Hirsch v. Bruchhausen

CLARK, Circuit Judge.

The petitioners herein seek a writ of mandamus to compel Judge Bruchhausen to vacate an order substituting them as the parties defendant in an action pending before him in the Eastern District of New York. The petition was filed a few days after we had dismissed a direct appeal from the order for lack of a final judgment. Involved also is an unappealable¹ order of remand of the action to the state court from which it had originally been removed, since the substitution of parties destroyed diversity of citizenship. Defendants, relying on a claim that the district court has not secured jurisdiction over them, vigorously press their contention for a review of this issue by mandamus as the only means available to them, Judge Bruchhausen having denied their application for an interlocutory appeal under 28 U.S. C. § 1292(b). But since defendants, by their own admission and claim, are the real parties in interest to defend the pending action, we find their objections purely delaying and technical, not rising to the level required to justify the issuance of the extraordinary writ of mandamus.² The case is now in that place and that posture which are wholly appropriate and have been indicated as such from the outset; further preliminary sparring can at the utmost procure only a direction that the amended complaint be served upon the defendants, rather than upon their counsel. As we point out below, even in the doubtful event that such a direction might prove desirable, we shall not call upon the extraordinary powers of this court to permit us to indulge in so futile and useless a gesture.

The original action, Adams v. Beland Realty Corp., was brought in the state court in 1954 by certain tenants of stores in an eight-story business block in Queens, New York City, against Beland Realty Corp., a New Jersey corporation, as owner. Judge Bruchhausen in his opinion below states the uncontested facts succinctly as follows:

“On January 18, 1954, the plaintiffs allegedly sustained property damage as a result of the flow of water into premises occupied by them as tenants of 32-02 Queens Boulevard, Long Island City, New York, through the negligence of the owner of said premises. The summons and complaint were served upon Ernest Boehm, the superintendent or managing agent of the premises. The complaint described the defendant, owner as a New Jersey corporation. The action originally was commenced in Queens County Supreme Court. The defendant denied ownership, operation and control of the premises. It thereupon sought removal of the action to this court because of diversity of citizenship. The removal petition was signed by Joseph W. Levin, assistant secretary of Beland Realty Corporation of New Jersey. In his affidavit of January 3, 1955, Mr. Levin alleged that the corporation was in existence pursuant to the laws of the State of New Jersey. However, a certificate of voluntary dissolution was filed May 1, 1952. The stock of this corporation was owned by a New York corporation known as Beland Realty Corporation. This New York,corporation owned the premises in question up to May 1, 1952 when it was dissolved. Its property was transferred to the individuals named above d/b/a Beland Realty Company, a partnership. The defendant corporation was represented at first by the law firm of Golenbock and Bareli and then by Max J. Gwertzman, the subrogation attorney. Extensions of time to appear and answer were given to both attorneys. Examinations before trial of both parties were held and the ease placed on the trial calendar. At the pre-trial call before Judge Savage the corporation moved for dismissal of the complaint on the ground of nonownership, management or control. At that pre-trial, a deed was exhibited by counsel from the corporation to the partnership transferring the premises to the named individuals. All proceedings were conducted in the name of the dissolved corporation although dissolution was approximately two years prior to the cause of action. All notice of claims and pleadings were turned over to the attorneys for the partnership who in turn forwarded them to the attorneys for the insurance company.” Adams v. Beland Realty Corp., D.C.E.D.N.Y., 187 F.Supp. 680, 681.

