Trullinger v. Rosenblum

• Decision Date: 22 October 1954
• Docket Number: Civ. No. 2842.
• Citation: 125 F. Supp. 758
• Parties: Donald TRULLINGER, Plaintiff, v. Morris ROSENBLUM et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

125 F. Supp. 758

Donald TRULLINGER, Plaintiff, v. Morris ROSENBLUM et al., Defendants.

Civ. No. 2842.

United States District Court, E. D. Arkansas, W. D.

October 22, 1954.

Moncreif & Moncreif, Joseph Morrison, Stuttgart, Ark., Leffel Gentry, Little Rock, Ark., for plaintiff.

Wright, Harrison, Lindsey & Upton, Little Rock, Ark., Feuerstein, Fleet & Feibelman, Milton C. Picard, Memphis, Tenn., for defendants.

TRIMBLE, Chief Judge.

Donald Trullinger, a citizen of the Northern District of Arkansas County, Arkansas, filed suit in the Circuit Court of that District and County on June 18, 1954, against Morris Rosenblum and Jack J. Jacobs, who are citizens and residents of the State of Tennessee. In this action Trullinger sought to recover from Rosenblum and Jacobs the sum of $718.18 as damages to a truck which was involved in a collision on April 22, 1953, on U. S. Highway 79 about one and one-half miles southwest of Stuttgart, Arkansas.

Summons was properly issued upon the complaint filed and was served on July 8, 1954.

On or about July 21, 1954, Rosenblum and Jacobs separately filed answers to said complaint and counterclaims. The answers generally denied the material allegations of the complaint, and the counterclaim on the part of Morris Rosenblum sought damages against Trullinger for the sum of $77,500, and the counterclaim of Jack J. Jacobs sought damages in the amount of $17,500.

On the same date, July 21, 1954, on which the answers and counterclaims were filed, Rosenblum and Jacobs filed in United States District Court for the Western Division of the Eastern District of Arkansas a petition for removal alleging that there is a diversity of citizenship between the parties and that the matter in controversy in each counterclaim exceeds the sum of $3,000.

On August 2, 1954, plaintiff Donald Trullinger filed a response to the petition of the defendants to remove the cause, which will be treated as a motion to remand.

The apparent earnestness and diligence with which counsel for the resident litigant have prepared and presented their briefs and argument have caused me to give extraordinary attention to all points raised in an endeavor to reach a logical conclusion.

The right of the defendants to remove this cause from the state court to the federal court, if such right exists, must be found in Section 1441(a), Title 28, U.S.C.A.:

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."

This removal right is purely statutory, and the statute must be strictly construed. Saldibar v. Heiland Research Corporation, D.C., 32 F.Supp. 248; Gates v. Union Central Life Insurance Company, D.C., 56 F.Supp. 149; Weatherford v. Ratcliffe, D.C., 63 F.Supp. 107; Merz v. Dickson, D.C., 95 F.Supp. 193; Old Reading Brewery v. Lebanon Valley Brewing Company, D.C., 102 F.Supp. 434; Hoyt v. Sears, Roebuck & Co., 9 Cir., 130 F.2d 636.

In order to determine whether or not the defendants in this case have a right to remove it to the federal court, we must first look to the words of the statute itself. The removal statutes were re-enacted by the Act of June 25, 1948, which has been amended by the Act of May 24, 1949. The drafters of the new removal statute endeavored to the utmost to clarify the terms of the removal statutes. The phrases found in the old statutes, such as "in suits of a civil nature", "at law or in equity", and the terms "case" and "cause" were omitted and there were substituted in harmony with the Federal Rules of Civil Procedure, 28 U.S.C.A., the words "civil action". It is well for us to note that under the Rules of Civil Procedure, it is provided that a civil action is commenced by filing a complaint with the court (Rules 2 and 3 of Civil Procedure for the District Courts of the United States); and to further note that the provisions for bringing or commencing a civil action in the Arkansas courts are substantially the same, Sections 27-1101, 27-1102 and 27-1103, Ark.Stat.1947. In both the state and United States District Courts, an action is brought by the filing of a complaint.

The District Court rules and the Arkansas Statutes have been particularly noted in an effort to determine what was intended by Congress by the use in said Section 1441 of the phrase "any civil action brought in a State court of which the district courts of the United States have original jurisdiction * *" (Emphasis supplied.)

In the case of Lee Foods Division, Consolidated Grocers Corp. v. Bucy, D.C., 105 F.Supp. 402, at page 404, Judge Duncan said:

"It seems to me that at no place in this section is the intention of the Congress manifested to do more than clarify and modify, and does not give to a plaintiff the right of removal which did not exist under the old section.

