Petition for a Writ of Certiorari — May Department Stores Co. v. Kataoka

- Soupceme Court of the Bnited States

OcrosEr hers 1980

No..

May DePaRTMENT Storrs Company, a New York Corpora-

tion, . and JERRY Goppakp,. Feiner:

TAKASHI Katina, a his’ Guardian aid Litem, nettous

Kring, and Paproste SATAGRA, Bepindens

4 SLE Mi

| -PEEITION an A WRIT OF ‘ORETIORARI To 0 THE.

.. UNITED. STATES CIRCUIT COURT OF AP PEALE

FOR: NINTH CIR OUT, AND on

Y ‘PORT TR EOF. at

pie ih

- Wasren’0. Sie, eae

- -Gerat F. EB. Dexamen, > wy

- “Josspx' H. Waee.er,

, aig. Bartlett Building, -

Los’ Angeles, Fo xa ee

Sac ae uh - Counsel ‘For Petitioners.

Coens Floaas, ae int Suey weet ar

» Epmuno L. Jones, ps dt att iE pa SC aa eS aA

, 810 Colorado Bnilding, * ‘9

Tate

; ade te , Lae ah cakrk » c

— a a

SUBJECT INDEX.

| Page

Putition Tor Writ of Certiotari i... ico bs acca nn es 1

Summary Statement of Matter Involved ........... 2

SN F CUMNINE 6 divas sxc yskshvuses baa tern aen 6

Reasons Relied Upon for the Allowance of the Writ 7

SE UE OE sh ohh sh alps bee a uae hen ee ken 10

Brief in Support of Petition for Writ of Certiorari ... 11

1. The Opinions and Decisions of the Courts Below.. 11

NON 56'S oats yee buh oy ak oe RAK as 11

NG Oe SO SIO oo vs oi a's sxe dea wala an oe 11

A Mpersbention. Of Erte oo... icive view secavecase 11

SNE va hh Macau Ved aes de RAL e AAR eek aT 13

Point I. The first cause of action failed to state

facts sufficient to constitute a cause of action

against the resident defendant, Goddard ...... 13

Point Il. The first cause of action sets forth a sep-

arable controversy between the resident plain-

tiff and the non-resident defendant, May Com-

NE 055i ks iis eae bd < e RORA eeeS 18

Point II. The second cause of action sets forth

a separable controversy between the resident

plaintiff and the non-resident defendant, May

RINE ns Cae ck okeh ee Ap ehAe ae ae

Point IV. Authorities showing that a separable

controversy exists and the district court has

SOI uo 5 4 ee eka CaS ee ke eases 21

Point V. The jurisdiction of a federal court is not

less extensive because a suit is instituted in that

court than it would be were the suit commenced

in the state courts and removed to the federal

court.

Consequently, the authorities dealing with the

right of a defendant to removal from the state

courts are equally applicable to the question of

the jurisdiction of a federai court in a suit com-

menced therein ...... Pusdceerewes SS acumen aa 24

ee

s

Nigar cree

Perse ae

ii Index Continued.

Page

Point VI. Where a complaint is filed in a state

court setting forth a separable controversy, and

is removed to the district court, that court has

jurisdiction of the entire action. The rule is the

same where the suit is originally filed in the dis-

i SIRES REAPER Ripa nee ae mew 25

Point VII. The defendant Goddard was not an in-

dispensable party in so far as the controversy

between the resident plaintiff and the non-resi-

dent defendant, May Company is concerned.

Therefore the district court had jurisdiction

eee WE ONIN cs. ioe vn ens cvccees 28

Point VIII. Upon the dismissal of the case as to

the resident defendant Goddard, the district

court had jurisdiction to render a judgment as

to the non-resident defendant, May Company .. 32

Point IX. Had the Cireuit Court considered the

case on its merits the judgment of the district

court would have been affirmed ............... 36

I eee a 37

TABLE OF CASES.

