Rubber & Celluloid Harness Trimming Co. v. John L. Whiting-J. J. Adams Co.

DODGE, District Judge. The plaintiff, a New Jersey corporation having its principal place of business within that state, brought this bill in equity against the defendant, a Maine corporation alleged to have its principal place of business in Boston, in the Massachusetts Supreme Judicial Court. The defendant’s attorney admitted due service of the writ summoning it to appear and answer. The defendant seasonably filed its petition in the state court for the removal of the case here. The record was filed here September 13, 1913. On October 15th, the plaintiff filed this motion to remand. The ground alleged in the motion is that, in view of the citizenship and residence of the parties, the case is not within the original jurisdiction of this court. [1] 1. The motion treats the case as if the diverse citizenship of the parties were the only ground upon which jurisdiction in a federal court could be maintained. The bill alleges thát the plaintiff had owned and continuously used certain registered trade-marks. It proceeds to charge the defendant with violating its rights acquired in connection therewith. It asks an injunction and an accounting. I do not think the case thus presented is to be regarded as a suit in which the jurisdiction of this court can' be “founded only on the fact that the action is between citizens of different states.” Section 51, Judicial Code. I think it is also a suit arising under the trade-mark laws of the United States, and that the subject-matter, as set forth in the bill, is enough to confer federal jurisdiction; so that the applicable provision of section 51 is that forbidding a defendant to be sued in any district than that whereof he is an inhabitant. [2] 2. The plaintiff, then, might have brought the suit in this court, originally, if it could get service on the defendant within this district, as it has. This court would have retained jurisdiction unless the de [395] fendant had objected that it was not being sued in the district of its residence. That it might have raised this objection is of no consequence for the present purpose, since it is the defendant who has invoked the jurisdiction of this court by its petition for removal. This court, being the District Court to be held in the district where the suit was pending before removal, is the District Court .“for the proper district,” into which sections 28 and 29 of the Code gave the defendant the right to remove it. The defendant having exercised that right, I am unable to see that section 51 affords the plaintiff any valid ground of objection. Mattison v. Boston & M. R. R. (D. C.) 205 Fed. 821, like the other cases upon which the plaintiff relies, was a case wherein the jurisdiction depended solely upon diverse citizenship. [3] 3. The defendant contends that, if the plaintiff ever had any right to object to the jurisdiction, that right has been waived by the steps taken in this court on the plaintiff’s behalf since the removal here; but no one of these steps appears to have been taken without the distinct statement by the plaintiff that it was taken without waiving its objection to the jurisdiction and insisting thereupon. In a stipulation between the parties, filed October 14th, it is distinctly agreed that the defendant may file an answer on or before a certain ’ day, without waiving the plaintiff’s right to object to the jurisdiction and-to move to remand. I am unable to hold that the plaintiff has lost the right to object, but I must overrule its objection.' The motion to remand is denied.