Teeter v. Iowa-Illinois Gas & Electric Company

• Decision Date: 22 January 1964
• Docket Number: Civ. No. 721,722.
• Citation: 237 F. Supp. 961
• Parties: Waldon TEETER, Plaintiff, v. IOWA-ILLINOIS GAS & ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. GABE'S CONSTRUCTION COMPANY, Third-Party Defendant. Calvin A. BLAGG, Plaintiff, v. IOWA-ILLINOIS GAS & ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. GABE'S CONSTRUCTION COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Iowa

237 F. Supp. 961

Waldon TEETER, Plaintiff, v. IOWA-ILLINOIS GAS & ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. GABE'S CONSTRUCTION COMPANY, Third-Party Defendant.

Calvin A. BLAGG, Plaintiff, v. IOWA-ILLINOIS GAS & ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. GABE'S CONSTRUCTION COMPANY, Third-Party Defendant.

Civ. Nos. 721, 722.

United States District Court N. D. Iowa, Cedar Rapids Division.

January 22, 1964.

John J. Shea and N. E. Lillios, Cedar Rapids, Iowa, for plaintiffs Waldon Teeter and Calvin A. Blagg.

E. H. Wadsworth and John K. von Lackum, Jr., Cedar Rapids, Iowa, for defendant and third-party plaintiff Iowa-Illinois Gas & Electric Co.

Jack M. Fulton, Cedar Rapids, Iowa, for third-party defendant Gabe's Const. Co.

McMANUS, Chief Judge.

This matter is before the court on the motions of the third party defendant, Gabe's Construction Company (Gabe's), filed January 2, 1964, to dismiss the third party complaint against said defendant in each of these actions and to dismiss the cause of action of plaintiff, Calvin A. Blagg, (Blagg), in its entirety, alleging that this court lacks jurisdiction of the subject matter in that suit. Resistance to the motions was filed by defendant, Iowa-Illinois Gas & Electric Company (Iowa-Illinois), on January 16, 1964.

Each of these actions was brought to recover for personal injuries resulting from the explosion of a heater vessel which was being tested. Plaintiffs were employed by Gabe's, which had contracted to do work for defendant including work on the heater vessel. Both actions were instituted in the District Court of Iowa, in and for Linn County at Cedar Rapids, and were removed to this court pursuant to defendant's petitions for removal, filed August 16, 1961, alleging diversity of citizenship and a disputed amount in excess of $10,000.00 in each suit. The third party defendant was made a party to these actions by an order of the court, entered October 18, 1963.

According to petitions filed when the actions were originated in the state court, plaintiff, Waldon Teeter (Teeter), is a resident of Bucklin, Missouri, and plaintiff Blagg a resident of Marion, Iowa. Defendant, in its petitions for removal, states that it is incorporated under the laws of the State of Illinois, and is not incorporated under the laws of Iowa; the petitions fail to allege the state in which defendant has its principal place of business. In its motion to dismiss, filed January 2, 1964, asserting lack of jurisdiction in the action involving Blagg, the third party defendant alleges that the defendant is an Illinois corporation having its principal place of business in Davenport, Iowa. The counter brief filed by defendant resisting this motion agrees that defendant is a citizen of both Illinois and Iowa. The reports on preliminary pre-trial conferences filed December 12, 1962, by parties in these matters state that no jurisdictional dispute is involved.

Jurisdiction of the subject matter cannot be conferred upon a federal court by waiver, Burkhardt v. Bates, 296 F.2d 315 (8 Cir.1961); by consent of the litigants, American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1950); or through their oversight or inaction, Eastern Metals Corporation v. Martin, 191 F.Supp. 245 (S.D.N.Y. 1960). The court on its own motion must notice and determine the existence of federal jurisdiction in a removed case and, in the absence of such jurisdiction, remand that case to the state court. Yarbrough v. Blake, 212 F.Supp. 133 (W.D. Ark.1962); Adams v. Ralph L. Smith Lumber Co., 181 F.Supp. 729 (N.D.Col. 1960); 1 Barron & Holtzoff, Federal Practice and Procedure, § 109.

For the purpose of defining the extent of the original jurisdiction of the district court in diversity cases, and for the purpose of determining what actions may be removed to the district court, "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C.A. § 1332(c) (1958). Where jurisdiction is premised on diversity of citizenship, an action "shall be removable only if none of the parties in interest properly joined...