Adderson yv. Southern Ry. Co., 177 Fed. 571.......... 18

Armstrong v. New La Paz ete. Co., 107 Fed. (2d) 453. 29

Bainbridge Co. v. Atlantic ete. Line, 182 Fed. 276...... 18

Barney v. Latham, 103 U. S. 205; 26 L. KE. 514..... 8, 23, 20

Blytheville ete. Co. v. St. Louis-San Francisco Ry. Co.,

I I a ole wins 4 ues deat s 30

Boon’s Heirs v. Chiles, 8 Pet. (U. S.) 532; 8 L. KE. 1034.9, 29

Cameron v. McRoberts, 3 Wheat. (U. 8.) 591; 4 L. E.

ee a es a sos css a wud 9, 28

Cayce v. Southern Ry. Co., 195 Fed. 786.............. 17

Clancy v. Brown, 71 Fed. (2d) 110 .................. 15

Connell v. Smiley, 156 U. S. 335; 39 L. E. 443...... 8, 24, 26

Connolly v. Taylor, 2 Pet. 556;7 L. E. 518........... 9, 34

Davis v. St. Louis ete. Ry. Co., 8 Fed. Supp. 519...... 17

Drumright v. Texas, ete., 16 Fed. (2d) 657........... 9, 35

Epperson v. Midwest Refining Co., 22 Fed. (2d) 622.. 17

Evansburg v. Insurance ete. Co., 168 Fed. 1001....... 18

Index Continued. ili

Page

Ferguson v. Chicago ete. Ry., 63 Fed. 177............ 18

Floyt v. Shenango Furnace Co., 186 Fed. 539........ 17

Forrest v. Southern Ry. Co., 20 Fed. Supp. 753....... 17

Franklin v. May Department Stores Co., 25 Fed. Supp.

