Viles v. Sharp, 15384-1.

• Citation: 248 F. Supp. 271
• Decision Date: 20 May 1965
• Docket Number: No. 15384-1.,15384-1.
• Parties: William B. VILES, Plaintiff, v. John R. SHARP and Michael F. Brosnahan, Defendants.
• Court: U.S. District Court — Western District of Missouri

248 F. Supp. 271

William B. VILES, Plaintiff, v. John R. SHARP and Michael F. Brosnahan, Defendants.

No. 15384-1.

United States District Court W. D. Missouri, Western Division.

May 20, 1965.

Wurdack & Wurdack, Kansas City, Mo., for plaintiff.

Alder & Morrison, Kansas City, Mo., for defendant Sharp.

John A. Borron, Jr., of Knipmeyer, McCann & Millett, Kansas City, Mo., for defendant Brosnahan.

JOHN W. OLIVER, District Judge.

This case pends on plaintiff's motion to remand and defendant Brosnahan's motion to dismiss or sever the claims. The petition filed in the State court alleged that defendants Sharp and Brosnahan are equally liable to plaintiff for injuries resulting from an accident involving defendant Brosnahan on May 23, 1963, and defendant Sharp on December 14, 1963. Defendant Sharp, a resident of Kansas, removed the case to this Court, alleging the following ground:

"Plaintiff improperly joined two defendants, against whom plaintiff has two separate causes of actions, arising out of separate occurrences, involving different questions of fact and law. It is the separate defendant's position that the plaintiff's action was taken in order to provide sic defendant, John R. Sharp, of his right to remove the case to Federal Court, all to his prejudice."

Defendant Sharp reiterates his theory that the joinder is "improper" in the suggestions in opposition to plaintiff's motion to remand to the State court.

Section 1441 of Title 28, United States Code, which provides for removal of actions generally, has never been interpreted by the cases to allow removal on the basis of "improper" joinder. It is well accepted that "fraudulent" joinder is a basis for removal, but the distinction between "fraudulent" and "improper" is important. As Judge Murrah has stated:

"But, fraudulent joinder, like any other allegation of fraud, must be pleaded with particularity and proven with certainty. It cannot be inferred from a mere misjoinder of parties or causes of action." McLeod v. Cities Service Gas Company, 10 Cir. 1956, 233 F.2d 242.

The removing defendant in this case "frankly admits that the intent of plaintiff is difficult to prove;" indeed, the removing defendant would have us infer that a fraudulent joinder, within the meaning of the removal statute, is to be inferred solely from the fact that it is the removing defendant's view of the Missouri law that "the two separate claims of plaintiff cannot be lodged against two separate defendants, arising out of two separate occurrences, involving separate questions of law and fact, in one suit."

The removing defendant contends that "the intent or purpose for which improper joinder was made is immaterial." Professor Moore makes clear that such a statement is true in a sense quite different from that suggested by the removing defendant. On pages 532-533 of Paragraph 0.1612 of Volume 1A of Moore's Federal Practice, it is stated:

"If the

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