191 F. Supp. 220 | N.D. Ala. | 1961
This cause is on a motion to remand. On May 16, 1958, the plaintiff filed this action against the Safeway Steel Scaffolds Company, a corporation, and
“Safeway Steel Scaffolds Company, a partnership consisting of John Doe, Richard Roe, A, B, C and D, whose true and correct names are otherwise unknown to plaintiff but whose true and correct names will be added by amendment to plaintiff’s complaint when ascertained ; E, F, G, and H, doing business as Safeway' Steel Scaffolds Company, whose true and correct names are otherwise unknown to plaintiff but whose true and correct names will be added by amendment to plaintiff’s complaint when ascertained; X Company, whose true and correct name and legal status is otherwise unknown to plaintiff but who was that person, firm or corporation which rented or leased to the S. S. Jacobs Company the scaffold mentioned in plaintiff’s complaint and whose true and correct name and legal status will be added by amendment to plaintiff’s complaint when ascertained; Y; and Z, Defendants.”
It is averred in the removal petition that the Safeway Steel Scaffolds Company, a corporation, which is named as one of the defendants, is one and the-same entity as petitioner® in the removal petition and that a return of “not found” has been made by the Sheriff of Jefferson County, Alabama, as to all
It will be noted that “X Company” is made a party defendant and described as indicated above. Under the authority of Pullman Co. v. Jenkins,
It is claimed by movant that by virtue of the fact that on, to wit, December 30, 1960, the petitioner acquired knowledge that it furnished all of the scaffolding, the unsafeness of which is charged as proximately resulting in the-employee’s injuries, that petitioner should have moved within 20 days from that date to remove the cause to this.
When the movant as plaintiff announced that it was ready to proceed with trial, for the purpose of removal this constituted a severance as to the parties not served. This question seems to have been squarely presented to and answered by the Court of Appeals for the Ninth Circuit, in Southern Pac. Co. v. Haight.
“It is our opinion and wh hold that the rule of the Berry ease, supra, is sound, and that the plaintiff in the instant case having petitioned the court to set the case for trial and having announced that she was ready to proceed with the trial against the Southern Pacific Company, each at a time when only the latter defendant had been brought into court, had abandoned the joint character of her action, and rendered the cause immediately removable to the District Court.”
The Court also considered the question of the timeliness of the filing of the removal petition. Some five months before the case was set for trial the plaintiff served and filed a memorandum to set the cause for trial and contended that the defendant should have moved for removal within 20 days from that date. In answer to this contention, the Court said:
“The petition to remove was made immediately after the plaintiff announced herself ready to proceed with the trial against the Southern Pacific Company alone, and was therefore, timely. The fact that the resident defendant was not served or would not appear at the time set for trial would not of necessity be known to the non-resident defendant and therefore his right to remove could not be denied because he did not move for the severance upon his being served with notice of setting the case for trial.
“However, the fact that plaintiff had the case set for trial, knowing that the resident defendant had not been served and appeared in court with such knowledge and answered that she was ready for trial is conclusive evidence that she regarded the action as severed and negatives the idea that she had not definitely determined upon her course and acted upon such determination instead of having inadvertently placed her case in a position subject to removal and therefore subject to withdrawal with the court’s permission of her petition and consent to proceed.”
In Stamm v. American Telephone & Telegraph Co. et al.,
. Safeway Steel Scaffolds Company of Georgia, a corporation.
. 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334.
. This answer had not been filed in the State court since the pleadings were not settled when the case was assigned to the tr'-al judge.
. 126 F.2d 900, 904.
. O.O., 118 F. 911, at pages 918-914.
. D.C.W.D.Mo., 129 F.Supp. 719, 721.
. “Tho temptation is overpowering to say that plaintiff’s victory on this remand is probably more fanciful than real, and will be short-lived, because, unless defendant, Tatum, will enter his appearance in the case — which seems unlikely — probably the defendant will press for trial, and if plaintiff then announces ready for trial or proceeds to trial without the defendant, Tatum, in court, that