emanating from the Schweitzer plant, and that he admitted (which he denies) that the plant was in part responsible for the nuisance and that he would undertake measures to alleviate the condition. It was further alleged by plaintiffs that notwithstanding certain promises made to them by Mr. Lowing the nuisances complained of continued unabated.
If some reasonable basis exists for believing that there is a joint liability against resident and non-resident defendants, it is not a fraud upon the jurisdiction of the federal court to bring such a suit. Morris v. E. I. Eu Pont de Nemours & Co., 8 Cir., 68 F.2d 788, 792. In the instant suit the joinder of such defendants would be a fraudulent device to prevent removal only if it were clear that under the applicable law the facts asserted by the plaintiffs as the basis for the liability of the resident defendant Lowing could not possibly create liability against him or against him and his co-defendant jointly, or if the allegations with respect to the resident defendant were shown to be so clearly false as to demonstrate that no factual basis exists for their assertion by the plaintiffs. Such findings would be equivalent to rendering a summary judgment in favor of the defendant Lowing. I am not persuaded that the defendants have sustained their burden of showing such fraudulent joinder.
To the extent that defendants have challenged the veracity of the plaintiffs' allegations we have issues of fact to be resolved upon trial of the merits and not a demonstration that the joinder is fraudulent. Furthermore, in none of the briefs submitted by defendants have we been directed to any New Jersey case which holds that as a matter of law the defendant Lowing as plant manager and superintendent could not be held liable or jointly liable with his company for the nuisance complained of in this suit. While citations have been submitted of holdings in other jurisdictions where a foreman or superintendent was held under particular factual conditions to have been joined fraudulently because no liability could be predicated upon the mere existence of his employment relationship, see, for example, Knight v. Atlantic Coast Line R. Co., 5 Cir., 73 F.2d 76, 99 A.L.R. 405; yet the few authorities that we have found dealing with the subject of pollution intimate that under certain circumstances, at least, a manager might be held responsible for such a nuisance. See 66 C.J.S., Nuisances, Sec. 88, p. 847.
In Plymouth Consol. Gold Mining Co. v. Amador & S. Canal Co., 118 U.S. 264, 6 S. Ct. 1034, 30 L. Ed. 232, the complaint charged a corporation and certain individuals as its agents and servants, including the superintendent of its mines and mills, with polluting a stream of water belonging to the plaintiff and rendering it unfit for use, and seeking a remedy against the defendants jointly. The corporate defendants sought to remove the suit to a federal court upon the ground that a separable controversy existed between it and the plaintiffs and that the joinder of the individual defendants was made to prevent removal. In affirming the order to remand the court rejected both contentions. With reference to the first ground, the court stated:
'Upon the face of the complaint there is in the suit but a single cause of action, and that is the wrongful pollution of the water of the plaintiff's canal by the united action of all the defendants working together. Such being the case, the controversy was not separable for the purposes of a removal, even though the defendants answered separately, setting up separate defenses. Pirie v. Tvedt, 115 U.S. 41, 5 S. Ct. 1034, 1161, (29 L. Ed. 331); Sloane v. Anderson, 177 U.S. (275) 278, 6 S. Ct. 730 (29 L. Ed. 899).' 118 U.S.at page 270, 6 S. Ct.at page 1037, 30 L. Ed. 232.
Although the second ground was rejected on the basis that the removing defendant had failed to sustain the burden of proof as to fraudulent joinder the language of the court is most apposite:
'It is claimed, however, that as the answers show that the Plymouth Company is the real defendant, and the petition alleges that the others are nominal parties only, and joined with that company as 'sham defendants' to prevent a removal, the suit must be treated as in legal effect against the New York corporation alone, and therefore removable. So far as the complaint goes, all the defendants are necessary and proper parties. A judgment is asked against them all, both for an injunction and for money. Hayward and Hudson are admitted by the answer to be officers of the corporation, and Montgomery is its superintendent. These persons are all citizens of California, and amenable to process in that state. It is not denied that they are all actively engaged in the operations of the company; and Montgomery, as the superintendent of its mines and mills, must necessarily be himself personally connected with the alleged wrongful acts for which the suit was brought. It is undoubtedly true that if the company has a good defense to the action, that defense will inure to the benefit of all the other defendants; but it by no means follows that if the company is liable, the other defendants may not be equally so, and jointly with the company. It is possible, also that the company may be guilty and the other defendants not guilty; but the plaintiff in its complaint says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but until his defense is made out the case stands against him, and the rights of all must be governed accordingly.' (Italics supplied.) 118 U.S.at page 270, 6 S. Ct.at page 1037, 30 L. Ed. 232.
In any event, at least it can be said that the liability of a plant manager and superintendent, for tort as alleged in this suit under New Jersey law is in doubt. Therefore the issue must be determined by the court having jurisdiction to try the case and not upon the motion to remand. Supra 105 F.Supp. 715; also Fitzgerald v. Perkins Oil Co. of Delaware, 8 Cir., 89 F.2d 98; Wells v. Mo. Pac. R. Co., supra.
In the light of the views expressed herein the question of the place of citizenship of the defendant Menzenwerth becomes of no moment and its resolution unnecessary.
An order to remand should be submitted in conformity herewith.