The present proceeding was initiated by a motion thereafter made on behalf of the then plaintiffs pursuant to F.R.C.P. 15 and 4(h) to amend the title by substituting the present petitioners, doing business as Beland Realty Company, as party defendants, in place of Beland Realty Corp. The defendant contended that a granting of the motion would constitute a substitution of a new party and thereby deny the defendant partnership the benefit of the statute of limitations. But Judge Bruchhausen pointed out that here “the parties involved knew from the be-¡ ginning of the alleged claim, the defendant was given additional time to answer, all preliminary examinations were con•ducted by both sides. Truly, the parties ■were before the court. * * * The partnership continuously participated in the proceedings. The corporation never moved for a dismissal as being the wrong party, but in reality conducted the entire defense until it made its motion to dismiss before Judge Savage, after the statute of limitations had expired. It is evident that no prejudice will flow to the defendant from a granting of this motion.” D.C.E.D.N.Y., 187 F.Supp. 680, 681, 682. And he granted the motion, ordering a ■complete substitution of parties defend-ían^ additionally he ordered the remand fo the state court, since the parties were now all citizens of New York. When the .appeal from the order of substitution came before us on October 19, 1960, we ¡granted the plaintiffs’ motion to dismiss, .since obviously the defendant corporation was not injured by its elimination from "the lawsuit and no final action had been 'taken against the substituted defendants, who now had full opportunity to defend. ‘This petition, dated October 27, 1960, followed.

F.R. 81(c) provides as to “Removed Actions”: “These rules apply to civil actions removed to the United States ■district courts from the state courts and ¡govern procedure after removal. Re-pleading is not necessary unless the court ¡so orders.” See Freeman v. Bee Machine Co., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509, upholding amendment to state a new claim after removal. Thus Judge Eruchhausen had clear authority to order ¡the amendment substituting parties, see F.R. 21, 25(a) (c); and it was his manifest duty to do so and to make sure that 'the real issue was litigated between the ¡parties actually involved. Moreover, the •defendants knew, even more than the plaintiffs, that the issue was one for the ¡state court where (so we are told) there is already an action pending against them ■involving these issues. There is no permanent prejudice to them to-find themselves just where they should have been had they been more frank earlier as to the ownership of the realty. Nor do we see how their charge of negligent and careless prosecution of the case by their opponents gets them far, for, whatever its past vicissitudes, the case has remained pending and obviously must now be heard in the proper tribunal therefor.

The only possible contention they have is that actually they are strangers, being newly inducted into the litigation, and hence are entitled to service of process anew.³ Perhaps the trial judge might have been well advised to have ordered this simple and here essentially useless formality and thus have removed petitioners’ last talking point. And were mandamus to issue, it would have to be limited to that one step, since every other step taken is so definitely required in equity and justice. But we do not think the writ is available for so profitless a venture. So concluding, we shall not pause to consider whether petitioners may still be entitled to raise this objection or whether they may not be foreclosed by their continued defense in the name of the corporation as owner and by their present appeal or whether in any event under the circumstances of complete knowledge which they possessed service upon their counsel is not adequate under F.R. 5. See Freeman v. Bee Machine Co., supra, 319 U.S. 448, 455, 63 S.Ct. 1146, 87 L.Ed. 1509; Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649. The obvious lack of any real prejudice to them makes issuance of the writ an act of supererogation.

Petitioners also seek various forms of additional relief which either are rendered inappropriate by our conclusion or are not properly available to them. Certainly we have no right or desire to control the trial judge’s exercise of discretion in denying leave for an interlocutory appeal. All defenses on the merits now properly go before the state court for definitive adjudication; our function has been merely to pass on the procedural aspects of the proceedings as brought before us. We see no reason either to grant or to continue a stay preventing the remand to the state court.

Accordingly the petition for a writ of mandamus and for other forms of relief is denied in toto.

1 . “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d); and see Kloeb v. Armour & Co., 311 U.S. 199, 205, 61 S.Ct. 213, 85 L.Ed. 124; Stein’s Stores v. Taylor, 6 Cir., 216 F.2d 439 (refusing review by mandamus).

2 . Abrams v. McGohey, 2 Cir., 260 F.2d 892; General Houses, Inc. v. Bruchhausen, 2 Cir., 256 F.2d 674; Electric & Musical Industries, Limited v. Walsh, 2 Cir., 249 F.2d 308; Torres v. Walsh, 2 Cir., 221 F.2d 319, 321, certiorari denied 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 746; In re Chappell & Co., 1 Cir., 201 F.2d 343.

3 . This could be had just as was the original service, by serving the superintendent at the building in Queens. F.R. 4(d) 43). If actualities may be considered, this is obviously more indirect and less useful than service upon counsel under F.R. 5.