In a suit brought in a Texas court by a resident of that State
to recover for a loss by fire, the complaint named as defendants
two foreign insurance companies (one of which is the petitioner
here) and a resident agent of the companies. The single wrong for
which relief was sought was the failure to compensate for the loss,
and the three defendants were joined because of uncertainty as to
who was liable. After September 1, 1948, petitioner removed the
case to the Federal District Court, which rendered judgment against
petitioner and absolved the other defendants. Petitioner thereafter
moved to vacate the judgment and to remand the case to the state
court.
Held:
1. In the light of the allegations of the complaint in this
case, separate and independent causes of action were not stated;
and, under 28 U.S.C. § 1441(c), there was no right of removal of
the case from the state court to the federal court. Pp.
341 U. S.
9-16.
(a) In adopting the "separate and independent claim or cause of
action" test for removability, 28 U.S.C. § 1441(c) (1948), Congress
intended to avoid the difficulties experienced in determining the
meaning of the former provision of 28 U.S.C. § 71, and to limit
removal from state courts. Pp.
341 U. S.
9-10.
(b) A separable controversy is no longer an adequate ground for
removal unless it also constitutes a "separate and independent
claim or cause of action." Pp.
341 U. S.
11-12.
(c) The phrase "cause of action," as used in § 1441, must be
given a meaning which will accomplish the congressional purpose of
limiting and simplifying removal. Pp.
341 U. S.
12-13.
(d) Where a plaintiff seeks relief for a single wrong, arising
from an interlocked series of transactions, there is no "separate
and independent claim or cause of action" under 28 U.S.C. §
1441(c). Pp.
341 U.S.
13-14.
2. Because of the presence of a citizen of Texas on each side,
the District Court would not have had original jurisdiction of this
suit, either as stated in the complaint or in the posture of the
case at the time of judgment. Therefore, the judgment of the
District Court must be vacated. Pp.
341 U. S.
16-19.
Page 341 U. S. 7
(a) To permit a federal trial court to enter judgment in a case
removed without right from a state court where the federal court
could not have original jurisdiction of the suit, even in its
posture at the time of judgment, would, by the act of the parties,
work a wrongful extension of federal jurisdiction and give district
courts power that Congress has denied them. Pp.
341 U. S.
17-18.
181 F.2d 845, reversed.
In a suit removed by petitioner from a state court, the District
Court entered judgment against petitioner. The District Court's
denial of petitioner's subsequent motion to vacate the judgment and
remand the case to the state court was affirmed by the Court of
Appeals. 181 F.2d 845. This Court granted certiorari. 340 U.S. 849.
Reversed and remanded, p.
341 U. S. 19.
MR. JUSTICE REED delivered the opinion of the Court.
These proceedings present for determination the proper federal
rule to be followed on a motion by a defendant to vacate a United
States District Court judgment, obtained by a plaintiff after
removal from a state court by defendant, and to remand the suit to
the state court. Petitioner, the movant, urges that 28 U.S.C. §
1441 did not permit this removal, and therefore the District Court
was without jurisdiction to render the judgment which respondent,
the plaintiff below, seeks to retain. The issue arose in this
way:
Petitioner, the American Fire and Casualty Company, a Florida
corporation, and its codefendant, the Indiana Lumbermens Mutual
Insurance Company, an Indiana corporation, removed, in accordance
with 28 U.S.C. § 1446, a suit brought by respondent Finn in a Texas
state court against the two corporations and an individual,
Page 341 U. S. 8
Reiss, local agent of both corporations and a resident of Texas.
