Weems v. Louis Dreyfus Corporation, No. 23580.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON and RIVES, Circuit , and CONNALLY
Citation380 F.2d 545
PartiesLuther WEEMS, Appellant, v. LOUIS DREYFUS CORPORATION, Appellee.
Decision Date22 June 1967
Docket NumberNo. 23580.

380 F.2d 545 (1967)

Luther WEEMS, Appellant,
v.
LOUIS DREYFUS CORPORATION, Appellee.

No. 23580.

United States Court of Appeals Fifth Circuit.

June 22, 1967.


E. S. Nelson, Bryan & Gordon, Pascagoula, Miss., for appellant.

George E. Morse, Gulfport, Miss., Raymond L. Brown, Pascagoula, Miss., Morse & Morse, Gulfport, Miss., and Colmer, Megehee, Colmer & Brown, Pascagoula, Miss., for appellee.

Before HUTCHESON and RIVES, Circuit Judges, and CONNALLY, District Judge.

HUTCHESON, Circuit Judge:

This appeal presents the narrow question whether an action instituted in a state court against a resident defendant and a nonresident defendant, nonremovable to a federal court when commenced due to the lack of diversity of citizenship, thereafter may be removed when the resident1 defendant is dismissed by means of a directed verdict. The district court granted a petition for removal under these circumstances. We reverse.

The general removal statute2 authorizes removal by a nonresident defendant in any civil action brought in a state court where the federal district court

380 F.2d 546
would have had original jurisdiction due to diversity of citizenship. This means that a nonresident defendant generally cannot remove a case in which a resident defendant also is properly joined, thus defeating complete3 diversity of citizenship. However, if after the suit is commenced the resident defendant is eliminated from the case, leaving only a nonresident as defendant, the question arises whether at that point the case is removable

Until 1949 no statutory provision dealt with the question of removal after commencement of a suit. The case law developed the rule, relatively simple to apply, "that if the resident defendant was dismissed from the case by the voluntary act of the plaintiff, the case became removable, but if the dismissal was the result of either the defendant's or the court's acting against the wish of the plaintiff, the case could not be removed." Note, The Effect of Section 1446(b) on the Nonresident's Right to Remove, 115 U.Pa.L.Rev. 264, 267 (1966). Although the rule has often been criticized for failing to explicate an underlying rationale,4 it nevertheless has merit in that it prevents removal of those cases in which the issue of the resident defendant's dismissal has not been finally determined in the state courts. This avoids the duplication and expense which would result if a resident defendant was dismissed on an appealable ground, the nonresident was permitted to remove, and the plaintiff then obtained a reversal of the dismissal in the state appellate courts. On the other hand, that danger does not arise where a plaintiff voluntarily drops a resident defendant since appeal then is not available, and the elimination of the resident defendant from the case is final. If this judicially fashioned rule still is the law, it clearly will require us to hold that the directed verdict in favor of the resident defendant, and against the plaintiff, did not render the case removable. It is contended, however, that the rule did not survive an amendment to the Judicial Code in 1949.

This appeal is the culmination of the following events. Luther Weems, a citizen of Mississippi, filed a suit for personal injuries in a Mississippi state trial court on October 7, 1965. The two defendants named were Dreyfus Corporation and one of its employees, Ben Stone. Dreyfus is a citizen of New York doing business in Mississippi.5 Stone is a citizen of Mississippi. Apparently Weems was injured by a machine operated by Stone. Because of the presence of the resident defendant, properly joined and served, the case as stated by the pleadings was nonremovable.

At the trial, the plaintiff presented his evidence and rested. Although Stone was absent on account of illness, his counsel moved for a directed verdict on the ground that plaintiff's evidence was insufficient to support the claim against Stone. Both defendants rested without having put on any testimony or evidence. The district court granted a directed verdict for Stone, and Dreyfus immediately announced that it had filed a petition for removal in the United States District Court for the Southern District of Mississippi. Over an assertion by Dreyfus that the state court was without jurisdiction

380 F.2d 547
to proceed, the remaining parties were requested by the court to present their arguments to the jury. After the arguments, the jury retired. Before a verdict was returned, Dreyfus served a copy of the removal petition on plaintiff and the clerk of the state court

The plaintiff filed in the court below a motion to remand to the state court. The motion was overruled pursuant to a decision upholding the petition for removal. Upon motion by Dreyfus, the court below enjoined the plaintiff from taking any further action in the state court. The plaintiff appeals.

