CAMERON, Circuit Judge.
This appeal presents the question whether the Court below committed reversible error in dismissing for want of indispensable parties a civil action brought by plaintiff for an accounting and a money judgment against defendant for the value of oil wrongfully taken from land in which plaintiff owned an interest. Jurisdiction was invoked on the ground of diversity of citizenship
The complaint, which calls itself "Complaint for Damages, Accounting, and Injunction", alleges that plaintiff was and is the owner of an undivided interest in the land described, that defendant has entered upon said land and produced and is still producing oil and gas in paying quantities and has been so producing for more than twenty years, and has marketed said products for money and has refused to account to plaintiff for his portion thereof or to pay him any part of said money, all without obtaining from plaintiff any conveyance to his portion of the land and the oil, gas and minerals therein; that the defendant has wrongfully converted said petroleum products to its own use, profit and benefit, withholding all of the emoluments therefrom from the plaintiff, and that it will continue to do so unless enjoined by court order. Plaintiff demands an accounting from the defendant together with a money judgment for the amount found to be due, which plaintiff indicates to be more than $250,000, and for injunctive relief as auxiliary thereto.
The motion further avers that defendant, Shell Oil Company, has become the owner of all of the rights of Shell Petroleum Corporation in the mineral interests acquired and held by it. Neither the motion nor any of its exhibits show who is actually operating said leases or producing the oil therefrom or who has conducted said operations during the twenty year period mentioned in the complaint; nor is the categorical statement in the complaint that the defendant has been for twenty years, and still is, producing and marketing oil, gas and other minerals from said lands contradicted.
Neither the motion nor the supporting documents show the character or extent of the ownership of Chandler's lessors, but the complaint and the affidavits filed on behalf of plaintiff give a fair indication of the persons in the chain of title through whom the Chandler lease came.
The ruling of the Court below on the motion to dismiss was necessarily based upon the allegations of the complaint and the affidavits and other proofs adduced in contradiction or support thereof.
The Hudson case involved directly the main question here presented. Plaintiffs there sought the cancellation of various written instruments, a declaration that they owned title to the lands involved, and that the terms of a state court judgment did not prevent the maintenance of the civil action there brought; but they also demanded an accounting with and a money judgment against Gulf Refining Company which was producing and marketing the oil from the lands involved. A large number of claimants to title to the lands and mineral interests involved were sued along with Gulf, but a small number whose presence would have destroyed diversity jurisdiction were omitted. Gulf and the defendants before the Court insisted that no decree could be entered which would not affect the interests of the absent parties in several respects, among them being that, if Gulf was required to pay the Hudsons for oil produced from the lands, the rights of the absent parties to receive payment of their pro rata interests would be affected, and also that Gulf was entitled to be protected against double payment.
This Court held otherwise. It held that the District Court wrongfully dismissed the Hudsons' suit and that jurisdiction ought to have been retained to grant such relief as the facts would justify, including "partial relief, resulting only in personal judgments * * *."
These principles are reasserted in the Mackintosh case where the right of plaintiffs to relief in the absence of the parties not before the court was not as clear or direct as here. The point on which that case was decided was that a money judgment was demanded against the defendants properly in court and that relief of that character, at least, could be granted "without directly affecting persons who are not parties to the suit." [225 F.2d 213.] The basis of the holding in that case, 225 F.2d at page 215, is epitomized in this language quoted from the opinion: "The power of a court of equity so to mold its decree as to do complete justice between the parties without adversely affecting those not before the court is exceedingly broad and elastic. We hold that the district court erred in requiring all persons having or claiming any interest in the lands to be made parties, and in dismissing the suit upon plaintiffs' failure to join those whose joinder would have defeated the jurisdiction of the court. Instead, the court should retain jurisdiction and limit any relief granted to such as can be given without prejudice to the absent parties."
The incorrectness of defendant's position appears clearly when reference is had to the cases relied upon by it to sustain the action of the Court below.
