Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DURHAM v. IRISH SHIPPING

May 1, 1962

Jake DURHAM, Plaintiff,
v.
IRISH SHIPPING, LTD., and Reading Company, Defendants



The opinion of the court was delivered by: CLARY

This matter comes before the Court on plaintiff's motion to remand.

The plaintiff, a longshoreman, employed by T. Hogan Corporation, sustained injuries while engaged in loading cargo of bulk grain aboard the steamship 'Irish Poplar', which was moored at Pier E, Port Richmond, Philadelphia, Pennsylvania, on or about November 22, 1961. It is alleged that these injuries were suffered when a grain chute owned and operated by defendant, Reading Company, fell and struck the plaintiff.

 Plaintiff filed a complaint in Common Pleas Court No. 5 of Philadelphia County, Dec. Term 1961, No. 1363, against both the vessel owner and the Reading Company alleging that his injuries were due to the carelessness and negligence of both defendants and the unseaworthiness of the vessel.

 The plaintiff and defendant, Reading Company, are citizens of the State of Pennsylvania. The defendant, Irish Shipping, Ltd., is a foreign corporation organized under the laws of Ireland.

 The sole issue before the Court on this motion is whether or not this case comes within the purview of 28 U.S.C.A. § 1441(c). That section provides:

 '(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.'

 Therefore, in order for a Federal Court to acquire jurisdiction by removal under the above section, there must exist 'a separate and independent claim or cause of action.'

 The most frequently applied measure of jurisdiction under Section 1441(c) is the one sanctioned by the United States Supreme Court in American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L. Ed. 702 (1950), wherein the Court said:

 '* * * we conclude that where there is a single wrong, to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).' (341 U.S. at page 14, 71 S. Ct. at page 540).

 In determining whether or not 'a separate and independent claim of cause of action' existed to warrant removal, this Court must look to the allegations in the plaintiff's complaint. Ryan v. Tollefson, D.C., 118 F.Supp. 420 (1954). That allegation in the complaint which is most crucial in this case is made in paragraph 8. It is alleged that:

 '* * * because of the defective, unsafe and unseaworthy condition of the ship and the negligence of the defendant, the grain shooter or a portion thereof was caused to fall suddenly and strike the plaintiff, as a result of which he sustained the injuries which are more specifically set forth hereinafter.'

 In paragraph 9 of the complaint, the plaintiff alleges various facts which constitute carelessness and negligence on the part of the defendant, Irish Shipping, Ltd., and which also made the S.S. 'Irish Poplar' unseaworthy. Paragraph 10 consists of allegations of facts which constitute carelessness and negligence on the part of the defendant, Reading Company. In paragraph 11, the plaintiff summarizes his claim in the following manner:

 'Solely by reason of the carelessness and negligence of the defendants and each of them as aforesaid and the unseaworthiness of the vessel as set forth above, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.