WH Elliott & Sons Co. v. Nuodex Products Co., 5182

• Decision Date: 26 March 1957
• Docket Number: 5183.,No. 5182,5182
• Court: U.S. Court of Appeals — First Circuit
• Parties: W. H. ELLIOTT & SONS CO., Inc., Plaintiff, Appellant, v. NUODEX PRODUCTS CO., Inc., Defendant, Appellee. E. & F. KING & CO., Incorporated, Cross-Claimant, Appellant, v. NUODEX PRODUCTS CO., Inc., Cross-Defendant, Appellee.

243 F.2d 116 (1957)

W. H. ELLIOTT & SONS CO., Inc., Plaintiff, Appellant, v. NUODEX PRODUCTS CO., Inc., Defendant, Appellee.

E. & F. KING & CO., Incorporated, Cross-Claimant, Appellant, v. NUODEX PRODUCTS CO., Inc., Cross-Defendant, Appellee.

Nos. 5182, 5183.

United States Court of Appeals First Circuit.

March 26, 1957.

Stanley M. Brown, Manchester, N. H., McLane, Carleton, Graf, Greene & Brown, Manchester, N. H., on the brief, for W. H. Elliott & Sons Co., Inc.

Joseph S. Ransmeier, Concord, N. H., Sulloway, Jones, Hollis & Godfrey, Concord, N. H., on the brief, for Nuodex Products Co., Inc.

Robert W. Upton, Concord, N. H., Upton, Sanders & Upton, Concord, N. H., on the brief, for E. & F. King & Co., Inc. John H. Sanders, Concord, N. H., for cross-claimant, appellant.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

These are appeals by the plaintiff-appellant, W. H. Elliott & Sons Co., Inc., and the cross-claimant-appellant, E. & F. King & Co., Incorporated, from orders of the United States District Court for the District of New Hampshire, entered on April 18, 1956 and October 25, 1956, quashing the return and dismissing the actions against the defendant and cross-defendant-appellee, Nuodex Products Co., Inc. Although appellants bring separate appeals from these orders, since they hinge on identical issues we will treat them in this opinion.

This is a civil action brought by W. H. Elliott & Sons Co., Inc., a New Hampshire corporation, hereinafter referred to as Elliott, against two foreign corporations, E. & F. King & Co., Incorporated, a Massachusetts corporation, hereinafter referred to as King, and Nuodex Products Co., Inc., a New York corporation, hereinafter referred to as Nuodex. Jurisdiction is based on diversity of citizenship, and service of process was made under Rule 4(d) (3) and (7) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in the mode prescribed by N.H.Rev.Stat. Ann. c. 300, § 11 (1955).¹ Venue for the district court was established by plaintiff's residence in New Hampshire.

Each defendant filed a motion to dismiss. King's motion, later waived, was on the ground that it was a foreign corporation, not doing business in the district of New Hampshire, and hence not subject to service of process there. Nuodex moved to dismiss upon two grounds, the first, that the complaint failed to state a claim upon which relief could be granted, and second, that Nuodex was a foreign corporation not doing business in New Hampshire and therefore not subject to service of process in that district. Upon a hearing on February 28, 1955, the court, in its order of March 29, 1955, denied the first ground of Nuodex' motion. Thereafter, beginning on October 26, 1955, a further hearing was held on the question of jurisdiction. Prior thereto, King answered to the merits and filed a cross-claim against Nuodex, alleging that Nuodex was doing business in New Hampshire and was subject to the jurisdiction of the court.

That hearing was limited to two issues: (1) whether Nuodex had waived its right to contest the question of jurisdiction by previously arguing and submitting for decision the issue of whether Elliott's complaint stated a claim upon which relief could be granted and (2) whether Nuodex was transacting business in New Hampshire so as to be subject to service of process there. These same two issues confront us on appeal.

Focusing our attention first upon the issue of waiver, it appears from the record that the district court on February 28, 1955 had a number of motions before it. These were King's and Nuodex' motions to dismiss, King's motion for extension of time to file answer and Elliott's motion for leave to take oral depositions. Elliot sought permission to take certain depositions in order to show that the two defendants, King and Nuodex, were doing business in New Hampshire. Since the court could not hear the branch of Nuodex' motion to dismiss based on the ground of lack of jurisdiction due to the depositions not yet obtained by Elliott, it agreed to hear first the branch of the motion to dismiss based on the ground that the complaint failed to state a claim for which recovery could be granted. The court stated to the attorneys present as follows:

"* * * The only pending issue before me at the moment is whether the complaint states a cause or a claim upon which relief can be granted. The second part of the motion, that is, whether or not there is any jurisdiction, is deferred and not heard. The same runs in the same channel as yours does. We will hold that over."

