291 F. 910 | D. Minnesota | 1923
This is a personal injury action commenced in the district court of LeSueur county, Minn., on the 1st of August, 1923, in which the plaintiff seeks to recover from the defendant damages stated in his complaint at $25,000, for injuries alleged to have been sustained by him while in the employ of the defendant as a boiler maker’s helper in its shops at Harlowtown, Mont., on the 31st day of March, 1923.
The defendant caused the action to be removed to this court on the ground of diverse citizenship of the parties.
The plaintiff moves to remand the case to the state court on the following grounds:
(1) “That the complaint and record in said cause do not present a cause removable under the statutes and laws of the United States from said state court.”
(2) “That said cause was improperly and unlawfully removed from said state court.”
(3) “That the above-entitled court has no jurisdiction of said cause of action to hear or determine the same.”
On its face the complaint states a cause of action under and within the provisions of the federal Employers’ Liability Act (Comp. St. §§ 8657-8665), and by the express provisions of that act the case is not removable unless the allegations necessary to bring it within the terms of the act are false and were fraudulently made for the purpose of defeating the defendant’s right to remove the case to this court.
The defendant resists the motion to remand on the grounds stated.
It is unquestioned law that to state a cause of action within the provisions of the act above referred to, the complaint must allege, as it does in this case, that the plaintiff at the time he received the injuries complained of was engaged, and the instrumentality upon which he was working was employed, in interstate commerce.
The allegations of the petition for removal state a case on all fours in its facts with the cases of M. & St. L. R. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Industrial Accident Com. v. Davis, 259 U. S. 182, 42 Sup. Ct. 489, 66 L. Ed. 888.
If the petition had been sufficient in other respects, the plaintiff could not succeed on his motion to remand, as the allegations of the petition for removal, not having been put in issue, stand admitted. Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 42 Sup. Ct. 35, 66 L. Ed. 144.
The petition for removal alleges:
“That all the allegations of said complaint that plaintiff was at the time of such alleged injuries engaged and engaging, in interstate commerce are in all respects untrue and were made for the sole purpose of preventing the removal of this suit to said federal court.”
Unless the parts of the complaint above quoted in the petition for removal are to be regarded as alleging not only that the allegations of the complaint mentioned therein are in all respects untrue, but were in
After having given the matter considerable thought, I am unable to reach the conclusion that the allegations of the petition for removal in the respects mentioned are sufficient and charge that the plaintiff, knowing they were false, inserted them in his complaint fraudulently for the purpose of defeating the defendant’s right of removal.
If the facts at hand in the instant case warranted the defendant in charging the plaintiff with having given his complaint a false and fraudulent form for the purpose of defeating its right to remove the case to this court, it was a very simple matter to have charged the fraud in a direct manner and not left it to inference or presumption.
The motion to remand is granted.