Petition for Writ of Certiorari — Masonite Corp. v. Hendry

Supreme Court brief1972

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TABLE OF CONTENTS

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- OPINIONS BELOW

DICTION

QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT __.-_-_-__

CONCLUSION 1

mm 6O

m1 01 Ol

APPENDICIES:

A. Opinion of the Court of pom 15

B. Opinion of Judge Dan M. Russell, Jr. 19

C. Judgment of Court of Appeals 22, 23

D. Order Denying Rehearing

E. 28 U.S.C., Sec. 1832

F. 28 U.S.C., Sec. 1441

G. 28 U.S.C., Sec. 1446

H. Affidavit of Robert E. Paul

I. Affidavit of Donice V. Knight

2SBXReRy

TABLE OF CITATIONS

CASES:

Berger v. Berger, 210 F. 2d 403 (3d Cir. 1954) _.10, 11

Commissioner of Internal Revenue v. Duberstein,

363 U.S. 278 (1960) 9

District of Columbia v. Murphy, 814 U.S. 441

(1941) 8, 9, 10

Ellis v. Southeast Construction Co., Inc., 260 F. 2d

280 (8th Cir. 1958) ll

v. Philadelphia Transportation Co., 185

F. 9d 548 (Sd Cir. 1950) il

— v. United States, 66 F. Supp. 743 (N. D.

. 1946) ll

Gilbert v. David, 285 U.S. 561 (1915) _....._.__. 8

willie

Hardin v. McAvoy, 216 F. 2d 399 (5th Cir. 1955) __18

Janzen v. Goos, 302 F. 2d 421 (8th Cir. 1962) ____1)

Johnston v. Cordell National Bank, 421 F. 2d 1310

(10th Cir. 1970) 12

Korn v. Korn, 398 F. 2d 689 (3d Cir. 1968) ll

Mid-Continent Pipe Line Co. v. Whiteley 116 F. 2d

871 (10th Cir. 1940) 12

Mitchell v. United States, 21 Wall. 850 (1874) ___ 8

Paulder v. Paulder, 185 F. 2d 901 (5th Cir. 1950) __19

Spurgeon v. Mission State Bank, 151 F. 2d 702 (8th

Cir. 1945) ll

Stine v. Moore, 114 F. Supp. 761 affd 218 F. 2d

446 (5th Cir. 1954) 12, 13

Texas v. Florida, 306 U.S. 398 (1939) 8, 10

Wehrle v. Brooks, 269 F. Supp. 785 aff'd per curiam

379 F. 2d 288 (4th Cir. 1967) ll

Weisinger v. McGehee, 160 Miss. 424, 134 So. 148

(1981) 14

Yarborough v. Yarborough, 290 U.S. 202 (1933) __.14

STATUTES:

28 U.S.C., Sec. 1332 (1964) 5, 7

28 U.S.C., Sec. 1441 (1948) 5,

28 U.S.C., Sec. 1446 (1965) 5

NSBR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 71-2043

MASONITE CORPORATION AND

ROBERT E. PAUL,

Petitioners,

Vv.

ANDRE HENDRY,

Respondent,

No. 71-2005

MASONITE CORPORATION AND

ROBERT E. PAUL,

Petitioners,

Vv.

VANDER L. LEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Masonite Corporation and Robert E. Paul,

respectfully pray that a writ of certiorari issue to review

the opinion of the United States Court of Appeals for

the Fifth Circuit entered in this proceeding on March 1,

1972.

OPINIONS BELOW

The opinion of the Court of Appeals is found at 455

F. 2d 955 (5th Cir. 1972), and appears in Appendix A,

Page 15. Both of these cases were appealed from

the United States District Court for the Southern District

of Mississippi, Hattiesburg Division, but no opinions were

reported in the reporter system. Judge Dan M. Russel},

Jr. wrote an opinion which is set forth in Appendix B,

Page 19, in the Vander L. Lee case, No. 71-2005.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on March 1, 1972. See Appendix C,

Page 22. A timely petition for rehearing and for

rehearing en banc was denied on June 14, 1972, (see

Appendix D, Page 24), and this petition for certiorari

was filed by September 12, 1972.

