The opinion of the court was delivered by: John E. Miller, Chief Judge.
This case is now before the court upon the plaintiff's motion
to remand. The exact question presented is somewhat novel, and it
is necessary to review the prior proceedings in order to fully
understand the question at issue.
The plaintiff, Mrs. Sybille Schee, filed a complaint in the
State Circuit Court, Clark County, Arkansas, on November 10,
1959, in which she sought to recover the sum of $10,000 for
injuries received in an automobile collision with the defendant.
On December 1, 1959, the case was removed by the defendant,
Mrs. Robert Palmer, to the United States District Court for the
Western District of Arkansas, Hot Springs Division.
On December 4, 1959, this court remanded the case to the
Circuit Court on its own motion on the ground that the amount
claimed in the complaint was less than the jurisdictional
requirement. After the case was remanded, the defendant on
December 14, 1959, filed her answer in the state court, along
with a counterclaim for $50,000. An amended and substituted
answer and counterclaim was filed on February 5, 1960, in which
the defendant sought damages in excess of $65,000.
On April 18, 1960, the following order of dismissal was entered
by the Circuit Court:
"Wherefore, it is by the Court considered, ordered,
adjudged, and decreed that the Plaintiff's Complaint
be and the same is hereby dismissed at the cost of
the Defendant with the Defendant reserving such
rights as she may have under her Cross Complaint."
On April 29, 1960, the defendant and counterclaimant, Mrs.
Robert Palmer, again removed the case to this court, alleging
that the cause became removable on April 18, 1960, when the order
of dismissal of plaintiff's complaint was entered in the Circuit
On May 3, 1960, the plaintiff and counter-defendant, Mrs.
Sybille Schee, filed a response to the defendant's petition for
removal which will be treated as a motion to remand.
Therefore, the court is presented with the question of whether
the order of the Circuit Court made the cause removable or, to
state it more succinctly, whether a defendant and counterclaimant
can remove a case on the basis of the damages alleged in the
counterclaim after the plaintiff's complaint against the
defendant has been dismissed.
The applicable removal statute is found in 28 U.S.C.A. § 1446,
"(a) A defendant or defendants desiring to remove
any civil action or criminal prosecution from a State
court shall file in the district court of the United
States for the district and division within which
such action is pending a verified petition containing
a short and plain statement of the facts which
entitle him or them to removal together with a copy
of all process, pleadings and orders served upon him
or them in such action.
"(b) The petition for removal of a civil action or
proceeding shall be filed within twenty days after
the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based, or within twenty days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not
required to be served on the defendant, whichever
period is shorter.
"If the case stated by the initial pleading is not
removable, a petition for removal may be filed within
twenty days after receipt by the defendant, through
service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it
may first be ...