The suit was for a fire loss on Texas property suffered by
respondent, a resident of Texas. Respondent tried to have the case
remanded before trial, but was unsuccessful. After special issues
were found by the jury, judgment was entered against petitioner for
the amount of insurance claimed and costs, and in favor of the
other two defendants. The District Court denied the motion to
vacate the judgment, and the Court of Appeals affirmed. 181 F.2d
845. The latter court concluded there were causes of action against
the foreign insurance companies "separate and independent" from
that stated against the resident individual. Since the causes
against the companies would have been removable if sued on alone,
the entire suit was removable. 28 U.S.C. § 1441(c). That ruling
required consideration of the changes concerning removal made by §
1441(c), which superseded 28 U.S.C. (1946 ed.) § 71. The Court of
Appeals said:
"The difference, if any, between separable controversies under
the old statute and separate and independent claims under the new
one is in degree, not in kind. It is difficult to distinguish
between the two concepts, but it is not necessary to attempt it in
a case like this, which would be removable under either
statute."
181 F.2d 846.
Consideration of the ruling on the motion to vacate the judgment
requires a determination of whether the suit contained separate and
independent causes of action under § 1441(c), and, if the
conclusion is that it did not, a ruling on the effect of a judgment
after a removal without right, initiated by the party against whom
the judgment was ultimately rendered. As prompt, economical and
sound administration of justice depends to a large degree upon
definite and finally accepted principles governing important areas
of litigation, such as the respective jurisdictions of federal and
state courts, we granted certiorari.
Page 341 U. S. 9
340 U.S. 849.
See also Mayflower Industries v. Thor
Corporation, 184 F.2d 537;
Bentley v. Halliburton Oil Well
Cementing Co., 174 F.2d 788.
I
The removal took place after September 1, 1948, the effective
date of the revision of the laws relating to judicial procedure. 62
Stat. 992. The former provision governing removal, 28 U.S.C. (1946
ed.) § 71, read:
"And when, in any suit mentioned in this section, there shall be
a controversy which is wholly between citizens of different States,
and which can be fully determined as between them, then either one
or more of the defendants actually interested in such controversy
may remove said suit into the district court of the United States
for the proper district."
The new section, 28 U.S.C. § 1441(c), states:
"(c) Whenever a separate and independent claim or cause of
action, which would be removable if sued upon alone, is joined with
one or more otherwise nonremovable claims or causes of action, the
entire case may be removed, and the district court may determine
all issues therein, or, in its discretion, may remand all matters
not otherwise within its original jurisdiction."
One purpose of Congress in adopting the "separate and
independent claim or cause of action" test for removability by §
1441(c) of the 1948 revision in lieu of the provision for removal
of 28 U.S.C. (1946 ed.) § 71 was by simplification to avoid the
difficulties experienced in determining the meaning of that
provision. [
Footnote 1] Another
and important
Page 341 U. S. 10
purpose was to limit removal from state courts. [
Footnote 2] Section 71 allowed removal when a
controversy was wholly between citizens of different states and
fully determinable between them. Such a controversy was said to be
"separable." The difficulties inherent in old § 71 show plainly in
the majority and concurring opinions in
Pullman Co. v.
Jenkins, 305 U. S. 534,
305 U. S. 542.
See note, 41 Harv.L.Rev. 1048. Often plaintiffs in state
actions joined other state residents as defendants with
out-of-state defendants so that removable controversies wholly
between citizens of different states would not be pleaded. The
effort frequently failed,
see Pullman Co. v. Jenkins, at
305 U. S. 538,
and removal was allowed. Our consideration of the meaning and
effect of 28 U.S.C. § 1441(c) should be carried out in the light of
the congressional intention.
Cf. Pullman Co. v. Jenkins,
supra, at
305 U. S. 547;
Phillips v. United States, 312 U.
S. 246,
312 U. S.
250.
The Congress, in the revision, carried out its purpose to
abridge the right of removal. [
Footnote 3] Under the former provision,
Page 341 U. S. 11
28 U.S.C. (1946 ed.) § 71, separable controversies authorized
removal of the suit. "Controversy" had long been associated in
legal thinking with "case." It covered all disputes that might come
before federal courts for adjudication. In § 71 the removable
"controversy" was interpreted as any possible separate suit that a
litigant might properly bring in a federal court so long as it was
wholly between citizens of different states. So, before the
revision, when a suit in a state court had such a separate
federally cognizable controversy, the entire suit might be removed
to the federal court. [
Footnote
4]
A separable controversy is no longer an adequate ground for
removal unless it also constitutes a separate and independent claim
or cause of action.
