Opinion
Nos. 69-539, 70-4 Civ.
January 9, 1970.
Charles Grethen, Jack Freeman, Oklahoma City, Okla., for plaintiff.
Clarence P. Green, Oklahoma City, Okla., for defendant.
ORDER REMANDING CASE
Upon consideration of Plaintiff's Motion to Remand in the above consolidated cases and the briefs in support of and in opposition to the Motion, the Court finds that the said Motion should be sustained and the cases remanded to the state court from which they were removed.
The case removed to this Court involves non-diverse parties in that the Plaintiff and Defendants Morrow are all citizens of Oklahoma. The Defendants Morrow have not been removed or eliminated from the case by the judgment of the District Court of Oklahoma County, Oklahoma, entered in their favor against the Plaintiff as such judgment is on appeal to the Oklahoma Supreme Court. Notwithstanding the right of Plaintiff to have said judgment reviewed on appeal (and the judgment lacks finality until the appeal is concluded) it is inconsistent for the Defendant Hartford to argue that the Defendants Morrow have been removed or eliminated from the case when they are still parties to the litigation and in fact now possessed with a judgment in the case in their favor against the Plaintiff. See Barron and Holtzoff, Federal Practice and Procedure, Wright Edition, Volume 1, Section 103, p. 474.
Moreover, if it could be said that the Defendants Morrow have been removed or eliminated from the case, their removal was not by the voluntary act of the Plaintiff but by action of the Court which will not support removal to federal court under the better considered cases construing 28 U.S.C.A. § 1446(b) as amended in 1949. Weems v. Louis Dreyfus Corporation, 380 F.2d 545 (Fifth Cir. 1967); Squibb-Mathieson International Corporation v. St. Paul Mercury Insurance Company, 238 F. Supp. 598, 599 (S.D.N.Y. 1965).
The Clerk of the Court will take the necessary action to remand the case to the District Court in and for Oklahoma County, Oklahoma.