American Fire Casualty Company v. Finn/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MINTON concur, dissenting.
I think petitioner, having asked for and obtained the removal of the case to the Federal District Court, and having lost its case in that court, is now estopped from having it remanded to the state court.
Mere irregularity in the removal may be waived where the suit might originally have been brought in the Federal District Court. Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155.  That was a suit against a receiver which could have been instituted in the federal court. It was removed there by the receiver and judgment rendered against him. The court did not stop to inquire whether there had been a compliance with the removal provisions, holding that under those circumstances it did not lie in the mouth of the receiver to deny the jurisdiction he had sought. And see Toledo, St. L. & W.R. Co. v. Perenchio, 7 Cir., 205 F. 472; Handley-Mack Co. v. Godchaux Sugar Co., 6 Cir., 2 F.2d 435, 437; Bailey v. Texas Co., 2 Cir., 47 F.2d 153, 155.
The suit against petitioner could have been brought originally in the Federal District Court, since there was diversity of citizenship and the claim under the fire insurance policy was over $3,000. The requirements of diversity of citizenship and jurisdictional amount may not, of course, be waived. But a different provision of the statute is involved here. It is § 1441(c) of the Judicial Code which reads:
'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.' 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c).
The argument is that the suit against Reiss, the individual defendant, could not be removed since both he and the plaintiff were residents of Texas, and that the suits against the two nonresident corporations could not be removed because the claim asserted against them was not 'separate and independent.'
But the judgment sought to be reviewed here was rendered by the District Court only against petitioner who could have been sued there originally  and who invoked the jurisdiction of the District Court. As the court observed in the closely analogous case of Bailey v. Texas Co., supra, 47 F.2d at page 155, 'the resulting situation is equivalent to initiating an action in the District Court in which the defendant appears.'  I think it is abusive of the interests of justice when the challenge now made is raised to the dignity of a jurisdictional question. Any requirement of § 1441(c) that was not met in this case rose to no level higher than an irregularity, so far as petitioner is concerned. Both Reiss and the other nonresident defendant have been dismissed from the case. The only judgment before the Court is one which satisfies the requirements of original jurisdiction. Petitioner-the one who invoked federal jurisdiction and as a result suffered the consequences of this judgment-should not now be heard to complain. Baggs v. Martin, supra, should govern this case.
^1 As noted in Bailey v. Texas Co., 2 Cir., 47 F.2d 153, 155, Baggs v. Martin displaces the view earlier expressed by the Court in Torrence v. Shedd, 144 U.S. 527, 529, 12 S.Ct. 726, 727, 36 L.Ed. 528 and Martin v. Snyder, 148 U.S. 663, 13 S.Ct. 706, 37 L.Ed. 602.
^2 We have here no joint liability between a nonresident defendant and a resident defendant, as was the situation in Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413, 418, 31 S.Ct. 460, 461, 55 L.Ed. 521. And see Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441; Rupp v. Wheeling & L.E.R. Co., 6 Cir., 121 F. 825. The remedy sought against Reiss was alternative to the remedy sought against petitioner.
^3 In that case the parties who could not have been brought to the District Court by removal were after removal dismissed out of the case and judgment was rendered against a defendant who could have been sued in the District Court.