Stone v. Chicago, B. & Q.R. Co.

Decision Date27 March 1912
Docket Number3,859.
Citation195 F. 832
PartiesSTONE v. CHICAGO, B. & Q.R. CO.
CourtU.S. District Court — Western District of Missouri

C. W Prince, for plaintiff.

Warner Dean, McLeod & Timmonds, for defendant.

VAN VALKENBURGH, District Judge.

This is a suit to recover damages for alleged personal injuries. The plaintiff is a citizen and resident of Wyandotte county, in the state of Kansas. The defendant is a corporation organized and existing under and by virtue of the laws of the state of Illinois. The ground upon which defendant seeks to remove the cause to this court is thus stated:

'Petitioner * * * is a corporation organized and existing under and by virtue of the laws of the state of Illinois, and as such corporation was and is a citizen of said state of Illinois and not a citizen of the state of Missouri. Your petitioner further represents and shows to the court that at the time of the filing of plaintiff's original petition herein your petitioner, the Chicago, Burlington & Quincy Railroad Company, was, ever since has been, and now is, a resident but not a citizen, of the Western Division of the Western District of Missouri; that, although your petitioner is not a citizen of the state of Missouri, by reason of its residence therein and by reason of its residence in the Western Division of the Western District of Missouri, the alleged cause of action attempted to be set up by plaintiff in her last amended petition might originally have been instituted by her against this defendant, your petitioner, in the United States District Court for the Western Division of the Western District of Missouri.'

It is conceded that the defendant operates a portion of its line of railroad through this division and district; that it has complied with the laws of Missouri applicable to corporations foreign to the state; and that it has in this jurisdiction business offices and agents upon whom service of process may be made in conformity with the requirements of such laws. For all these reasons it asserts that it has here such a residence for jurisdictional purposes as is contemplated by the removal statute. Plaintiff in her motion to remand challenges the jurisdiction of this court, 'for the reason that the plaintiff is a citizen and resident of the state of Kansas and the defendant a citizen and resident of the state of Illinois, and this cause is not one within the original jurisdiction of this court, hence this court cannot acquire jurisdiction by removal.'

In January, 1911, in the case of Elizabeth Wheeler, Plaintiff, v. Atchison, Topeka & Santa Fe Railway Company, Defendant, this court had occasion to consider an application like this in all essential particulars. The memorandum opinion then handed down was not forwarded for publication. The conclusions reached at that time were thus stated:

