140 F. 756 | U.S. Circuit Court for the District of South Carolina | 1905
This is a' motion by the plaintiff to remand this case to the state court, whence it was removed by the defendant company. The plaintiff is an alien, and the defendant company is a corporation chartered under the laws of Illinois.
The ground upon which the motion to remand rests is that, the plaintiff being an alien and the defendant company a citizen of Illinois, this court has no jurisdiction. It is conceded that, if the defendant company was a citizen of South Carolina, the alien plaintiff could have brought his suit in this court, and its jurisdiction' to determine the controversy could not be disputed, for it would be a controversy between citizens of a state and foreign states, citizens, or subjects, of which the Circuit Courts of the United States have original cognizance by the terms of the statute; but, inasmuch as the defendant company is not a citizen of South Carolina, it could not be sued outside of the district of its residence without its consent. But it has been decided by the Supreme Court of the United States in numerous cases that that is a, personal privilege of the defendant and may be waived. In Ex parte Schollenberger, 96 U. S. 369, 24 L. Ed. 853, Chief Justice Waite says:
“The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favour of the defendant, and is one which he may waive. If the citizenship of the parties is sufficient, the defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented.”
And the same court, in Railroad Company v. Davidson, 157 U. S. 208, 15 Sup. Ct. 565, 39 L. Ed. 672, says:
“It is true that by the first section, where jurisdiction is founded on the diversity of citizenship, suit is to be brought only in the district of the residence of the plaintiff or defendant, and this restriction is a personal privilege of the defendant and may be waived by him.”
By filing its petition for removal the defendant company has waived its privilege of being sued only in the state of its residence, and is estopped, therefore, from making any question as to the jurisdiction of this court.
The precise question was decided by Judge Ross in Stalker v. Pull
“Tlie right of removal is given wholly to the defendant, without any reference in a remote degree to the plaintiff or his wishes, so no waiver on the part of the plaintiff is necessary or proper.”
The principle is that a defendant corporation, which, by the judiciary act, can be sued only in the state of its residence or in the state where the plaintiff resides, may waive its privilege, and by its petition for removal is held to have waived its privilege of being sued in the state of its residence. The fact that the plaintiff here is an alien does not seem to me to affect the question. Not being a resident of any state, his right to bring a suit in the United States court is probably limited to the state of the defendant’s residence; but, as the defendant company has waived that privilege, as under the authorities it has a right to do, this court has jurisdiction, and the motion to remand must therefore be denied.