Compare Barney v. Latham, 103 U.
S. 205,
103 U. S. 212,
with the revised § 1441. Congress has authorized removal
now under § 1441(c) only when there is a separate and independent
claim or
Page 341 U. S. 12
cause of action. [
Footnote
5] Of course, "separate cause of action" restricts removal more
than "separable controversy." In a suit covering multiple parties
or issues based on a single claim, there may be only one cause of
action and yet be separable controversies. [
Footnote 6] The addition of the word "independent"
gives emphasis to congressional intention to require more complete
disassociation between the federally cognizable proceedings and
those cognizable only in state courts before allowing removal.
The effectiveness of the restrictive policy of Congress against
removal depends upon the meaning ascribed to "separate and
independent . . . cause of action." § 1441. Although "controversy"
and "cause of action" are treated as synonymous by the courts in
situations where the present considerations are absent, [
Footnote 7] here, it is obvious
different concepts are involved. [
Footnote 8] We are not unmindful that the phrase "cause of
action" has many meanings. [
Footnote 9] To accomplish its purpose of limiting and
simplifying removal, Congress used the phrase "cause of action" in
an accepted meaning to obtain that result. By interpretation we
should not defeat that purpose.
In a suit turning on the meaning of "cause of action," this
Court announced an accepted description.
Baltimore
Page 341 U. S. 13
S.S. Co. v. Phillips, 274 U. S. 316.
[
Footnote 10] This Court
said, 274 U.S. at
274 U. S.
321:
"Upon principle, it is perfectly plain that the respondent
suffered but one actionable wrong, and was entitled to but one
recovery, whether his injury was due to one or the other of several
distinct acts of alleged negligence or to a combination of some or
all of them. In either view, there would be but a single wrongful
invasion of a single primary right of the plaintiff, namely, the
right of bodily safety, whether the acts constituting such invasion
were one or many, simple or complex."
"A cause of action does not consist of facts, but of the
unlawful violation of a right which the facts show."
See Magnolia Petroleum Co. v. Hunt, 320 U.
S. 430,
320 U. S. 443.
[
Footnote 11] Considering
the previous history of "separable controversy," the broad meaning
of "cause of action," and the
Page 341 U. S. 14
congressional purpose in the revision resulting in 28 U.S.C. §
1441(c), 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). [
Footnote 12]
In making this determination, we look to the plaintiff's
pleading, which controls.
Pullman Co. v. Jenkins,
305 U. S. 534,
305 U. S. 538.
[
Footnote 13] The single
wrong for which relief is sought is the failure to pay compensation
for the loss on the property. Liability lay among three parties,
but it was uncertain which one was responsible. Therefore, all were
joined as defendants in one petition. First, facts were stated that
made the petitioner, American Fire and Casualty Company, liable. It
was alleged that the company, through its agent Reiss, insured the
property destroyed for the amount claimed, that Reiss gave
plaintiff credit for the premium, controlled her insurance, agreed
to keep the property insured at all times. She further
Page 341 U. S. 15
alleged that the Company issued the policy, but Reiss retained
the document in his possession and refused to deliver it after the
fire. Then followed a prayer for judgment against the Company.
The next portion of the complaint stated, in the alternative, an
obligation by the Indiana Lumbermens Insurance Company to pay the
same loss. The policy with Lumbermens was attached as an exhibit,
and allegations concerning Reiss similar to those in the first
portion were made. A second prayer was added for recovery against
Lumbermens.