This Court's jurisdiction is invoked under 28 U.S.C.,

Section 1254 (1).

QUESTIONS PRESENTED

When these two lawsuits were filed in the Circuit

Court of the Second Judicial District of Jones County,

Mississippi, there were three defendants named: Masonite

Corporation, Robert E. Paul, and Jesse W. White. Jesse

W. White was at that time a citizen of Mississippi and a

resident thereof. Jesse W. White died on November 21,

1970, and within thirty days thereof, these cases were

removed to the District Court for the Southern District

of Mississippi. So when these cases were removed, there

were only two defendants, the petitioners, Masonite

Corporation and Robert E. Paul.

The District Court held that diversity of citizenship

existed between the parties to the lawsuits, and therefore,

it had jurisdiction of these cases. The determination of

the District Court hinged on the question of the domicile

of Robert E. Paul at the time he was served with process

in the state court lawsuits. The United States Court of

Appeals for the Fifth Circuit reversed and remanded the

cases to the Circuit Court of the Second Judicial District

of Jones County, Mississippi, based upon a finding that

Robert E. Paul's domicile at the time of the service of

process on him in the state court suits was Mississippi, and

not Illinois, as alleged by your petitioners.

lien

The questions presented are:

1. Was there the requisite diversity jurisdiction in the

lower Federal Court when both of these cases were

removed to the Federal District Court for the Southern

District of Mississippi, Hattiesburg Division, from the

Circuit Court of the Second Judicial District of Jones

County, Mississippi?

2. Does the death of a resident defendant sufficiently

remove him from the proceedings in such a manner that

diversity jurisdiction can be created, provided diversity of

citizenship exists between the remaining parties to the

lawsuit?

STATUTES INVOLVED

The statutes involved are 28 U.S.C., Sec. 1832 (1964)

which is set forth in Appendix E at page 25; 28

U.S.C., Sec. 1441 (1948) set forth in Appendix F at Page

26; and 28 U.S.C., Sec. 1446 (1965) set forth in Appendi

G at Page 27.

STATEMENT OF THE CASE

The respondents, Andre Hendry and Vander L. Lee,

both commenced a separate action for malicious prosecu-

tion in the Circuit Court of the Second Judicial District

of Jones County, Mississippi, against Masonite Corpora-

tion, Robert E. Paul, and Jesse W. White. In Vander L.

Lee's suit, personal service of process was obtained on

Robert E. Paul on June 13, 1970. In Andre Hendry’s case,

personal service of process was had on Robert E. Paul

on oT 2, 1970. Masonite Corporation and Robert E.

Paul filed their answer and defenses in both of these cases

in the State Court. No answer or defenses were filed on

behalf of Jesse W. White, who at the time of his death

was a patient in a state mental institution in Mississippi.

Jesse W. White died on November 21, 1970.

On December 18, 1970, Masonite Corporation and

Robert E. Paul filed a petition for removal to the Federal

District Court for the Southern District of Mississippi,

along with other appropriate documents. The Honorable

Judge Walter L. Nixon, Jr., upon a motion for summ

judgment in the Andre Hen case, determined that

Robert E. Paul’s domicile at the time he was served with

process was Illinois, and therefore, Andre Hendry’s motion

to remand upon the grounds of there being no diversity of

citizenship was not well taken. Andre Hendry’s motion to

remand was denied and, on motion for summary judgment

in that case Judge Nixon determined that the Masonite

Corporation and Robert E. Paul were entitled to a

— judgment based upon the accompanying affi-

avits.

The Honorable Judge Dan M. Russell, ft having

the matter in the Vander L. Lee case submitted to him on

the pleadings, affidavits, oral argument and briefs of

counsel, determined that Vander Lee’s motion to remand

was not well taken and was, therefore, denied; and

upon Masonite Corporation and Robert E. Paul's motion

for summary judgment, Judge Russell decided that the

Masonite Corporation and Robert E. Paul were entitled

to summary judgment in their favor. Orders were entered

by both judges reflecting summary judgments in favor of

Masonite Corporation and Robert E. Paul.

Andre Hendry and Vander L. Lee thereupon a

pealed the decisions of these honorable judges to the

United States Court of Appeals for the Fifth Circuit.

