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NELSON v. PETER KIEWIT SONS' CO.

April 6, 1955

Alfred G. NELSON, Sr. and Alfred G. Nelson, Jr., partners, trading as Nelson Piling Company, Plaintiffs,
v.
PETER KIEWIT SONS' CO. (Inc.), S. J. Groves & Sons Company (Inc.), Al Johnson Construction Co., (Inc.), and Condon-Cunningham, Inc., corporations, joint venturers, trading as North Atlantic Constructors, Defendants



The opinion of the court was delivered by: HARTSHORNE

This suit on book account was instituted in the Superior Court of New Jersey, Law Division, Essex County, by plaintiffs, citizens and residents of Essex County, New Jersey, against defendants as joint venturers, trading as North Atlantic Constructors. Only defendants S. J. Groves & Sons Company (Inc.) -- Groves -- and Peter Kiewit Sons' Co. (Inc.) -- Kiewit -- were served, by service upon their agents for the service of process. Such defendants filed a petition for removal of the cause to this Court, alleging as grounds therefor diversity of citizenship, in that Groves was a citizen and resident of Minnesota, with its principal place of business in Minneapolis, and Kiewit was a citizen and resident of Nebraska, with its principal place of business in Omaha. The petition further alleged, as to the defendants not served, that the Johnson corporation was a citizen and resident of Delaware, while the Condon-Cunningham corporation was a Nebraska corporation.

 William F. Tompkins United States Attorney Attorney for Petitioners Charles H. Hoens, Jr. Assistant U.S. Attorney

 Nor was any removal bond filed.

 Plaintiff was served with notice of the filing of the petition. On stipulation shortly thereafter, an order was obtained extending time to answer. Plaintiff now moves to remand the cause to the Superior Court of New Jersey, on the grounds that (1) the petition for removal was not verified, (2) some of the defendants did not join in the petition, and (3) no removal bond was filed, despite the elapsing of the time for filing the removal petition.

 (1) While the removal statute *fn1" calls for the filing of a 'verified petition' and a bond, the courts have established the rule that mere details in the steps for removal, without substantial effect on the rights of the parties, are but 'modal and formal', irregularities in the pursuit of which are not fatal, let alone jurisdictional, and are consequently either subject to waiver, or are curable, even after the time to file petition for removal has expired. In Kramer v. Jarvis, D.C.Neb.1948, 81 F.Supp. 360, Judge Delehant has cited many decisions in that regard, though reaching the conclusion that the removing defendant there had simply failed utterly to follow the statutory requirements, so that a remand followed.

 Of course, the time for filing the petition and its substantial nature are important. But these are covered by the petition itself, not the verification, the latter being but formal, whose purpose, at best, is to give some assurance as to the verity of the facts stated in the petition, for the protection of the plaintiff whose case has been removed. But this protection of the plaintiff is furnished primarily by the removal bond. Hence the lack of a verification is not fatal, but is curable, with reasonable promptitude.

 (2) As to the fact that all defendants named in the complaint did not join in the petition, but only those who have been served as defendants, it is well settled that defendants named, but not yet made parties, need not join in removing a suit in which they are not yet concerned. Driscoll v. Burlington, etc. Bridge Co., D.C.N.J.1949, 82 F.Supp. 975, 985. Further, even if the stipulation for the extension of time to answer constituted an appearance on behalf of the defendants not served, since this joint stipulation and order was not filed till after the petition for removal was filed, it cannot affect the validity of the petition, which speaks as of the time it was filed.

 (3) However, the lack of the filing of any removal bond whatever, within the time limited for removal, raises a more serious question. As to such bond, the statute *fn2" provides 'Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety, conditioned that the defendant or defendants will pay all costs and disbursements * * *' in case of remand. The statute further provides 'Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal * * *.' The bond therefore has the important purpose of protecting plaintiff in case the removal is wrongful. Not only does the statute also indicate that the filing of the bond, among other things, is essential to 'effect the removal', but should the removing defendants perchance be unable thereafter to procure 'a bond with good and sufficient surety', plaintiff would be wronged, and left without the important remedy that Congress intended he should have. In situations where a removal bond is requisite, no case has been cited to the Court, or found, where the lack of a removal bond after the expiration of the time for removal, has been held curable, if not waived. The utmost the courts have done is to waive irregularities in a properly filed bond, or to permit its filing after the petition, provided it is filed before the time for removal has expired. Tucker v. Kerner, 7 Cir., 1950, 186 F.2d 79, 23 A.L.R.2d 1027. *fn3"

 Thus, because of the important protective purposes which the removal bond serves, the total failure to file it timely would not seem a mere irregularity, curable after the time for removal has expired -- provided, of course, such a bond is requisite at all.