The last portion of the complaint, alternative to both the
preceding, alleged that Reiss, American Fire and Casualty Company,
and Indiana Lumbermens Insurance Company were jointly and severally
liable for the loss. Reiss was said to be plaintiff's insurance
broker, responsible for keeping her house insured. Plaintiff
alleged Reiss insured her property with Lumbermens and never
notified her of any cancellation or expiration. Reiss was alleged
to have agreed later to insure her property with American, to have
promised after the fire to deliver the policy, to have failed to
make the promised delivery. She claimed that Reiss was responsible
for "anything that results in the defeat of her recovery on either
one of said policies," and that he was "the direct cause of the
condition, of said insurance, and the proximate cause of all of
plaintiff's troubles and confusion." The pleader then asserted:
"That such acts and conduct on the part of said Joe Reiss as
agent for the said two insurance companies, renders said Joe Reiss,
agent, the Joe Reiss Insurance Agency, and the American Fire and
Casualty Insurance Company of Orlando, Florida, and the Indiana
Lumbermens Mutual Insurance Company of Indianapolis, Indiana,
jointly and severally
Page 341 U. S. 16
liable for the full amount of the damages that plaintiff has
suffered by reason of said fire in the amount of Five Thousand
Dollars."
The petition concluded with a prayer for joint and several
judgment against all three defendants, based on the third set of
allegations.
The past history of removal of "separable" controversies, the
effort of Congress to create a surer test, and the intention of
Congress to restrict the right of removal leads us to the
conclusion that separate and independent causes of action are not
stated. The facts in each portion of the complaint involve Reiss,
the damage comes from a single incident. The allegations in which
Reiss is a defendant involve substantially the same facts and
transactions as do the allegations in the first portion of the
complaint against the foreign insurance companies. It cannot be
said that there are separate and independent claims for relief, as
§ 1441(c) requires. Therefore, we conclude there was no right to
removal.
II
There are cases which uphold judgments in the district courts
even though there was no right to removal. [
Footnote 14] In those cases, the federal trial
court would have had original jurisdiction of the controversy had
it been brought in the federal court in the posture it had at the
time of the actual trial of the cause or of the entry of the
judgment. That is, if the litigation had been initiated in the
federal court on the issues and between the parties that comprised
the case at the time of trial or judgment, the federal court would
have had cognizance of the case. This circumstance
Page 341 U. S. 17
was relied upon as the foundation of the holdings. [
Footnote 15] The defendant who had
removed the action was held to be estopped from protesting that
there was no right to removal. Since the federal court could have
had jurisdiction originally, the estoppel did not endow it with a
jurisdiction it could not possess.
In this case, however, the District Court would not have had
original jurisdiction of the suit, as first stated in the
complaint, because of the present on each side of a citizen of
Texas. 28 U.S.C. § 1332. The posture of this case even at the time
of judgment also barred federal jurisdiction. A Texas citizen was
and remained a party defendant. The trial court judgment, after
decreeing recovery against American Fire and Casualty Company on
the jury's verdict, added, over American's objection,
"It Is Further Ordered, Adjudged and Decreed that the Plaintiff
take nothing as against Defendants, Indiana Lumbermens Mutual
Insurance Company and Joe Reiss, individually and doing business as
the Joe Reiss Insurance Agency, and that such Defendants go hence
without day with their costs."
By this decree, the merits of the litigation against Reiss were
finally adjudicated. [
Footnote
16] The request of respondent to dismiss Reiss after the
judgment was not acted upon by the trial court.
The jurisdiction of the federal courts is carefully guarded
against expansion by judicial interpretation or by
Page 341 U. S. 18
prior action or consent of the parties. [
Footnote 17] To permit a federal trial court to
enter a judgment in a case removed without right from a state court
where the federal court could not have original jurisdiction of the
suit even in the posture it had at the time of judgment, would, by
the act of the parties, work a wrongful extension of federal
jurisdiction and give district courts power the Congress has denied
them.
The judgment of the Court of Appeals must be reversed, and the
cause remanded to the District Court with directions to vacate the
judgment entered and, if no further steps are taken by any party to
affect its jurisdiction, [
Footnote 18]
Page 341 U. S. 19
to remand the case to the District Court of Harris County,
Texas, with costs against petitioner.
Tennessee v. Union &
Planters Bank, 152 U. S. 454,
152 U. S.
464.
It is so ordered.
