Vanderboom v. Sexton
Decision Date | 24 January 1969 |
Docket Number | No. FS-68-C-47.,FS-68-C-47. |
Citation | 294 F. Supp. 1178 |
Parties | Ilo VANDERBOOM et al., Plaintiffs, v. Sam SEXTON, Jr., James S. Hall, Charles H. Smith, Austin Gatlin, Erma S. Gatlin, Diamond G. Ranch, Inc., an Arkansas corporation, Texas Capital Corporation, a Texas Small Business Investment Company and the City National Bank of Fort Smith, Arkansas, a national banking association, Defendants. |
Court | U.S. District Court — Western District of Arkansas |
COPYRIGHT MATERIAL OMITTED
Bethell, Stocks, Callaway & King, Ft. Smith, Ark., for plaintiffs.
Sam Sexton, Jr.pro se.
Harper, Young, Durden & Smith, Ft. Smith, Ark., for Gatlins and Diamond G Ranch, and Texas Capital Corp., for defendants.
Wright, Lindsey & Jennings, Little Rock, Ark., for James S. Hall.
The questions before the court arise on the motions of the defendants for summary judgment.
On December 16, 1968, the defendantSam Sexton, Jr., filed his motion for summary judgment in accordance with the provisions of Rule 56(b), (c), Fed. R.Civ.P., on the ground that "the complaint, answer of this defendant, and affidavit of this defendant attached hereto and marked Exhibit A, show that the defendant is entitled to judgment as a matter of law."
On December 20, 1968, the defendantsAustin Gatlin, Erma S. Gatlin and Diamond G Ranch, Inc., filed their motion for summary judgment containing substantially the same allegations as made by the defendant Sexton.
On December 20, 1968, the defendantTeleCom Corporation(Texas Capital Corporation) filed its motion under Rule 56 on the ground "that the complaint, answer and all other pleadings of the defendants herein and the affidavit and exhibits of the defendants herein which are incorporated by reference show that the defendant is entitled to judgment as a matter of law."
On December 23, 1968, the defendantJames S. Hall filed his motion for summary judgment to dismiss the action "on the ground that there is no genuine issue as to any material fact and that this defendant is entitled to a judgment as a matter of law.
Subparagraph (c), as amended January 21, 1963, effective July 1, 1963, provides:
Before discussing the issues and contentions of the parties, the court is of the opinion that the present status of the case and a brief résumé of the pleadings should be set forth.
On July 18, 1968, plaintiffs commenced this action by filing their complaint containing 32 numbered paragraphs and 13 pages.The complaint contains only one count, but an analysis of the various paragraphs discloses that there are two causes of action stated.In paragraphs 14, 15, 16, 21, 22, 24, 25, 26, 27, 28 and 30the plaintiffs state a common-law action for fraud and deceit.In paragraphs 17, 18, 19, 20, 21, 23, 24, 29 and 30the plaintiffs attempt to state a federal cause of action.
In paragraph 29the plaintiffs alleged:
All the defendants except Charles H. Smith, who is in Vietnam and has not been served with process, and the City National Bank of Fort Smith filed answers, denying the allegations of the complaint, and in the amendments to their answers pleaded that "the alleged causes of action as reflected by plaintiffs' complaint are barred by limitations as they were not commenced within the period of time as allowed by the statutes of the State of Arkansas and the United States Code."
On August 1, 1968, the City National Bank filed its separate motion to dismiss the complaint and/or motion for summary judgment.On August 8, 1968, the court, upon consideration of the motion, dismissed the complaint of Investors Thrift Corporation for failure to state a claim against the movant, City National Bank, and granted the motion for summary judgment against all the other plaintiffs except abated the action of the plaintiffR. S. Miskimins until the disposition of a similar suit pending in the Sebastian Circuit Court, No. 5695.
On the date the order was entered, the plaintiffs, late in the afternoon, filed their response to the motion of the City National Bank, whereupon the court on August 12, 1968, reviewed its consideration of the motion, as well as the pleadings in Civil ActionsNos. 2103-2107, and re-examined its order of August 8, 1968, and reaffirmed the same.
On August 15, 1968, plaintiffs filed their notice of appeal from the order.
Later, on October 17, 1968, the court entered an order dismissing the complaint of plaintiffR. S. Miskimins.
On December 5, 1968, the court, sua sponte, considered whether it had jurisdiction of the common-law cause of action alleged in plaintiffs' complaint and heretofore referred to, and as a result of the investigation the court entered an order dismissing for lack of jurisdiction portions of the complaint which alleged a cause of action against the defendants under the common law.
The complaint discloses that all the plaintiffs except Investors Thrift Corporation are citizens and residents of the State of South Dakota, but that Investors Thrift Corporation was organized under the laws of the State of Arkansas and maintains its principal place of business in the Western District of Arkansas.All of the defendants are citizens of Arkansas except Texas Capital Corporation which was organized under the laws of the State of Texas with its principal office at Georgetown, Texas.Thus, there is no diversity of citizenship between all of the plaintiffs and all of the defendants.Title 28, U.S.C.A. § 1332(a)(1).
To sustain jurisdiction on grounds of diversity of citizenship, there must exist an actual, substantial controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side.Rock Island Millwork Co. v. Hedges-Gough Lumber Co., (8 Cir.1964)337 F.2d 24.The court cannot, therefore, consider the plaintiffs' allegations of common-law fraud.However, if the jurisdictional requirements of 28 U.S.C.A. § 1332(a)(1) were satisfied, there would be no reason why plaintiffs could not join their common-law claim with their claims under federal statutes.The rule of "pendent jurisdiction" stated broadly is that once jurisdiction is properly assumed under federal law, the jurisdiction extends to the determination of all questions in the cause, including questions of state law, irrespective of the disposition made of the federal questions.The Supreme Court in Hurn v. Oursler, (1933)289 U.S. 238, 53 S.Ct. 586, 77L.Ed.1148, at page 589 of 53 S.Ct., stated:
At page 590 of 53 S.Ct.the court said:
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