Oregon Egg Producers v. Darroll L. Andrew, D/B/A Andrew Egg Ranch

This is an interlocutory appeal testing the validity of an order granting Oregon Egg Producers’ (“Producers”) petition to remove its action from a state court to a federal district court in Washington. Producers initiated the suit by filing a complaint against Andrew to recover upon an account stated. Andrew counterclaimed for damages alleged to have been sustained by reason of Producers’ discriminatory pricing of eggs. Producers thereupon sought removal to the federal court on the theory that Andrew’s counterclaim raised a federal question. The cause was removed, and Andrew appealed. While the appeal was pending, Andrew filed an antitrust suit against Producers in the district court.

We assume that Producers correctly asserts that its action could have been initiated in the federal court invoking diversity jurisdiction, and we further assume, arguendo, that Andrew could have removed the action to the federal court because Andrew’s counterclaim stated a claim within federal jurisdiction. Neither assumption aids Producers. A plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal…