Stamm v. American Telephone & Telegraph Company
| Decision Date | 19 April 1955 |
| Docket Number | Civ. A. No. 9645. |
| Parties | Vincil STAMM, Plaintiff, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, Western Electric Company, Audivox, Inc., and Richard H. Tatum, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
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.
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, 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, and that he has never been served with process herein); that "on February 18, 1955, your petitioners first learned of defendant, Tatum's, removal from the state of Missouri", and that, hence, "the time within which to file their petition for removal herein has not yet expired", and they alleged that the controversy in the case is now wholly between citizens of different states, to-wit: between the plaintiff, on the one hand, and AT&T and Western on the other, and that the amount in controversy exceeds the sum or value of $3,000.
Plaintiff has moved to remand.
It is clear that the fact that defendant, Audivox, Inc., has not joined in the petition for removal is not an impediment to removal by AT&T and Western, because Audivox has not been served with process. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334.
From the foregoing, it is evident that a joint cause of action was stated by the plaintiff (a citizen of Kansas), in the state court, against AT&T, Western (citizens of New York), Audivox (a citizen of Delaware), and Tatum, who was then, and for more than six months thereafter, a citizen and resident of Missouri, but who, at the time of the filing of the petition for removal, on March 3, 1955, was a citizen and resident of Pennsylvania. Out of these facts the first question arises, as to whether diversity is shown.
Petitioner-defendant, AT&T and Western, contend that it is, saying that "The removable character of a cause is determined as of the date the petition for removal is filed" and they cite Brown v. Eastern States Corp., 4 Cir., 181 F.2d 26, 28. That case clearly announces the law that a ...
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State Farm Fire & Cas. Co. v. Valspar Corp.
...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......
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Heniford v. American Motors Sales Corp.
...diversity 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 cases: It is quite well-settled that if the plaintiff voluntarily di......
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Weems v. Louis Dreyfus Corporation
...rule 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 The manner in whi......
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Torres v. Johnson
...and may, upon 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 ap......