That Court, in its opinion, quoted at length from the

affidavit of Robert E. Paul, made just prior to the time

the petition for removal was filed. Based upon the affi-

davit of Paul and the affidavit of the Circuit Clerk of

Jones County, Mississippi, the United States Court of

Appeals for the Fifth Circuit decided that Paul’s domicile

was in Mississippi at the time he was served with process

in the first suit, the Andre Hendry suit, and thereupon

reversed and remanded these cases to the State Court. :

The affidavit of Robert E. Paul is set out in Appendix

H at Page 29, and the affidavit of Donice V. Knight

is set forth in Appendix I at Page $1. It was upon

these affidavits that the Federal District Court based

its opinions.

The Federal District Court assumed as a basis of

jurisdiction diversity of citizenship under 28 U.S.C., Sec.

1832 (1964),.determining in the process that Robert E.

Paul was a citizen of Illinois at the time of service of

process, and therefore complete diversity of citizenship

existed between the plaintiffs and both nonresident

defendants. ~

REASONS FOR GRANTING THE WRIT

The decision below, as it pertains to domicile, should

be reviewed because it erroneously interprets the law of

domicile as enunciated by this Court, and therefore is in

direct conflict with the decisions of this Court dealing

with the law of domicile, and a change thereof, and it

is also in direct conflict with the decisions of other Circuit

Courts of Appeal in construing the law of domicile. In

addition, this decision creates a nonuniformity of the

decisions within the Court of Appeals for the Fifth Circuit

regarding the law of domicile. Although it is true that

the lower court did not reach the second important

question, dealing with the effect of the death of a resident

defendant on diversity jurisdiction, your petitioners ask

that this Court consider only the question of domicile and

a change thereof. Your petitioners would respectfully sub-

mit that this case is a proper one for summary disposition

because the questions presented are easily separable, one

pertaining to domicile, of which review is requested, and

the other question pertaining to the effect that death of

a resident defendant has on the removability of a case

from state court to federal court. The lower court did

not reach this second question. See the opinion of the

Court of Appeals for the Fifth Circuit in Appendix A,

Page 15 [455 F. 2d 955 (5th Cir. 1972)].

Your petitioners respectfully urge that the decision

of the Court of Appeals for the Fifth Circuit be reversed

by summary disposition as it pertains to the law of

domicile, and, if this Court deems it necessary, remand

these cases to the lower court for a determination of the

effect that the death of a resident defendant might have

on diversity jurisdiction had that defendant been the only

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cile in the case of Mid-Continent Pipe Lime Co, y

Whiteley, 116 F. 2d 871 (10th Cir. 1940), and again they

were more recently announced in the case of J v.

Cordell National Bank, 421 F. 2d 1310, 1317 (10th Cir.

1970), and cases therein cited.

When the law governing a change of domicile, as

announced above, is applied to the facts of these cases

here, it is evident that the lower court's decision was

clearly erroneous in finding Paul was domiciled in Mis-

sissippi on June 2, 1970. He had formed the requisite

intent and accomplished the physical move well before

that date, i.e., on May 19, 1970, when he moved into the

apartment in Chicago, Illinois.

In addition to ie to the decisions of this

Honorable Court and decisions of the other circuits,

the decision of the lower court is inconsistent with other

decisions of the Fifth Circuit, and a reversal on the point

of domicile is required in order to establish uniformity

within the decisions in the Fifth Circuit. Petitioners would

cite as an example, Paulder v. Paulder, 185 F. 2d 901 (5th

Cir. 1950) and cases therein cited. However, there is

another case that is cited frequently in other decisions

dealing with domicile, and it is Stine v. Moore, 114 F.

Supp. 761 aff'd 213 F. 2d 446 (Sth Cir. 1954). Following

the principles laid down in Stine v. Moore, supra, the

usion that the decision in these cases below is clearly

and overwhelmingly erroneous cannot be escaped. Therein,

the court said:

“It is not disputed that, until the year 1947, follow-

ing his marriage in 1946, the defendant resided and

had his domicile in Orange, Texas. Since then he

has done many things which, on their face, tend to

support the conclusion that he intended to retain

his domicile in Texas, such as paying poll taxes and

ing in that state, making returns and paying

Louisiana income taxes as a nonresident, main-

ining a residence and —— box through

_—,

-13—

tention of remaining there permanently, which is

the true test: .. . .” (Emphasis ours) 213 F. 2d at

p. 447.

