West Virginia State Bar v. Bostic, Civ. A. No. 2951.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: CHRISTIE
• Citation: 351 F. Supp. 1118
• Parties: WEST VIRGINIA STATE BAR et al., Plaintiffs, v. Everett BOSTIC and Harry Alan Sherman, Defendants.
• Decision Date: 14 June 1972
• Docket Number: Civ. A. No. 2951.

351 F. Supp. 1118

WEST VIRGINIA STATE BAR et al., Plaintiffs,
v.
Everett BOSTIC and Harry Alan Sherman, Defendants.

Civ. A. No. 2951.

United States District Court, S. D. West Virginia, Huntington Division.

June 14, 1972.

351 F. Supp. 1119

Beckett, Burford & James, Huntington, W. Va., for plaintiffs.

E. L. Moseley, Huntington, W. Va., for defendants.

MEMORANDUM ORDER

CHRISTIE, Chief Judge.

This action was brought originally in the Circuit Court of Cabell County, West

351 F. Supp. 1120

Virginia, by the West Virginia State Bar (State Bar) against Everett Bostic (Bostic) and Harry Alan Sherman (Sherman) for the alleged unlawful solicitation of legal business. The complaint charges that Bostic, a layman, and a resident of Cabell County, West Virginia, solicited legal business for Sherman, a practicing attorney in Pittsburgh, Pennsylvania. Injunctive relief is sought against Bostic for solicitation and against Sherman for using one for solicitation purposes in West Virginia. No monetary damages are sought

Bostic was served and an agreed order was issued by the state court restraining him from further solicitation. Subsequently, Sherman was served while in West Virginia. He now seeks to have the action removed from the state court to the federal court, pursuant to 28 U.S. C. §§ 1441 and 1446. State Bar has moved for a remand to the state court.

I—Removal

The right to remove a case is a purely statutory right and, as such, should be strictly construed by the courts. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L. Ed. 1214 (1941). Furthermore, the case to be removed must be one which could have been brought in the federal courts originally. Moon v. Pacific Mutual Life Insurance Co., 28 F.Supp. 199 (D.C.W. Va.1939); Robertson Motor Freight, Inc. v. Brady Motorfrate, Inc., 287 F. Supp. 449 (D.C.Pa.1968). Sherman urges the court to assume jurisdiction of this litigation primarily upon the basis of diversity of citizenship under 28 U.S. C. § 1332. In addition, the issues of federal question under 28 U.S.C. § 1331 and protection of civil rights under 28 U.S.C. § 1443 are raised.

II—Diversity

Diversity must be complete to remove to a federal court. Treinies v. Sunshine Mining Co., 308 U.S. 66, at 71, 60 S.Ct. 44, 84 L.Ed. 85 (1939); Cunningham v. State Farm Mutual Automobile Ins. Co., 297 F.Supp. 1138 (E.D. Tenn.1969). The existence of diversity of citizenship in this case, even when viewed most favorably for Sherman, is questionable, for it is clear that when the action was instituted in the state court complete diversity was lacking because of Bostic's residence in West Virginia. Sherman would get around this by arguing that the state court injunction "terminated" the action as to Bostic, thus creating complete diversity of citizenship as between himself and the plaintiff. His argument is misplaced, however, because the state court action was not terminated as to Bostic by the issuance of the injunction against him, since it of necessity had to retain jurisdiction over him to insure compliance with the injunction decree. Thus Bostic is still very much a party to the action, and this being so, complete diversity of parties is lacking, notwithstanding Sherman's argument to the contrary.

Sherman also argues that State Bar's claim against him is separate and independent of that asserted against Bostic and that the entire case, for this reason, should be removed to the federal court pursuant to 28 U.S.C. § 1441(c). However, it is apparent that State Bar has merely joined two defendants together to remedy a single wrong, i. e., the unlawful solicitation of legal business in West Virginia. Therefore, Sherman's position that there is a separate and independent cause of action which is removable to a federal court, at best, is an uncertain proposition and, in such instances,...