Action commenced in a state court, by Clarence Straits Salmon Company against Alaska Pacific Salmon Corporation and others. The cause was removed to federal court, and plaintiff filed a motion to remand.
Motion to remand granted.
This action was commenced by a Washington corporation in the state court against the defendants for damages as a result of conspiracy on the part of the officers of the defendant company to defraud the plaintiff of his fish trap locations in the waters of the territory of Alaska. The action was against the defendant corporation of Delaware, and C.J. Alexander, a citizen of Alaska, and John Doe and Richard Roe, defendants, and, before the petition for removal was filed in the state court, the amended complaint was filed in which C.J. Alexander and C.W. Skinner, a citizen of Washington, were named as the John Doe and Richard Roe defendants.
The cause was removed to this court on the ground that there is a diversity of citizenship, and that the litigation involved certain fish trap locations which, it is alleged in the petition, were acquired under the Constitution and laws of the United States, and that Clarence Straits, in which the traps are located, is in navigable waters of the United States, as to which navigable waters the said jurisdiction thereof is in the United States and not in the territory of Alaska, and that the rights of the plaintiff, if any, in the various fish trap locations are held pursuant to the laws of the United States and the Constitution of the United States.
Motion to remand is made, in which it is contended that there is no diversity of citizenship, and that no laws of the United States or provisions of the Constitution are in issue, or the construction thereof sought. Affidavit is filed by the defendant stating that the amended complaint was filed after the defendant had served notice of its intention to remove said cause to the federal court, and that the jurisdiction of the state court was thereby challenged, and motion to remand could not obtain.
NETERER, District Judge (after stating the facts as above).
The right of the plaintiff to file an amended complaint is not challenged, and at the filing of the petition for removal there was not on the face of the amended complaint, or asserted in the petition, diversity of citizenship. It also appears that the gist of the action is conspiracy. It does not arise under the laws or Constitution of the United States, Little York Gold Washing Water Co. v. Keyes, 96 U.S. 199, 24 L. Ed. 656; or arise out of dispute of parties as to the operation or effect thereof, Blackburn v. Portland Gold-Mining Co., 175 U.S. 571, 575, 20 S. Ct. 222, 44 L. Ed. 276. And the basis of the action must be taken as stated by the complaint. Chappell v. Waterworth, 155 U.S. 102, 15 S. Ct. 34, 39 L. Ed. 85. Nor does the necessity to construe the laws of or Constitution of the United States in determining the issue give the right of removal. Leggett v. Great Northern Ry. Co. et al. (C.C.) 180 F. 314. The issue presented in this motion to remand has been decided by this court in Charroin v. Romort Mfg. Co. (D.C.) 236 F. 1011.
Motion to remand is granted.