[
Footnote 1]
See Reviser's Note with H.R. Rep. No. 308, 80th Cong.,
1st Sess., April 25, 1947, to accompany the revision bill, H.R.
3214. (U.S.C.Cong.Serv., for Title 28, 1948, pp. 1697, 1699, 1855.)
The Reviser's Note is reprinted at 28 U.S.C. § 1441.
See United
States v. National City Lines, 337 U. S.
78,
337 U. S.
81.
[
Footnote 2]
28 U.S.C. § 1441, Reviser's Note:
"Subsection (c) permits the removal of a separate cause of
action, but not of a separable controversy, unless it constitutes a
separate and independent claim or cause of action within the
original jurisdiction of United States District Courts. In this
respect, it will somewhat decrease the volume of Federal
litigation."
Congress had enacted other restrictions on removal in special
acts such as the Federal Employer's Liability Act. 28 U.S.C. (1946
ed.) § 71.
[
Footnote 3]
Care was taken to maintain opportunity for state trial of
non-federal matters.
28 U.S.C. § 1441, Reviser's Note:
"Rules 18, 20, and 23 of the Federal Rules of Civil Procedure
permit the most liberal joinder of parties, claims, and remedies in
civil actions. Therefore, there will be no procedural difficulty
occasioned by the removal of the entire action. Conversely, if the
court so desires, it may remand to the State court all nonremovable
matters."
See McFadden v. Grace Line, 82 F. Supp.
494.
[
Footnote 4]
Barney v. Latham, 103 U. S. 205, is
a good illustration. This Court held that there was separable
controversies in a state court suit against a local corporation and
nonresident individuals for an accounting on land sales. One group
of sales was by the nonresidents before conveyance to the
corporation; the other by the corporation after conveyance.
See also Pullman Co. v. Jenkins, 305 U.
S. 534. There, a suit was instituted in a California
court for damages for a conductor's death caused by a drunken
Pullman passenger. The defendants were the passenger (a
Californian), the railroad (a Kentucky corporation, allegedly
negligent for letting the passenger pass its gates), the Pullman
Company (an Illinois corporation), and its porter (a Californian),
the latter two allegedly negligent for letting the passenger on the
Pullman. Had the porter not been a Californian, the Pullman Company
could have removed on the ground of a separable controversy,
because no facts were alleged as to other defendants' negligence
upon which its liability could be predicated. 305 U.S. at
305 U. S. 539.
"All persons interested in a separable controversy must be able to
remove." Discussed in Moore's Commentary on the U.S. Judicial Code,
p. 247.
[
Footnote 5]
We think the "claim" set out in a petition states the facts upon
which the "cause of action" rests. For the purpose of removal, the
words cover the same allegations.
Since the
Pullman case and the
Barney case do
not contain separate and independent causes of action, they would
not now be removable under 28 U.S.C. § 1441.
[
Footnote 6]
See note 4
supra.
[
Footnote 7]
E.g., Tolbert v. Jackson, 99 F.2d 513, 514 (a valuable
case);
Des Moines Elevator & Grain Co. v. Underwriters
Grain Assn., 63 F.2d 103;
Nichols v. Chesapeake & Ohio
R. Co., 195 F. 913.
[
Footnote 8]
See note 1
supra.
[
Footnote 9]
United States v. Memphis Cotton Oil Co., 288 U. S.
62,
288 U. S. 67-69;
Bemis Bros. Bag. Co. v. United States, 289 U. S.
28,
289 U. S. 33;
Hurn v. Oursler, 289 U. S. 238,
289 U. S.
247.
[
Footnote 10]
There, a sailor filed a libel in admiralty and recovered for
negligence in failing to provide a safe place to work, in failing
to use reasonable care to avoid striking libellant, for
unseaworthiness, incompetency of officers and failure to instruct
plaintiff, an inexperienced sailor, in his duties. Later he sought
further damages for the same accident, for negligence of officers
and employees in the operation of the vessel. Recovery was denied
in the second suit on the ground that it was the same cause of
action as the first.
[
Footnote 11]
In
Chase Securities Corp. v. Donaldson, 325 U.
