St. John v. United States Fidelity & Guaranty Co.

• Decision Date: 15 April 1914
• Citation: 213 F. 685
• Parties: ST. JOHN v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: U.S. District Court — District of Maryland

213 F. 685

ST. JOHN v. UNITED STATES FIDELITY & GUARANTY CO.

United States District Court, D. Maryland.

April 15, 1914

R. E Lee Marshall, of Baltimore, Md., for defendant.

ROSE District Judge.

This suit was brought in the district court of the Thirteenth judicial district of the state of Montana in and for the county of Rosebud. Defendant seeks to remove it to the United States District Court for the District of Maryland. The plaintiff is a citizen of Wyoming; the defendant a Maryland corporation. At first the defendant supposed that the plaintiff was a citizen of Montana. It accordingly had the case removed to the United States District Court for that district. Plaintiff moved to remand on the ground that he was a citizen of Wyoming. The fact having been established, the motion was granted. The defendant then asked the state court to send the case here. The petition was denied. The defendant caused a transcript of the record to be filed in this court.

Its argument in support of its right to remove may be briefly summarized: The parties to this suit are citizens of different states. The amount in controversy is upwards of $3,000, exclusive of interest and costs. Section 28 of the Judicial Code authorizes the removal of such a suit from the state to the federal courts. It provides that such removal shall be from the state court to the United States District Court 'for the proper district.' Where the jurisdiction of the United States Court depends solely upon diversity of citizenship, the only proper districts are the districts of the residence of the plaintiff or of the defendant. In this case the district of Montana is not the residence of either plaintiff or defendant. Consequently the case cannot be removed to the United States District Court of that district. The proper districts are the districts of Wyoming and Maryland. The defendant has the right to demand that the case be removed to that one of them which it may prefer. It has selected the district of Maryland, and has taken the other necessary steps required by the statute to perfect the removal.

Put a little more succinctly, defendant says that section 28 gives it the right to remove the case. If it cannot remove it to the district of Maryland it cannot remove it at all. The latter proposition may be conceded. The plaintiff, residing in Wyoming, had the right to object to the removal of its case against a Maryland corporation from a state court in Montana to a District Court of the United States of the last-named state. Western Loan Co. v. Butte & Boston Min.

Co. 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101. The plaintiff could have sued the defendant in the United. States District Court for the District of Maryland. In that sense the latter district is a proper district for the institution of such a suit.

Defendant's contention as thus summarized ignores the provisions of section 29 of the Judicial Code. That section tells how the right to remove, given by section 28, may be exercised. It says:

'Whenever any party entitled to remove any suit mentioned in the last preceding section * * * may desire to remove such suit from a state court to the District Court of the United States, he may make and file a petition * * * for the removal of such suit into the District Court to be held in the district where such suit is pending, and shall make and file therewith a bond with good and sufficient surety, for his or their entering in such District Court, within thirty days from the date of filing said petition, a certified copy of the record in such suit.'

That is, he may ask to remove the case to the District Court of the district in which the state court is situated, and must give bond to file the record in that court.

The language that the removal may be made to the federal court of the proper district does not make its appearance for the first time in the Judicial Code. In the original Judiciary Act (Act Sept. 24, 1789, c. 20), section 12 (1 Stat. 79) defined not only the cases which were removable, but specified the procedure by which such removal could be had.

The removal could not be made otherwise than to the Circuit Court of the United States to be held in the district where the suit was pending. Section 639 of the Revised Statutes, as originally enacted in 1873, somewhat recast the phraseology of section 12 of the Judiciary Act, and incorporated certain provisions of later acts. It said:

'Any suit commenced in any state court, wherein, * * * may be removed, for trial, into the Circuit Court, for the district where such suit is pending.'

Other paragraphs of the section deal with the procedure by which such removal is to be effected.

The act of March 3, 1875 (18 Stat. 470, c....