The Court further said that if the defendant made

the change of residence from Texas to Louisiana with the

bona fide intention of making Louisiana his home, and

hving there permanently, then his domicile and citizenship

were changed from Texas to Louisiana.

“Residence in fact, and the intention of making the

place of residence one’s home, are the essential

elements of domicile. Words may be evidence of

ne De ge Ae Foy wl operon lt

i place of resi , cannot supply

the fact of his domicile there. In such circum-

stances, the actual fact of residence and a real

intention of remaining there, as disclosed by his

entire course of conduct, are the controlling factors

in ascertaining his domicile. . . .

Any person, sui juris, may make a bona fide

change of domicile at any time... .”

213 F. 2d at p. 448.

In addition to being clearly in conflict with Stine v.

Moore, supra, it is also contrary to the case of Hardin v.

McAvoy, 216 F. 2d 399, 402 and 403 (5th Cir. 1955), and

the many cases cited therein.

There are other cases which could have been cited

which are pertinent and germane to the issue of domicile

and thus to diversity of citizenship in these cases. How-

ever, the cases cited above are the most cogent examples

showing the decision of the court below to be clearly

erroneous on the question of domicile, and in the interest

of brevity the legion of cases involving questions of

domicile are not here mentioned. But from Robert E.

Paul’s affidavit, Appendix H, page 29, it is over-

whelmingly clear and apparent, in no other con-

clusion can be logically reached, but that in April of 1970

he formed an intent to make his domicile in Illinois, and

on or about May 19, 1970, he made the physical move,

and he was physically present in Illinois, roage Some

in an apartment in Chicago with no intention tever

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THOMAS A. BELL

405 Tombigbee Street

Jackson, Mississippi 39205

Attorneys for Petitioners

JOE H. DANIEL

405 T

APPENDIX “A”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

“=~ No. 71-2043

.ANDRE HENDRY,

Plaintiff-Appeliant,

MASONITE CORPORATION and ROBERT E. PAUL,

Defendants-Appellees.

No. 71-2005

VANDER E. LEE,

Plaintiff-Appellant,

MASONITE CORPORATION and ROBERT E. PAUL,

Defendants-Appellees.

Appeals from the United States District Court for the

Southern District of Mississippi

(March 1, 1972)

e D. Maxey, Laurel, Miss., Stanford Young,

Waynesboro, Miss., for Andre Hendry, plaintiff-appellant.

Quitman Ross, Laurel, Miss., for Vander E. Lee,

plaintiff-appellant.

Thomas A. Bell, Joe H. Daniel, Jackson, Miss., for

defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and

INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

—16—

The issue here is whether there was requisite diversity

jurisdiction in the federal court when these cases were

removed from a Mississippi state court. We hold that the

district court erred in not finding that one of the

defendants, Robert E. Paul, was a citizen of Mississippi

at the time process was served on him, so that these cases

must be reversed and remanded to the district court with

instructions to remand them to the state court.

For purposes of federal diversity jurisdiction “citizen-

ship” and domicile” are synonymous. Stine v. Moore,

218 F.2d 446 (5th Cir. 1954). In determining one’s

“citizenship” or “domicile” statements of intent are entitled

to little weight when in conflict with facts. Welsh v. Ameri-

can Surety Co. of New York, 186 F.2d 16 (5th Cir. 1951).

The facts concerning the citizenship of defendant

Paul are these. Until May 1, 1970, he was a vice president

of the Masonite Corporation and manager in charge of its

Mississippi operations with offices in ‘Laurel, Mississippi.

On April 18, 1970, Paul accepted a company promotion

to Chicago, Illinois, to become effective on May 1, 1970.

There is no doubt that when he accepted that promotion

he then decided to move to Illinois and become a citizen

there at some time. Thereafter, he was personally served

on June 2, 1970, in the Hendry case and on June 13, 1970,

in the Lee case. The issue is whether he had carried out

his intention to move his domicile to Illinois prior to

those two dates.

