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332 F.Supp. 605

(Cite as: 332 F.Supp. 605)

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332 F.Supp. 605

(Cite as: 332 F.Supp. 605)

single wrong arising court, the pleadings and independent

from related control. removable claims and
United States District circumstances and plaintiffs, four of
Court, claims were not [2] Removal of Cases whom were Utah
D. Wyoming. separate and 334 61(1) citizens, were entitled
Clifford independent for to remand case to
ANDERSON et al., purpose of statute state court. 28
334 Removal of
Plaintiffs, permitting removal to U.S.C.A. § 1441(c).
Cases
v. federal court of
334IIIA Separate
UNION PACIFIC nonremovable claims [3] Removal of Cases
and Independent
COAL COMPANY, if joined with separate 334 2
Claims; Separable
a corporation, and and independent
Controversies
Union Pacific removable claims,
334k61 334 Removal of
Railroad Company, and plaintiffs, four of
Allegations in Cases
a corporation, whom were Utah
Pleadings 334I Power to
Defendants. citizens, were entitled
334k61(1) Remove and Right of
to remand of case to
k. In General. Most Removal in General
No. 5557 Civ. state court.
Cited Cases 334k2 k.
Oct. 20, 1971. (Formerly 334k61) Constitutional and
Action remanded Statutory Provisions.
Action was to state court. Most Cited Cases
Where only
brought by former actionable wrong
employees to enforce West Headnotes alleged in complaint Removal of Cases
an oral agreement to of 54 former 334 107(4)
provide pension [1] Removal of Cases supervisory
benefits. The case was 334 61(1) employees of 334 Removal of
filed in state court and dissolved Wyoming Cases
removed to federal 334 Removal of corporation to enforce 334VII Remand
court. On motion of Cases against successor or Dismissal of Case
plaintiffs to remand, 334IIIA Separate Utah corporation an 334k107
the District Court, and Independent oral agreement to Proceedings for
Kerr, J., held that Claims; Separable provide pension Remand and Review
where only actionable Controversies benefits to Thereof
wrong alleged in 334k61 supervisory 334k107(4)
complaint of 54 Allegations in employees was that k. Hearing and Scope
former supervisory Pleadings the Wyoming of Inquiry. Most Cited
employees of 334k61(1) corporation breached Cases
dissolved Wyoming k. In General. Most agreement promising
corporation to enforce Cited Cases pension benefits,
Courts should
against successor (Formerly 334k61) complaint alleged a
strictly construe
Utah corporation an single wrong arising
removal statutes and
oral agreement to from related
To determine if whenever there is any
provide pension circumstances and
plaintiffs suffered a doubt whether or not
benefits to claims were not
single wrong in to remove, removal
supervisory separate and
applying statute should be denied. 28
employees was that independent for
permitting the joinder U.S.C.A. § 1441(c).
the Wyoming purpose of statute
of removable claims
corporation breached permitting removal to
or causes of action *606 Nelson &
agreement promising federal court of
with nonremovable Greenhalgh, Rock
pension benefits, nonremovable claims
claims or causes of Springs, Wyo., and
complaint alleged a if joined with separate
action before federal

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332 F.Supp. 605

(Cite as: 332 F.Supp. 605)

Roe, Fowler, Jerman The undisputed settled by a discussion remand it must be

& Dart, Salt Lake facts establish that of plaintiffs' first shown *607 that their
City, Utah, for four of the named contention, the Court claims are not
plaintiffs. plaintiffs are citizens does not deem it separate and
of Utah and the Union necessary to discuss independent.
Loomis, Lazear, Pacific Railroad the second.
Wilson & Pickett, CompanyFN2 is a Utah The meaning of
Cheyenne, Wyo., and corporation. The other The defendants separate and
Sidley & Austin, named plaintiffs are contend in their brief independent has been
Chicago, Ill., for citizens of Wyoming. that the claims of set out in the case of
defendants. The Coal Company, a plaintiffs are separate Snow v. Powell, 189
Wyoming and independent of F.2d 172 (10th Cir.
Judge's Memorandum corporation, was each other and under 1951). The case states
KERR, District Judge. completely dissolved 28 U.S.C. § 1441(c), “The word ‘separate’
Plaintiffs, in 1962 under the this would permit means distinct; apart
comprised of fifty- laws of Wyoming. removal of the entire from; not united or
four former The Railroad now case to this court. associated. The word
supervisory owns and is in ‘independent’ means
employees of Union complete possession Thus the issue to not resting on
Pacific Coal of all the assets of the be determined is something else for
Company,FN1 bring Coal Company. whether the complaint support; self-
this action against the sets out two or more sustaining; not
Coal Company to FN2. claims which are contingent or
enforce an oral Hereinafter separate and conditioned”. The
agreement which was referred to as independent from the United States
to provide pension Railroad. other. The applicable Supreme Court
benefits to statute reads: commented that “The
supervisory The plaintiffs “Whenever a separate addition of the word
employees. assert in their motion and independent ‘independent’ gives
to remand that since claim or cause of emphasis to
FN1. four of the plaintiffs action, which would congressional
Hereinafter are Utah citizens and be removable if sued intention to require
referred to as the Railroad is also a upon alone, is joined more complete
Coal Utah corporation, with one or more disassociation
Company. there is a lack of otherwise non- between the federally
complete diversity of removable claims or cognizable
citizenship. They also causes of action, the proceedings and those
The case was cognizable only in
filed on February 23, contend that the Coal entire case may be
Company is a removed and the state courts before
1971, in the District allowing removal”.
Court for Sweetwater necessary and district court may
indispensable party to determine all issues American Fire & Cas.
County, Wyoming. Co. v. Finn, 341 U.S.
On March 29, 1971, the suit, and since it is therein, or, in its
a Wyoming discretion, may 6, 71 S.Ct. 534, 95
defendants removed L.Ed. 702 (1951).
this case to this court corporation and there remand all matters not
are citizens of otherwise within its (Emphasis supplied.)
pursuant to 28 U.S.C.
§ 1441 (c). Plaintiffs Wyoming as plaintiffs original jurisdiction”.
filed their motion to there is again a lack 28 U.S.C. § 1441(c). A recent Ninth
remand the case to of complete diversity. Circuit case stated
state court on June 18, In order for that “Claims are not
1971. Since this plaintiffs to prevail in separate and
controversy can be their motion to independent of each