S. 304,
325 U. S. 311,
we accepted a like state rule:
"The state courts seem to have treated the complaint as setting
up several bases for a single common law cause of action in tort
which had been remanded for retrial at the time the new statute was
enacted. We must regard it in that same light."
So, in
Hurn v. Oursler, 289 U.
S. 238,
289 U. S.
246:
"The bill alleges the violation of a single right, namely, the
right to protection of the copyrighted play. And it is this
violation which constitutes the cause of action. Indeed, the claims
of infringement and unfair competition so precisely rest upon
identical facts as to be little more than the equivalent of
different epithets to characterize the same group of circumstances.
The primary relief sought is an injunction to put an end to an
essentially single wrong, however differently characterized, not to
enjoin distinct wrongs constituting the basis for independent
causes of action."
See Behrens v. Skelly, 173 F.2d 715, 719;
Cope v.
Anderson, 331 U. S. 461,
331 U. S.
466.
[
Footnote 12]
See a discussion of cause of action in code pleading.
Clark on Code Pleading (2d ed.), 137
et seq.
[
Footnote 13]
Moore's Commentary on the U.S. Judicial Code,
supra,
pp. 251-252:
"But where the plaintiff joins two or more defendants to recover
damages for one injury, and even though he charges them with joint
and several liability or only several liability, or charges them
with liability in the alternative, there is no joinder of separate
and independent causes of action within the meaning of § 1441(c).
At most, a separable controversy is presented where several or
alternative liability is alleged, and is no longer the basis for
removal."
Compare the opinion in
Bentley v. Halliburton Oil
Well Cementing Co., 81 F. Supp.
323,
with the reversing opinion in 174 F.2d 788.
[
Footnote 14]
Baggs v. Martin, 179 U. S. 206;
Toledo v. Perenchio, 205 F. 472;
Handley-Mack v.
Godchaux, 2 F.2d 435;
Bailey v. Texas Co., 47 F.2d
153.
[
Footnote 15]
E.g., in
Baggs v. Martin, 179 U.
S. 206, the federal court had jurisdiction over the
property in the hands of the receiver, and it was not a proceeding
wherein
"mere consent, or even voluntary action by the parties, . . .
[conferred] jurisdiction upon a court which would not have
possessed it without such consent or action."
179 U.S. at
179 U. S.
209.
[
Footnote 16]
See Burton-Lingo Co. v. Lay, 142 S.W.2d 448;
Spann
Brothers Anto Supply Co. v. Miles, 135 S.W.2d 1016, 1017.
[
Footnote 17]
People's Bank of Belleville v. Calhoun, 102 U.
S. 256,
102 U. S.
260-261:
"It needs no citation of authorities to show that the mere
consent of parties cannot confer upon a court of the United States
the jurisdiction to hear and decide a case. If this were once
conceded, the Federal courts would become the common resort of
persons who have no right, either under the Constitution or the
laws of the United States, to litigate in those courts."
Mansfield C. & L.M. R. Co. v. Swan, 111 U.
S. 379,
111 U. S. 383,
quoting with approval an excerpt from the dissent in the
Dred
Scott Case:
"It is true . . . as a general rule, that the court will not
allow a party to rely on anything as cause for reversing a judgment
which was for his advantage. In this we follow an ancient rule of
the common law. But so careful was that law of the preservation of
the course of its courts that it made an exception out of that
general rule, and allowed a party to assign for error that which
was for his advantage if it were a departure by the court itself
from its settled course of procedure."
Also see, e.g., Wabash R. Co. v. Barbour, 73 F. 513,
516;
Capron v. Van
Noorden, 2 Cranch 126.
[
Footnote 18]
Issues not raised in the records or briefs are not passed upon,
such as the propriety of the District Court's allowing, after
vacation of judgment, a motion to dismiss Reiss, the resident
defendant; or the associated problem: whether, if such a dismissal
is allowed, a new judgment can be entered on the old verdict
without a new trial. These questions and like matters are for the
consideration and decision of the District Court.
