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SARNELLI v. TICKLE

January 31, 1983

LAWRENCE SARNELLI, JOSEPH COLOZZA, ROGER SHOWALTER and NORMAN GOLTEN, as Trustees of SHIP-SHORE WELFARE FUND, et. al., Plaintiffs,
v.
ARTHUR B. TICKLE, JR. and MOIRA MATTHEWS, Defendants


McLaughlin, District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

 Plaintiffs, trustees of several employee benefit funds, brought this action in the New York Supreme Court to recover past-due payments to those funds, with interest. Defendants Arthur Tickle and Moira Matthews were President and Treasurer, respectively, of Arthur Tickle Engineering Works, Inc., ("Tickle") a New York corporation currently undergoing reorganization under Chapter 11 of the U.S. Bankruptcy Code. Because the reorganization of Tickle statutorily disabled plaintiffs from suing the corporate entity, the defendants were sued in their individual capacities.

 Defendants removed the action to this Court, pursuant to 28 U.S.C. § 1441 (a). *fn1" Plaintiffs responded by filing the present motion to remand to the New York Supreme Court.

 Plaintiffs make two arguments for remand: (1) this Court lacks original jurisdiction over the controversy; therefore, 28 U.S.C. § 1441 (a) is not satisfied; and (2) even if the action is removable under section 1441 (a), the removal is nonetheless improper, because only one defendant (Matthews) filed the petition whereas 28 U.S.C. § 1446 requires that all defendants join in, or consent to, filing of the petition. Because I agree with the plaintiffs' first point, there is no need to reach the second one. The motion to remand is granted.

 DISCUSSION

 Plaintiffs correctly note that original jurisdiction must be determined solely by reference to plaintiffs' complaint. Gully v. First National Bank, 299 U.S. 109, 113, 81 L. Ed. 70, 57 S. Ct. 96 (1936). Plaintiffs assert that they have alleged only a violation of New York State law. Accordingly, defendants may not gain access to a federal court by raising federal law as a defense.

 I. Original and Removal Jurisdiction Distinguished

 Although a state court action may not be removed to a federal court unless the federal court would have had original jurisdiction in the first instance, the questions of "original" and "removal" jurisdiction are not congruent. Absent original jurisdiction, the question whether an action is removable from state to federal court need not even be reached. See In re: Winn, 213 U.S. 458, 53 L. Ed. 873, 29 S. Ct. 515 (1909); Betar v. DeHavilland Aircraft, 603 F.2d 30 (7th Cir. 1979), cert. denied, 444 U.S. 1098, 100 S. Ct. 1064, 62 L. Ed. 2d 785 (1980). Removal jurisdiction does not extend the jurisdiction of the federal judiciary, which must be bottomed on specific acts of Congress. Armor Elevator Co. v. Phoenix Urban Corp., 493 F. Supp. 876 (D.C. Mass. 1980), aff'd, 655 F.2d 19 (1st Cir. 1981).

 It must be conceded, however, that as a practical matter the existence of original jurisdiction in the federal courts generally results in removability. The two forms of jurisdiction are rendered substantively coterminous *fn2" by the very wording of the removal statute, which grants the power of removal to any defendant who can demonstrate the existence of original federal jurisdiction. 28 U.S.C. § 1441 (a). Therefore, a finding of original federal jurisdiction translates into a holding that removal is proper. For the reasons to be set forth, however, original jurisdiction is lacking in this case.

 II. The Existence of Original Jurisdiction

 Under the general rule, the plaintiff is free to choose the law upon which his complaint will rest. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 57 L. Ed. 716, 33 S. Ct. 410 (1913). Thus, if plaintiff elects to root his claims exclusively in state law, his choice will generally not be disturbed. Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 964 (2d Cir. 1981).

 Implicit in the foregoing, however, is the corollary that plaintiff will not be permitted, by "artful pleading," to skew his complaint so as to avoid original federal jurisdiction where federal law supplies the true basis for relief. New York v. Local 1115 Joint Bd., Nursing Home and Hospital Employees Div., 412 F. Supp. 720, 722 (E.D.N.Y. 1976). The question, ...


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