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POINDEXTER v. GROSS & JANES COMPANY

November 6, 1958

JAMES ALBERT POINDEXTER AND PEGGY JEAN POINDEXTER, PLAINTIFFS,
v.
GROSS & JANES COMPANY, DEFENDANT.



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

On October 30, 1958, the defendant filed its motion praying "that the Court set aside its Order heretofore rendered on the 14th day of October, 1958, remanding this cause of action to the Circuit Court of Ouachita County, Arkansas, and that the defendant be granted leave to amend its answer heretofore filed in this cause so as to allege therein the true facts as to where the defendant's principal place of business is located, and to deny that its principal place of business is located at Camden, Arkansas."

On September 15, 1958, the plaintiffs filed their complaint in the Circuit Court of Ouachita County, Arkansas, Second Division, against the defendant, and alleged in paragraph one (1) of their complaint that they are husband and wife and are citizens of Arkansas and reside in the City of Camden, Ouachita County, Arkansas; "that the defendant is a Missouri corporation, authorized to do, and doing business in the State of Arkansas, with an office at Camden, Arkansas, which is their principal place of business."

The plaintiffs further alleged that on or about July 1, 1958, their minor son, James Robert Poindexter, received severe injuries which resulted in his death, and that the injuries were solely and proximately caused by the negligence and carelessness of the defendant. Then follow allegations of the specific acts of negligence, and they seek to recover from defendant $150,000 in damages because of the alleged negligence of the defendant.

On October 6, 1958, the defendant filed its petition for removal. The only ground for removal is contained in paragraph 1 of the petition, which reads as follows:

    "The defendant states that the cause of action
  alleged by the plaintiffs is of a civil nature at law
  of which the District Courts of the United States
  have jurisdiction; that it involves One Hundred and
  Fifty Thousand ($150,000.00) Dollars, exclusive of
  interest and costs; that at the time of the
  commencement of this suit and at the present time,
  the plaintiffs were, and are, citizens and residents
  of Arkansas, and the defendant was, and is, a citizen
  and resident of Missouri."

Also on October 6, 1958, the defendant filed its answer. In paragraph 1 of its answer the defendant "admits the allegations of paragraphs one, two and three of the complaint."

On October 7, 1958, the plaintiffs filed their motion to remand in which they alleged, inter alia:

    "That the defendant has filed herein its Petition
  for Removal, and stated as grounds therefor that the
  plaintiffs were and are citizens and residents of
  Arkansas and that the defendant was and is a citizen
  and resident of Missouri.
    "That the Complaint filed herein alleges in
  Paragraph No. 1 that `The defendant is a Missouri
  Corporation, authorized to do and doing business in
  the State of Arkansas, with an office at Camden,
  Arkansas, which is their principal place of
  business.'"

It was further alleged in the motion to remand that the defendant by its answer admitted that the defendant's principal place of business is in Camden, Ouachita County, Arkansas, and that although the defendant is a corporation organized and existing under the laws of the State of Missouri that under the allegations of the complaint and the admissions of the answer the principal place of business of the defendant is in the State of Arkansas, which is the residence of the plaintiffs, and that the Court has no jurisdiction of the cause and the same should be remanded to the Circuit Court of Ouachita County from which it was removed.

On October 14, 1958, the Court considered the motion to remand and on that date wrote the attorney for the defendant and the attorneys for the plaintiffs a letter, and filed a copy of the said letter with the Clerk. In accordance with the letter, an order was entered granting the motion to remand and remanding the case to the state court. In the letter the court called the attention of the attorneys to Public Law 85-554, 85th Congress, approved July 25, 1958, and particularly to Subsection (c) of Section 2 of the Act, 72 Stat. 415, and then stated:

    "The petition for removal was filed October 6,
  1958, and alleges that the plaintiffs are seeking to
  recover an amount in excess of $10,000, exclusive of
  interest and costs, and `that at the time of the
  commencement of this suit and at the present time,
  the plaintiffs were, and are, citizens and residents
  of Arkansas, and the defendant was, and is a citizen
  and resident of Missouri.' Thus it will be seen that
  the petition for removal by failing to deny the
  allegation in the complaint that the principal place
  of business of the defendant corporation is in
  Arkansas admits the truth of such allegation in the
  complaint, and there is no question of fact presented
  by the petition for removal, and it becomes a
  question of law as to whether this court has original
  jurisdiction of the case as stated in the complaint
  of the plaintiffs.
    "It is clear that the court does not have original
  jurisdiction of the case as stated in the complaint.
  The requisite jurisdictional amount exists, but the
  requisite diversity of citizenship does not ...

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