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INGRAM v. STERLING

June 11, 1956

S.C. INGRAM, PLAINTIFF,
v.
LAWRENCE S. STERLING, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

The instant action is one in tort based upon an automobile-truck collision which occurred in Ozark, Arkansas. The plaintiff, S.C. Ingram, an Arkansas citizen, filed suit in the Circuit Court of Franklin County, Arkansas, Ozark District, against the defendant, Lawrence S. Sterling, a California citizen, alleging negligence on the part of the defendant and praying damages in the total sum of $2,650.

On May 15, 1956, plaintiff obtained service of process on the Secretary of State under the provisions of the Arkansas nonresident motorist service statute. The record does not disclose when defendant received actual notice of the filing of the action.

On June 6, 1956, the defendant removed the case to this court on the ground of diversity of citizenship and the amount involved. On the same date defendant filed his answer and counterclaim, and in the counterclaim prayed damages against the plaintiff in the sum of $15,450. The defendant relies upon the amount involved in his counterclaim as establishing jurisdictional amount for the purposes of removal.

No motion to remand has been filed by the plaintiff, but under the provisions of 28 U.S.C.A. § 1447(c), it is the duty of the court to inquire into its own jurisdiction in removed cases. Mayner v. Utah Construction Co., D.C.W.D. Ark., 108 F. Supp. 532.

The issue before the court is whether the amount involved in the counterclaim may be considered in determining jurisdictional amount for purposes of removal. In Wheatley v. Martin, D.C.W.D.Ark., 62 F. Supp. 109, this court held that where a counterclaim is compulsory under the state law, the amount involved in the counterclaim may be considered. Thus, at the outset the court is faced with the rule of stare decisis. This rule, however, has its qualifications. In United States v. State of Minnesota, 8 Cir., 113 F.2d 770, 774, the court said:

    "We are not unmindful of the doctrine of stare
  decisis, but recognize that it is entitled to great
  weight and should ordinarily be adhered to, unless
  the reasons therefor no longer exist, are clearly
  erroneous, or manifestly wrong. The strong respect
  for precedent which inheres in our legal system has
  its qualifications and limitations. It does not call
  for a blind, arbitrary and implicit following of
  precedent, but recognizes, no vested rights nor rule
  of property being involved, that it is more important
  as to far reaching judicial principles that the court
  should be right than that it merely be in harmony
  with its previous decisions. Such a respect for
  precedent balks at the perpetuation of error, and the
  doctrine of stare decisis is, after all, subordinate
  to legal reason and is properly departed from if and
  when such departure is necessary to avoid the
  perpetuation of error."

Ordinarily a court is reluctant to refuse to follow the holding of another court. A court is even more hesitant when it comes to overruling one of its own decisions. And, it is extremely difficult for a court to overrule one of its own decisions when other courts, in the meantime, have followed and relied upon that decision. Nevertheless, the court has concluded that the instant case demands such action.

Wheatley v. Martin was decided in 1945. The case has been followed in Rosenblum v. Trullinger, D.C.E.D.Ark. W.D., 118 F. Supp. 394, (Judge Lemley) and Lange v. Chicago, R.I. & Pac. R. Co., D.C.Iowa, 99 F. Supp. 1. See also, McLean Trucking Co. v. Carolina Scenic Stages, Inc., D.C.N.C., 95 F. Supp. 437.

Other courts have refused to follow Wheatley v. Martin. Trullinger v. Rosenblum, E.D.Ark.W.D., 129 F. Supp. 12 (Judge Trimble); Barnes v. Parker, D.C.Mo., 126 F. Supp. 649. Compare, Chicago, R.I. & Pac. R. Co. v. Stude, 346 U.S. 574, 580, 74 S.Ct. 290, 98 L.Ed. 317; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 85 L.Ed. 1214; Lee Foods Division, Consolidated Grocers Corp. v. Bucy, D.C.Mo., 105 F. Supp. 402; Sequoyah Feed & Supply Co., Inc., v. Robinson, D.C. W.D.Ark., 101 F. Supp. 680; Stuart v. Creel, D.C.N.Y., 90 F. Supp. 392; Moore's Commentary on the U.S. Judicial Code, p. 252.

A reconsideration of the governing principles, especially in view of the decision of the Supreme Court in Chicago, R.I. & Pac. R. Co. v. Stude, supra, convinces the court that its decision in Wheatley v. Martin should be overruled. In the Wheatley case, this court held that where a counterclaim was compulsory — as distinguished from permissive — under the state law, the amount involved therein could be considered in determining jurisdictional amount for purposes of removal. The effect of that holding was to permit state law to determine the right of removal. Such a result is contrary to the reasoning of the court in Chicago, R.I. & Pac. R. Co. v. Stude, supra, wherein the court at page 580 of 346 U.S., at page 294 of 74 S.Ct. said:

    "For the purpose of removal, the federal law
  determines who is plaintiff and who is defendant. It
  is a question of the construction of the federal
  statute on removal, and not the state statute. The
  latter's procedural provisions cannot control the
  privilege of removal granted by the federal statute.
  Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

  104, 61 S.Ct. 868, 870, 85 L.Ed. 1214. Here the
  railroad is the plaintiff under 28 U.S.C. § 1441(a),
  28 U.S.C.A. § 1441(a), and cannot remove. The remand
  was proper."

The weakness of the court's decision in the Wheatley case is pointed out quite forcibly in Barnes v. Parker, D.C.Mo., 126 F. Supp. 649, 651, and the court is taking the liberty of quoting extensively from that opinion.

    "We have thought that it was now established beyond
  all debate that, in determining the amount in
  controversy in actions sought to be removed, the
  Court to which removal is sought determines the
  question solely by looking to the amount in good
  faith prayed for as damnum in the complaint, St. Paul
  Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
  58 S.Ct. 586, 82 L.Ed. 845, regardless of subsequent
  events in the action; Kirby v. American Soda Fountain
  Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911, and
  that, accordingly, if the amount therein claimed was
  less than the jurisdictional requirement, amounts
  claimed by way of counterclaim could not be
  considered as increasing the amount of the required
  sum. Falls Wire Mfg. Co. v. Broderick, C.C.Mo., 6 F.
  654; Gates v. Union Central Life Ins. Co., D.C.,
  56 F. Supp. 149; Stuart v. Creel, D.C., 90 F. Supp. 392.
    "However, there are decisions by other District
  Courts, Wheatley v. Martin, D.C.Ark., 62 F. Supp. 109;
  Lange v. Chicago, R.I. & P.R. Co., D.C.S.D.Iowa,
  99 F. Supp. 1; Rosenblum v. Trullinger, D.C.Ark.,
  118 F. Supp. 394, which apparently create an exception to
  the above rule when a counterclaim is asserted and
  classified as `compulsory' under the local state
  practice. We can agree with neither the reasoning nor
  the confusion which would result if such holdings are
  followed. To recognize such an exception is to make
  the federal removal practice dependent on state court
  procedure and will, if extended, effectively preclude
  attaining that orderly procedure and uniformity of
  practice which has been the goal of all the removal
  acts and which was thought to be achieved by the
  present statute, 28 U.S.C.A. ยง 1441. To do so would
  make the removability of an action into the federal
  court dependent upon the practice with respect to
  counterclaims in use in the particular state wherein
  the federal court happened to be sitting ...

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