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SCHEE v. PALMER

June 1, 1960

MRS. SYBILLE SCHEE, PLAINTIFF,
v.
MRS. ROBERT PALMER, DEFENDANT.



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:

    "On this 18 day of April, 1960, this matter comes
  on to be heard and the parties appear by their
  attorneys of record, and counsel for the Plaintiff
  advised the Court that the Plaintiff's claim against
  the Defendant has been settled by the payment of
  Three Thousand, Two Hundred Fifty Dollars ($3,250.00)
  to Plaintiff and the agreement that the Defendant
  should pay the cost accruing

  to date herein, and that the Plaintiff's Complaint
  should be dismissed with prejudice, with the
  Defendant reserving such rights as she may have under
  her cross complaint.
    "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 Court.

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, and provides:

    "(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 ...

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