Spring City Flying Service, Inc. v. Vogel
| Decision Date | 13 March 1968 |
| Docket Number | No. 67-C-371.,67-C-371. |
| Parties | SPRING CITY FLYING SERVICE, INC., a Wisconsin corporation, Plaintiff, v. Bruce VOGEL alias, and Brian Vogel alias, d/b/a Rapid Air Freight, Defendants, and Wal-Co-Wis Airways, Inc., a Wisconsin corporation, Interpleaded Defendant, and Amron Corporation, a foreign corporation, and Railway Express Agency, Inc., Garnishee Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
James J. Caldwell, Waukesha, Wis., for plaintiff.
Richard A. Heilprin, Madison, Wis., for defendants.
The plaintiff, Spring City Flying Service, Inc., commenced this action in the circuit court for Waukesha County, Wisconsin, against the defendants, Bruce Vogel alias, and Brian Vogel alias, d/b/a Rapid Air Freight, Inc. The plaintiff complains that under a contract with Waukesha County, the plaintiff is authorized to operate the Waukesha County airport; that pursuant to this contract, it is authorized to make fair and reasonable charges to users of its facilities; and that the defendants used these facilities and are now indebted to the plaintiff in the sum of $1405.15.
The defendants made a special appearance to contest the jurisdiction of the circuit court. They maintained that a Wisconsin corporation, Wal-Co-Wis Airways, was the only real and necessary defendant in the action; that they had never done business as Rapid Air Freight, but were only the officers and employees of Wal-Co-Wis Airways. The state circuit court entered an order allowing the defendants to implead Wal-Co-Wis as a third-party defendant. Subsequently, the defendants served a cross-complaint on Wal-Co-Wis, then removed this case to the federal district court. The plaintiff objects to the removal and requests that the case be remanded to the state court.
This case was removed pursuant to 28 U.S.C. § 1441(b), which states in part:
"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable * * *."
The plaintiff objects to the removal, claiming (1) that no federal question is raised by the pleadings and (2) that there was non-compliance with the removal procedure as outlined in § 1446(b), 28 U.S.C. The latter section provides that a petition for removal must be filed within thirty days after the defendant receives the initial pleading setting forth the claim for relief. Not only does the plaintiff maintain that the removal petition was untimely, but that the claims of the plaintiff can be determined solely on the basis of state law. Although the plaintiff has not expressly labeled his objections as such, they shall be treated by this court as a motion for remand pursuant to § 1447, 28 U.S.C.
The Vogels and Wal-Co-Wis urge that the case was properly removed and point to the fact that the Waukesha County airport was constructed with federal funds pursuant to an agreement with the Federal Aviation Agency. They therefore contend that the statutory provisions of 49 U.S.C. § 1110(1) must be met. This section reads as follows:
The defendants state that this legislative guarantee of reasonableness and fairness is in fact embodied in the lease between Waukesha County and the plaintiff. The defendants argue that Congress in its delegation of power to the Federal Aviation Agency to regulate airport charges did not intend that this power could be further delegated to units of state government such as Waukesha County. The defendants also contend that it was the intention of Congress to preempt this rate determination from the states. In addition, the defendants maintain that in order to determine what are fair and reasonable charges will require judicial construction of § 1110(1), 49 U.S.C.; that this determination cannot be...
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Board of Ed. of Atlanta v. AMERICAN FED. OF S., C. & ME
...419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975), Milligan v. Milligan, 484 F.2d 446 (8th Cir. 1973), Spring City Flying Service, Inc. v. Vogel, 281 F.Supp. 594 (E.D.Wis.1968). In the case at bar, the complaint fails to state even the remotest federal element. It sets forth a straightforw......
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