The facts set forth in Paul's affidavit are as follows:

“My promotion was announced to all Masonite

personnel on April 24, 1970, and it became effective May

1, 1970. John S. Harper, my. successor in Laurel, was

appointed on April 24, 1970 and assumed his duties there

on May 6, 1970. I established my office in Chicago on

April 23 and 24, 1970, and occupied it beginning April

29, 1970. Thereafter, I spent most of my working time in

Chicago, and I spent part of the week of May 11, 1970 at

the Towanda, Pennsylvania Plant. I spent some of my

time advising with John S. Harper, helping him to effec-

tively assume his new duties. As soon as John S. Harper

—17—

arrived in Laurel, I gave up the executive offices that I

had and when I had the occasion to be in Laurel,

I used a office in another location.

“On May 19, 1970, I moved into an apartment at

1445 North State Parkway, Chicago, with most of my

clothes and personal effects. I also moved a number of

company files into said apartment, so that I could spend

my spare time there reviewing them.

“About the time that I moved into said apartment,

I began looking for a home in the Chicago area. On June

5, 1970, my wife and son came up to Chicago to assist in

looking for a home. I nti soln | a home at 491 South

Beverly Place, Lake Forest, Illinois, on July 15, 1970. My

household furnishings were moved into my new home

in early August, 1970. I signed a contract with Howard

Johnson, Realtor, for sale of my home in Laurel, on May

18, 1970.

ae ON 1, 1970, my salary and travel

expenses were borne by the home office.”

Defendant and his wife personally voted in the

primary election held in Jones County, Mississippi on

June 2, 1970.

Under all of the circumstances of this case, Paul

proved only that at the time he was served with process,

he had an intention to change his domicile at some

future time. The only home he owned at the time of

service was in Mississippi, all of his household furnishings

were there, his family still lived there, and he still voted

as a Mississippi resident. Only his working time was spent

in Chicago. burden was on Paul to show that he had

changed his domicile prior to service. Stine v. Moore,

supra. The evidence proves the case against him. Although

in the Lee case he was served 11 days after he voted, rather

than before he voted as in the Hendry case, we find no

reason for yy yen between the two. Nothing oc-

curred after the first service and before the second which

would evidence a change of domicile.

Our decision as to the citizenship of defendant

Robert E. Paul controls the disposition of this case, and we

defendant Jose a im ge of the effect that the death of -

t have had on diversity juris-

ag tems doe y defendant who was a citizen

ar Mississippi.

We reverse the > ae of the lower court with

instructions to remand case to the Circuit Court of

the Second Judicial District of Jones County, Mississippi.

Reversed and remanded, with instructions.

‘Removal wes chtatnad exly sf after the death of defendant Jessie White, who

was a Mississippi citizen. to that time apparently no one was concemed

with defendant Peas citizenship becs because White's citizenship clearly destroyed

—

APPENDIX “B”

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

VANDER L. LEE, PLAINTIFF

VERSUS CIVIL ACTION No. 2471

MASONITE CORPORATION, ET AL, DEFENDANTS

OPINION OF THE COURT

Plaintiff, Vander L. Lee, a resident of Jones County,

Mississippi, originally filed his suit in the Circuit Court

of Jones County, Mississippi, against Masonite Corpora-

tion, a foreign corporation, doing business in Mississippi,

Robert E. Paul and Jesse White, the last two named

defendants alleged to be residents of Jones County.

Service of process was had on Masonite on May 25, 1970.

Personal service was had on defendant Paul on June 18,

1970, in Jones County. After two unsuccessful attempts

at service on Jesse White, process was finally obtained on

him on Au 20, 1970, by service on Dr. W. L. Jaquith,

Director of Mississippi State Hospital, where White was

a patient. On December 18, 1970, following White's death

on November 21, 1970, defendants filed their petition

to remove setting forth the fact of White’s death, and

claiming diversity of citizenship as to the remaining parties

on the grounds that at the time of service of process on

Paul he was a resident of Illinois. Plaintiff has not revived

the action as to White's estate.