Pe WG tle eaee phwe a aw hb wn aru ods Se 0c Ue do ve 17

Galveston v. Foster, 284 Fed. 932................... 30

Geer v. Mathieson, 190 U. S. 428; 47 L. BE. 1122. .8, 8, 24, 25

Goslimer vy. Mriowes, 187 Cal, 667... ....... 006 oe c ous 30

Hane v. Mid-Continental ete. Co., 47 Fed. (2d) 244.... 17

pemns VY. Maroo, 56 Wed. Bad... oo. ok kee ckccnne 35

purecn ¥. Stone, 62 Mod. (2d) 120..............05... 30

Hopkins v. Contra Costa, 106 Cal. 566; 39 Pac. 933.... 19

Horn v. Lockhart, 17 Wall. 579; 21 L. BE. 657.......... 34

Jackson v. Chicago ete. Ry., 178 Fed. 432.......... 1, 17, 23

deckeon Vv. Jackson, 175 Fed. 710. ...... 5. 6 .acc..... 9, 35

Jacobson v. Chicago, ete. Ry. Co., 66 Fed. (2d) 688,

7, 8, 23, 26

Jennings v. United States, 264 Fed. 399.............. 9, 35

MeIntyre v. Southern Ry. Co., 131 Fed. 985 .......... 18

Macutis v. Cudahy Packing Co., 203 Fed. 291 ........ 17

Marach v. Columbia Box Co., 179 Fed. 412 ........... 17

Mecom v. Fitzsimmons Drilling Co., 47 ed. (2d) 28

7, 8, 23, 26

Morefield v. Ozark Pipe ete. Co., 27 Fed. (2d) 890 ..... 17

Nichols v. Chesapeake & Ohio Ry. Co., 195 Fed. 913. ..7, 21

Plunkett v. Gulf Refining Co., 259 Fed. 968 .......... 17

Puckett v. Columbus Power Co., 248 Fed. 353 ........ 7

Pullman Co. v. Jenkins, 305 U. S. 534; 83 L. BE. 334... .8, 22

Richardson v. Southern Idaho ete. Co., 209 Fed. 949 .. 17

Gegers v. Ponet, 21 Cal. Aun. 577 ................... 30

Salem Trust Co. v. Mfrs. Finance Co , 264 U.S. 182; 68

Me CE pik aE pe a os et nee 30

Shaver v. Pac. Coast. ete. Co., 185 Fed. 316 .......... 17

Silver King v. Silver King, 204 Fed. 166 ............ 9, 35

Sioux City v. Trust Co., 82 Fed. 124................ 35

Smith v. Consumer’s ete., 86 Fed. 359 ............... 35

Story Parchment Co. v. Patterson Parchment Paper

Co., 262 U. 8. 555; 76 L. B. 6ak ................. 36

Breet |

FELLA RL PEM PON oe hI ee PEE

Pr, ae Sines ae ance

iv Index Continued.

Page

Strother v. Union Pae. Ry. Co., 220 Fed. 731 ......... 26

Thomas vy. Anderson, 223 Fed. 41 ................... 35

Tug River v. Brigel, 86 Fed. 818 ............101 0117’ 35

Vattier v. Hinde, 7 Pet. pear et, BGS ......... 9, 35

Wecker v. National Knameling & Stamping Co., 204

Se ik uk Sacale al,. .” RPN ltlte tt 8, 14

Weiland v. Pioneer Irrigation Co., 238 Fed. 519 ...._.

Western Union Telegraph Co. v. Nester, 106 Fed. (2d)

ce eS OI ROIS Fae oe is 9, 32, 33

Western Union Telegraph Co. v. Nester, 309 U. S. 582;

ey Oe erie emi eveg ei ee te oe 9

Westfeldt v. N.C. Mining Co., 166 Fed. 706 ........ 5

Wilson v. Republic Iron & Steel Co., 257 U. S. 93; 66

a gd RO Ey RDO Aiea: &, 14

Winfield v. Wichita Natural Gas Co., 267 Fed. 47 ..... 16

Young v. Southern Pacifie Co., 15 Fed. (2d) 280 ..... 1,2

STATUTES AND RULES CITED.

Conformity Act (R. S, 914, 28 U.S. ©. A. (| eae 19

Federal Rules of Civil Procedure, Rule 10(b) and-10(¢c) 19

Judicial Code, Sec. 24 (28 U.S. ¢. Be SP Peis icc; 24

Judicial Code, Section 28 tg ee Re oe | eee

24

Judicial Code, See. 240 (a) (28 U.S.C. A. Par. 347).. 11

Rules Supreme Court, Rule 38...................._ 11

_ egeanies

IN THE

Supreme Court of the Gnited States

Octroser Term, 1940.

No.

May Department Stores Company, a New York Corpora-

tion, and Jerry Gopparp, Petitioners,

Vv.

TakasHt Kataoka, by his Guardian ad Litem, Tsutomu

Karaoka, and Tsutomu Karaoxa, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH CIFCUuIT.

_

To the Honorable Chief Justice, and the Associate Justices ~

of the Supreme Court of the United States.

Your petitioners) MAY DEPARTMENT STORES

COMPANY, a New York corporation, and JERRY GOD-

DARD (sued herein as Jerry Goddord), respectfully file

and submit this as their Petition for a Writ of Certiorari

to review a decision and judgment of the United States

Cireuit Court of Appeals for the Ninth Circuit.

a a Sh Sa

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Said Circuit Court of Appeals on November 18, 1940, re-

versed a decision and judgment of the District Court of

the United States for the Southern District of California,

Central Division, in favor of petitioners and against re-

spondents herein, for lack of jurisdiction on the part of

the said District Court to entertain the action. (R. 178)

The decision is reported in 115 Fed. (2d) 521. Mandate

has been stayed by proper order (R. 179) and the cause is

now filed and docketed herein for decision. The decisions

of the District Court in this case are reported in 28 Supp.

3, and 30 F. Supp. 346.