The rule that a case nonremovable on the initial pleadings could become removable only pursuant to a voluntary act of the plaintiff originated in two early Supreme Court cases. The first was Powers v. Chesapeake & O. Ry., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898), where an action for personal injuries was filed in a state court against a nonresident railroad and several of its resident employees. The absence of diversity of citizenship prevented removal on the pleadings. After the time period within which the petition for removal could be filed had elapsed, the plaintiff voluntarily dismissed the resident defendants. The question before the Court was whether a case, nonremovable when commenced and not removed within the time...

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160 practice notes
  • Ramirez v. Allstate Vehicle & Prop. Ins. Co., CIVIL ACTION NO. 7:20-cv-00211
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 29, 2020
    ...Cir. 2004) ).61 Dkt. No. 1.62 Morgan v. Chase Home Fin., LLC , 306 F. App'x 49, 52 (5th Cir. 2008) (quoting Weems v. Louis Dreyfus Corp. , 380 F.2d 545, 547 (5th Cir. 1967) ).63 Navarrette v. A.S. Horner, Inc. , No. EP-16-CV-370-PRM, 2017 WL 1536086, at *2 (W.D. Tex. Jan. 31, 2017) (footnot......
  • Pretka v. Kolter City Plaza II, Inc., No. 10-11471 (11th Cir. 6/8/2010), No. 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...(explaining the judicially created "voluntary-involuntary" rule that applies in diversity cases);17 see also Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967). Thus, a defendant cannot show that a previously non-removable case "has become removable" as a result of a document c......
  • Scott v. Communications Services, Inc., Civ.A. No. H-90-2502.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 5, 1991
    ...Co. v. Interior Construction and Improvement Co., 215 U.S. 246, 251, 30 S.Ct. 76, 78, 54 L.Ed. 177 (1909); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th The exception does not apply here for two reasons. First, CSI did not dismiss a non-diverse defendant, leaving only diverse defenda......
  • Self v. General Motors Corp., No. 75-1572
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 30, 1978
    ...v. Haight, 126 F.2d 900, 903-04 (9th Cir.), Cert. denied, 317 U.S. 676, 63 S.Ct. 154, 87 L.Ed. 542 (1942); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967); 1A Moore's Federal Practice P 0.168(3. 5), at 487 (2d ed. 1974). See generally Note, Removal of Suits to Federal Courts......
  • Request a trial to view additional results
160 cases
  • Ramirez v. Allstate Vehicle & Prop. Ins. Co., CIVIL ACTION NO. 7:20-cv-00211
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 29, 2020
    ...Cir. 2004) ).61 Dkt. No. 1.62 Morgan v. Chase Home Fin., LLC , 306 F. App'x 49, 52 (5th Cir. 2008) (quoting Weems v. Louis Dreyfus Corp. , 380 F.2d 545, 547 (5th Cir. 1967) ).63 Navarrette v. A.S. Horner, Inc. , No. EP-16-CV-370-PRM, 2017 WL 1536086, at *2 (W.D. Tex. Jan. 31, 2017) (footnot......
  • Pretka v. Kolter City Plaza II, Inc., No. 10-11471 (11th Cir. 6/8/2010), No. 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...(explaining the judicially created "voluntary-involuntary" rule that applies in diversity cases);17 see also Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967). Thus, a defendant cannot show that a previously non-removable case "has become removable" as a result of a document c......
  • Scott v. Communications Services, Inc., Civ.A. No. H-90-2502.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 5, 1991
    ...Co. v. Interior Construction and Improvement Co., 215 U.S. 246, 251, 30 S.Ct. 76, 78, 54 L.Ed. 177 (1909); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th The exception does not apply here for two reasons. First, CSI did not dismiss a non-diverse defendant, leaving only diverse defenda......
  • Self v. General Motors Corp., No. 75-1572
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 30, 1978
    ...v. Haight, 126 F.2d 900, 903-04 (9th Cir.), Cert. denied, 317 U.S. 676, 63 S.Ct. 154, 87 L.Ed. 542 (1942); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967); 1A Moore's Federal Practice P 0.168(3. 5), at 487 (2d ed. 1974). See generally Note, Removal of Suits to Federal Courts......
  • Request a trial to view additional results

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