[305 U.S. 534, 535] Messrs. Robert Brennan and M. W. Reed, both of Los Angeles, Cal ., for petitioners.
Mr. L. H. Phillips, of Los Angeles, Cal., for respondents.
Mr. Chief Justice HUGHES delivered the opinion of the Court.
The question is whether petitioner, the Pullman Company, was entitled to remove this cause to the federal court. The Circuit Court of Appeals, reversing the District Court, ordered remand (9 Cir., 96 F.2d 405) and because of conflict in the ground of its ruling with decisions of this Court, we granted certiorari, 305 U.S. 583 , 59 S.Ct. 83, 83 L.Ed. --, October 10, 1938
Respondent, Mrs. Jenkins, and her son Robert W. Jenkins, by Mrs. Jenkins as guardian ad litem, brought this action on September 27, 1935, in the Superior Court for Los Angeles County, California, to recover damages for injuries causing the death of her husband. He was [305 U.S. 534, 536] employed by the Southern Pacific Company as conductor of a train running from Los Angeles to San Francisco. His injuries were due to a blow struck by A. J. Kash, who was being removed from the train by police officers called to assist the conductor in ejecting Kash because of his disorderly conduct. The suit was brought against the Southern Pacific Company, the Pullman Company, Kash, Hatch, the Pullman conductor, John Doe One, described as employed by the Pullman Company as porter, and John Doe Two, described as employed by the Southern Pacific Company as gate tender at the passenger depot as Los Angeles.
The complaint alleged two causes of action, one against all the defendants, the other against Kash alone. The plaintiffs and defendant Kash were stated to be residents of California. The Southern Pacific Company was described as a Kentucky corporation and the Pullman Company as an Illinois corporation. The residences of the defendants Hatch and John Doe One and John Doe Two were not set forth.
On November 20, 1935, the Pullman Company, as a citizen and resident of Illinois, insisting that the controversy as to it was a separable one, filed its petition for removal to the federal court, with bond; and on November 25, 1935, the petition and bond were approved and removal was ordered. On the day on which that order was entered, an amended complaint was filed in the state court which contained the allegation that the action was brought against the Southern Pacific Company under the Federal Employers' Liability Act 45 U.S.C. 51, 45 U.S.C.A. 51. On December 27, 1935, Mrs. Jenkins as administratrix of the estate of the decedent was substituted as plaintiff. On January 17, 1936, the defendant Hatch demurred to the amended complaint upon the ground that it stated no cause of action against him, and on January 29, 1936, the demurrer was sustained. [305 U.S. 534, 537] On January 22, 1936, the plaintiffs moved to remand, stating that Edward E. Meyers, the Pullman porter, sued as John Doe One, had been served with process on January 14, 1936, and that he and the defendant Hatch were residents and citizens of California, and that the action as against them and the Pullman Company was not a separable controversy. Pending this motion, on February 8, 1936, the plaintiffs filed in the federal court a second amended complaint identifying Meyers as the Pullman porter and Fred M. Dolsen as John Doe Two, described as the Southern Pacific gate tender. This amended complaint repeated the allegation that the Southern Pacific was sued under the Federal Employers' Liability Act. On February 19, 1936, the court denied the motion to remand.
On December 28, 1936, the action was dismissed as against the Southern Pacific and Dolsen as the result of a compromise. Supplemental answers were then filed by the remaining defendants respectively claiming release by reason of the agreement with the Southern Pacific. The District Court sustained this defense and entered judgment dismissing the complaint.
On appeal, the Circuit Court of Appeals, passing the other questions, held that if it did not sufficiently appear at the time of the petition for removal that the cause was not separable, it did so appear when the second amended complaint was filed and hence that the District Court erred in denying the motion to remand. 96 F.2d page 410. This ruling was placed upon an erroneous ground. The second amended complaint should not have been considered in determining the right to remove, which in a case like the present one was to be determined according to the plaintiffs' pleading at the time of the petition for removal. Barney v. Latham, 103 U.S. 205 , 213-216; Graves v. Corbin, 132 U.S. 571, 585 , 10 S.Ct. 196, 200; Louisville & Nashville R. Co. v. Wangelin, 132 U.S. 599, 601 , 10 S.Ct. 203; [305 U.S. 534, 538] Salem Company v. Manufacturers' Company, 264 U.S. 182, 189 , 190 S., 44 S.Ct. 266, 267, 31 A.L.R. 867; Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294 , 295 S., 58 S.Ct. 586, 592, 593.
