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LADSON v. KIBBLE

December 9, 1969

Sally LADSON, as Administratrix of the goods, chattels and credits of Marvin Langston, deceased, and Sally Ladson, Plaintiffs,
v.
Jane D. KIBBLE and Kenneth Kibble, Defendants



The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge.

 The defendants have moved for an order pursuant to 28 U.S.C. § 1404(a) transferring this case from this district to the Northern District of Indiana. Plaintiffs moved for an order pursuant to 28 U.S.C. § 1447(c) remanding this case to the Supreme Court of New York, Westchester County. Defendants' motion for a transfer is granted, and plaintiffs' motion for remand is denied.

 This case presents a unique factual situation stemming from the fact that New York law allows attachment of a liability insurance policy. Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966). Plaintiff Ladson was granted limited Letters of Administration for the estate of Marvin C. Langston, her son, on March 1, 1967 in Westchester County. On September 12, 1968, the Supreme Court of New York, Westchester County issued an order of attachment pursuant to CPLR § 6201 to attach the defendants' insurance policy and its contractual obligation to defend and indemnify the defendants. This policy was issued to defendants by Traveler's Indemnity Company. The sheriff levied upon this property on September 19, 1968, and a summons and complaint was served on September 20, 1968, all in accordance with New York law. Thereafter, defendants filed a petition on October 11, 1968 for removal to this court pursuant to 28 U.S.C. § 1441. They invoked this court's jurisdiction on the grounds of diversity of citizenship under 28 U.S.C. § 1332. Defendants also filed a bond at that time pursuant to 28 U.S.C. § 1446(d). Defendants filed their answer to the complaint on November 14, 1968.

 Plaintiffs allege in their complaint that the decedent, Marvin Langston, was injured and subsequently died as the result of an automobile accident in Valparaiso, Indiana, occurring on February 2, 1967 and caused by the negligence of the defendants. At that time, the decedent was a student at Midwestern College in Iowa and was en route to attend or participate in a basketball game in Allendale, Michigan. The decedent was riding as a passenger in a car driven by one Robert Schneck, a resident of New Jersey and also a student at Midwestern. The car had apparently been leased en route from an Illinois firm, Coffman Brothers Rental and Leasing Corp., and had Illinois license plates. The defendants are Indiana residents, and their car is registered and insured there by "Traveler's". Defendants contend that there was a third car involved in either the same accident or another one occurring immediately thereafter. That car is owned by an Indiana taxi company, American Taxi Service, and was driven by an Indiana resident, one Alfred Bowman, who, defendants contend, will be a material witness as to the accident(s).

 The parents of the decedent are apparently divorced or separated. While the action of the mother was pending, the father also instituted a suit against the defendants. The father, a resident of New Jersey, through his Indiana attorneys had one Duane W. Hartman appointed administrator for the purposes of a wrongful death action only. Letters of Administration were issued to this effect by the Clerk of the Circuit Court, Porter County, Indiana, on May 26, 1967. *fn1" Subsequently, a complaint was filed against the defendants in the United States District Court, Northern District of Indiana, Civil No. 69 H. 5.

 A further complication is that plaintiff Ladson has commenced another action by way of a Seider attachment against Coffman Brothers Rental and Leasing Corp. and Robert B. Schneck in the Supreme Court of New York, Westchester County, Index No. 408/1969. This was done through an order signed on January 14, 1969 authorizing the attachment of an insurance policy issued by Royal-Globe Insurance Co. *fn2"

 Since the plaintiffs have moved to remand, they have put in issue the removal of this action from the Supreme Court of New York to this court. It is thus necessary for this court to ascertain whether a proper removal was made pursuant to 28 U.S.C. § 1441 before it addresses itself to the defendants' motion for transfer.