On December 23, 1970, plaintiff filed his motion to

remand, stating no grounds therein, but submitting in

support of his motion an affidavit of the Circuit Clerk

and ey of Jones County, Mississippi, to the effect

that Robert E. Paul and his wife registered to vote in

Jones County on April 30, 1968, listing their residence at

—20—

1060 West 15th St., Laurel, Mississippi, and that both

voted in the regular Democratic primary election held in

Jones County on June 2, 1970.

Defendants resist the motion to remand, relying on

Paul's affidavit attached to the petition for removal.

The matter has been submitted to the Court on the

cate the aforesaid affidavits, oral argument and

riets.

In his affidavit, Paul stated that he was formerly Vice

President and Manager, Mississippi Operations, for

Masonite Corporation, with offices in Laurel, Mississippi.

On April 18, 1970, he went to Chicago to confer with

the president of the corporation at the home office, and

while there was offered a promotion to his present posi-

tion of Vice-President — Manufacturing Buildin Products

Division, Masonite Corporation, 29 N. Wacker Drive,

Chicago, conditioned upon his moving to Chicago. He

accepted. His promotion was announced to all Masonite

personnel on April 24, 1970, and became effective May

1, 1970. His successor at Laurel was appointed on April

24, 1970, and assumed his duties on May 6, 1970. Affiant

established his office in Chicago on April 23 and began

occupancy on April 29, 1970. He remained in Chicago

thereafter except for a part of the week of May 11, 1970

when he visited one of the plants under his control at

Towanda, Pennsylvania, and returned to Laurel to help

his successor assume his new duties. On May 19, 1970,

affiant moved into an apartment in Chicago, and began

eas Tre a home in the Chicago area. His wife and son

joined him in Chicago on June 5, and on July 15, 1970, he

purchased a home in Lake Forest, Illinois. On May 18,

1970, he formally put his Laurel home on the market by

signing a contract with a Laurel realtor. Since May 1, 1970,

his s and travel expenses have been borne by the

home office in Chicago.

As stated above, Paul was not served with process in

this action until June 13, 1970, at which time he insists

he was no longer a resident of Mississippi but of Illinois.

A man’s domicile is determined by his intent accom-

panied by such actions as may evidence that intent. A

—2]—

requisite element of intent to change one’s domicile

necessarily includes an intention to abandon the former

domicile. Nothing in Paul's affidavit is controverted by

Jaintiff, and therefore the Court can reasonably find that

‘< intent from the time he received notice of his promotion

was to change his permanent residence from Laurel, Mis-

sissippi to Chicago, Illinois. Without repeating all his

statements, he evidenced that intent by assuming his

Chicago duties on May 1, 1970, moving to Chicago, send-

ing for his — and putting his Laurel home up for

x all prior to the time he was served with pager The

fact that he and his wife returned to Laurel to vote on

June 20, 1970, is the only one indicia of residence, and

is far outweighed by his other actions in establishing an

Illinois residence. In Stine v. Moore, 213 F. 2d 446, the

defendant paid poll taxes, voted, and made tax returns

from Texas. Nonetheless, the court found that defendant

had moved to Louisiana with the bona fide intention of

remaining there permanently, which the Court found

to be the true test.

In another. case in this division, Civil Action No.

2470, involving the same defendants and the identical

issue of Paul’s residence at the time he was served with

process, Judge Walter L. Nixon, Jr., recently denied

—, s motion to remand on the grounds that there is

iad of citizenship, his order being dated March 11,

1971.

This Court concurs in his ruling and finds that the

similar motion to remand before this Court should be

denied.

An order may be submitted to this effect.

Dan M. Russell, Jr.

UNITED STATES DISTRICT JUDGE

DATED: March 29, 1971

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FOR THE FIZTH CIRCUIT

October Term, 1971

No. 71-2005

D. C. Docket No. CA 2471

VANDER E. LEE,

Plaintiff-Appellant,

versus

MASONITE CORPORATION and ROBERT E. PAUL,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Mississippi

Before BROWN, Chief Judge, INGRAHAM and RONEY,

Circuit Judges.

