Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FUGARD v. THIERRY

March 17, 1967

ROINE R. FUGARD, D/B/A ROINE RUSSELL IMPORTS, PLAINTIFF (RESPONDENT),
v.
SUZANNE THIERRY, D/B/A SUZANNE THIERRY PARFUMS, DEFENDANT, AND PEARSON PHARMACAL COMPANY, INC., A CORPORATION, SUZANNE THIERRY PARFUMS, INC., A CORPORATION, MARTIN ZWEIG, THOMAS REACH AND RICHARD DUFF, DEFENDANTS (PETITIONERS). ELMER F. LAYDEN, JR., PLAINTIFF, V. ZANTOP AIR TRANSPORT, INC., A CORPORATION, AND SATURN AIRWAYS, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Campbell, Chief Judge:

No. 66 C 1125:

No. 67 C 19:

MEMORANDUM AND ORDER

Both of these cases present motions to remand to state court. These cases, though unrelated and not consolidated, raise similar issues in the pending motions and for that reason the motions will be decided together.

Fugard v. Thierry

This action for breach of contract was initiated in the state court in December, 1962. At that time only Suzanne Thierry was named as a defendant. Since the citizenship of the parties was diverse; the defendant was not a citizen of Illinois; and the amount in controversy was in excess of $10,000, the case could have been removed to a United States Court on the timely petition of defendant. (28 U.S.C. § 1441) Defendant Thierry, electing to proceed in the state court, filed her answer and participated in discovery procedures.

In April, 1966, more than three years after the action was originally initiated, plaintiff filed an amended complaint in the state proceeding and named as additional defendants the petitioners herein. There remains in the total case complete diversity of citizenship. The amended complaint retains the action for breach of contract against the original defendant, Suzanne Thierry and adds additional counts charging the additional defendants with the inducement of the breach. These additional defendants filed a timely petition to remove to this court.

Plaintiff by its present motion to remand argues that all defendants must join in a petition to remove and that defendant Thierry did not and could not join in the petition to remove because of her election to proceed in the state court. Plaintiff further argues that this case, even with the additional counts and additional defendants named in the amended complaint, involves only one cause of action within the meaning of the removal statute (28 U.S.C. § 1441) and should be remanded to the state court.

I am in agreement with plaintiff's position that defendant Thierry waived her right to remove when she failed to make timely application and elected to submit to the jurisdiction of the state court. (Cyclopedia of Federal Procedure, § 3.101.) The filing of an amendment to a complaint gives rise to a new right of removal only if the amendment so changes, "the character of the litigation as to make it substantially a new suit begun that day." (Fletcher v. Hamlet, 116 U.S. 408, 410, 6 S.Ct. 426, 427, 29 L.Ed. 679.) The amended complaint filed by plaintiff made no change of substance as it concerns defendant Thierry. Therefore, she could not, as apparently she did not, join in the petition for removal. Since all defendants must join in a petition for removal, when the initial defendant waived her right to remove the other defendants fell subject to the same disability. (Fletcher v. Hamlet, 116 U.S. 408, 6 S.Ct. 426, 29 L.Ed. 679; Moore's Federal Practice, Vol. 1A § 0.168(3-2))

The only other plausible theory to support the petition for removal would seem to be that the claim against the petitioners in the amended complaint constitutes a "separate and independent claim or cause of action" under subsection (c) of 28 U.S.C. § 1441, which provides that when separate and independent claims otherwise removable are joined with non-removable claims the case may be removed and the federal court may hear the entire case or in its discretion, may remand that portion not otherwise within its jurisdiction. Thus, if the amendment here as it concerns the additional defendants, involves a separate and independent cause of action within the meaning of § 1441(c) that separate cause of action, and indeed the entire case if the court deems proper, may be removed.

The facts in Finn were these: Plaintiff, a citizen of Texas, sued two foreign insurance companies and a Texas insurance agent. The plaintiff claimed alternative relief against one or the other foreign insurance companies on policies issued by them or against the agent for failure to keep her property insured. The foreign insurers, alleging diversity jurisdiction removed the claim against them to the federal court. The district court accepted the entire case based on its reading of 1441(c). After judgment was entered against one of the foreign insurance companies and for the other company and the Texas agent, the company against whom judgment was entered appealed arguing that the court was without jurisdiction because the resident agent's Texas citizenship destroyed the essential diversity jurisdiction requirement and the claim against the foreign companies was not removable as a separate and independent cause of action within the meaning of 1441(c).

In determining that there was no separate and independent cause of action within the meaning of § 1441(c), and that therefore no part of the case was removable, the Supreme Court noted that the allegations concerning the Texas agent involve the same facts and transactions as the allegations concerning the foreign companies and that the damage to plaintiff came from a single incident. The court then stated:

  "* * * we conclude that where there is a single wrong
  to plaintiff, for which relief is sought, arising
  from an interlocked series of transactions, there is
  no separate and independent claim or cause of action
  under 1441(c)." American Fire and Casualty ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.