Stone v. Foster

• Decision Date: 25 June 1958
• Docket Number: Civ. A. No. 376.
• Parties: Lorraine STONE, Plaintiff, v. Howard Myron FOSTER and William E. Benning, Jr., Defendants.
• Court: U.S. District Court — Western District of Arkansas

163 F. Supp. 298

Lorraine STONE, Plaintiff, v. Howard Myron FOSTER and William E. Benning, Jr., Defendants.

Civ. A. No. 376.

United States District Court W. D. Arkansas, Fayetteville Division.

June 25, 1958.

Rex W. Perkins, Fayetteville, Ark., for plaintiff.

Paul E. Gutensohn, Fort Smith, Ark., Calvin W. Hendrickson, Oklahoma City, Okl., for defendant Foster.

W. B. Putman, Fayetteville, Ark., for defendant Benning.

JOHN E. MILLER, District Judge.

The plaintiff has moved to remand this case to the Circuit Court of Washington County, Arkansas.

On October 30, 1957, plaintiff filed her complaint against the defendants seeking to recover damages for personal injuries alleged to have been suffered by her in a collision between the automobile in which she was riding and one being driven by the defendant, Howard Myron Foster, a citizen and resident of the State of Oklahoma, and one being driven by the defendant, William E. Benning, Jr., a citizen and resident of the State of Arkansas.

Specific acts of negligence are alleged against both defendants, and that the acts of negligence operating both singly and together contributed to and were a proximate cause of the injuries suffered and the damages sustained by plaintiff. The plaintiff prays for judgment against both defendants and each of them, together with all costs.

On April 22, 1958, plaintiff filed an amendment to her complaint, in which she alleged that subsequent to the date of the injuries she had married Darryl Herbert, and she asked that the case proceed in her married name, Lorraine Stone Herbert.

In due time the defendant, Howard Myron Foster, filed his answer in which he denied "each and every material allegation contained in the complaint." Following the filing of the original answer, the said defendant filed an amended answer, in which he alleged that at the time of the collision of the automobiles he was in the exercise of ordinary and reasonable care, and was confronted with a sudden emergency preceding the collision; that after discovering said emergency he exercised reasonable and ordinary care to avoid and prevent the collision; that the collision occurred "as a result of an unavoidable casualty"; and that the collision "was caused and occurred on account of the sole negligence of Charles Abbott, driver of the automobile in which plaintiff was riding."

The record does not contain the answer of the defendant, William E. Benning, Jr.

The defendant, Howard Myron Foster, on May 29, 1958, filed in this Court his petition for removal, in which he alleged that the case was regularly called for a jury trial on May 12, 1958, in the Circuit Court of Washington County; that the plaintiff and both defendants announced ready for trial; a jury was empaneled and the cause proceeded to trial and was finally submitted to the jury as to both defendants on May 13, 1958; that after due deliberation the jury announced that it was unable to reach a verdict, whereupon a mistrial was declared by the trial judge and the jury dismissed.

Said defendant further alleged that the plaintiff, Lorraine Stone Herbert, is a citizen and resident of the State of Arkansas, and that because the defendant, William E. Benning, Jr., was fraudulently joined as a party defendant in the action commenced in the Circuit Court of Washington County, State of Arkansas, and that this became known to petitioner (Howard Myron Foster) only after this cause was fully tried, argued by counsel, and submitted to the jury, this cause became removable because of the manifestation of the fraud at that time for the first time, and since the matter in controversy exceeds the amount of $3,000, exclusive of interest and costs, and involves an action between citizens of different States, it is a controversy over which the District Courts of the United States have original jurisdiction.

In numbered paragraph III of the petition for removal, it is alleged:

"Your petitioner would show the Court through a complete record of all of the proceedings of the trial upon the issues in the Circuit Court of Washington County that at no time did the plaintiff attempt to prove any of the allegations of negligence alleged by the plaintiff against the defendant William E. Benning, Jr., and that at no time did the plaintiff attempt in any wise to involve the defendant William E. Benning, Jr., as a responsible party for any of the injuries alleged by the plaintiff; that there was a complete absence by the plaintiff of any demonstration of an intent to procure a verdict against the defendant William E. Benning, Jr., at the hands of the jury, and that the record shows that there was no intent on the part of the plaintiff to involve the defendant William E. Benning, Jr., as a responsible party to whom the plaintiff could look for damages."