"Plaintiff insists that if it could not have brought its claim originally in the Federal court, it ought to have the right to try the new and separate cause of action raised by the counterclaim in the Federal court, but in the absence of any statutory right to do so, the court is without jurisdiction.

"A Federal court has only such jurisdiction as is conferred upon it by the Acts of Congress. The very first words of § 1441 are: `Except as otherwise expressly provided by Act of Congress' and then follows the limitation upon the right of removal to a defendant or defendants.

"Prior to the adoption of the new Code, there were many conflicting opinions among the courts concerning the removal of causes of action where a `separate' or `separable' controversy existed. It seems to me that this section of the statute is clearly intended to refer to causes of action alleged by plaintiff." (Emphasis supplied.)

It should be observed that under the express terms of the statute the right of removal is given only to a defendant in a civil action brought in a State court of which the District Courts of the United States have original jurisdiction. There is, and can be, no contention that the civil action brought by Donald Trullinger was for a sufficient amount to give the District Courts of the United States jurisdiction.

In the case of United Artists Corporation v. Ancore Amusement Corporation, D.C., 91 F.Supp. 132, this principle was discussed as is indicated by Headnotes 3 and 4 of the opinion:

"3. Removal of Cases 16

"Only a defendant is authorized by statute to remove a case from state court and then only upon the basis of a pleading setting forth a federal claim against defendant and not a claim by him. 28 U.S.C.A., § 1446(b)

"4. Courts 255

"The jurisdiction of federal district courts is strictly limited by statute and the procedure by which jurisdiction is obtained must be strictly followed."

This principle was succinctly stated in the case of Stuart v. Creel, D.C., 90 F. Supp. 392. The following language is found at page 393 of 90 F.Supp. of the opinion:

"As to defendant's other contention, it is well settled that the removability of a case from a state to a federal court should be determined by the claim of the plaintiff as shown by the record at the time of filing the petition for removal, and that the amount sought in a counterclaim cannot be added to plaintiff's prayer in order to supply the necessary jurisdiction. Gates v. Union Central Life Ins. Co., D.C.E.D.N.Y. 1944, 56 F.Supp. 149; * * * United Artists Corp. v. Ancore Amusement Corp. D.C. S.W.N.Y. 1950, 91 F.Supp. 132. * * *

"The fact that defendant might not be able to litigate his counterclaim in the City Court does not justify this Court in retaining jurisdiction over an action improperly removed. Gates v. Union Central Life Ins. Co., supra; United Artists Corp. v. Ancore Amusement Corp., supra." (Emphasis supplied.)

This principle is further emphasized in the language of the court in the case of Gates v. Union Central Life Ins. Co., D.C., 56 F.Supp. 149, the language copied being from page 152 of the opinion:

"The `matter in controversy' must be measured by the judgment demanded in the complaint. Shabotzky v. Massachusetts Mutual Life Ins. Co., D.C., 21 F.Supp. 166; Berlin v. Travelers Ins. Co. of Hartford, Conn., D.C., 18 F.Supp. 126. * *

"The claim by the defendant that this Court has jurisdiction by reason of the counterclaim alleged by it for cancellation and/or recession of the policy sued upon is not sustained, because as I have hereinbefore said, the complaint, which is the initial pleading, fixes the amount in controversy, and the counterclaim can not be considered. Harley v. Firemen's Fund Ins. Co., D.C., 245 F. 471; Kristiansen v. National Dredging Co., D.C., 4 F.Supp. 925; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845."

In a previous opinion, Harley v. Firemen's Fund Ins. Co., 245 F. 471, at page 476, it was said:

"The initial pleading, and the only pleading filed in the state court other than the petition for removal, fixes the amount in controversy in this case at $2,950, and no greater sum can be recovered. The Circuit Court of Appeals of the Fifth Circuit in W. G. Coyle & Co. v. Stern, 193 F. 582, 113 C.C.A. 450, in a well-considered case, holds that the amount in controversy must be determined from the initial pleading, and this holding is supported by the great weight of authority. The plaintiff may voluntarily and conclusively determine the amount to which his recovery shall be limited. Barber v. Boston & M. R. Co., C.C., 145 F. 52; Simmons v. Mutual, Reserve Fund Life Ass'n, C.C., 114 F. 785; Western Union Tel. Co. v. White, C.C., 102 F. 705. That a counterclaim cannot be considered as increasing the amount in controversy, so as to bring it within federal jurisdiction, would seem to be the reasonable and logical conclusion, and is sustained by

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