See, e.g.,
Dollar S.S. Lines v. Merz, 68 F.2d 594;
International
Ladies' Garment Workers' Union v. Donnelly Garment Co., 121
F.2d 561.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
MINTON concur, dissenting.
I think petitioner, having asked for and obtained the removal of
the case to the Federal District Court, and having lost its case in
that court, is now estopped from having it remanded to the state
court.
Mere irregularity in the removal may be waived where the suit
might originally have been brought in the Federal District Court.
Baggs v. Martin, 179 U. S. 206.
[
Footnote 2/1] That was a suit
against a receiver which could have been instituted in the federal
court. It was removed there by the receiver and judgment rendered
against him. The court did not stop to inquire whether there had
been a compliance with the removal provisions, holding that, under
those circumstances, it did not lie in the mouth of the receiver to
deny the jurisdiction he had sought.
And see Toledo, St.L.
& W. R. Co. v. Perenchio, 205 F. 472;
Handley-Mack Co.
v. Godchaux Sugar Co., 2 F.2d 435, 437;
Bailey v. Texas
Co., 47 F.2d 153, 155.
The suit against petitioner could have been brought originally
in the Federal District Court, since there was diversity of
citizenship and the claim under the fire insurance policy was over
$3,000. The requirements of diversity of citizenship and
jurisdictional amount may not,
Page 341 U. S. 20
of course, be waived. But a different provision of the statute
is involved here. It is § 1441(c) of the Judicial Code, which
reads:
"Whenever a separate and independent claim or cause of action,
which would be removable if sued upon alone, is joined with one or
more otherwise nonremovable claims or causes of action, the entire
case may be removed and the district court may determine all issues
therein, or, in its discretion, may remand all matters not
otherwise within its original jurisdiction."
28 U.S.C. § 1441(c). The argument is that the suit against
Reiss, the individual defendant, could not be removed, since both
he and the plaintiff were residents of Texas, and that the suits
against the two nonresident corporations could not be removed,
because the claim asserted against them was not "separate and
independent."
But the judgment sought to be reviewed here was rendered by the
District Court only against petitioner, who could have been sued
there originally [
Footnote 2/2] and
who invoked the jurisdiction of the District Court. As the court
observed in the closely analogous case of
Bailey v. Texas Co.,
supra, 47 F.2d at 155, "the resulting situation is equivalent
to initiating an action in the District Court in which the
defendant appears." [
Footnote 2/3]
I think it is abusive of the interests of justice when the
challenge now made is raised
Page 341 U. S. 21
to the dignity of a jurisdictional question. Any requirement of
§ 1441(c) that was not met in this case rose to no level higher
than an irregularity, so far as petitioner is concerned. Both Reiss
and the other nonresident defendant have been dismissed from the
case. The only judgment before the Court is one which satisfies the
requirements of original jurisdiction. Petitioner -- the one who
invoked federal jurisdiction and as a result suffered the
consequences of this judgment -- should not now be heard to
complain.
Baggs v. Martin, supra, should govern this
case.
[
Footnote 2/1]
As noted in
Bailey v. Texas Co., 47 F.2d 153, 155,
Baggs v. Martin displaces the view earlier expressed by
the Court in
Torrence v. Shedd, 144 U.
S. 527,
144 U. S. 529,
and
Martin v. Snyder, 148 U. S. 663.
[
Footnote 2/2]
We have here no joint liability between a nonresident defendant
and a resident defendant, as was the situation in
Chicago, B.
& Q. R. Co. v. Willard, 220 U. S. 413,
220 U. S. 418.
And see Alabama Great Southern R. Co. v. Thompson,
200 U. S. 206;
Rupp v. Wheeling & L.E. R. Co., 121 F. 825. The remedy
sought against Reiss was alternative to the remedy sought against
petitioner.
[
Footnote 2/3]
In that case, the parties who could not have been brought to the
District Court by removal were after removal dismissed out of the
case, and judgment was rendered against a defendant who could have
been sued in the District Court.