Thomas v. Delta Land & Water Co.
| Decision Date | 26 September 1918 |
| Docket Number | 2224,2228,2223,2234.,2219,2229,2230 |
| Citation | 258 F. 758 |
| Parties | THOMAS v. DELTA LAND & WATER CO. et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Evans Evans & Folland, Walton & Walton, and Dey, Hoppaugh & Fabian all of Salt Lake City, Utah, for plaintiffs.
Story & Steigmeyer, and Wm. Story, Jr., all of Salt Lake City, Utah for defendant Delta Land & Water Co
Each of the above-entitled actions was commenced in the district court of the Fifth judicial district, in and for the county of Millard, in the state of Utah, and removed to this court on petition of the defendant Delta Land & Water Company. Each of the plaintiffs is a resident and citizen of California. The Delta Land & Water Company is a Nevada corporation, and the other defendants, Prout and McPherson, are residents and citizens of Utah. In each case it is alleged that the plaintiff or plaintiffs were induced by the fraudulent representations of the defendants to purchase from the defendant company certain water rights, also to enter certain tracts of land in Millard county, Utah, and that the lands proved to be utterly worthless. The plaintiffs claim damages, actual and exemplary, in amounts varying from $11,001.59 in the Porter Case, to $70,500 in the Beardsley Case. Motion to remand is made in each suit, and, as all involve precisely the same questions, they will be considered together.
Removals were asked on the ground of diverse citizenship. The claim is made that Prout and McPherson had, and have, no interest whatever in this controversy, and that they were fraudulently joined as defendants in order to prevent removal to the federal court. Be this as it may, the question as to whether causes pending in the state court of Utah are removable to the United States District Court of Nevada for trial must be determined in any event, and, as this question is decisive, the former may be laid aside and the Delta Company will be regarded as the only defendant.
Where the facts upon which the right to have a case tried in this court are not clear, a motion to remand should be granted; in fact, federal courts have almost uniformly denied the right of removal in doubtful cases. Eddy v. Chicago & N.Y. Ry. Co. (D.C.) 226 F. 120; Nash v. McNamara (C.C.) 145 F. 541; Vanderbilt v. Kerr (C.C.) 188 F. 537.
Section 28 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1094 (Comp. St. Sec. 1010)) provides that controversies over which the District Courts of the United States are given original jurisdiction, brought 'in any state court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district. ' No attempt is made in section 28 to define the term 'proper district.' The Delta Company contends that it must be construed to be the district in which the plaintiff or defendant is a resident, and, as neither the Delta Company nor the plaintiffs are residents of Utah, the controversy between them cannot be removed to the United States District Court for that state; and if there can be no removal to California, the residence of the plaintiffs, nor to Nevada, the residence of the defendant, there can be no removal at all, notwithstanding the provision in section 28 for removal to the proper district.
Section 51 of the Judicial Code (section 1033) declares that, 'where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. ' In the same section it is also provided that 'no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant.'
Plaintiffs could have instituted this suit against the Delta Company in the federal court for Nevada, but from this it does not necessarily follow that defendant has a reciprocal right of removal to Nevada. The provisions quoted from section 51 render it impossible to harass a defendant by bringing suits against him in a federal court of a distant state, simply because such distant state happens to be the residence of the plaintiff. This consideration for the defendant suggests similar safeguards for the plaintiff, and undoubtedly moved Congress, in formulating the procedure for removal of causes in section 29 (section 1011), to provide for removals only 'into the District Court to be held in the district where such suit is pending.'
It might be a serious hardship, if not an absolute denial of justice, to permit a defendant by removal proceedings to...
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