The question then is whether the original complaint set forth a separable controversy between the plaintiffs and the Pullman Company, that is, a controversy 'which is wholly between citizens of different States, and which can be fully determined as between them.' 28 U.S.C. 71, 28 U.S. C.A. 71. If, as to the non-resident defendant seeking removal, the controversy is separable within the purview of the statute as construed, the fact that under the state practice it may be joined in the same suit with another controversy as against other defendants, does not preclude removal. Barney v. Latham, supra; Nichols v. Chesapeake & Ohio R. Co., 6 Cir., 195 F. 913, 915, 916; Stewart v. Nebraska Tire & Rubber Co., 8 Cir., 39 F.2d 309, 311; Des Moines Elevator & Grain Co. v. Underwriters' Grain Association, 8 Cir., 63 F.2d 103, 105; Culp v. Baldwin, 8 Cir., 87 F.2d 679, 680-682.
This is so whether the action sounds in contract or in tort. The question is determined by the plaintiff's pleading. Thus if defendants are charged with negligence, but the charge against the non-resident defendant is based on different and non-concurrent acts of negligence and a cause of action which is joint in character is not alleged, a separable controversy is presented. See Culp v. Baldwin, supra. Where, in the absence of clear proof of bad faith in the joinder, concurrent acts of negligence on the part of the defendants sued as joint tort-feasors are sufficiently alleged, a separable controversy is not presented and the fact that the defendants might have been sued separately affords no ground for removal. This rule is applied where a nonresident employer and its resident employee, whose negligence caused the injury, are sued jointly. Chesapeake & Ohio R. Co. v. Dixon, 179 U.S. 131, 139 , 21 S.Ct. 67, 70; Alabama Great Southern R. Co. v. Thompson, 200 U.S. [305 U.S. 534, 539] 206, 212, 213, 220, 26 S.Ct. 161, 162, 165, 4 Ann.Cas. 1147; Chicago, R.I. & P.R. Co. v. Dowell, 229 U.S. 102 , 111-113, 33 S.Ct. 684, 685, 686; Hay v. May Department Stores Company, 271 U.S. 318, 321 , 322 S., 46 S.Ct. 498, 499; Watson v. Chevrolet Motor Co., 8 Cir., 68 F.2d 686, 689; Harrelson v. Missouri Pacific Transportation Co., 8 Cir., 87 F.2d 176, 177.
In the instant case, the original complaint did not charge any negligence or wrongful conduct in ejecting Kash from the train. On the contrary, it was alleged that he was intoxicated and was acting in an offensive, threatening and quarrelsome manner in which he persisted despite remonstrance. There was clearly a separable controversy with respect to Kash. He was sued for his unlawful assault upon the conductor.
The negligence charged against the Southern Pacific Company and its gate tender was in the action of the latter in permitting Kash to enter the station and go through the gates to board the train without displaying his ticket and while drunk and disorderly. The negligence charged against the Pullman Company and its porter was alleged to consist in the action of the porter in permitting Kash to board the Pullman sleeper. No facts were alleged upon which liability of the Pullman Company and its employees could be predicated upon the negligence of the Southern Pacific Company and its gate tender. It was not shown that either the Pullman Company or the Southern Pacific Company was liable for the acts of the other or that they joined in the commission of any wrong. With respect to these companies in relation to each other, the cases above cited, so far as they hold that a separable controversy is not presented when master and servant are joined because of concurrent negligence, are not in point.
Nor was any negligence or wrongful act alleged on the part of the Pullman conductor.
The question, however, remains as to the effect of the joinder of the Pullman porter. If the porter had been [305 U.S. 534, 540] sued in his proper name, instead of John Doe, had been described as a citizen of California, and had been served with process prior to the petition for removal, there could be no question that the Pullman Company would not have been entitled to remove. Chesapeake & Ohio R. Co. v. Dixon, supra; Alabama Great Southern R. Co. v. Thompson, supra; Hay v. May Department Stores Company, supra.
We think that the fact that the Pullman porter was sued by a fictitious name did not justify removal. His relation to the Pullman Company and his negligence as its servant were fully alleged. See Grosso v. Butte Electric R. Co., D.C., 217 F. 422. Nor does the fact that the residence of the porter was not set forth justify disregarding him. It was incumbent upon the Pullman Company to show that it had a separable controversy which was wholly between citizens of different States. As in determining whether there was such a separable controversy with respect to the Pullman Company its porter could not be ignored, the Company was bound to show that he was a non-resident in order to justify removal.
