As the right to remove a cause from a state to a federal court
exists only in enumerated classes of cases, the petition must set
forth the particular facts which bring the case within one of such
classes; general allegations and mere legal conclusions are not
The right of a nonresident defendant to remove the case cannot
be defeated by the fraudulent joinder of a resident defendant, but
the defendant seeking removal must allege facts which compel the
conclusion that the joinder is fraudulent; merely to apply the term
" fraudulent " to the joinder is not sufficient to require the
state court to surrender its jurisdiction.
Where plaintiff's statement of his case shows a joint cause of
action, as tested by the law of the state, the duty is on the
nonresident defendant seeking removal to state facts showing that
the joinder was a mere fraudulent device to prevent removal.
It is not sufficient for a nonresident railroad corporation,
joined as defendant in a suit for personal injuries with two
resident employees in charge of the train which did the injury, to
show in its petition an absence of good faith on plaintiff's part
in bringing the action at all; the petition must show that the
joinder itself is fraudulent.
Page 232 U. S. 147
This Court, while affirming the judgment of the Court of Appeals
of the state, may, as it does in this case, express it disapproval
of the reasoning on which it was based.
Issues of fact arising upon a petition for removal are to be
determined in the federal court, and, where the petition
sufficiently shows a fraudulent joinder and the proper bond has
been given, the state court must surrender jurisdiction, leaving
any issue of fact arising on the petition to the federal court.
Wecker v. National Enameling Co., 204 U.
Where the state court refuses to give effect to a proper
petition and bond on removal, the defendant may resort to
certiorari from the federal court to obtain the certified
transcript and injunction to prevent further proceedings in the
144 Ky. 137 affirmed.
The facts, which involve the validity of a judgment of the Court
of Appeals of the Kentucky and the construction of the statutes
relative to removal of causes from the state to the federal court,
are stated in the opinion.
Page 232 U. S. 149
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action begun in the Circuit Court of Clark County,
Kentucky, by an administrator, to recover
Page 232 U. S. 150
damages for the death of his intestate, the defendants being a
railway company and the engineer and fireman of one of its trains
which struck and fatally injured the intestate at or near a public
crossing in Winchester, Kentucky. The administrator, engineer, and
fireman were citizens of Kentucky, and the railway company was a
Virginia corporation. The latter in due time presented to the court
a verified petition and proper bond for the removal of the cause
into the circuit court of the United States, but the court declined
to surrender its jurisdiction, and, over the company's protest,
proceeded to a trial which resulted in a judgment against the
company, and the Court of Appeals of the state affirmed the
judgment, including the ruling upon the petition for removal. 144
The sole question for decision here is, whether it was error
thus to proceed to an adjudication of the cause notwithstanding the
company's effort to remove it into the federal court.
Rightly understood and much abbreviated, the plaintiff's
petition, after stating that the train was being operated by the
engineer and fireman as employees of the railway company, charged
that the injury and death of the intestate were caused by the
negligence of the defendants (a) in failing to maintain an adequate
lookout ahead of the engine, (b) in failing to maintain any lookout
upon the left or fireman's side, from which the intestate went upon
the track, (c) in failing to give any warning of the approach of
the train, and (d) in continuing to run the train forward after it
struck the intestate, and was pushing her along, until it
eventually ran over and fatally injured her, when it easily could
have been stopped in time to avoid material injury. There was a
prayer for a judgment against the three defendants for $25,000, the
amount of damages alleged.
The railway company's petition for removal, while not
Page 232 U. S. 151
denying that the engineer and fireman were in the employ of the
company or that they were operating the train when it struck and
injured the intestate, did allege that the charges of negligence
(all being specifically repeated) against the defendants were each
"false and untrue, and were known by the plaintiff, or could
have been known by the exercise of ordinary diligence, to be false
and untrue, and were made for the sole and fraudulent purpose of
affording a basis, if possible, for the fraudulent joinder' of the
engineer and fireman with the railway company, and of 'thereby
the latter of its right to have the action removed into the
federal court, and that none of the charges of negligence on the
part of the engineer or fireman could be sustained on the
It will be perceived that, but for the joinder of the two
employees as codefendants with the railway company, the latter
undoubtedly would have been entitled to remove the cause into the
federal court on the ground of diverse citizenship, there being the
requisite amount in controversy, and that the railway company
attempted in the petition for removal to overcome the apparent
obstacle arising from the joinder. Whether the petition was
sufficient in that regard is the subject of opposing
The right of removal from a state to a federal court, as is well
understood, exists only in certain enumerated classes of cases. To
the exercise of the right, therefore, it is essential that the case
be shown to be within one of those classes, and this must be done
by a verified petition setting forth, agreeably to the ordinary
rules of pleading, the particular facts, not already appearing, out
of which the right arises. It is not enough to allege in terms that
the case is removable or belongs to one of the enumerated classes,
or otherwise to rest the right upon mere legal conclusions. As in
other pleadings, there must be a statement of the facts relied
upon, and not otherwise appearing,
Page 232 U. S. 152
in order that the court may draw the proper conclusion from all
the facts, and that, in the event of a removal, the opposing party
may take issue, by a motion to remand, with what is alleged in the
petition. Gold-Washing & Water Co. v. Keyes,
96 U. S. 199
96 U. S. 202
Carson v. Dunham, 121 U. S. 421
121 U. S. 426
Crehore v. Ohio & Mississippi Ry. Co., 131 U.