'This is a motion to remand; the removal being founded solely upon diversity of citizenship, the defendant being a corporation organized and existing under the laws of the state of Kansas, and therefore a citizen and resident of that state, and the plaintiff being a citizen and resident of the Eastern Judicial District of Missouri. It is settled law that no suit is removable under section 2 of the removal act, unless it be one that plaintiff could have brought originally in the Circuit Court of the United States, to which it is sought to be removed. Ex parte Wisner, 203 U.S. 449-457 (27 Sup.Ct. 150, 51 L.Ed. 264); Cochran v. Montgomery County, 199 U.S. 260 (26 Sup.Ct. 58, 50 L.Ed. 182, 4 Ann.Cas. 451); Mexican National Railroad v. Davidson, 157 U.S. 201-208 (15 Sup.Ct. 563, 39 L.Ed. 672); Mahopoulus v. Chicago, R.I. & P. Ry. Co. (C.C.) 167 F. 165; Carp v. Queen Ins. Co. (C.C.) 168 F. 782. And within the meaning of this act a corporation is a citizen and resident only of the state of its incorporation. Shaw v. Mining Co., 145 U.S. 444 (12 Sup.Ct. 935, 36 L.Ed. 768); Southern Pacific Ry. Co. v. Denton, 146 U.S. 202 (13 Sup.Ct. 44, 36 L.Ed. 942); Bank of Augusta v. Earle, 13 Pet. 519-588 (10 L.Ed. 274). For jurisdictional purposes it is an inhabitant only of the state under which it was incorporated, and is not suable elsewhere without its consent. United States v. Northern Pacific R.R. Co. et al. (C.C.A.) 134 F. 715 (67 C.C.A. 269). When the jurisdiction is founded only on the fact that the parties are citizens of different states, the suit shall be brought in the district of which either party is an inhabitant. And it is established by the decisions of this court that within the meaning of this act a corporation cannot be considered a citizen, an inhabitant, or a resident of a state in which it has not been incorporated; and consequently that a corporation incorporated in a state of the Union cannot be compelled to answer to a civil suit, at law or in equity, in a Circuit Court of the United States held in another state, even if the corporation has a usual place of business in that state. In re Keasbey & Mattison Co., 160 U.S. 221-229 (16 Sup.Ct. 273, 40 L.Ed. 402); McCormick Co. v. Walthers, 134 U.S. 41-43 (10 Sup.Ct. 485, 33 L.Ed. 833); Shaw v. Quincy Mining Co., 145 U.S. 444 (12 Sup.Ct. 935, 36 L.Ed. 768); Southern Pacific Co. v. Denton, 146 U.S. 202 (13 Sup.Ct. 44, 36 L.Ed. 942); Moyer v. Chicago, M. & St. P. Ry. Co. (C.C.) 168 F. 105; Mahopoulus v. Chicago, M. & St. P. Ry. Co. (C.C.) 167 F. 165; Clark v. Southern Pacific R.R. Co. (C.C.) 175 F. 122. It is not contended that plaintiff has consented to the jurisdiction of this court. Plaintiff could not have compelled defendant to accept this jurisdiction, and the defendant cannot compel the plaintiff to accept its invitation to litigate the case in a court to which plaintiff could not go except on such invitation. Ex parte Wisner, 203 U.S. 449 (27 Sup.Ct. 150, 51 L.Ed. 264); Mahopoulus v. Chicago, M. & St. P. Ry. Co. (C.C.) 167 F. 165; Clark v. Southern Pacific R.R. Co. (C.C.) 175 F. 122. In the case of In re Dunn, 212 U.S. 374 (29 Sup.Ct. 299, 53 L.Ed. 558), mainly relied upon by defendant, it was recognized that the right to remove depends upon whether the suit could have been brought originally in the Circuit Court of the United States-- citing, with approval, Cochran v. Montgomery County, 199 U.S. 260 (26 Sup.Ct. 58, 50 L.Ed. 182, 4 Ann.Cas. 451). In that case the defendant corporation was organized under the federal law; and, not having been incorporated in any state, the only question was as to the district of its residence for jurisdictional purposes, which, upon the facts, was held to be the Northern District of Texas. The principles above announced are not there departed from. It follows that, inasmuch as the plaintiff could not have brought her suit in this court in the first instance, she cannot be compelled without her consent to submit to its jurisdiction by removal. The principles stated have been so generally and so authoritatively announced that further elaboration here would be unwarranted consumption of time for no useful purpose. No such doubt exists as would justify this court in retaining jurisdiction under the rule stated in Boatman's Bank v. Fritzlen et al. (C.C.A.) 135 F. 650 (68 C.C.A. 288). It is probably true that the suit was brought in the circuit court of Jackson county, Mo., for the purpose of avoiding the federal jurisdiction, but this fact cannot aid the defendant. The matter of removal, in cases like the present, is entirely within the control of Congress. Alabama Great Southern Ry. Co. v. Thompson, 200 U.S. 206-219 (26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147). And whatever it might do Congress has not made this case removable. The motion to remand is sustained.'

The differences between that case and this in the matter of citizenship are that here the defendant is a citizen of Illinois instead of Kansas, and the plaintiff is a citizen of another state, instead of another judicial district of Missouri.

It has been brought to my attention that very recently a different conclusion has been reached in another district of this circuit; and for that reason this court is earnestly solicited to revise its former ruling. The respect which is due to the opinions of other courts, the desirability of harmony of decision, and the regard that should be accorded to the zeal and diligence of able and painstaking counsel have led me to give this question further and careful examination.

The main, if not the sole, contention upon which this removal is sought, is that in the matter of residence there is a fundamental and controlling difference between an individual and a corporation, particularly a railroad corporation. In fact, the differences asserted between railroad corporations and other corporations with less fixity of physical property are greater even than those between individuals and corporations of the latter class. It is urged that a railroad corporation, while having its citizenship and likewise a residence fixed by its act of incorporation, may, nevertheless, acquire still another residence for jurisdictional purposes dependent upon the location and nature of its business, and the character and permanency of its property there located. It is further insisted that the doctrine announced in Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, should not be applied to cases of the character now under consideration, and, if so applied, introduces a new and startling departure in the matter of railroad litigation not contemplated by the Supreme Court, and never hitherto considered by that tribunal in its relation to this subject-matter. We may freely concede the plausibility and ingenuity of this argument, but must not be led to adopt it without a careful consideration of principles authoritatively established by the courts of last resort.

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