SUMMARY STATEMENT OF MATTER INVOLVED.

This is an action for damages arising out of alleged in-

juries to Takashi Kataoka, an infant, as a result of his

‘atching his hand in an escalator in the store of the May

Company in Los Angeles, California. Suit was instituted

in the District Court of the United States for the Southern

District of California, Central Division.

The complaint contains three separate and distinct al-

leged causes of action,

The first of these causes of action (R. 1 to 6) alleges that

the minor plaintiff therein was a resident and citizen of

the State of California; that the defendant May Depart-

ment Stores Company (hereinafter referred to as ‘*May

Company’’) was a resident and citizen of the State of New

York; that the defendant Jerry Goddord was an eniplovee

of that defendant, acting within the scope and course of

his employment, and that the amount in controversy, ex-

clusive of costs and interests, is over the sum of three

thousand dollars. (R. 2 to 3)

There is no allegation as to the residence or citizenship

of the defendant Goddard.

It is alleged that the May Company maintained, managed

and operated a department store building, furniture, fix-

tures and equipment. (R. 3)

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It is not alleged that the defendant Goddard maintained

or managed or operated or had any control whatsoever over

the store building, furniture, fixtures or equipment.

It is also alleged that the minor plaintiff and his mother

were customers and invitees of the defendant May Com-

pany. (R. 3)

It is not alleged that the plaintiff or his mother were

customers or invitees of the defendant Goddard.

It is then alleged that amongst the fixtures and equipment

installed in the building managed and operated by the de-

fendant May Company was an escalator. (R. 3)

It is not alleged that this escalator was managed or op-

erated or in any wise under the control of the defendant

Goddard or that he had anything to do with the escalator.

It is then alleged that where the escalator merges into

the floor of the building there is a narrow metal plate which

runs the whole width of the step, and that protruding from

said metal plate are metal fingers about two inches apart

and each about one inch long, so that there is a small open-

ing or aperture about a quarter of an inch deep between

the plate and the steps and running the whole length of the

step. It is alleged that this aperture was not covered but

was left open. (R. 4)

It is then alleged that the minor plaintiff in some way got

his hand eaught in the escalator while his mother was talk-

ing with tie defendant Goddard concerning an exchange of

a previous purchase. (R. 4)

It is then alleged that the defendant Goddard attempted

to remove the minor plaintiff’s hand, stopped the escalator

and finally reversed it, without summoning anyone having

knowledge of the mechanics of the escalator. (R. 5)

It is not alleged that any of said acts upon the part of

toddard were in any wise improper or negligent.

It is then alleged that the step of the escalator, in com-

ing back, severed the third and fourth fingers of the hand

of the minor plaintiff. (R. 5)

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It is then specifically alleged ‘that the loss of the fingers

was proximately caused by the negligence and carelessness

of the defendants, and each of them, in failing to cover the

said aperture or opening, and by allowing it to remain un-

guarded’’; that the defendants and each of them knew or

should have known that children would visit the store, ride

on the escalator, and that the escalator, and particularly

the opening between the steps and the floor, was alluring

to them and would be likely to attract them and induce them

to put their hands therein. (R. 5-6)

Finally, it is alleged ‘‘that by reason of the negligence

and carelessness of the defendants, and each of them, as

aforesaid, and as a proximate consequence thereof,’’ the

plaintiff suffered certain damages. (Italics ours.) (R. 6)

There is xo allegation of any duty upon the part of the

defendant Goddard to cover the said aperture or opening

or to prevent it remaining unguarded. There is no allega-

tion that he had any right or authority to have done so.

This first cause of action does not refer to or attempt to

incorporate any portion of the remaining causes of action.

There is a separate prayer for damages in the sum of fif-

teen thousand dollars upon this cause of action. (R. 8)

Then follows a ‘‘separate, distinct and second cause of

action.’? (R. 6-7) This cause of action incorporates all

of the allegations of the first cause of action down to but

not including the allegations of negligence and proximate

cause.

