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GARROUTTE v. GENERAL MOTORS CORPORATION

December 21, 1959

SAMUEL M. GARROUTTE, PLAINTIFF,
v.
GENERAL MOTORS CORPORATION AND GOFF-MCNAIR MOTOR COMPANY, DEFENDANTS.



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

On December 1, 1959, the above-entitled cause was removed to this court upon the petition of the defendant, General Motors Corporation. The grounds alleged in support of the petition are as follows:

    "2. That in said suit there is a controversy which
  is wholly between citizens and companies of different
  states and can be fully determined between them,
  between the plaintiff who at the time of the
  commencement of said suit was a resident of
  Tahlequah, Oklahoma, and between the defendant
  General Motors Corporation, a corporation organized
  and existing under and by virtue of the laws of the
  State of Delaware. The petitioner states that in said
  action instituted in the state court that a
  corporation organized and existing under and by
  virtue of the laws of the State of Arkansas is joined
  as a party defendant, but that said party defendant
  is not concerned with the cause of action stated
  against this petitioner herein and that this action
  would be removable pursuant to the provisions of
  Section 1441-C of the Judiciary and Judicial
  Procedural Acts for the United States."

On December 5, 1959, the plaintiff filed his motion to remand in which he denied the allegations of paragraph 2 in the petition for removal.

The removing defendant on December 18, 1959, filed its response and incorporated therein a brief in support of its contention that the claim of plaintiff is a separate and independent claim or cause of action which would be removable if sued upon alone; that the complaint contains no allegations that the defendants are jointly liable, but that on the contrary the complaint merely shows that the plaintiff intended to join severable actions.

The removing defendant specifically alleged in its petition for removal that the case was removable under the provisions of 28 U.S.C.A. § 1441(c), yet no cases are relied upon by the defendant other than cases which were decided prior to the enactment of Sec. 1441(c).

In all cases where the question of jurisdiction arises, the court is bound to ask and answer for itself the question of whether it has jurisdiction even though no motion to remand is made. Mayner v. Utah Construction Company, D.C.W.D.Ark., 108 F. Supp. 532.

District Courts of the United States are not courts of general jurisdiction, and the jurisdiction is to be exercised only within the limitations defined by the Constitution and Congress. Schroeder v. Freeland, 8 Cir., 188 F.2d 517-519.

The District Courts are charged with the duty of enforcing the jurisdictional limitations. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. To this end the courts on their own motion are under a duty to raise the question of lack of jurisdiction at any time such lack appears. Lowry v. International Brotherhood, etc., 5 Cir., 259 F.2d 568-570.

Title 28, U.S.C.A. § 1447(c), provides that if at any time it appears that a case was removed improvidently and without jurisdiction, the District Court shall remand the case, and a certified copy of the order of remand shall be mailed by its Clerk to the Clerk of the State Court. Upon receipt of such certificate, the State Court may proceed with such case.

The removing defendant is a corporation organized and existing under and by virtue of the laws of the State of Delaware. The other defendant, Goff-McNair Motor Company, is a corporation organized and existing under the laws of the State of Arkansas. The plaintiff is a citizen of the State of Oklahoma and resides in the City of Tahlequah in such State. It should be borne in mind that the defendant, Goff-McNair Motor Company, is a citizen of Arkansas and the case was not removable by that defendant. 28 U.S.C.A. § 1441(b).

The first question to be determined is whether the claim asserted by plaintiff against the petitioner constitutes a separate and independent claim or cause of action.

In American Fire & Casualty Co. v. Finn. 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, the Court, after setting forth the former statute governing removal, 28 U.S.C. (1946 ed.) § 71, and the present statute governing removal, 28 U.S.C.A. § 1441(c), beginning at the bottom of page 9 of 341 U.S., at page 538 of 71 S. Ct. of said opinion, said:

    "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. Another and important purpose was
  to limit removal from state courts. 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, 542, 59
  S.Ct. 347, 351, 83 L.Ed. 334. 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, 305 U.S. at page
  538, 59 S.Ct. at page 349, and removal was allowed.
  Our consideration of the meaning and effect of
  28 U.S.C. § 1441(c) 28 U.S.C.A. § 1441(c) should be
  carried out in the light of the congressional
  intention. Cf. Pullman Co. v. Jenkins, supra, 305
  U.S. at page 547, 59 S.Ct. at page 353; Phillips v.
  United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483,
  85 L.Ed. 800.
    "The Congress, in the revision, carried out its
  purpose to abridge the right of removal. Under the
  former provision, 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 ยง 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
  ...

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