379 F.2d 354 (3rd Cir. 1967), 15747, Hartley v. Sioux City & New Orleans Barge Lines, Inc.

Docket Nº:15747, 15820.
Citation:379 F.2d 354
Case Date:January 27, 1967
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 354

379 F.2d 354 (3rd Cir. 1967)

James R. HARTLEY, Appellant,



Nos. 15747, 15820.

United States Court of Appeals, Third Circuit.

January 27, 1967

Argued June 6, 1966.

Page 355

Hymen Schlesinger, Pittsburgh, Pa., for appellant.

Donald L. Very, Pittsburgh, Pa. (Campbell, Thomas & Burke, Pittsburgh, Pa., Harold R. DeMoss, Jr., Bracewell, Reynolds & Patterson, Houston, Tex., on the brief), for appellee.

Before BIGGS, HASTIE and FREEDMAN, Circuit Judges.


BIGGS, Circuit Judge.

Hartley, a seaman, sued his employer, Sioux City and New Orleans Barge Lines, Inc., to recover damages for personal injuries allegedly suffered in the course of his employment. The accident occurred aboard the M.V. Waverly, owned and operated by Sioux City, on the Illinois River in the neighborhood of Morris, Illinois. There are two separate suits before us for review. Jurisdiction in one was asserted under the Jones Act, 46 U.S.C.A. § 688. The complaint alleges negligence on the part of Sioux City. Hartley also filed a libel in admiralty alleging the unseaworthiness of the Waverly, and seeks damages and maintenance and cure. The appeal from the Jones action is at our No. 15747 and the appeal from the admiralty judgment is at our No. 15820. For the opinion of the court below see 247 F.Supp. 1015 (1965).

According to the complaint, Sioux City was 'incorporated in a state other than Pennsylvania with its principal office at Houston, Texas, and is doing business in Pennsylvania.' These allegations were not denied and therefore are admitted. Substituted service of process was made upon the Secretary of the Commonwealth of Pennsylvania pursuant to 15 P.S. Section 2011(B). The court below granted motions to quash and dismiss on the grounds that the substituted service was invalid since the actions did not arise within Pennsylvania and that the venue was incorrectly laid in Pennsylvania under the Jones Act in that Sioux City was not incorporated in Pennsylvania. The appeals at bar followed.

The last point, i.e., that venue was incorrectly laid in Pennsylvania under the Jones Act, is disposed of by Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966)

Page 356

. 1 We are concerned, therefore, only with the first point, the legal adequacy of the substituted service made upon the Secretary of the Commonwealth in both suits.

We direct our attention to the manner in which service of process was made on Sioux City, a foreign corporation, which, although admittedly doing business in Pennsylvania, was not registered with the Secretary of the Commonwealth. To determine whether or not the service of process was adequate, we must determine the standard against which its adequacy is to be measured. Sioux City contends that Rule 4(d)(7) of the Federal Rules of Civil Procedure, 28 U.S.C., provides the standard for service in accordance with state procedures and that the service here was deficient because not in accordance with Pennsylvania law. We will refer to this point later. Hartley, on the other hand, contends that Rule 4(d)(3) of the Federal Rules of Civil Procedure, 28 U.S.C., provides a federal standard which should govern service in the cases at bar. Rule 4(d)(3), 28 U.S.C., provides for service 'upon a * * * foreign corporation * * * by delivering a copy of the summons and of the complaint to * * * agent authorized by appointment or by law to receive service of process * * *.'

Comparatively recent decisions have held that federal courts considering questions arising under the Constitution of the United States or federal statutes properly may exercise jurisdiction limited only be the due process clause of the Fifth Amendment. Even where the procedure for exercising that jurisdiction is prescribed by state law, these courts need not be bound by restrictions found in the state law. See, e.g., Lone Star Package Car Company v. Baltimore & Ohio Railway Company, 212 F.2d 147 (5 Cir. 1954); Goldberg v. Mutual Readers League, Inc., 195 F.Supp. 778 (E.D.Pa.1961). See also Green, Federal Jurisdiction in Personam of Corporations and Dur Process, 14 Vand.L.Rev. 967 (1961). But in the cited cases, the manner of serving process was provided for both by federal rule and by state law. It was possible, therefore, to use Rule 4(d)(3) to the exclusion of any procedures under state statutes, and to disregard their limitations. In the instant cases, however, this principle is not applicable. Rule 4(d)(3) applies only to the manner of personal service of process, i.e., the method by which process is served on an agent who is within the jurisdictional reach of a federal court. The record does not demonstrate whether or not Sioux City had an agent in Pennsylvania. It does not show that any agent of Sioux City was served. It is obvious that although a federal court may have a foreign corporation within its territorial jurisdiction, the court may not have procedure available under the Federal Rules of Civil Procedure to bring the corporation into court. Where no agent is served in fact a federal court must look to the state statutory...

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