In this second cause of action the injuries to the minor

plaintiff are alleged to have been caused by negligence in

operating, conducting and supervising the escalator and

by negligence upon the part of the defendant Goddard in

attempting to remove the hand of the minor plaintiff and

in his failure to summon an expert to release that plain-

tiff’s hand. (R. 6-7)

There is, however, still no allegation that the defendant

Goddard had any participation in or control of the opera-

tion, conducting or supervising of the escalator.

rr 1M ABET SPR EES AEE ADEN ITE TNR 8 OLY IE AN | NLS TR, Se OO De

4)

There is a separate prayer for damages in the sum of

fifteen thousand dollars on this cause of action. (R. 8)

Then follows a third ‘‘separate and distinct cause of ac-

tion.”’ (R. 7-9) This cause of action incorporates the

allegations of the first two causes of action and then alleges

damages to the plaintiff father for medical, hospital and

nursing services. There is a separate prayer for damages

on this cause of action in the sum of $992.18. (R. 8)

The answer of the defendants admitted by failure to

deny the residence and citizenship of the minor plaintiff

and of the defendant May Company; that the amount in

controversy, exclusive of costs and interest, is over the sum

of three thousand dollars. The answer also admitted by

failure to deny that the defendant May Company main-

tained the store in Los Angeles and its furniture, fixtures

and equipment, including the escalator, and that the de-

fendant Jerry Goddard was its empleyee and acting within

the scope and course of his employment. (R. 9 to 138)

The answer admitted the operation of the escalator by :

the defendant May Company, and that the hand of the

minor plaintiff got caught therein betwen the step and the

metal plate. It denied negligence upon the part of the

defendants, or either of them, or that any negligence upon

their part caused injury or damages to the plaintiffs.

(R. 10-11)

The answer denied the allegations as to the acts of the

defendant Goddard, except that it admitted that he at-

tempted to remove the plaintiff’s hand and slightly re-

versed the escalator to enable him to do so. (R. 11)

The case went to trial before a jury. Plaintiffs intro-

duced no evidence as to how the accident occurred nor as

to the construction, operation, maintenance or supervision

of the esealator, nor that the defendant Goddard did not

have a knowledge of the mechanics of the escalator, nor

that his conduct was in any wise negligent or improper.

(R. 47 to 87)

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6

Upon the conclusion of the plaintiff’s case, the defen-

dants, severally, moved to dismiss the action on the ground

that the evidence failed to show any negligence on the part

of the defendants, or either of them or that any negligence

on the part of the defendants, or either of them, proxi-

mately or at all contributed te the happening of the acci-

dent. These motions were granted. (R. 87) Thereafter

Judgment was entered for the defendants. (R. 18)

Plaintiffs served a notice of intention to move for new

trial. (R. 34, 38) While said motion was pending, plain-

tiffs filed a notice of motion to dismiss for lack of jurisdie-

tion. (R. 40) The latter motion was denied (R. 37) and

thereafter the motion for new trial was also denied. (R.

39) ;

Plaintiffs thereupon filed a notice of appeal from the

judgment in said action, without specifying therein

whether the appeal was from the whole of said judgment

or from a specified part thereof. (R. 41)

In their Opening Brief in this appeal, appellants stated

that they ‘‘have not assigned as error the action of the

District Court in denying the motion (for judgment on

the ground of no jurisdiction) as appellants * * * believe

the ends of justice would be served if this case be decided by

this court on the merits’’.. In neither their Opening Brief

nor in their Reply Brief nor upon oral argument before

the Cireuit Court of Appeals did appellants advance any

argument, reason or authority why the judgment in favor

of the defendant Goddard should not be affirmed if the Dis-

trict Court had jurisdiction of the ease. (R. 95 to 152;

see especially R. 142)

QUESTIONS PRESENTED.

