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MONTREY v. PETER J. SCHWEITZER

June 13, 1952

MONTREY et al.
v.
PETER J. SCHWEITZER, Inc. et al.



The opinion of the court was delivered by: FORMAN

This is a motion to remand the suit to the Superior Court of New Jersey upon the ground that this court is without jurisdiction because diversity of citizenship does not exist between the plaintiffs and all of the defendants and the complaint does not set forth as to any of the defendants a separate and independent claim or cause of action.

The plaintiffs in this case are Perrie W. Montrey and 80 other individuals, all of whom are citizens of New Jersey, residing in the village of Old Bridge, Middlesex County. There are four defendants: Peter J. Schweitzer, Inc., which owns a manufacturing plant in Spotswood, Middlesex County, New Jersey, a New York corporation; its plant manager, Ardell Lowing, a citizen of New Jersey; Anheuser-Busch, Inc., which owns a factory in East Brunswick Township, New Jersey, a Missouri corporation, and its plant manager, Henry Menzenwerth, alleged by plaintiffs to be a resident and citizen of New Brunswick, New Jersey, although he contends he is a citizen of Missouri.

 The gravamen of this suit is that by reason of the pollution of South River in Middlesex County, a condition attributed in the complaint to the activity of all four defendants, the plaintiffs have sustained damages to their realty and injury to their persons. The original complaint filed in the State court consisted of 118 counts. The basic allegations of the complaint are set forth in the first two counts and are repeated by reference in the remaining counts, which are patterned on these basic ones.

 The first count of the complaint alleges that a plaintiff, for the past six years, was the owner of a dwelling and land in Old Bridge, New Jersey, a village located on or near the South River or its tributaries, which are natural, navigable or flowing streams; that the defendants

 'have owned, operated and maintained a factory or manufacturing plant in Spotswood, New Jersey and in East Brunswick Township, New Jersey, respectively, which are located higher up on the South River and closer to its source, and in connection with said ownership, operation and maintenance have constantly throughout said six-year period willfully, wantonly, knowingly, unlawfully, tortiously discharged into said South River and its tributaries large quantities of acids, alkalies, sulfides, organic and inorganic waste matter and other obnoxious, deleterious and poisonous liquids, chemicals, sewage, effluent and industrial wastes and have thus gravely, seriously and permanently polluted said streams as well as its bed and banks, causing the same to be saturated with said sewage residue so that the said River and its tributaries in and near the vicinity of plaintiff's dwelling constantly gives off a vile, putrid, obnoxious, offensive, sickening and unhealthful stench which envelopes the atmosphere in and about plaintiff's dwelling, causing a personal and private nuisance to plaintiff's great pain, injury and damage.';

 that the plaintiff has sustained substantial injuries over and above that suffered by the general public; and that as a direct and proximate result of the creation of said nuisance the plaintiff's dwelling and lands have been seriously and permanently damaged and have greatly depreciated in value, wherefore the plaintiff has suffered impairment of his health and has been deprived of the relaxation, recreation and enjoyment said injuries to his person the sum of $ 5,000 covering a two year period.

 Prior to the filing of the petition for removal by certain of these defendants, an amended complaint was filed in the State court, but was not served upon the defendants until after the petition for removal was filed. The only change occasioned by the amended complaint was the addition of the words 'jointly and concurrently' or 'joint and concurrent' to characterize the actions of the defendants.

 The defendant, Peter J. Schweitzer, Inc., alone, and the defendants Anheuser-Busch and Henry Menzenwerth, jointly, filed separate petitions for removal and alleged as their grounds that the two plant managers had no connection with or responsibility for the design, construction and operation of their respective plants and that while Ardell Lowing was a resident of New Jersey, his joinder as a party was 'sham, fraudulent and not done in good faith, but for the obvious purpose of preventing the removal of this cause to the United States District Court for the District of New Jersey;' they further averred that Henry Menzenwerth was a citizen of Missouri; that the two corporate defendants are completely separate and independent corporate entities and that neither corporation has the right, power or authority to direct the disposition of industrial waste by the other; that any such alleged discharge of waste material from said respective plants into the South River is independent and separate, and that, consequently, the complaint contains, at least, against Anheuser-Busch, Inc. and Henry Menzenwerth, a separate and independent claim or cause of action which would be removable under 28 U.S.C. § 1441(c) even if it is joined with the nonremovable claim or cause of action against the resident defendant Ardell Lowing.

 In support of their petition for removal and in opposition to the motion to remand the defendants have submitted a number of affidavits; while the plaintiffs in support of their motion to remand have submitted two affidavits, one by a plaintiff and the second by counsel for plaintiffs.

 The motion to remand and the petitions for removal raise two basic issues:

 (1) is a separate and independent claim or cause of action alleged in the complaint against a non-resident defendant; and

 (2) is there a fraudulent joinder of a resident defendant?

 Assuming, arguendo, that the defendant Menzenwerth is not a citizen of New Jersey, is the cause of action against Anheuser-Busch and Menzenwerth separate and independent from that against the Schweitzer company and its plant ...


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