 The point is now pressed by the 'United States Attorney, Attorney for Petitioners' -- such petitioners being solely Groves and Kiewit -- that no removal bond is requisite under the statute, because of the provision therein that 'a petition in behalf of the United States' need not be accompanied by a bond that 'defendants will pay all costs and disbursements'. Plaintiff denies that the removal petition is one filed 'in behalf of the United States'. The solution of this issue thus depends on the petition itself and the proper construction of the removal statute in the light of its purpose.

 The prime purpose of the removal bond is to be sure that, if the removal turns out to be wrongful, plaintiff, thus wronged, shall be assured of the collection of his 'costs and disbursements', as ordered by the Court to be paid. But of course these 'costs and disbursements' can be ordered by the Court to be paid, only by a party to the suit, specifically, the removing defendant. On general principles, the Court is powerless to order costs paid by one not a party to the suit, and over whom it thus has no jurisdiction -- and this quite regardless of the terms of the statute. Hence one who removes a cause, and is subject to the imposition of costs by the Court if the removal is wrongful, must be a party to the suit.

 Turning to the petition, we find (a) the United States is not even mentioned in the petition itself, (b) the sole petitioners are the two defendant corporations, Groves and Kiewit, (c) the grounds of the petition are not those which concern the United States in any wise, but on the other hand the diversity of citizenship of Groves and Kiewit from that of plaintiffs, (d) the U.S. Attorney who signs, after describing himself as United States Attorney, and without reference to any connection of the United States with the removal petition, adds that he is 'Attorney for Petitioners' -- Groves and Kiewit. There is not the slightest basis, therefore, to hold that the United States itself has, by the petition, become a party subject to the jurisdiction of the Court, and subject therefore to the imposition of removal costs and disbursements. Thus, if the removal is wrongful, this petition gives plaintiff not the slightest protection, as intended by the Congress, to collect costs and disbursements, as imposed by order of the Court. The United States is here not a party, against whom costs can be ordered (even where Congress has granted such authority), and the actual removal petitioners have furnished no bond.

 True, the United States and its officers and agencies, when representing the sovereignty, can have costs imposed on them by the courts only when Congress permits. F.R.C.P. 54(d), 28 U.S.C.A. In cases where this can be done, it obviously can be done only as to a party to the suit, on the general principles alluded to above. But in cases where costs can not be imposed, even as to the United States, when a party to the suit, the plaintiff, whose suit is wronglyremoved by the United States itself, is stripped of the limited protection which Congress intended to give him normally in the form of the removal bond. He cannot obtain an order or costs against the United States, since the Congress has not authorized it by other legislation than the removal statute. He cannot obtain it against the individual defendants under the removal statute, since not they, but the United States, have filed the removal petition. This of itself is a hardship. Nor can it be presumed that Congress intended to increase this hardship, by lessening its limited protection to plaintiff more often than the words of the statute reasonably require. In fine, a removal petition filed 'in behalf of the United States' can only mean the normal petition filed by the United States as a party to the cause. It can not fairly be construed to cover the relatively numerous additional petitioners, filed in the name of a private party, where some remote interest of the United States, of policy or otherwise, has been a motivating factor in its filing. Such cases often arise, where removal petitions are filed in the names of some of the countless employees of the United States, whom the United States Attorney normally appears in court to protect, as a matter of governmental policy. If these latter cases were to be considered as included in the petitions filed 'in behalf of the United States,' in none of them could plaintiff require a bond either of the United States or of the private party who filed the removal petition, and thus the Congressional intent to give limited protection ...


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