Heatherington v. Alied Van Lines, Inc.

WYCHE, Chief Judge. The above case was removed from the Court of Common Pleas of Spartanburg County, to this Court, by the petition of the defendants Alied Van Lines, Inc. and Roger Orr upon the ground of diversity of citizenship. The petition for removal alleges that the plaintiff is a resident of the State of South Carolina, and that the defendant Alied. Van Lines, Inc. is a foreign corporation, incorporated under the laws of the State of Illinois; that the defendant Roger Orr is a resident of the State of New Jersey, and that the defendant Ben Carlton is a resident of the State of Virginia. The complaint alleges the same residence of the defendants, and the plaintiff. The defendant Ben Carlton was duly served with the summons and complaint but did not join in the petition for removal. In notifying counsel for the parties of my opinion about the removability of the action under such circumstances, one of counsel said that in a deposition defendant Ben Carlton testified that he was a resident of -Greenville, South Carolina. If the deposition be true, then, of course, there is no diversity of citizenship and the case would be improvidently removed upon that ground. However, it is my opinion that, unless a separate and independent claim [7] or cause of action exists, it is necessary that all defendants join in the petition for removal. Gjerde v. Thelander, D.C., 294 F. 292; Chicago, R. I. & P. Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055; Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303; Gableman v. Peoria, D. & E. Railway Co., 179 U.S. 335, 337, 21 S.Ct. 171, 45 L.Ed. 220.1 Since only two of the three defendants joined in the petition for removal, it is my opinion that the case has been improvidently removed to this court, and for this reason, on my own motion, It Is Hereby Ordered, That the case be remanded to the Court of Common Pleas of Spartanburg County, for trial. Footnotes [1] See other eases cited under Note 413, 28 U.S.C.A. § 1441.