At the time of the petition for removal the Pullman porter had not yet been served with process. Where there is a non-separable controversy with respect to several non-resident defendants, one of them may remove the cause, although the other defendants have not been served with process and have not appeared. Tremper v. Schwabacher, C.C., 84 F. 413, 416; Bowles v. H. J. Heinz Co., C.C., 188 F. 937; Hunt v. Pearce, D.C., 271 F. 498; Id., 8 Cir., 284 F. 321, 323, 324; Community Building Co. v. Maryland Casualty Co., 9 Cir., 8 F.2d 678; Trower v. Stonebraker-Zea Co., D.C., 17 F.Supp. 687, 690; Kelly v. Alabama Quenelda Graphite Co., D.C., 34 F.2d 790, 791. In such a case there is diversity of citizenship, and the reason for the rule is stated to be that the defendant not served may never be served, or may be served after the time has expired for the defendant who has been served to apply for a removal, and unless [305 U.S. 534, 541] the latter can make an effective application alone, his right to removal may be lost. Hunt v. Pearce, 8 Cir., 284 F. page 324. But the rule is otherwise where a non-separable controversy involves a resident defendant. In that case the fact that the resident defendant has not been served with process does not justify removal by the non-resident defendant. Patchin v. Hunter, C.C., 38 F. 51, 53; Armstrong v. Kansas City Southern R. Co., 8 Cir., 192 F. 608, 615; Hunt v. Pearce, D.C., 271 F. page 502; Del Fungo Giera v. Rockland Light & Power Co., D.C., 46 F.2d 552, 554; Hane v. Mid- Continent Corporation, D.C., 47 F.2d 244, 246, 247. It may be said that the non-resident defendant may be prejudiced because his co-defendant may not be served. On the other hand there is no diversity of citizenship, and the controversy being a nonseparable one, the non-resident defendant should not be permitted to seize an opportunity to remove the cause before service upon the resident co-defendant is effected. It is always open to the non-resident defendant to show that the resident defendant has not been joined in good faith and for that reason should not be considered in determining the right to remove. Wecker v. National Enameling Co., 204 U.S. 176, 185 , 186 S., 27 S.Ct. 184, 188, 9 Ann.Cas. 757; Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 152 , 34 S.Ct. 278, 280; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 , 42 S.Ct. 35, 37; Clancy v. Brown, 8 Cir., 71 F.2d 110, 112, 113.
In the instant case there was no charge that the joinder was fraudulent. On the motion to remand it appeared that the Pullman porter, identified as Meyers, was a resident of California and had then been served with process.
We conclude that the District Court erred in denying the motion to remand and that the judgment of the Circuit Court of Appeals should be affirmed.
Mr. Justice ROBERTS took no part in the consideration and decision of this case. [305 U.S. 534, 542]
Mr. Justice BLACK, concurring.
I agree that it was incumbent upon the Pullman Company, seeking removal, to show that it was sued in a controversy 'wholly between citizens of different States;'1 that the Company failed to meet this burden; that plaintiff's joining the Pullman Company with a Pullman porter designated by a fictitious name did not relieve the Company of its statutory burden; that consequently the District Court erred in denying a motion to remand, and that the judgment of the Circuit Court of Appeals, reversing the District Court's refusal to remand, should be affirmed. To certain portions of the opinion, which this affirmance does not require, I cannot agree.
First. The original complaint filed in the State court indicated plaintiff's intention to rest its case against the Southern Pacific Company upon the Federal Employers' Liability Act, under which suits brought in State courts are not removable to Federal courts. 2 The pleadings did not disclose that the suit was based on the Federal Act as clearly as good pleading requires, and the complaint was doubtless subject to special demurrer because of its generality. But the mere fact that a complaint based on the Federal Act is demurrable does not make it subject to removal. In addition, both an amendment filed in the State court before the order of removal (but after the petition for removal), and a second amendment filed after removal, served to make the original complaint more precise and made clear the original purpose of claiming under the Federal Employers' Liability Act without changing the original cause of action. 'It is true that the declaration was amended after the petition to remove ..., but the amendment, if not unnecessary, merely made the original cause of action more precise. On the question of [305 U.S. 534, 543] removal we have not to consider more than whether there was a real intention to get a joint judgment, and whether there was a colorable ground for it shown as the record stood when the (petition for removal was ruled on) ... We are not to decide whether a flaw could be picked in the declaration on special demurrer.'