Where a complaint is filed in the Federal Court and

contains a separable controversy between a resident plain-

tiff and non-resident defendant, has the Federal Court jur-

isdiction of that controversy?

Especially does it not have such jurisdiction where said

separable controversy is set forth in a separate and dis-

tinct cause of action, not referring to or adopting any alle-

gations of any other cause of action and not containing any

allegation of any duty upon the part of the resident defen-

dant nor of the violation of any such duty nor of any other

negligence upon the part of said resident defendant?

Is the Federal Court deprived of jurisdiction as to such

separable controversy by the addition to the complaint of a

separate cause of action between residents of the same

state?

Is the jurisdiction of a District Court as to all causes of

action as extensive where the complaint is originaly filed in

that Court as it would have been had the same complaint

been filed in the State Court and then removed to the Dis-

trict Court?

Upon the dismissal of a case as to the only resident de-

fendant, has the Federal Court jurisdiction to render

judgment between the resident plaintiff and the non-resi-

dent defendant?

REASONS RELIED UPON FOR THE ALLOWANCE OF

THE WRIT.

1. The decision of the Cireuit Court of Appeals in hold-

ing that the District Court did not have jurisdiction of said

first cause of action is in conflict with the decisions of the

Cireuit Courts of Appeal of other jurisdictions, to wit:

Nichols v. Chesapeake, etc. Ry. Co. (C. C. A. 6), 195

Fed. 913; Jacobson v. Chicago, etc. Ry Co. (C. C. A. 8),

66 Fed. (2d) 688; Jackson v. Chicago, etc. Ry. Co. (C.

C. A. 8), 178 Fed. 482; Young v. Southern Pacific Co.

(C. C. A. 2), 15 Fed. (2d) 280; Mecom v. Fitzsimmons

Drilling Co. (C. C. A. 3), 47 Fed. (2d) 28; (Reversed on

other grounds, 284 U. 8S. 183; 76 L. F. 233).

2. The decision of the Cireuit Court of Appeals in holding

that the District Court did not have jurisdiction of the see-

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ond cause of action in plaintiffs’ complaint is in conflict with

the above decisions of other Circuit Courts of Appeal.

3. In holding that the District Court did not have juris-

diction of either said first or second causes of action, the

Cireuit Court of Appeals has decided a Federal question

probably in conflict with the applicable decisions of this

Court, namely:

Barney v. Latham, 103 U.S. 205; 26 L. E. 514 (Involv-

ing an accounting, title to personal property and con-

veyance of real property) ; Geer v. Mathieson, 190 U.S.

428, 47 L. BE. 1122 (Rescission for fraud); Connell y,

Smiley, 156 U.S. 335; 39 L. E. 443 (Quiet title) ; Pull-

man Co, v. Jenkins, 305 U.S. 534; 83 L. E. 334 (Tort

action) ; Wecker v. National Enameling & Stamping Co.,

204 U.S. 176; 51 L. EF. 480; Wilson v. Republic Iron &

Steel Co., 257 U.S. 93; 66 L. E. 144.

4. The decision of the Cireuit Court of Appeals in hold-

ing that the District Court did not have jurisdiction of the

entire action is in conflict with the decisions of other Cir-

cuit Courts of Appeal, namely:

Jacobson v. Chicago, etc. Ry. Co. (C. C. A. 8), 66 Fed.

(2d) 688, supra; Mecom vy. Fitzsimmons Drilling Co.

(C. C. A. 3), 47 Fed. (2d) 28; (Reversed on other

grounds, 284 U. S. 183; 76 L. KE. 233); supra.

5. In holding that the District Court did not have juris-

diction of the entire action, the Cireuit Court of Appeals

has decided a Federal question in a way probably in con-

flict with applicable decisions of this Court.

Barney v. Latham, 103 U.S. 205; 26 L. E. 514, supra;

Geer v. Mathieson, 190 U.S. 428; 47 L. FE. 1122, supra;

Connell v. Smiley, 156 U. S. 335; 39 L. E. 443, supra.

