White v. HughesWhite v. Hughes
ORDER ON MOTIONS FOR REMAND
On July 10, 1975, Defendant Murphy Transportation, Inc. filed in this cause and its companion cause, C-75-57-E, a Petition for Removal of both actions from the Circuit Court of Benton County, Tennessee, to the United States District Court of the Western District of Tennessee, Eastern Division. Petitioner alleged that this Court had original jurisdiction over these causes pursuant to 28 U.S.C. §§ 1331 and 1332 and that said causes were removable under 28 US.C. § 1441(a) and (b).
On October 3, 1975, Benton County, Tennessee, as original Defendant and as a Cross-defendant filed in this cause and in the companion case a Motion to Remand these causes to the state court, ■alleging that the Petition for Removal was insufficient to effect removal to this Court of all or even part of the claims in these causes. In support of this position, Defendant County relied on the following grounds: 1) That the causes in question are not within the original jurisdiction of this Court and therefore not within 28 U.S.C. § 1441(a) since there is no complete diversity as to all parties nor is the requisite federal question present; and 2) that the cross-claim of Defendant and Cross-Plaintiff Jenkins Truck Lines, Inc, against Murphy Transportation is not a “separate and independent claim or cause of action” as contemplated by 28 U.S.C. § 1441(c) and therefore could not support removal of the entire cause to this Court. In the alternative, should this Court accept jurisdiction under § 1441(c), then Defendant County urged this Court to exercise its discretion under that section and remand all otherwise nonremovable claims to the state court.
Murphy Transportation urges removal basically on three grounds: 1) that the entire action in each cause is removable, and not merely the cross-claim against it; 2) that the. cross-claim is a “separate and independent claim or cause of action” arising under § 1441(c), and, as a corollary thereto, the Cross-defendant Murphy is a “defendant” contemplated by § 1441(a); and 3) that even if the cross-claim will not support removal under § 1441(c), removal is proper under 28 U.S.C. § 1446(b) which states in part that if the case as stated in the initial pleading is not removable, a petition for removal can still be filed within thirty days after receipt by the defendant of a copy of an amended pleading, motion, order, or other paper which demonstrates for the first time that the case is one which is or has become removable.
For the reasons hereinafter set forth, this Court holds that this whole cause must be remanded to the Circuit Court of Benton County, Tennessee.
First, it is readily apparent that it is impossible to remove the entire action in each cause under § 1441(a) or (b). This is because neither of these two causes states claims of which the District Courts of the United States have original jurisdiction. Both of these causes arise out of a collision between an ambulance and a tractor-trailer rig. This is clearly not an action which
We now turn to the cross-claim filed by Defendant Jenkins against Defendant Murphy. Under § 1441(c), if a separate and independent claim which is removable is joined with a nonremovable claim, the entire cause can still be removed to federal court. The district court is then authorized to remand all matters not otherwise within its original jurisdiction. The fact that this cross-claim does appear to involve claims arising under certain federal statutes and regulations and is a claim by an Indiana corporation against an Alabama corporation satisfies the first criteria for removability in that the cross-claim would at least colorably fall within this Court’s original jurisdiction. However, this alone is not sufficient to create a removable claim under § 1441(c).
The briefs of the parties as well as this Court’s independent research in this cause indicate that there is an an irreconcilable conflict regarding whether third-party actions and cross-claims can be considered under § 1441(c) as fulfilling the “separate and independent claim” requirement of that section. There are basically two hurdles in this regard: 1) whether the separate and independent claim must be joined by the plaintiff solely in his complaint or other pleading; and 2) whether a counterclaim or cross-claim is capable of being separate and independent of the original claim as stated by the plaintiff.
This Court is persuaded by the interpretation of § 1441(c) which urges that it is only separate and independent claims joined by the plaintiff which are to be considered under § 1441(c) as being removable. This is the view espoused by Professor Moore in his
Commentary on the United States Judicial Code
at page 252 (1948). The rationale supporting this interpretation is set forth In 1A Moore’s Federal Practice ¶ 0.163 [4.—6] at 281
et seq.
and ¶ 0.167 [9] (1974). For a judicial explanation,
see Sequoyah Feed & Supply Co. v. Robinson,
But even if cross-claims of defendants were considered to, create a removable claim, the claim itself would still have to pass muster as being “separate and independent.” A cross-claim is
Another reason for denying removal is based upon § 1446(b). That statute states, in part:
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
It is too well established to be questioned that in order for this section to apply, the change which makes the non-removable claim removable must be brought about by the voluntary act of the plaintiff.
American Car and Foundry Co. v. Kettelhake,
Therefore, it is Ordered that the Motions for Remand filed in C-75-56-E and C-75-57-E are hereby granted. Both cases shall be remanded to the Circuit Court of Benton County, Tennessee.