We need not decide whether or not the district court has jurisdiction of the declaratory judgment action. For even if it has, the court must determine whether, as a matter of judicial discretion, the suit ought to be entertained in a federal court. Assuming, then, that the court here has jurisdiction, we think it would have abused that discretion had it not dismissed the second cause of action.
Plaintiff (by asserting that the district court has jurisdiction of the declaratory judgment action) concedes that it could have had the state-court suit removed to the federal court, for the two cases deal with identical issues.1 But plaintiff lost its right of removal in July 1943—more than two years before it began the federal action— when the time expired for it to file its plea or answer in the state-court action.2 Plaintiff may not use a federal declaratory judgment action as a substitute for a removal right thus lost by plaintiff’s inaction. Compare the attempt to use habeas corpus as a substitute for an appeal barred by lapse of time.3
Affirmed.
Supplemental Opinion
Although neither appellant nor appellee noted the matter, it is now suggested that, under Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A., the order was not appealable because the district judge did not make “an express determination that there is no just reason for delay”. If the district judge within ten days makes such an express determination, we shall treat it as made nunc pro tunc, and our order of affirmance will stand; otherwise, the appeal will be dismissed.4