 Section 1441(a) of Title 28 United States Code states in part:

 
[Any] civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

 Initially, plaintiffs contend that this action is one in rem against the insurance policy and its contractual obligations and is therefore not removable under Section 1441. Only in personam actions are removable per this statute. This argument is without merit. The statute does not state that only in personam actions are removable; rather it speaks in terms of "any civil action." This language, especially if construed in conjunction with Section 1450 which, in effect, transfers a state court attachment to the federal court to which the action is removed, makes it clear that an in rem or quasi in rem proceeding may be removed to the federal district court providing a federal jurisdictional base is present. The Second Circuit has specifically held that Seider-based actions are by definition removable to the federal courts. Minichiello v. Rosenberg, 410 F.2d 106, 119 (2d Cir. 1969). See also Jarvik v. Magic Mountain Corp., 290 F. Supp. 998 (S.D.N.Y.1968); Siegel, Seider v. Roth: U.S. Courts Faced with Special Problems, 161 N.Y.Law J., March 10, 1969, at p. 1, col. 4 [hereinafter "Siegel"].

 Plaintiffs next contend that there is no diversity of citizenship here since plaintiffs are New York residents *fn3" and the property attached, the res, is situated in New York. This argument also has no merit. Although plaintiffs have attached the insurance policy and its contractual obligations here in New York, this was done solely to acquire quasi in rem jurisdiction over the defendants. In truth, the plaintiffs are suing the defendants, residents of Indiana, and the Seider attachment is merely a conduit for jurisdictional purposes. In stating this, this court is not unmindful of the fact that the ostensible outcome or purpose of the Seider line of cases may be to provide, in effect, a direct action against the insurance companies. See Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669 (1967); Minichiello v. Rosenburg, supra. Therefore, this court finds that diversity of citizenship exists. See also 28 U.S.C. § 1332(c).

 Plaintiffs next attack the removal on the grounds that since any judgment awarded would be necessarily limited to the face amount of the policy, *fn4" which plaintiffs contend is $10,000, there is not the requisite amount in controversy for federal jurisdiction under 28 U.S.C. § 1332. *fn5" The defendants have made no concession regarding the policy limits, *fn6" and the limit of the policy is not known to the court. However, the plaintiffs' complaint contains an ad damnum clause for $75,000. Although recovery may be limited to the face amount of the policy, an unknown in this case, the actual amount in controversy here is $75,000, and thus the jurisdictional requirements of 28 U.S.C. § 1332 have been met. This construction - where the amount claimed and not the face amount of the policy is the amount in controversy for purposes of Section 1332, in a removal situation - is sanctioned by the Second Circuit in its opinion en banc in Minichiello.7 410 F.2d at 119 n. 4. See Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938).

 Therefore, the action herein was properly removed from the Supreme Court of New York, Westchester County to this court, providing that defendants complied with the procedure for removal set out in 28 U.S.C. § 1446. Defendants have complied with that section's provisions. They have removed the action timely, and they have posted a bond as required by the section.

 Plaintiffs' final argument is that a remand should be granted, even if the case were properly removed, because they have another action pending in state court against the operator of the car in which plaintiff was a passenger and the rental agency. This action is also based upon a Seider attachment. Plaintiffs contend that both of these actions should be tried together and that if a remand is granted, they will move to consolidate the cases. The court notes the fact that this second action was commenced more than three months after the action herein was removed; that defendants' motion for transfer was originally returnable on December 17, 1968, but that it was continually adjourned by the parties so that it did not come on to be heard by this court until March 4, 1969; that plaintiffs did not seek an order of attachment in the second action until January 14, 1969; and that plaintiffs did not make their motion for a remand until January 23, 1969, which motion was also adjourned to March 4, 1969. Nevertheless, plaintiffs contend that it would be in the interests of justice for this court to remand this case. This argument is unpersuasive. If plaintiffs' intent was to have the two cases tried together, they could have applied to this court for a writ of attachment. See Farrell v. Piedmont Aviation, Inc., 295 F. Supp. 228 (S.D.N.Y.1968). Such an application could have been made under Rules 4(e) and 64 of the Federal Rules of Civil Procedure, and the New York attachment laws and procedure flowing from Seider would have been applied. ...


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