took place in Chicot County in July 1962 near the Greenville Bridge over the Mississippi River. One of the vehicles was operated by plaintiff Emory D. Sexton, another of the vehicles was operated by James D. Allday, and the third vehicle was operated by Walter D. McCormick, an agent of McCormick-Ramsey, Inc., which corporation has been succeeded by Ramsey Towing, Inc. As a result of the accident, Allday was killed, and Sexton received personal injuries.

Sexton commenced this suit in the Chicot Circuit Court naming as defendants, Mary L. Allday who owned the car which was being operated by James D. Allday at the time of the wreck, "the Estate of James D. Allday, Deceased," and Walter D. McCormick. The complaint alleged that the accident and Sexton's alleged injuries were proximately caused by the concurrent negligence of Allday and McCormick. It was alleged further that Sexton is a citizen of Texas, that the defendant Mary L. Allday is also a citizen of Texas, that the deceased, James D. Allday, was a citizen of Texas at the time of his death, and that Walter D. McCormick is a citizen of Louisiana.

Walter D. McCormick filed a separate answer in the State court denying negligence and alleging that the accident had been caused by the joint and concurrent negligence of Allday and Sexton. McCormick filed no counterclaim.

In a pleading denominated "Answer and Cross-Complaint" Mary L. Allday and "the Estate of James D. Allday, Deceased,"¹ denied any liability to Sexton and alleged in substance that the accident and the resulting death and injuries were due solely to the alleged negligence of McCormick. In this pleading the widow and heirs at law of Allday made themselves parties to the litigation and filed a cross-complaint against McCormick and against his employer, McCormick-Ramsey, Inc., seeking to recover damages on account of Allday's death.² The Alldays seek no affirmative relief against Sexton.

When the Allday cross-complaint was filed, McCormick and Ramsey Towing, Inc., the successor of McCormick-Ramsey, Inc., removed the case here on the basis of 28 U.S.C.A. § 1441(c), which provides that whenever a "separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more other non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

Concededly, the claim of the Alldays against the removing defendants is separate from and independent of the claim of Sexton against the original defendants, which claim was not removable due to the fact that Sexton and the defendant Mary L. Allday are citizens of Texas. It may be conceded also that the claim of the Alldays against the removing defendants would have been removable if sued upon alone.

However, the federal courts in Arkansas since Judge Miller's decision in Sequoyah Feed & Supply Co. v. Robinson, W.D.Ark., 101 F.Supp. 680, have adhered to the view taken by Professor Moore³ that in order to afford a basis for removal under section 1441(c) the separate and independent claim must have been one advanced by the plaintiff in his complaint, and that separate and independent claims or causes of action brought into a case by way of counterclaim, cross-claim or third-party complaint or intervention do not justify removal. See Shaver v. Arkansas-Best Freight System, Inc., W. D.Ark., 171 F.Supp. 754; cf. Willingham v....