JUDGMENT

Issued As Mandate: June 22, 1972

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1971

No. 71-2043

D. C. Docket No. 2470

ANDRE HENDRY,

Plaintiff-Appellant,

MASONITE CORPORATION and ROBERT E. PAUL,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Mississippi

Before BROWN, Chief Judge, INGRAHAM and RONEY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United States District Court for

Go Sotere Sates of Satay, ant wee anges Sy

counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the j t of

the said District Court in this cause be, and same

is hereby, reversed; and that this cause be, and the same

March 1, 1972

Issued As Mandate: June 22, 1972

APPENDIX “D”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2043

ANDRE HENDRY,

Plaintiff-Appellant,

versus

MASONITE CORPORATION and ROBERT E. PAUL,

. . Defendants-

No. 71-2005

VANDER E. LEE,

Plaintiff-Appellant,

versus

MASONITE CORPORATION and ROBERT E. PAUL,

Defendants-Appellees.

Appeals from the United States District Court for the

Southern District of Mississippi

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion March 1, 1972, 5 Cir., 1972, 455 F. 2d 955).

(June 14, 1972)

Before BROWN, Chief Judge, INGRAHAM and

RONEY, Circuit Judges.

PER CURIAM: The Petition for Rehearing S

See See oe ee SO ee ate F

regular active service on the Court ha

the Court be = clean an taak male tt

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 12) the Petition for Rehearing En Banc is DENIED.

ang aie

APPENDIX “F”

28 U.S.C. Section 1441 (1948)

§ 1441. Actions removable generally.

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court of

which the district courts of the United States have

original jurisdiction, may be removed by the defendant or

the defendants, to the district court of the United States

for the district and division embracing the place where

such action is pending.

(b) Any civil action of which the district courts have

origi arenes Sonos So 8 Cane oe isi

oe the Constitution, treaties or laws of the United

States shall be removable without regard to the citizenship

or residence of the parties. Any other such action shall be

removable only if none of the parties in interest properly

joined and served as defendants is a citizen of the State in

which such action is brought.

cause of action, which would be removable if sued upon

alone, is joined with one or more otherwise non-remov-

able claims or causes of action, the entire case may be

removed and the district court may determine all issues

therein, or, in its discretion, may remand all matters not

otherwise within its original jurisdiction. (June 25, 1948,

c. 646, 62 Stat. 937.)

APPENDIX “G”

98 U.S.C., Sec. 1446 (1965)

§ 1446. Procedure for removal.

(a) A defendant or defendants desiring to remove

any civil action or criminal prosecution from a State court

shall file in the district court of the United States for the

district and division within which such action is pending

a verified petition containing a short and plain statement

of the facts which entitle him or them to removal together

with a copy of all process, pleadings and orders served

upon him or them in such action.

(b) The petition for removal of a civil action or

ing shall be filed within thirty days after the

receipt by the defendant, through service or otherwise,

of a copy of the initial pleading setting forth the claim

for relief upon which such action or proceeding is based,

or within thirty days after the service of summons upon

the defendant if such initial pleading has then been filed

in court and is not required to be served on the defendant,

whichever period is shorter.

If the case stated by the initial pleading is not

removable, a petition for removal may be filed within

thirty days after receipt by the defendant, through service

or otherwise, of a copy of an amended pleading, motion,

order or other paper from which it may first be ascertained

that the case is one which is or has become removable.

may be filed at any time before trial.

(d) 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 incurred by reason of the

removal proceedings should it be determined that the

case was not removable or was improperly removed.

(e) Promptly after the filing of such petition and

bond the defendant or defendants shall give written

é £588

f Ha iy

APPENDIX “H”

STATE OF MISSISSIPPI

COUNTY OF HINDS

AFFIDAVIT OF R. E. PAUL

I am R. E. Paul, Vice nee ee

Building Products Division, Masonite Corporation, wi

offices at 29 N. Wacker Drive, Chicago, Illinois. I was

formerly Vice President and Manager, Mississippi Opera-

tions, 4 the same company, with offices in Laurel,

Mississippi. In my former position I was responsible for

Masonites Manufacturing and Woodland operations in

the State of Mississippi. In my new position, from my

offices in Chicago, I assumed direct control of Masonite’s

Ukiah, California Plant and Woodlands Operations, and

the Towanda, Pennsylvania Plant and Woodlands Opera-

tions, and I continued to maintain control of Masonite’s

Manufacturing and Woodlands Operations in the State

of Mississippi.

