222 F. 531 | E.D. Ky. | 1915
This cause is pending before me on motion to remand. At the time the petition for removal was filed, I take it, the suit was one between the Glover Machine Works as plain-tilt and the Cooke Jeilico Coal Company as defendant. Though originally brought by-the Lowery National Bank, upon the filing of the intervening petition of the Glover Machine Works, it was substituted as plaintiff for the bank.
The suit was brought upon two promissory notes, for $500 each, executed in part payment for a locomotive sold by the works to the coal company. The defendant filed a counterclaim, as well as an answer. In the counterclaim, on account of alleged fraudulent representations in connection with the sale of the locomotive, it sought to-recover $1,000, paid on the contract of purchase, and $6,000 damages. Thereupon the plaintiff, the Glover Machine Works, filed its petition
The question raised by the motion to remand is whether a plaintiff in a suit in a state court, in which diversity of citizenship between the parties thereto exists, and the amount in controversy is less than $3,000, being a nonresident of this state, can remove the suit to the federal court on the defendant’s filing a counterclaim therein in which he seeks to recover of plaintiff more than $3,000. ' The question depends entirely on the provision of the removal statute. If it provides that in such a case a plaintiff can remove, it can do so; otherwise, it cannot. This is fundamental.
Section 28 of the Judicial Code provides what suits are removable, and who may remove them; and section 29 provides how removable suits may be removed by the party entitled to remove them. The first sentence of section 28 provides that any “arising under” suit, of a civil nature at law or in equity, of which the federal District Courts are given original jurisdiction, then pending or thereafter brought in any state court, may be removed, by the defendant or defendants therein to the federal District Court for the proper district. This sentence provides for the removal only of any suit of such character, and that only by the defendant or defendants therein. The second sentence provides for the removal of any other suit of a civil nature at law or in equity, of which such courts are given jurisdiction, then pending or thereafter brought in any state court, to such court by the defendant or defendants therein, being nonresidents of that state. This sentence provides for the removal only of any such suit, and that only by the defendants therein being nonresidents of the state where the suit is 'brought. The two provisions differ as to the party who may remove the suit thereby made removable. In the first one, it' is the defendant or defendants therein. In the second one, it is the defendant or defendants therein being nonresidents of the state where the suit is brought. In neither case is the plaintiff therein given the right of removal. In both the right of removal is confined to the defendant or defendants therein. The third sentence provides for the removal of a suit in which there is a separable controversy and confers the right of removal upon “either one or more of the defendants actually interested in such controversy.” The fourth sentence provides for the removal of a suit on account of prejudice or local influence and confers the right of removal on “any defendant.” In every case, therefore, in which provision is made for the removal of a suit by section 28, the right to remove is confined to the defendants therein. In no contingency whatever is the right to remove conferred on a plaintiff.
This would seem to settle the question in ,hand. The removing party here is the plaintiff in the suit, and not the defendant. It is true that the works is in a defensive position as to the counterclaim; but it is still the plaintiff therein, and the coal company is the defendant. Because of the counterclaim there are not two suits. There is still but one suit. And it is the defendant in that one suit who is a non
The question seems to me to be foreclosed by the decision of the Supreme Court in the case of West v. Aurora, 6 Wall. 139, 18 L. Ed. 819. It is true that that case arose under the Judiciary Act of 1789. But under that act, as under this, the right of removal was confined to the defendant. And, if no removal could have been had under that act by a plaintiff in such a case as we hare here, a fortiori it cannot be had under the Judicial Code. That Code continues substantially the provisions of the act of 1887-88. That was an amendment of the act of 1875. By that act the right of removal was'given to the plaintiff, as well as defendant. By the amendment the right of removal by plaintiff was taken away, and it was limited to the defendant. In no contin - gency -was it recognized that the plaintiff should have the right to remove, except in a suit between citizens of same state claiming under grants of different states. The object and purpose of the amendment was to cut down federal jurisdiction. And much has been made of this circumstance in construing the amendment. Smith v. Lyon, 133 U. S. 315, 320. 10 Sup. Ct. 303, 33 L. Ed. 635; In re Pennsylvania Co., 137 U. S. 451, 454, 11 Sup. Ct. 141, 34 L. Ed. 738; Fisk v. Henarie, 142 U. S. 459, 467, 12 Sup. Ct. 207, 35 L. Ed. 1080; Hanrick v. Hanrick, 153 U. S. 192, 197, 14 Sup. Ct. 835, 38 L. Ed. 685. It is true, also, that in West v. Aurora the suit could have been originally brought in the federal court, whereas this suit could not. But I do not think that this difference renders that case nonapplicable here. It was held by the Fifth Circuit Court of Appeals in the case of Waco Hardware Co. v. Michigan Stove Co., 91 Fed. 289, 33 C. C. A. 511, that it applied in such a case as we have here and that the case was nonremovable. The authorities to the contrary, of which Price & Hart v. T. J. Ellis & Co. (C. C.) 129 Fed. 482, is one, do not persuade me that the case is removable. And in Moon on Removal of Causes, § 148, it is said:
‘The right of a plaintiff to remove a suit from a state court in which it was begun to a Circuit Court of the United States was taken away by the Amendatory act of 1887-88 (with an unimportant exception). The general right to remove a suit is now given only to a defendant or defendants. A plaintiff does not become a defendant, and so entitled to remove a suit, because tiie defendant files a set-oil', counterclaim, cross-bill, or other pleading*534 asserting a cause of action or demand in reconvention against the plaintiff. This was so decided under the act of 1789, and the weight of authority is to the same effect under the present act.”
The motion to remand is sustained.