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
"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
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
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.