On April 13, 1970, I went to Chicago to confer with

S$. S. Greeley, President of Masonite Corporation, and

was then offered said promotion, if I would move to

Chicago, the home office of the Company. Since this

was a very fine promotion, I readily agreed to and did

accept it, with the e tion of moving to Chicago at

the earliest practicable time, thus leaving the State of

Mississippi.

My promotion was announced to all Masonite

personnel on April 24, 1970, and it became effective May

1, 1970. John S. Harper, my successor in Laurel, was

ge on April 24, 1970, and assumed his duties

on May 6, 1970. I established my office in Chicago

on April 23 and 24, 1970, and pont | it beginning April

29, 1970. Thereafter, I spent most of my working time

in Chicago, and I spent of the week of May 11, 1970

at the Towanda, Pemnsylvania Plant. I spent some of my

time advising with John S. Harper, helping him to

mm? IE re a AS Py ay

—30—

effectively assume his new duties. As soon as John §,

Harper arrived in Laurel, I gave up the executive offices

that I had occupied, and when I had the occasion to be in

Laurel, I used a small office in another location.

On May 19, 1970, I moved into an apartment at 1445

North State Parkway, Chicago, with most of my clothes

and personal effects. I also moved a number of company

files into said apartment, so that I could spend my spare

time there reviewing them.

About the time that I moved into said apartment, I

began looking for a home in the Chicago area. On June

5, 1970, my wife and son came up to Chicago to assist _

in looking for a home. I ntiom nll 5 a home at 491 South

Beverly Place, Lake Forest, Illinois, on July 15, 1970. My

household furnishings were moved into my new home

in early August, 1970. I signed a contract with Howard

Johnson, Realtor, for the sale of my home in Laurel, on

May 18, 1970.

Beginning May 1, 1970, my salary and travel

expenses were borne by the home office.

When this promotion was offered to me on April 18,

1970, I assumed that it would be, and as far as I know now,

it was a permanent transfer, with no expectation on my

part that I would, from the effective date of said promo-

tion, ever return to Laurel, Mississippi, to live. I expedi-

tiously made the move to Chicago into said apartment

and later to said home, so as to more effectively carry out

my duties in my new position. I thus intended to and

did become a resident citizen of Lake Forest, Lake

County, Illinois, prior to service of process on me in this

case

And further affiant sayeth nothing.

R. E. PAUL

SWORN TO AND SUBSCRIBED before me, this the

14th day of December, 1970.

Bobbie R. Mulrooney

NOTARY PUBLIC

(SEAL)

My Commission Expires Dec. 6, 1973

APPENDIX “I”

STATE OF MISSISSIPPI

JONES COUNTY

Personally appeared before me, the undersigned au-

thority in and for the jurisdiction aforesaid, Donice V.

Knight, Circuit Clerk of ge County, in said state, who,

having been by me first duly sworn, says on oath:

That he is and was during the whole of 1970 the duly

elected, qualified and acting Circuit Clerk and Registrar

of voters in Jones County, said state, and is and was the

custodian of all registration and voting records of said

county and that the records of his office Poll Book 4A,

which is Laurel Ward Four, of District One, Second

Judicial District of said county, reveal that Robert E.

Paul, Registrant number 65, and Marjorie Hooke Paul,

Registrant number 64, appeared and personally voted in

the regular Democratic primary election he d in said

county on June 2, 1970. The registration book aforesaid

further reveals that Robert E. Paul, who signed the Poil

Book as R. E. Paul, registered to vote at the voting

precinct aforesaid on A ril 30, 1968 and listed his occu-

pation as “manager” and his residence address as 1060 West

15th Street, Laurel, Mississippi; and that the same Poll

Book shows that Marjorie Hooke Paul, age forty two,

—— number 64 registered on April 22, 1968, as

a “housewife” whose residence address was 1060 West

15th Street, Laurel, Mississippi.

This 16th day of February, 1971.

DONICE V. KNIGHT

Circuit Clerk and Registrar

of Jones County, Mississippi

Sworn to and subscribed before me this 16th day of

February, 1971.

QUITMAN ROSS

Notary Public

My commission expires February 17, 1974.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.