262 F. 183 | W.D. Tex. | 1920
This case was removed here from a state court, and a motion to remand is now presented.
The plaintiff Compañía Minera y Compradora de Metales Mexi-cano, S. A., a corporation organized under the laws of the republic of Mexico, brought this suit in the district court of the Forty-First judicial district of Texas, at El Paso, and upon the first count of its petition seeks to recover of the defendant Compañía de Minerales y Metales, S. A., damages for an alleged breach of contract theretofore made and entered into by and between them. By the second count of its petition plaintiff makes the American Metal Company,' Limited, a corporation incorporated under the laws of the state of New York,
Petition and bond for removal were seasonably filed by the American Metal Company, limited, one of the defendants, hut in these the other defendant, Compañía de Minerales y Metales, S. A., did not join. The petition for removal is based upon the following grounds: (1) That this is a suit in which there is a controversy between citizens of different states, and that the defendants are nonresidents of the state of Texas. (2) That there is a separable controversy herein, wholly between the plaintiff and the petitioner for removal, which can be fully determined as between them. (3) That the matter in controversy is between citizens of a state and foreign states, citizens, or subjects.
“The District Courts shall have original jurisdiction as follows: * * * Of all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and * * * (b) is between citizens of different slates, or (c) is between citizens of a state and foreign states, citizens, or subjects.” Section 24, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 [Comp. St. § 991])
• — and that provision of section 28 of the Judicial Code (Comp. St. § 1010) which reads as follows:
“Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given original jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.”
It has been held that, where a citizen of a state sues a citizen of another state and an alien, the case is within federal jurisdiction, and may be removed from a state court upon the joint petition of both defendants. Baker v. Pinkham (D. C.) 211 Fed. 728; Roberts v. Pac. & A. Ry. & Nav. Co., 121 Fed. 785, 58 C. C. A. 61; Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct. 1050, 30 L. Ed. 167. These decisions were correctly based upon the obvious reason that the defendants should' be accorded the right to unite in a petition to remove a case, where they could have removed severally, if sued alone. But it has also been held that the federal courts have no jurisdiction of a case in which both the plaintiff and the defendant are aliens. Montalet v. Murray, 4 Cranch, 46, 2 L. Ed. 545; Mossman v. Higginson, 4 Dall. 12, 1 L. Ed. 720; Cunard S. S. Co. v. Smith, 255 Fed. 846,- C. C. A.-; Pooley v. Luco (C. C.) 72 Fed. 561. Neither of these rulings is applicable to the instant case. If these defendants had been sued separately, one of the suits would have embraced an alien plaintiff and a citizen
It is well settled that, where there are several plaintiffs and defendants, each plaintiff must be capable of suing each defendant in the federal courts. Strawbridge v. Curtiss, 3 Cranch, 267, 2 L. Ed. 435; New Orleans v. Winter, 1 Wheat. 91, 4 L. Ed. 44; Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Cuebas Y Arredondo v. Cuebas Y Arredondo, 223 U. S. 376, 32 Sup. Ct. 277, 56 L. Ed. 476; Hooe v. Jamieson, 166 U. S. 395, 17 Sup. Ct. 596, 41 L. Ed. 1049; Peninsular Iron Co. v. Stone, 121 U. S. 631, 7 Sup. Ct. 1010, 30 L. Ed. 1020. If the defendant is an alien and one of the plaintiffs is also an alien, though the others are citizens of a state, the federal court has no jurisdiction. Black’s Dillon on Removal of Causes, § 84, citing Sawyer v. Switzerland Marine Ins. Co., 14 Blatchf. 451, Fed. Cas. No. 12408. _ _
_ _ Tested by this rule, it is clear that, as the plaintiff and one of the defendants are aliens, this court has not priginal jurisdiction of this case, and same cannot be brought here from the state court by removal proceedings. '
Counsel for the defendant petitioning for removal contends that the alien defendant may be disregarded in considering this motion to remand, and in support of such contention cites the case of Iowa Lillooet Gold Mining Co. v. Bliss et al. (C. C.) 144 Fed. 446. I do not consider that case in point. Bliss in that case was held to be neither a proper nor a necessary party, and was therefore misjoined. In this case, the alien defendant, as we have seen, was a proper party, against which the plaintiff sets up a cause of action properly joined and necessary to afford full relief to the plaintiff.
The motion to remand is granted.
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