In numbered paragraph V, it is alleged:

"That there was a complete absence of any proof on the part of either the plaintiff or your petitioner with respect to any responsibility of the defendant William E. Benning, Jr., for the accident and any injuries sustained by the plaintiff resulting therefrom; that though no evidence of any character was offered by any of the parties to this trial showing any responsibility on the part of the defendant William E. Benning, Jr., because, as a matter of fact, no such proof did or does now exist, the attorney for the defendant William E. Benning, Jr., made no motions during the course of the trial for dismissal of said cause against the defendant William E. Benning, Jr.; and that during the argument to the jury at the conclusion of the evidence in this cause presented by said attorney for the plaintiff, no mention or reference was made by said attorney to any responsibility on the part of the defendant William E. Benning, Jr., and no argument was made which would in any wise involve William E. Benning, Jr., as a responsible party in the accident; and that the argument presented by the attorney for the defendant William E. Benning, Jr., was directed, apart from his assertions as to the responsibility of your petitioner for said accident, toward emphasizing and aggrandizing the injuries sustained by the plaintiff to the end of requesting that a substantial judgment be returned in this case for the plaintiff against your petitioner."

The petitioner, in numbered paragraph VI of the petition, alleged that the defendant, William E. Benning, Jr., was fraudulently joined for the sole purpose of preventing the removal of this case to the Federal Court.

On June 6 the plaintiff filed a response to the petition and included therein a motion to remand, in which she alleged "that the complaint alleged and the proof showed the resident defendant, Benning, negligent; further, the question of Benning's negligence was submitted to a jury. * * * Plaintiff further states that the defendant, Benning, is a bona fide resident and domiciled in the State of Arkansas; and that he is a joint tort-feasor with the defendant, Foster; that the jurisdiction exists in the Circuit Court of Washington County, Arkansas, and has so existed since October 30, 1957. * * * and that the defendant, Howard Foster, has failed, in apt time, to seek a removal of said cause."

The plaintiff also denied that the defendant Benning was fraudulently joined as a party defendant to prevent removal of the case to this Court.

On June 14 the defendant, Howard Myron Foster, filed his response to the motion to remand in which he alleged:

"The original pleadings in this cause in the Circuit Court of Washington County did not present a removable case but the subsequent events which took place at the trial and after this case was submitted to the jury, made it plain that there existed a removable controversy between the parties, and therefore removal can be effected within due time thereafter."

On the same date the defendant Foster filed a motion for oral argument, in which he requested the Court to grant oral argument on the plaintiff's motion to remand, and further requested that the motion be not set for hearing until the Court Reporter for the Circuit Court of Washington County, Arkansas, had completed a transcript of the evidence offered at the trial on the merits of this cause in the Circuit Court of Washington County, which transcript he had ordered.

The Clerk called the attention of the Court to the said motion of defendant, and on June 17 the attorney for the plaintiff and the attorney for the defendant Foster were advised by letter that the Court much preferred to dispose of motions upon the record and briefs under Local Rule 8,¹ and that oral arguments on motions were allowed only in exceptional cases. The attorneys were further advised by the Court that action would be deferred on the motion until receipt of the transcript, and after considering the transcript, the record, and the briefs herein, if the Court was then of the opinion that oral argument would be helpful the motion would be set for such argument. On the other hand, if it appeared that oral argument was unnecessary, the motion to remand would be decided on the basis of the record and the briefs of the parties.

The defendant Foster cited several cases in his response to the motion to remand.²

The calendars of this Court are in such condition as to require the Court to expedite the consideration of motions when it is possible to do so without doing an injustice to the parties, and a break in the calendar of cases regularly set for trial having occurred, the Court has utilized the time to consider the motion to remand, notwithstanding the transcript of the trial on the merits in the Washington Circuit Court has not been received. An examination of the record and the governing decisions convinces the Court that no useful purpose would be served by awaiting the receipt of the transcript of the evidence adduced by the parties at the trial in the State court.

It is not contended that a joint cause of action was not alleged by pl...