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332 F.Supp. 605

(Cite as: 332 F.Supp. 605)

other for the purpose the legal theories **”. Plaintiffs further interlocked series of
of Section 1441(c) if upon which relief is allege that the transactions, there is
multiple claims grow sought ***”. Clarence defendant Coal no separate*608 and
out of a single E. Morris, Inc. v. Company “*** independent claim or
actionable wrong”. Vitek, supra. represented to certain cause of action under
(Emphasis plaintiffs that § 1441(c)”.
supplied.) Clarence Defendants' defendant Coal Willoughby v.
E. Morris, Inc. v. opposition to the Company had Sinclair Oil & Gas
Vitek, 412 F.2d 1174 motion to remand is established a pension Co., 188 F.2d 902
(9th Cir. 1969). based upon the case plan for supervisory (10th Cir. 1951).
of Reynolds v. employees; ***”.
[1][2] To Bryant, 107 F.Supp. (Emphasis The complaint
determine if plaintiffs 704 (D.C.N.Y.1952), supplied.) It was also clearly alleges that the
suffered a single involving a suit by stated that the offer of parties jointly entered
wrong, one must look three employees the pension plan “was the agreement. It
to the plaintiffs' against their employer made upon condition stated that by reason
pleadings, which for unpaid that employees would of representations
control. American compensation. The accept supervisory concerning pension
Fire & Cas. Co. v. case held the positions and would benefits the plaintiffs
Finn, supra. The only complaint alleged not form a union to “*** were induced to
actionable wrong nothing which establish a pension and did enter into and
alleged in the indicated the three plan for supervisory remain in the
complaint is that the separate claims for employees”. The employment of
Coal Company relief were dependent plaintiffs further defendant Coal
breached its upon one another. The contend the offer was Company as
agreement promising court stated there accepted since they supervisory personnel
pension benefits for were no allegations remained in ***” and that “***
supervisory indicating the supervisory positions each plaintiff
employees. (The agreements were and did not form a performed services in
terms of the Coal jointly entered into, union of supervisory anticipation of
Company plan were that the parties were employees. Plaintiffs receiving said pension
to be like that of the joint parties, or that assert that the benefits; **”.
Union Pension Plan the claims arose out agreement was
for non-supervisory of the same or breached because A test to
employees.) This is interlocking defendant Coal determine whether
the only ground upon transactions. Company refused to claims are separate
which recovery is award pensions to the and independent was
sought. Each of the The complaint plaintiffs which were devised from the
claims for relief are alleges a single wrong equal to or better than Willoughby case,
based solely upon the arising from related those imposed by the supra. The case states
denial of pension circumstances. It union. that “*** a ready test
benefits by the Coal alleges that for a separate and
Company. They might defendants set up a A Tenth Circuit independent claim or
differ in respect to the pension plan with case, in quoting the cause of action is
legal grounds for benefits equal or United States whether the
recovery but “A better than those Supreme Court, stated satisfaction of the
single wrong cannot provided by the that “*** where there judgment against one
be parlayed into Union Plan in order to is a single wrong to party to the suit would
separate and induce employees to plaintiff, for which be satisfaction against
independent causes of “accept and remain in relief is sought, all.” Willoughby v.
action by multiplying supervisory positions, arising from an Sinclair Oil & Gas

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332 F.Supp. 605

(Cite as: 332 F.Supp. 605)

Co., supra. This test Anderson v. Union

can easily be applied Pac. Coal Co.
to recovery by several 332 F.Supp. 605
plaintiffs, as well as
to recovery against END OF
several defendants. DOCUMENT
Each plaintiff
involved here,
whether a Utah or
Wyoming citizen,
were supervisory
employees and if one
was held to be entitled
to pension benefits
under the plan for
such employees, each
would be, depending
upon their particular
qualifications to
participate in the plan.

[3] It should
finally be noted this
court has stated that
courts should strictly
construe removal
statutes and whenever
there is any doubt
whether or not to
remove, removal
should be denied.
Smith v. Voss Oil
Company, 166
F.Supp. 905, 907
(D.C.Wyo.1958).

For the reasons

stated above, this
court holds that the
claims of plaintiffs
are not separate and
independent for
purposes of 28 U.S.C.
§ 1441(c), and an
order should be
entered remanding the
action to the State
Court from whence it
was removed.

D.C.Wyo., 1971.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.