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BONCEK v. PENNSYLVANIA R. CO.

May 10, 1952

BONCEK et al.
v.
PENNSYLVANIA R. CO. et al. and six other cases



The opinion of the court was delivered by: FORMAN

These proceedings are before the court on motions of plaintiffs to remand the above seven suits to the Superior Court of New Jersey. All of these suits arise out of an explosion of munitions which occurred in South Amboy, New Jersey on May 19, 1950 and are brought to recover for damages sustained to both person and property. For convenience these causes, in the order of their captions, will be referred to herein as the 'Boncek', 'Abegg', 'Chemical', 'A. & M.', 'Bell', 'Ackerman', and 'Tracy' cases.

For purposes of this motion the Boncek and Abegg cases may be treated as one, since the substantive allegations of each complaint are identical and the parties defendants the same, and the Chemical, A. & M., Bell, Ackerman and Tracy cases likewise may be treated as one case for the same reasons.

 Boncek and Abegg Cases.

 In the Boncek case the 114 plaintiffs suing for personal injuries, etc. are all citizens of New Jersey, except one who is a citizen of New York. In the Abegg case there are 394 property damage claimants, all of whom are citizens of New Jersey with the exception of 14 plaintiffs who are citizens of New York. Of the 29 defendants, 16 were served, and of these 9 are citizens of New Jersey and 7 are non-residents. The removing defendants, Pennsylvania Railroad Company and Reading Company, are Pennsylvania corporations and the Baltimore & Ohio Railroad is a Maryland corporation.

 The complaints charge liability on the part of the defendants in the following manner. In individual counts each defendant by its negligence is alleged to have caused and contributed to the explosion. Also, in individual counts each of the defendants is alleged to have maintained, contributed to the maintenance of, and conspired with others to maintain such a large quantity of explosive substances in the vicinity of dwelling houses and places of business and in such proximity to highly concentrated areas of human habitation as to constitute a nuisance contrary to and in violation of the laws of New Jersey. In addition, in two counts all defendants are charged with negligence, jointly and severally, and jointly and severally maintaining, etc., a nuisance.

 Each of the removing defendants bases its right to removal on 28 U.S.C. § 1441 upon the ground that each of the counts specifically addressed to them respectively constitute a separate and independent claim or cause of action as between each individual plaintiff and itself, from any other cause of action in said complaints which, by reason of diversity of citizenship and requisite jurisdictional amount, entitles it to removal under the aforesaid statute. The defendants also alleged that each suit is 'a civil action of which the district courts of the United States have original jurisdiction and the same has not arisen or been instituted under Sections 51-60 of Title 45 of the United States Code.'

 Chemical, A. & M., Bell, Ackerman and Tracy Cases.

 In the Chemical case the plaintiff is a citizen of Delaware. In the A. & M. case approximately 7,100 persons and corporations are plaintiff's who are alleged by the removing defendants, to be citizens of New Jersey, New York and Delaware. The plaintiff in the Bell case is a citizen of New Jersey. The 333 plaintiffs in the Ackerman case are citizens of New Jersey, and in the Tracy case the plaintiff is a citizen of New York.

 In each suit there are 13 individual defendants, 5 of whom have been served and are citizens of New Jersey. In addition there are 11 corporate defendants in each suit, of whom 3 have been served. These corporate defendants include one New Jersey, one Maryland, two Pennsylvania, two Delaware and two New York citizens (of which one has moved to set aside service of process).

 Each of the complaints contains six counts and all of the defendants are parties to each count. The first count alleges that the explosion and resulting losses and damages were caused by the negligence, 'jointly and severally', of the defendants; the second count alleges the fault, 'jointly and severally', of the defendants in maintaining and creating a nuisance in violation of the laws of New Jersey; the third count alleges the liability of 'defendants and each of them' for the losses and damages arising from the explosion which resulted from and was caused by their carrying on of an extra-hazardous business venture for profit; the fourth count alleges the liability of 'defendants and each of them' under the provisions of an ordinance of the City of South Amboy; the fifth count alleges the 'joint and several' negligence of the defendants in manufacturing, packing, handling, transporting, and otherwise dealing with said explosives contrary to and in violation of the applicable statutes and regulations of the United States, the State of New Jersey and the City of South Amboy; the sixth count alleges that the 'defendants and each of them' by said explosion trespassed against the property of the plaintiffs.

 The removing defendants, Pennsylvania Railroad Company and Reading Company, base their right to remove these suits to the Federal Courts under 28 U.S.C. § 1441 upon the same grounds as in their petition for removal in the Boncek and Abegg cases, viz., the complaints contain separate and independent claims or causes of actions against each of them which be reason of diversity of citizenship and amounts involved entitle them to removal under the statute, and the action is one over which the district courts of the United States have original jurisdiction.

 Discussion.

 The right of removal in these cases is predicated upon 28 U.S.C. § 1441, which states:

 '(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a 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 ...


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