On March 4, 1955 Nuodex filed a written memorandum in support of its motion to dismiss for failure to state a claim. The introductory paragraph of this memorandum states:

"1. Defendant Nuodex Products Co., Inc., has moved to dismiss the above-captioned action as to it on two grounds; first, failure of the complaint to state a claim upon which relief can be given, and second, lack of proper service of process and want of jurisdiction in this court. The present memorandum presents the law with respect to the first of the foregoing two grounds of its motion. In presenting it Defendant Nuodex Products Co., Inc. reserves its rights under the jurisdictional objection stated in its motion. * * *"

On March 29, 1955, the court entered the following order:

"So much of defendant Nuodex Products Co.\'s motion as relates to dismissal of the action because the complaint fails to state a claim upon which relief can be granted is denied. The remainder of the motion has not yet been heard."

On October 26, 1955 the court commenced hearing the branch of Nuodex' motion to dismiss based on lack of jurisdiction over it. By its opinion and order of April 18, 1956 the court quashed the return and dismissed Elliott's action on the ground that it did not have jurisdiction over Nuodex. Based on the same hearing, the court on October 25, 1956 dismissed King's cross-claim for the same reason.

The district court rejected Elliott's and King's contention, also maintained on appeal, that Nuodex, by submitting the first branch of its motion to dismiss on the ground that the complaint failed to state a claim, waived the question of jurisdiction in the second branch of its motion. In so doing the court said 144 F.Supp. 408:

"This contention invites but brief consideration. Whatever support this claim of waiver might have had under common-law practice, the theory has no standing under Rule 12 (b) of the Federal Rules of Civil Procedure, which provides in part as follows: `Every defense, in law or fact, to a claim for relief in any pleading, * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (2) lack of jurisdiction over the person, * * * (6) failure to state a claim upon which relief can be granted, * * *. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. * * *\'

"The authorities seem to be in complete accord that the joining of defenses in a motion creates no waiver. A like situation was before the court in Olshansky v. Thyer Mfg. Corp., supra D.C.N.D.Ill.1952, 13 F.R.D. 227, and the claim of waiver was rejected. See also, Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, 874; Blank v. Bitker, 7 Cir., 1943, 135 F.2d 962, 966; 2 Moore\'s Federal Practice, 2262-2264. * * *"

We agree with the district court on this point. Yet, we note that none of the cases brought to our attention contain the identical facts of the instant case. Here Nuodex, having joined in a motion its defenses of failure to state a claim and lack of jurisdiction, invoked an order of the court of March 29, 1955 on the sufficiency of the complaint.

It seems that the usual procedure would be for the trial court to decide the jurisdictional branch of such a motion first, since any judgment on the merits of the complaint would be a nullity upon a subsequent finding of no jurisdiction. But it is clear from the record in the instant case that the jurisdictional branch of the motion could not have been heard without certain depositions not yet obtained by Elliott. Further, in the opinion of the lower court trial convenience must have been served by a hearing on the first branch of the motion.

The record also disclosed that Nuodex effectively reserved its right to determine the jurisdiction portion of its motion, as appears from its statements to the court and its aforementioned memorandum. That the court recognized this reservation is evidenced by its order of March 29, 1955. Under such circumstances it can only be inferred that Nuodex was pursuing each ground of its motion to dismiss alternatively, and the order of the court as to the first branch of the motion was intended to be final only upon a subsequent finding of jurisdiction. Therefore, we believe there was no waiver of jurisdiction by Nuodex on the facts of this case.

We turn next to the issue of whether Nuodex was transacting business in New Hampshire so as to be subject to service of process within the district. The pertinent facts may be stated as found by the district court:

"The plaintiff in this action Elliott, is a New Hampshire corporation, having its usual place of business in Madbury, New Hampshire. The defendants, King and Nuodex are corporations chartered in Massachusetts and New York, respectively. The plaintiff alleges that it suffered substantial property damage due to a product, Super-Adit sic, manufactured by defendant Nuodex, and added by defendant King to greenhouse paint which King sold to the plaintiff.

"Nuodex is a manufacturer of special-purpose chemicals and has its usual place of business in New Jersey. As its products are used

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