Wright v. Lupton (118 F. Supp. 25, 1954)

DUNCAN, District Judge.

The matter before the court is the motion of plaintiff to remand this case to the State Court. The transcript filed in this court fails to reveal the filing dates of the complaint or any of the pleadings, and the court must rely upon the suggestions filed in support of plaintiff’s motion to remand for that information. There appears to be no dispute as to the dates.

On October 20, 1951 plaintiff, a resident of Missouri, filed this suit in the Circuit Court of Carrell County, Missouri, against the defendant, a non-resident, in the sum of $2,900. On January 20, 1951 the defendant filed his answer to plaintiff’s petition, and on January 21, 1953 defendant filed an amended answer and counterclaim (the latter being compulsory under the laws of Missouri, V.A. M.S. § 509.420) in the sum of $15,000.

On February 16, 1953 plaintiff filed a reply to defendant’s amended answer and counterclaim, and an amended petition increasing the amount of his prayer to $15,000. On March 4, 1953 defendant filed his petition and bond for removal. On January 8, 1954 plaintiff filed a motion to remand, alleging that the defendant, by filing his counterclaim, submitted himself to the jurisdiction of the State Court, and thus could not thereafter remove to this court. In the alternative he contends that as the counterclaim was a compulsory one, if the filing thereof gave defendant the right to remove, it must have been exercised within twenty days after the filing of such counterclaim, and that having failed to do so, he could not thereafter, following the filing of the amended complaint, remove the case. The section of the removal statute involved here is 28 U.S.C.A. § 1446