The situation here is entirely different from that involved in those cases. No mention is made either in the body of the complaint or in the prayer of cancellation, reformation or other action with respect to any written instrument or any muniment of title. The sole prayer is for a money judgment and for injunctive relief as auxiliary thereto. It is plain that this decision is governed by the Hudson case and those referred to in
Appellee has filed an additional brief since the case was submitted devoted chiefly to a discussion of our decision in Humphrey v. Stanolind Oil & Gas Co., 5 Cir., 232 F.2d 925. Therein it admits that the complaint in Humphrey is a standard statutory action in trespass to try title, but it seeks to distinguish that case from this one because it contends that Humphrey did not claim that Stanolind was his co-tenant while it claims that Estes does claim Shell as a co-tenant.
Stanolind sought to compel Humphrey to bring in parties situated similarly to those Shell calls indispensable here. Its motion was under Rule 19(b) which, by its terms, applies only to "persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties * * *." We held that "the power claimed and asserted * * * in effect to give to the defendant the right to compel defendants to join as defendants such persons as the defendant would like to have made parties, has not been conferred and does not exist."
Boiled down to its essence, that is the contention of Shell here. It would like to have before the Court all parties to whom it conceives it may be called upon to answer if plaintiff is successful; or to have the action dismissed because that cannot be done without destroying diversity jurisdiction. It does not lie with a defendant so to take hold of plaintiff's litigation and conduct it according to defendant's ideas and to suit its purposes. The choice of a forum belongs primarily to a plaintiff and it is our duty to sustain a chosen jurisdiction unless there is some legal reason why this should not be done. Certainly no valid reason has been brought forward here.
It is clear that the complaint sets forth facts and prays for relief touching a controversy between plaintiff and defendant with respect to which the others mentioned are not shown by the proof to be indispensable. It follows, therefore, that the order granting defendant's motion to dismiss for want of indispensable parties should have been denied, and for the error in granting it, the order is set aside and the cause is remanded.
Reversed and remanded.
"9. Plaintiff further alleges the defendant is still producing oil and gas and other minerals from plaintiff's property, and converting same to its own use, profit and benefit, in interstate and foreign commerce, and will continue to do so unless restrained by proper order of this court; that the plaintiff is entitled to have the defendant restrained from further actions as herein described, until this cause is finally determined; and that on final determination hereof, the defendant be required to render an accounting for all oil and gas, and other minerals taken from the land described in this complaint since the first well was brought in, up until and including the 15th well; and that plaintiff have judgment against the defendant for damages, for the unlawful conversion of plaintiff's property; and interest on the sum found due on an accounting, from date of production."
The Chandler lease seems to have embraced the interests of the widow (who died in 1934) and two of the children, Tom and Nicey. But the Chandler lease does not purport to include the interest of Adella Bean, the mother of plaintiff, through whom he claims his interest.
The amendment of 1946 transmuting a speaking motion under subdivision (6), based upon failure to state a claim upon which relief could be granted, to a proceeding for summary judgment under Rule 56, applies only to this subdivision (6) which deals, not with jurisdiction, but with the merits, and which leads to a final judgment upon the merits. Cf. Slagle v. United States of America, 5 Cir., 228 F.2d 673.
"Each case must be determined on its own facts. The fundamental principles are simple. They are: (1) Where federal jurisdiction rests on diversity of citizenship the diversity must be complete, and to see whether it is, all parties will be aligned as plaintiffs or defendants according to their real interests. (2) A court cannot adjudicate the rights of persons who are not parties before it; they will be brought in if possible and if they will not destroy diversity. (3) If diversity will be thereby destroyed the court will not require them to be brought in, but will enquire if there is any relief it can properly give without them; if there is, it will give it without prejudice to the rights of the absent; * * *.
"The original complaints asked a decree that the plaintiffs are the true owners of the land and of the mineral rights therein and of the oil and gas removed from it by the defendant oil companies. If they can prove the land and oil are theirs we see no reason why they should not have judgment for them against those sued; possible claimants not in court would not of course be bound by the result. If such claimants' title is shown as a defense their interests can be saved from the decree. * * *
"* * * That an account may be had for a certain fractional interest without joining all interests we decided in Seeley v. Cornell, 5 Cir., 74 F.2d 353. * * * [But] we think such partial relief, resulting only in personal judgments, can be had."