6. In holding that the joinder of a resident defendant in

the action deprived the District Court of jurisdiction to de-

termine a controversy to which that resident defendant was

not an indispensable party, the Cireuit Court of Appeals has

— Se a AEE IED BNE ISO OTN EEE EBLE ERISA

9

decided a Federal question in a way probably in conflict with

applicable decisions of this Court.

Boon’s Heirs v. Chiles, 8 Pet. (U. S.) 532; 8 L. E. 1034

(Suit to compel conveyance of property); Cameron v.

McRoberts, 3 Wheat. (U. S.) 591; 4 L. E. 467 (Suit in

equity).

7. The decision of the Cireuit Court of Appeals in hold-

ing that the District Court did not have jurisdiction to ren-

der a judgment between the resident plaintiff and the non-

resident defendant after the dismissal of the case as to the

resident defendant is in conflict with the prior decision of

the same Cireuit, which decision has been necessarily af-

firmed, though without specifie mention thereof, by this

Court in the ease of Western Union Telegraph Co. v. Nester,

106 Fed. (2d) 587; same case in this Court, 309 U. S. 582 ;

84 L. E. 960.

8. In so holding, the present decision of the Circuit

Court of Appeals is in conflict with the decisions of other

Cireuit Courts of Appeal, namely:

Jennings v. U.S. (C. C. A. 8), 264 Fed. 399; Jackson

v. Jackson (C. C. A. 4), 175 Fed. 710; Silver King v.

Silver King (C. C. A. 8), 204 Fed. 166; Drumright v.

Texas, ete. (C. C. A. 5), 16 Fed. (2d) 657.

9. In so holding, the Cireuit Court of Appeals has decided

in this ease a question involving Federal law in a way prob-

ably in conflict with applicable decisions of this Court,

namely :

Connolly v. Taylor, 2 Pet. 556; 7. L. FE. 518; Vattier v.

Hinde, 7 Pet. 252; 8 L. KE. 675.

10. The Cireuit Court of Appeals has decided an im-

portant question of Federal law in conflict with decisions

of this Court in that it has, in effect, held that in a tort

action instituted in a District Court the joinder of other

causes of action therewith deprives that District Court of

jurisdiction even over a separable controversy therein be-

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RE a at Wire

10

tween a resident plaintiff and a non-resident defendant,

to which controversy the resident defendant is not even

a proper party, much less an indispensable party.

Your petitioners present herewith as part of this Petition

a Brief setting forth more fully their views upon the ques-

tions involved, and also a Transcript of the record of the

Cireuit Court of Appeals.

WHEREFORE, your petitioners respectfully pray that a

Writ of Certiorari may be issued out of and under the Seal

of this Court, directed to the United States Circuit Court

of Appeals for the Ninth Circuit commanding the said Court

to certify and send to this Court, on a day certain to be

therein designated, a full and complete Transcript of the

record and all proceedings in said Cireuit Court of Appeals

in said case therein entitled ‘‘Takashi Kataoka, by His

Guardian ad Litem Tsutomu Kataoka, and Tsutomu Kata-

oka, Appellants, vs. The May Department Stores Company,

a New York Corporation, and Jerry Goddord, Appellees”,

No. 9479 in said Court, to the end that said ease may be

reviewed and determined by this Court, and that the said

judgment of the Circuit Court of Appeals in said case may

be reviewed by this Honorable Court, and that your peti-

tioners may have such other and further relief or remedy

in the premises as to this Honorable Court may seem meet

and just.

May Department Srores Company,

a New York corporation,

Jerry Gopparp,

Petitioners,

By

Water O. ScHe.u,

Geratp F. H. Detamer,

JosepH H. WHEELER,

Counsel.

Frank J. Hocan,

Epmunp L. Jonzs,

Of Counsel.