Viles v. Sharp
| Decision Date | 09 December 1965 |
| Docket Number | Civ. A. No. 15565-3. |
| Citation | 248 F. Supp. 1019 |
| Parties | William B. VILES, Plaintiff, v. John R. SHARP, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Robert B. Wurdack, of Wurdack & Wurdack, Kansas City, Mo., for plaintiff.
Richard D. Rixner, of Alder & Morrison, Kansas City, Mo., for defendant.
This is a twice removed action for damages for personal injuries. Plaintiff has moved to remand the cause to the state court.
Plaintiff, William B. Viles, is a domiciled resident citizen of Missouri. Defendant, John R. Sharp ("Sharp" hereinafter), is a domiciled resident citizen of Kansas. Michael F. Brosnahan ("Brosnahan" hereinafter), a minor, is a resident domiciled citizen of Missouri.
This action was originally instituted on January 27, 1965, in the Circuit Court of Jackson County, Missouri. When originally instituted, Sharp and Brosnahan were parties defendant.
The petition for damages filed in state court alleged in one count that plaintiff was injured in an automobile accident on May 23, 1963, through the negligence of defendant Brosnahan; that plaintiff was injured in a second automobile accident on December 14, 1963, through the negligence of defendant Sharp; that plaintiff is unable "to segregate or apportion the injuries between the two casualties" so "each defendant is equally liable for the full extent thereof"; that plaintiff was damaged in the sum of $25,000.
This cause was removed the first time by defendant Sharp on the alleged ground of improper joinder. Judge Oliver, on May 20, 1965, ruled that improper joinder is not a valid basis for removal; that fraudulent joinder had not been pleaded or proved, and remanded the cause to the state court. See Viles v. Sharp (W. D.Mo.), 248 F.Supp. 271.
On June 18, 1965, in the state court, Judge Vardeman sustained the motion of defendant Brosnahan to dismiss on a finding of improper joinder, and dropped him as a party defendant.
The present and second petition for removal, based on diversity of citizenship, was filed on June 25, 1965. Plaintiff's motion to remand is based on the contention that the second petition for removal was premature, because a timely motion for "new trial" against defendant Brosnahan was filed (after removal) in the state court. The motion for new trial undertakes to secure a rehearing on the dismissal of defendant Brosnahan, the Missouri resident; and to lay the basis for appellate review of the order of dismissal.
This cause will be remanded to the state court (without ruling on plaintiff's asserted ground for remand, prematurity of removal, contained in the second motion to remand) for the following reasons.
When a resident of a state sues as co-defendants a resident and a non-resident of that same state, the cause is not ordinarily removable on the ground of diversity of citizenship. 1A Moore, Federal Practice ¶ 0.161 1, p. 522.
If, after institution of the suit, the plaintiff voluntarily drops the resident as a party, the cause becomes removable. 1A Moore, Federal Practice ¶ 0.161 2, p. 535, n. 18. On the other hand, prior to the 1949 amendment to Section 1446(b) of Title 28, U.S.C., a cause did not become removable if the resident defendant was involuntarily dismissed. 1 Barron and Holtzoff, Federal Practice and Procedure § 103, p. 474, n. 29.6; American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594.
The portion of the 1949 amendment to Section 1446(b) material to the issue here in question added a new paragraph thereto which was as follows:
"If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."
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Midwestern Distribution v. Paris Motor Freight Lines
...jurisdiction by strictly construing § 1441. See Anderson v. Union Pacific Coal Co., 332 F.Supp. 605, 608 (D.Wyo.1971); Viles v. Sharp, 248 F.Supp. 1019, 1021 (W.D.Mo.1965). See also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). This Court......
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Warren Bros. Co. v. Community Bldg. C. of Atl., Inc.
...such that a case could be removed even if the plaintiff's dismissal of the resident defendant was involuntary. Viles v. Sharp, 248 F. Supp. 1019 (W.D.Mo.1965). The United States District Court for the Southern District of Mississippi in Lyon v. Illinois Central Ry. Co., 228 F.Supp. 810, 811......
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Weems v. Louis Dreyfus Corporation
...the effect of the amendment, some courts have denied removal by giving preference to state court jurisdiction. See Viles v. Sharp., 248 F.Supp. 1019 (W.D.Mo.1965). See also Robinson v. LaChance, 209 F. Supp. 845 (E.D.N.C.1962). Other courts have continued to apply the voluntary-involuntary ......
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Keller v. Carr
...the law is well settled that the removal statutes shall be strictly construed in favor of state court jurisdiction. Viles v. Sharp, 248 F.Supp. 1019 (D.C. Mo.1965); Higson v. North River Ins. Co., 184 F. 165 (C.C.N.C.1911); Daugherty v. Western Union Tel. Co., 61 F. 138 (C.C.Ind. 1894); Cra......