24 F. 817 | U.S. Circuit Court for the District of Southern New York | 1885
The bill of complaint in this case was filed in the superior court of the city of Now York to obtain an injunction perpetually restraining the defendants from running the steam-boat D. B. Martin, or any other vessel, as a ferry, from pier 18, New York, to Staten Island, without first taking out a license from the complainant. After the service of the complaint, and of several affidavits upon which a motion was noticed to obtain an injunction pendente lite, the transportation company removed the cause to this court. The petition of removal sots forth that of the five individual defendants three are citizens of New Jersey, and that the transportation company is also a citizen of New Jersey; that the complainant is a citizen of New
1. I am unable to sustain the removal upon the ground alleged that there is more than one controversy in the cause, because the complaint demands an “account of the sums of money received by the defendants, or any or either of them, from operating said ferry, and that they pay the same to the complainant.” The cause of action, viz., to restrain the running of the ferry, is one and indivisible, though many persons may be engaged in the enterprise. The complaint, in general terms, charges that it is run by the defendants. The account demanded from each is a mere incident to the principal relief, and does constitute a several controversy, as in the cases of Boyd v. Gill, 21 Blatchf. 543, S. C. 19 Fed. Rep. 145, and Langdon v. Fogg, 21 Blatchf. 392, S. C. 18 Fed. Rep. 5, where the cause of action itself was joint and several. On this point, also, the decision of the circuit judge in the case of Mayor v. Independent Steam-boat Co. 21 Fed. Rep. 593, is strictly in point, and must be held to be controlling.
2. On other grounds, however, I think it would be improper to remand the cause at this time. Where the cause is removed on the ground of diverse citizenship, the court regards the citizenship of the necessary parties only. Thus, in the leading case of Hyde v. Ruble, 104 U. S. 409, the supreme court say:
“To entitle to removal, etc., there must be a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different states from those on the other. ” See, also, Barney v. Latham, 103 U. S. 211.
And in suits for injunctions against corporations it has been repeatedly held that the residence of the president or directors, who have been made co-defendants in the same state with the plaintiff, does not bar the corporation’s right of removal to which it would be otherwise entitled, since the corporation is the only necessary and substantial litigant. Pond v. Sibley, 7 Fed. Rep. 129; Hatch v. Chicago, R. I. & P. R. Co. 6 Blatchf. 114.
The practice in equity is so flexible as respects the joinder of par
These are all the averments of the complaint touching the character of the parties defendant. From these averments it is manifest that the apparent and only ostensible principal is the defendant corporation. The complainant’s affidavits, which form a part of the rec
In this case no such joint enterprise is alleged. Carefully scrutinized, the averments of the complaint above quoted state nothing beyond such relations as an individual may lawfully hold to a corporation, without in any way affecting its own sole responsibility to other persons for its business affairs. It is immaterial by whose “instrumentality” a corporation is organized if it be done legally. The lawfulness of its business is not impugned, nor its own sole legal responsibility for its business shifted, by calling it a “scheme” devised for one man’s individual profit. Profit is the legitimate purpose, and the usual purpose', of all business corporations; and the averment that Mr. Starin is “actually operating the ferry referred to, purporting to be operated by the transportation company,” states no fact showing that Mr. Starin does anything in or about the ferry business outside
I regard it as obligatory upon the court to scrutinize the complaint thus rigidly, and to make no intendments in the complainant’s favor upon a question of this character, because there are indications in the record of an attempt to prevent a trial in the federal courts through the joinder of defendants in no way necessary to the determination of the real issue; and because if-the cause were remanded, and it should turn out upon the trial that these general averments of the complaint in regard to Starin and others were not sustained in any different sense from that above referred to, the cause-might still proceed to judgment against the corporation in the state court, though the individual defendants were clearly shown to be unnecessary parties; and the corporation would thus bo deprived of the right to a trial in the federal courts, wffiieh the United States statute was designed to secure to it. On the other hand, should it turn out hereafter that Mr. Starin has any direct, legal, and responsible relation to the running of this ferry, as regards third parties, so as to he a necessary party to the litigation, or to the actual controversy presented by the pleadings, then this court can, whenever that fact appears, remand the cause; and by the statute it will then become its duty to remand it.
For another reason, also, Mr. Starin would appear to be an unnecessary, if not an improper, party here, because in the former suit against the Independent Steam-boat Company, to which he was a party, it appears from the complainant’s affidavits that Mr. Starin, “by an order of court, was, on or about August 14, 1884, enjoined, at the complainant’s suit, from operating any ferry between the points mentioned in the complaint in this action,” and that such order “is still in full force and effect.” Having already obtained an injunction against Mr. Starin, it would seem to be at least wholly unnecessary, if not inadmissible, for the complainant to institute another suit against him as a substantial litigant to obtain the same relief a second time. The proper remedy against him would be a proceeding to punish him for contempt of the order already obtained in the former suit. In such a proceeding it might possibly be that the organization of a foreign corporation through his sole “instrumentality” to run the ferry he had been enjoined from operating, might be held to bo a contempt. But that would not make him a necessary party to the new suit to enjoin the new corporation that is the proprietor of the alleged ferry. The fact that Starin is not proceeded against for contempt, but made a co-defendant in a new suit against the new company, shows that he is not made a party here as the proprietor
The motion to remand is therefore, for the present, denied