Pullman Co. v. Jenkins, 305 U.S. 534 (1939)
Pullman Company v. Jenkins
No. 210
Argued December 13, 14, 1938
Decided January 16, 1939
305 U.S. 534
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
1. Existence of a separable controversy for removal under 28 U.S.C. § 71 is determined according to the plaintiff’s pleading at the time of petition for removal. P. 537.
2. If, as to the nonresident defendant seeking removal, the controversy is separable within the purview of 28 U.S.C. § 71, 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. P. 538.
3. 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 tortfeasors 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. P. 538.
4. A nonresident sleeping car company and its resident porter were sued for negligence, committed by the action of the porter, in permitting a drunken and disorderly man to board a sleeping car, who, whilst being ejected, struck the plaintiff’s husband, the train conductor, causing his death.
Held:
(1) That this controversy was separable from others in the same complaint, viz., a claim against the assailant for the assault, and a claim against the railway company and its gatetender for negligence in permitting the assailant to enter the station and go through the gates, without showing his ticket, to board the train. P. 539.
(2) The nonresident car company, being charged jointly with its resident employee, could not remove the case to the federal court. P. 540.
(3) The facts that the porter was sued by a fictitious name and his residence not alleged in the complaint did not justify removal. Id.
It was incumbent upon the car 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 car company, its porter could not be ignored, the car company was bound to show that he was a nonresident in order to justify removal.
5. Where there is nonseparable controversy against a nonresident and a resident defendant, the fact that the resident has not been served with process does not justify removal by the nonresident. P. 540.
6. It is always open to the nonresident 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. P. 541.
96 F.2d 405 affirmed as to result.
Certiorari, post, p. 583, to review the reversal of a judgment of the District Court, 17 F.Supp. 820, dismissing, upon the ground of settlement and release, an action in tort which had been removed from a state court.