Picker v. United Cigar Stores Co. of America

Full title: PICKER et al. v. UNITED CIGAR STORES CO. OF AMERICA

Court: United States District Court, S.D. New York

Date published: Sep 12, 1933

6 F. Supp. 316 (S.D.N.Y. 1933)

Opinion

September 12, 1933.

Charles Rosenbaum, of New York City (Mortimer Hays and Charles Joseph, both of New York City, of counsel), for plaintiffs.

Sullivan Cromwell (by Alexander M. Grean, Jr.), of New York City, for defendant.

At Law. Action by Evelyn Picker and another against the United Cigar Stores Company of America and others. This suit which was brought by two New York citizens against four corporations, one of New Jersey, one of Delaware, and two of New York, was removed from the New York State court by the New Jersey and Delaware corporations on the ground that the controversy with them was separable from that with the other defendants. On motions to remand.

Motions granted.

WOOLSEY, District Judge.

These motions to remand are granted. As I find no jurisdiction, there cannot be any costs.

I. There is a nice question involved in this and its sister motion as to whether the removing defendants may claim that there is a separable cause of action against them. The stronger argument can be made for the Delaware corporation. But it seems to me that it may be fairly said that the situation here shown lies between that before me in Rogers v. Hill et al. (D.C.) 53 F.2d 395, a clearly removable case, and that before me in Del Fungo Giera v. Rockland Light Power Company et al. (D.C.) 46 F.2d 552, wherein the removal was held to have been improper.

II. The technique of approach to a decision on motions of this kind is that, as this is a court of limited jurisdiction, the party invoking the jurisdiction must clearly show that the cause is within it. That the removing parties have not done herein.

For I think that, though the word "joint" is not used, the allegations of paragraphs nineteenth and twentieth of the complaint, especially the latter, sufficiently clearly set forth a joint action of all the defendants, and require me to hold that, as the plaintiffs have chosen to plead their cause, it involves joint action of all the defendants and, hence, a nonseparable controversy with the two New York corporations, which makes its remand necessary.

Settle order on notice.