Kilpatrick v. Texas & P. Ry. Co., Civ. No. 39-341

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: CAFFEY
• Citation: 72 F. Supp. 632
• Parties: KILPATRICK v. TEXAS & P. RY. CO. PARKER v. SAME.
• Docket Number: Civ. No. 39-341,39-349,40-169.,40-170
• Decision Date: 10 June 1947

72 F. Supp. 632

KILPATRICK
v.
TEXAS & P. RY. CO.
PARKER
v.
SAME.

Civ. Nos. 39-341, 40-170, 39-349, 40-169.

District Court, S. D. New York.

June 10, 1947.

72 F. Supp. 633

Gerald F. Finley and Arnold B. Elkind, both of New York City (Arnold B. Elkind, of New York City, of counsel), for plaintiffs.

Davis, Polk, Wardwell, Sunderland & Kiendl, of New York City, appearing specially for the purposes of these motions only (William H. Timbers and Cleveland C. Cory, both of New York City, of counsel), for defendant.

CAFFEY, District Judge.

Two actions, Civ. 39-341 and Civ. 39-349, were brought under the Federal Employers' Liability Act by two employees of defendant to recover damages for personal injuries sustained by them while engaged in the performance of their duties. Both actions were filed in December, 1946.

The defendant appeared specially in both actions and moved for orders vacating the attempted service of the summons and complaints on the ground that the defendant is a foreign corporation not doing business in the State of New York, or, in the alternative, dismissing the actions on the ground that, since both plaintiffs and defendant are residents of Texas and the accidents occurred in Texas, to retain jurisdiction would constitute an undue burden on interstate commerce, or, in the alternative, vacating the attempted service of the summons and complaints on the ground that the attempted service was made upon an improper person.

Plaintiffs then moved for orders permitting them to take the depositions of 13 individuals and trust companies on the sole question of the corporate activities of the defendant in this District, to be used in connection with defendant's motions aforesaid.

All these motions were adjourned by consent until they came on to be heard at the same time. Meantime, four days before the adjourned date for argument, plaintiffs filed new actions, the summons and complaints in which were served on the same day and were identical with the original complaints. I was not informed, prior to the argument of the motions, of the filing and service of these new actions. The motions were argued at length and submitted for decision, affidavits and briefs to be exchanged and submitted at a later date. Pending their submission the attorneys for the defendant obtained orders in the new actions requiring plaintiffs to show cause why all proceedings in those actions should not be stayed until after the service of copies of orders disposing of the motions already argued in the first actions. A day or two after the service of these orders to show cause upon the attorneys for plaintiffs and before the return dates, they served upon the attorneys for defendant notices that the original actions had been dismissed. Whereupon, the attorneys for defendant obtained additional orders in the first actions requiring plaintiffs to show cause why the notices of dismissal should not be vacated, or, in the alternative, directing that the original actions be dismissed upon such terms as might appear just and reasonable. All the orders to show cause also came on to be heard and were argued before the time for the submission of briefs on the original motions had expired.

The situation is most unusual. It does not...