Hukill v. Chesapeake & O. Ry. Co.

TAFT, Circuit Judge (after stating the facts). In the case of Powers v. Railway Co. (just decided) 65 Fed. 129, we have had occasion to consider much the same question which is here presented. We have no doubt whatever that the sole purpose of plaintiff and his counsel in joining the other defendants with the Chesapeake & Ohio Railway Company was to defeat the latter’s right to remove the case to this court. The statement of counsel to the jury was in effect an admission that such had been his purpose in the joinder, and that, having served that purpose, he had dismissed them. It is attempted to explain the dismissal of the defendants 141 by referring it to a desire of plaintiff to avoid a transfer of trial from Independence to Covington, by dismissing, those defendants who claimed to have the right to insist on it, although such right is not even now conceded by plaintiff’s counsel. This would hardly explain the dismissal of the Maysville & Big Sandy Railroad Company, which did not ask a transfer. But even the explanation offered shows a. juggling with the names of resident defendants to enable the plaintiff to select that forum deemed most favorable for Ms interest, without any bona fide intention of securing judgment against the persons whose names were thus used. We have no difficulty whatever in finding that the joinder of the resident defendants was without any bona fide intention of taking-judgment against them, but was solely to prevent removal to the federal court, and that their subsequent dismissal before trial was in accordance with the original plan and device. The petition for removal states the indispensable jurisdictional facts as to diverse citizenship and amount in controversy; and, on the point of time of removal, it avers that the five defendants other than the Chesapeake & Ohio Railway Company were fraudulently and improperly joined as defendants to prevent the removal of the case to this court by the Chesapeake & Ohio Railway Company; that the presence of these defendants did prevent such removal within the statutory time; that they have now been dismissed, and the cause is now pending for the first time against the Chesapeake & Ohio Railway Company alone. There is no averment that the defendants who were fraudulently joined were citizens of Kentucky, but this is a necessary inference from the statement that the cause was not removed because they were joined as defendants. The fact that they were citizens of Kentucky has now been established by affidavit. The petition for removal does not, in terms, plea.d an estoppel against the plaintiff! on the question of the time of its filing, but it states facts on which such a plea may rest, and is therefore sufficient. The averment of the petition for removal that the joinder of the resident defendants prevented-removal is borne out by an examination of the plaintiff’s petition. A joint cause of action is stated against -all the defendants. The averment that the Maysville & Big Sandy Railroad Company had leased the railroad on which the injury happened, without statutory or other authority, -would seem to make it jointly liable with the Chesapeake & Ohio Railway for torts inflicted in the operation of the road. Arrowsmith v. Railway Co., 57 Fed. 165. The averment against the other defendants is that the injury was the direct result of their wanton negligence, in not properly repairing the roof of the car, by the defective condition of which the injury happened. Had an attempt been made to remove the cause to the federal court within the statutory time, it must then have resulted, as did such an attempt in the Powers Case, in an order remanding it to the state court. The defendant was not required to do a vain thing, and therefore can he in no worse condition because he did not file a petition for removal when it must have been denied. 142 We have already decided, in the Powers Case, that where a plaintiff joins, with a nonresident defendant, resident codefendants, in a joint action for a tort, solely to prevent a removal to the United States court, and, after the time for such removal is passed, dismisses all but the nonresident defendant, the case is then removable to the United States court, because all the indispensable elements to federal jurisdiction are present, and the. objection as to time is removed by the conduct of the plaintiff, which disables him from tailing advantage of the delay which he purposely caused. Applying this principle to the case before us, the removal must be sustained, and the motion to remand be overruled.