, 131 U. S. 244
Chesapeake & Ohio Railway Co. v. Powers, 169 U. S.
, 169 U. S.
A civil case at law or in equity presenting a controversy
between citizens of different states and involving the requisite
jurisdictional amount is one which may be removed by the defendant,
if not a resident of the state in which the case is brought, and
this right of removal cannot be defeated by a fraudulent joinder of
a resident defendant having no real connection with the
controversy. Louisville & Nashville R. Co. v.
Wangelin, 132 U. S. 599
132 U. S. 601
Alabama Southern Railway v. Thompson, 200 U.
, 200 U. S. 218
Wecker v. National Enameling Co., 204 U.
; Illinois Central R. Co. v. Sheegog,
215 U. S. 308
215 U. S. 316
So, when in such a case a resident defendant is joined with the
nonresident, the joinder, even although fair upon its face, may be
shown by a petition for removal to be only a fraudulent device to
prevent a removal; but the showing must consist of a statement of
facts rightly engendering that conclusion. Merely to traverse the
allegations upon which the liability of the resident defendant is
rested, or to apply the epithet "fraudulent" to the joinder, will
not suffice; the showing must be such as compels the conclusion
that the joinder is without right and made in bad faith, as was the
case in Wecker v. National Enameling Co., supra. See
Illinois Central R. Co. v. Sheegog, supra; Chicago, Rock Island
& Pacific Railway v. Dowell, 229 U.
, 229 U. S. 114
Here, the plaintiff's petition, as is expressly conceded, not
only stated a good cause of action against the resident defendants,
but, tested by the laws of Kentucky, as it
Page 232 U. S. 153
should be, stated a case of joint liability on the part of all
the defendants. As thus stated, the case was not removable, the
joinder of the resident defendants being apparently the exercise of
a lawful right. And, while the plaintiff's statement was not
conclusive upon the railway company, it did operate to lay upon the
latter, as a condition to a removal, the duty of showing that the
joinder of the engineer and fireman was merely a fraudulent device
to prevent a removal. Of course, it was not such unless it was
without any reasonable basis.
Putting out of view, as must be done, the epithets and mere
legal conclusions in the petition for removal, it may have
disclosed an absence of good faith on the part of the plaintiff in
bringing the action at all, but it did not show a fraudulent
joinder of the engineer and fireman. With the allegation that they
were operating the train which did the injury standing
unchallenged, the showing amounted to nothing more than a traverse
of the charges of negligence, with an added statement that they
were falsely or recklessly made and could not be proved as to the
engineer or fireman. As no negligent act or omission personal to
the railway company was charged, and its liability, like that of
the two employees, was in effect predicated upon the alleged
negligence of the latter, the showing manifestly went to the merits
of the action as an entirety, and not to the joinder -- that is to
say, it indicated that the plaintiff's case was ill founded as to
all the defendants. Plainly this was not such a showing as to
engender or compel the conclusion that the two employees were
wrongfully brought into a controversy which did not concern them.
As they admittedly were in charge of the movement of the train, and
their negligence was apparently the principal matter in dispute,
the plaintiff had the same right, under the laws of Kentucky, to
insist upon their presence as real defendants as upon that of the
railway company. We conclude, therefore, that the petition for
Page 232 U. S. 154
removal was not such as to require the state court to surrender
While this conclusion requires an affirmance of the judgment, we
would not be understood as approving the reasoning upon which the
action of the trial court was sustained by the Court of Appeals of
the state. That court, apparently assuming that the petition for
removal contained a sufficient showing of a fraudulent joinder,
held that the questions of fact arising upon the petition were open
to examination and determination in the state court, and that no
error was committed in refusing to surrender jurisdiction, because,
upon the subsequent trial, the evidence indicated that the showing
in the petition was not true as to the fireman. In so holding, the
Court of Appeals fell into manifest error, for it is thoroughly
settled that issues of fact arising upon a petition for removal are
to be determined in the federal court, and that the state court,
for the purpose of determining for itself whether it will surrender
jurisdiction, must accept as true the allegations of fact in such
petition. Stone v. South Carolina, 117 U.
, 117 U. S. 432
Crehore v. Ohio & Mississippi Ry. Co., 131 U.
, 131 U. S. 244
Illinois Central R. Co. v. Sheegog,
and Chicago, Rock
Island & Pacific Ry. Co. v. Dowell, supra.
In this case,
had the petition contained a sufficient showing of a fraudulent
joinder, accompanied as it was by a proper bond, the state court
would have been in duty bound to give effect to the petition and
surrender jurisdiction, leaving any issue of fact arising upon the
petition to the decision of the federal court, as was done in
Wecker v. National Enameling Co., supra.
And had the state
court refused to give effect to the petition, it and the bond being
sufficient, the railway company might have obtained a certified
transcript of the record, resorting, if necessary, to a writ of
certiorari for that purpose, and, upon filing the transcript in the
federal court, might have invoked the authority of the latter to
protect its jurisdiction by enjoining the plaintiff from taking
Page 232 U. S. 155
further proceedings in the state court unless the cause should
be remanded. Traction Co. v. Mining Co., 196 U.
, 196 U. S. 245
Chesapeake & Ohio Railway Co. v. McCabe, 213 U.
, 213 U. S.
-219; Chesapeake & Ohio Railway Co. v.
McDonald, 214 U. S. 191
214 U. S. 195
French v. Hay,
22 Wall. 250; Dietzsch v. Huidekoper, 103 U.