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Oregon Egg Producers v. Andrew

United States Court of Appeals, Ninth Circuit
Mar 21, 1972
458 F.2d 382 (9th Cir. 1972)

Summary

holding that Rule 42 cannot be used to avoid remand to state court by consolidating with a pending federal action because Rule 42 applies only to cases that are "properly before" the court

Summary of this case from Rutherford v. Jag Trucking Inc.

Opinion

No. 26808.

March 21, 1972.

David F. Berger (argued), William L. Dwyer, of Culp, Dwyer, Guterson Grader, Seattle, Wash., Bernard E. Newby, Vancouver, Wash., for defendant-appellant.

Paul R. Duden (argued), Stephen R. Frank, of Tooze, Powers, Kerr, Tooze Peterson, Portland, Ore., Read Church, Vancouver, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY, HUFSTEDLER, and CHOY, Circuit Judges.


This is an interlocutory appeal testing the validity of an order granting Oregon Egg Producers' ("Producers") petition to remove its action from a state court to a federal district court in Washington. Producers initiated the suit by filing a complaint against Andrew to recover upon an account stated. Andrew counterclaimed for damages alleged to have been sustained by reason of Producers' discriminatory pricing of eggs. Producers thereupon sought removal to the federal court on the theory that Andrew's counterclaim raised a federal question. The cause was removed, and Andrew appealed. While the appeal was pending, Andrew filed an antitrust suit against Producers in the district court.

We assume that Producers correctly asserts that its action could have been initiated in the federal court invoking diversity jurisdiction, and we further assume, arguendo, that Andrew could have removed the action to the federal court because Andrew's counterclaim stated a claim within federal jurisdiction. Neither assumption aids producers. A plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court and even if a counterclaim is thereafter filed that states a claim cognizable in a federal court. ( 28 U.S.C. § 1441; Shamrock Oil Gas Corp. v. Sheets (1941) 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214.)

Producers alternatively argues that we should remand the present case to the district court, ordering its consolidation with the pending antitrust case pursuant to Rule 42 of the Federal Rules of Civil Procedure. Rule 42 applies to cases that are properly before the same court. Because this case is not properly before the district court in Washington, Rule 42 cannot be invoked.

The order is reversed, and the cause is remanded to the district court with directions to remand the case to the state court.


Summaries of

Oregon Egg Producers v. Andrew

United States Court of Appeals, Ninth Circuit
Mar 21, 1972
458 F.2d 382 (9th Cir. 1972)

holding that Rule 42 cannot be used to avoid remand to state court by consolidating with a pending federal action because Rule 42 applies only to cases that are "properly before" the court

Summary of this case from Rutherford v. Jag Trucking Inc.

holding that Rule 42 consolidation only applies to cases that are properly before the district court

Summary of this case from Guthrie v. Wells Fargo Home Mortg. Na

holding that case improperly removed to federal district court cannot be consolidated with related case already pending there

Summary of this case from Bank of America, N.A. v. Pinkney-Hart

In Oregon Egg Producers v. Andrew, 458 F.2d 382 (9th Cir. 1972), we categorically stated that "[a] plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court and even if a counterclaim is thereafter filed that states a claim cognizable in a federal court."

Summary of this case from Am. Int'l Underwriters v. Continental Ins. Co.

noting that federal courts may only consolidate actions which are properly before the court

Summary of this case from Dodd v. Fed. Home Loan Mortg. Corp.

noting that federal courts may only consolidate actions which are properly before the court

Summary of this case from Aurora Loan Servs. LLC v. Tatum

In Andrew, the Court held that "[a] plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court and even if a counterclaim is thereafter filed that states a claim cognizable in a federal court."

Summary of this case from Carlton v. Withers
Case details for

Oregon Egg Producers v. Andrew

Case Details

Full title:OREGON EGG PRODUCERS, PLAINTIFF-APPELLEE, v. DARROLL L. ANDREW, D/B/A…

Court:United States Court of Appeals, Ninth Circuit

Date published: Mar 21, 1972

Citations

458 F.2d 382 (9th Cir. 1972)

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