The opinion of the court was delivered by: John E. Miller, District Judge.
On March 24, 1954, plaintiff filed suit against defendants in
the Circuit Court of Polk County, Arkansas, alleging that the
deceased, Chas. D. Shane, was fatally injured in a railroad
crossing accident as a proximate result of concurring negligence
on the part of the defendants. On April 10, 1954, the defendant,
Kansas City Southern Railway Company, removed the case to this
Court on the ground of diversity of citizenship and amount
involved as between it and the plaintiff, and on the further
ground that the defendant, A.B. Callahan, was joined as a party
defendant for the sole purpose of defeating Federal jurisdiction,
and that such joinder was fraudulent as a matter of law. After
removing the case, defendant Railway Company on May 11, 1954,
filed its answer, denying negligence on the part of its employees
and particularly on the part of A.B. Callahan, its section
Plaintiff, on May 18, 1954, filed her motion to remand the case
to the Circuit Court of Polk County, Arkansas, on the grounds
that, (1) both plaintiff and the defendant, A.B. Callahan, are
citizens and residents of the State of Arkansas, thus negativing
diversity of citizenship; (2) plaintiff has alleged a cause of
action against the defendants jointly, as she had a right to do;
and (3) that the said defendant Callahan was not fraudulently
joined as a defendant to defeat Federal jurisdiction of the case.
The attorneys for the respective parties have filed memorandum
briefs in support of and in opposition to the motion to remand,
and the motion is now before the Court for disposition.
Over a period of years the rules of law governing fraudulent
joinder, particularly in this Circuit, have become well
crystallized, and before considering the facts as shown by the
record in the instant case, the Court feels that a restatement of
these rules which must be followed in the determination of the
motion is desireable.
The Court, when presented with a removal question concerning
fraudulent joinder, should consider two factors. (1) Did
plaintiff have a real intention to obtain a joint judgment
against the defendants? (2) Did there exist colorable ground
for securing such a judgment at the time the case was removed
from the state court? Smith v. Southern Pac. Co., 9 Cir.,
187 F.2d 397, 401, certiorari denied 342 U.S. 823, 72 S.Ct. 42, 96
L.Ed. 622; Bolstad v. Central Surety & Insurance Corp., 8 Cir.,
168 F.2d 927, 930; Locke v. St. Louis-San Francisco Ry. Co., 8
Cir., 87 F.2d 418, 421; Wells v. Missouri Pac. R. Co., 8 Cir.,
87 F.2d 579, 581; Morris v. E.I. Du Pont De Nemours & Co., 8 Cir.,
68 F.2d 788, 791; Wade v. New York Fire Ins. Co., D.C.Wash.,
111 F. Supp. 748, 751; Montrey v. Peter J. Schweitzer, Inc., D.C.N.J.,
105 F. Supp. 708, 715;
Robinson v. Missouri Pacific Transp. Co., D.C.Ark., 85 F. Supp. 235,
In the absence of a showing of fraudulent joinder, the nature
of the controversy is governed by the allegations of plaintiff's
complaint. Bolstad v. Central Surety & Insurance Corp., supra, at
page 930 of 168 F.2d. See also, Smith v. Southern Pac. Co.,
supra; Huffman v. Baldwin, 8 Cir., 82 F.2d 5, 7, certiorari
denied 299 U.S. 550, 57 S. Ct. 12, 81 L.Ed. 405; House v. Kirby
Lumber Corp., D.C.Tex., 113 F. Supp. 322, 324; Harrod v. Missouri
Pacific R. Co., D.C.Ark., 26 F. Supp. 619, 621.
Plaintiff's complaint must state a joint cause of action
against the defendants, and if it is clearly shown by the facts
alleged in the complaint that no joint liability could exist on
the part of the defendants, the attempted assertion of such a
joint cause of action is fraudulent as a matter of law. Rhodes v.
Dierks Lumber & Coal Co., 8 Cir., 108 F.2d 846, 847; Culp v.
Baldwin, 8 Cir., 87 F.2d 679, 682; Morris v. E.I. Du Pont De
Nemours & Co., supra, at page 792 of 68 F.2d; Adkins v. Blakey,
D.C. Mo., 88 F. Supp. 473, 474; Forrest v. Southern Ry. Co.,
D.C.S.C., 20 F. Supp. 753.
The law of the State, in the instant case Arkansas, determines
whether a cause of action has been stated against the resident
defendant and whether the liability of the defendants, if any, is
joint or several. Huffman v. Baldwin, supra, at page 8 of 82
F.2d; Morris v. E.I. Du Pont De Nemours & Co., supra, at page 792
of 68 F.2d; Thomas, Adm'r v. Thompson, D.C.Ark., 80 F. Supp. 225,
226; Harrod v. Missouri Pac. R. Co., supra, at page 620 of 26
To show that a joinder, fair upon its face, nevertheless is
only a sham or fraudulent device to prevent removal, the petition
for removal must contain a statement of facts leading to that
conclusion; mere statements of the pleader's deductions will not
suffice. Smith v. Southern Pac. Co., supra, at page 400 of 187
F.2d; Polito v. Molasky, 8 Cir., 123 F.2d 258, 260; Huffman v.
Baldwin, supra, at page 7 of 82 F.2d; Adkins v. Blakey, supra, at
page 474 of 88 F. Supp.
The burden of proof is upon the removing defendant to establish
the alleged fraudulent joinder. Polito v. Molasky, 8 Cir.,
123 F.2d 258, 260 (by clear and convincing evidence); Wells v.
Missouri Pac. R. Co., supra, at page 581 of 87 F.2d; Morris v.
E.I. Du Pont De Nemours & Co., supra, at page 791 of 68 F.2d;
Hoge v. Fort Smith Gas Co., D.C.Ark., 37 F. Supp. 71.
It is equally as important to protect the state court's
jurisdiction of cases improperly removed as it is to protect the
federal court's jurisdiction of cases properly removed. Huffman
v. Baldwin, supra, at page 7 of 82 F.2d; Morris v. E.I. Du Pont
De Nemours & Co., supra, at page 793 of 68 F.2d; Lee v. Ford
Motor Co., D.C.Mo., 38 F. Supp. 852, 853.
Doubtful issues of law or fact should be decided in the State
court and not in the removal proceedings. Smith v. Southern Pac.
Co., supra, at page 402 of 187 F.2d; Bolstad v. Central Surety &
Insurance Corp., supra, at page 930 of 168 F.2d; Albi v. Street &
Smith Publications, Inc., 9 Cir., 140 F.2d 310, 312; Rhodes v.
Dierks Lumber & Coal Co., supra, at page 848 of 108 F.2d; Montrey
v. Peter J. Schweitzer, Inc., supra, at page 717 of 105 F. Supp.;
Robinson v. Missouri Pacific Transp. Co., supra, at page 238 of
85 F. Supp.
The foregoing rules of law, as heretofore stated, are well
settled, and the decision in the instant case depends upon a
proper application of those principles of law to the facts
"That defendant, Kansas City Southern Railway Company, in order
to maintain its tracks, public railroad crossing and right-of-way
in a useable condition, employed various persons as section
workers and placed in charge of each crew a Section Foreman, with
a certain territorial responsibility, one A.B. Callahan, was, on
the 28th day of November, 1953, the Section Foreman charged with
the responsibility of ...