Plunkett v. Gulf Refining Co.

NEWMAN, District Judge (after stating the facts as above). This is a case removed to this court from the city court of Jefferson. It is a suit for damages for injuries claimed to have been sustained by the plaintiff while at work as an 'employe of the Gulf Refining Company. The suit is against the Gulf Refining Company and H. L. Plunkett, who was an overseer and alleged to have been the alter ego of the Gulf Refining Company, and is now heard on a motion to remand to the state court. The claim for the defendant is that there is no case stated against the individual defendant, H. L. Plunkett; the suit being brought as a joint action against both the Gulf Refining Company and H. L. Plunkett, the employé. The Gulf Refining Company is a nonresident corporation, and H. L. Plunkett is a citizen and resident of this judicial district, the Northern district of Georgia. The petition for removal sets out: “That there is no liability set out in said petition against H. L. Plunkett, who is also made a defendant, in said cause, and who is a resident of the state of Georgia; that said petition sets out no cause of action against tne said H. I,. Plunkett, and it manifestly appears that he is fraudulently joined as defendant to prevent this defendant from removing said cause to the federal court. Therefore as to the said H. L. Plunkett there is no cause of action stated in said petition, so that it is a controversy between the sakl A. }. Plunkett, a resident of the state of Georgia, as plaintiff, and your petitioner, [976] the Gulf Refining Company, a nonresident of the state of Georgia, as defendant.” The sole question discussed on the motion to remand, which has been heard, is whether there was a cause of action stated in the petition in the state court against H. L. Plunkett. The defendant H. Iv. Plunkett claims that he is simply charged with nonfeasance, and qnder the authorities he is not liable to a third party for nonfeasance 'in the performance of the duties devolving upon him as superintendent or foreman for the defendant company; for that'he would be liable only to his employer. There is a claim here of res adjudicata on account of a former case in this court, and a motion to dismiss on the ground that no cause of action is set out against either defendant; but it is agreed that that is not for hearing here now, the sole question being one of jurisdiction. If the other question was involved — that is, general liability of either defendant — it would make a different question, and so far as the question of res adjudicata is involved the same would be true, and so might lead to a different result in determining the case from that which I shall state. While it is not at all clear that a cause of action is set out against H. L. Plunkett — imperfectly, I think, but, so far as a cause of action is stated at all, it is a joint cause of action against both of the defendants, and is sufficient to justify it being considered as a joint cause of action. While, as I have stated, it is probably imperfectly stated, it is not so imperfect as to justify a holding that no cause of action at all is set out against the defendant Plunkett. It is claimed that this case is controlled by what was decided in what we called “the Tar Kettle Case,” 259 Fed. 968, recently decided in this court, which was a case by the same plaintiff against the same defendants, and in which it was held that no cause of action was set out against the defendant Plunkett; but I do not think so. Consequently I think the case was nonremovable, and should be remanded to the state court, from which it was removed; and it is so ordered.