Stamm v. American Telephone & Telegraph Company, Civ. A. No. 9645.

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Writing for the CourtB. T. Hurwitz and Roger T. Hurwitz, Kansas City, Mo., for plaintiff
Citation129 F. Supp. 719
PartiesVincil STAMM, Plaintiff, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, Western Electric Company, Audivox, Inc., and Richard H. Tatum, Defendants.
Decision Date19 April 1955
Docket NumberCiv. A. No. 9645.

129 F. Supp. 719

Vincil STAMM, Plaintiff,
v.
AMERICAN TELEPHONE & TELEGRAPH COMPANY, Western Electric Company, Audivox, Inc., and Richard H. Tatum, Defendants.

Civ. A. No. 9645.

United States District Court W. D. Missouri, W. D.

April 19, 1955.


B. T. Hurwitz and Roger T. Hurwitz, Kansas City, Mo., for plaintiff.

William Coleman Branton, of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendants.

WHITTAKER, District Judge.

I deal now with plaintiff's motion to remand, which turns upon (1) the legal question of whether diversity is to be determined as of the time of removal, as the removing defendants contend, or as of the time of institution of the suit, and (2) upon the factual question of whether plaintiff had voluntarily abandoned or discontinued the action as to the resident defendant before the removal.

Briefly summarized, the facts which present these issues are that, on January 27, 1953, plaintiff, a citizen of Kansas, commenced this suit, in the Circuit Court of Jackson County, Missouri, at Kansas City, jointly, against American Telephone & Telegraph Company (hereinafter called AT&T), a New York corporation,

129 F. Supp. 720
Western Electric Company (hereinafter called Western), a New York corporation, and Richard H. Tatum, then a citizen of Missouri, to recover damages for claimed misrepresentation and deceit practiced upon the plaintiff by the defendant, Tatum, as the agent and servant of, and in the scope and course of his employment by, AT&T and Western. Process was served on defendants, AT&T and Western, and they answered, but the summons issued for defendant, Tatum, was returned unserved, and no alias summons was issued for him, and he has never been served with process

On February 26, 1955, plaintiff, with leave of the state court, filed an amended complaint, bringing in, as an additional defendant, Audivox, Inc., a Delaware corporation, but no service of process has been had upon it.

On March 3, 1955, defendants, AT&T and Western, filed herein their petition and bond for removal of the cause to this Court, alleging that at the time of the institution of this suit plaintiff was, and still is, a citizen of Kansas, and that defendant-petitioners, AT&T and Western, were, and still are, citizens of New York, that Audivox has not been served with process, that Tatum "although a citizen and resident of the state of Missouri at the time of the commencement of said action, is now a citizen and resident of the state of Pennsylvania", and has not been served with process, and that since the non est return as to him of January 28, 1953, no alias summons has been issued for him, and that, thus, "plaintiff has abandoned his action against Richard H. Tatum" (petitioners attach an affidavit of Tatum, saying that from June 30, 1950, until August 8, 1953, he was a citizen and resident of Missouri, and that on August 8, 1953, he became, and, until June 1, 1954, remained, a citizen of New York, that on the latter date he became, and he yet remains, a citizen of Pennsylvania,...

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25 practice notes
  • State Farm Fire & Cas. Co. v. Valspar Corp., No. CIV. 09–5056–JLV.
    • United States
    • U.S. District Court — District of South Dakota
    • September 24, 2010
    ...cannot simply be overlooked for purposes of analyzing diversity removal jurisdiction. Cf. Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719, 720–21 (W.D.Mo.1955) (court would not ignore presence of resident defendant for purposes of diversity removal jurisdiction where resident d......
  • Heniford v. American Motors Sales Corp., Civ. A. No. 79-220.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 25, 1979
    ...did not exist among the parties at the commencement of the state court action. The court in Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719 (W.D.Mo.1955) summarized the rule upholding removal in such It is quite well-settled that if the plaintiff voluntarily dismisses, disconti......
  • Weems v. Louis Dreyfus Corporation, No. 23580.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 22, 1967
    ...was not affected by the amendment, and therefore remains part of today's applicable case law. See Stamm v. American Tel. & Tel. Co., 129 F.Supp. 719 (W.D. Mo.1955); 1A Moore's Federal Practice 1243-45 (1965 ed.). See also Putterman v. Daveler, 169 F.Supp. 125, 129-130 (D.Del.1958).380 F.2d ......
  • Torres v. Johnson, Civil Action No. 18-10566-MGM
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 17, 2018
    ...prompt action, be removed by the non-resident defendants who have been served." (quoting Stamm v. American Telephone & Telegraph Co., 129 F. Supp. 719, 721 (W.D. Mo. 1955)). In this regard, "[t]he existence of a settlement agreement that is binding and enforceable under the applicable state......
  • Request a trial to view additional results
25 cases
  • State Farm Fire & Cas. Co. v. Valspar Corp., No. CIV. 09–5056–JLV.
    • United States
    • U.S. District Court — District of South Dakota
    • September 24, 2010
    ...cannot simply be overlooked for purposes of analyzing diversity removal jurisdiction. Cf. Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719, 720–21 (W.D.Mo.1955) (court would not ignore presence of resident defendant for purposes of diversity removal jurisdiction where resident d......
  • Heniford v. American Motors Sales Corp., Civ. A. No. 79-220.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 25, 1979
    ...did not exist among the parties at the commencement of the state court action. The court in Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719 (W.D.Mo.1955) summarized the rule upholding removal in such It is quite well-settled that if the plaintiff voluntarily dismisses, disconti......
  • Weems v. Louis Dreyfus Corporation, No. 23580.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 22, 1967
    ...was not affected by the amendment, and therefore remains part of today's applicable case law. See Stamm v. American Tel. & Tel. Co., 129 F.Supp. 719 (W.D. Mo.1955); 1A Moore's Federal Practice 1243-45 (1965 ed.). See also Putterman v. Daveler, 169 F.Supp. 125, 129-130 (D.Del.1958).380 F.2d ......
  • Torres v. Johnson, Civil Action No. 18-10566-MGM
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 17, 2018
    ...prompt action, be removed by the non-resident defendants who have been served." (quoting Stamm v. American Telephone & Telegraph Co., 129 F. Supp. 719, 721 (W.D. Mo. 1955)). In this regard, "[t]he existence of a settlement agreement that is binding and enforceable under the applicable state......
  • Request a trial to view additional results

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