Ackerley v. Commercial Credit Co.
Decision Date | 02 April 1953 |
Docket Number | Civ. No. 477-52,387-52.,386-52,385-52 |
Citation | 111 F. Supp. 92 |
Parties | ACKERLEY v. COMMERCIAL CREDIT CO. et al. PENNSYLVANIA RAILROAD CO. v. UNITED STATES et al. (two cases). HEALING & SON, Inc. v. KILGORE MFG. CO. et al. |
Court | U.S. District Court — District of New Jersey |
John W. Taylor, Newark, N. J., William F. Little, Jr., Newark, N. J., on the brief, for Seaboard Coal Dock Co., Inc.
Katzenbach, Gildea & Rudner, Trenton, N. J., for Reading Co.
Markley & Broadhurst, Jersey City, N. J., for Baltimore & O. R. Co.
Cox & Walburg, Newark, N. J., for Isbrandtsen Company, Inc.
Joseph W. Tummulty, Jersey City, N. J. (O'Connor & Randolph, New York City, of counsel), for Mary E. Ackerley.
Carpenter, Gilmour & Dwyer, Jersey City, N. J., for Pennsylvania R. Co.
Milton, McNulty & Augelli, Jersey City, N. J., for Healing & Son, Inc., et al.
The following opinion deals with motions made in cases arising out of an explosion of materials of war at South Amboy, New Jersey, on May 19, 1950:
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In Civil Action No. 477-52, Mary E. Ackerley, an administratrix, brought suit for the wrongful death of her New Jersey decedent against the government of Pakistan, against a number of corporations existing under the laws of states other than New Jersey and against the Central Railroad of New Jersey, a New Jersey corporation. Motions to dismiss for lack of jurisdiction in that there was no diversity of citizenship between the plaintiff and all the defendants, particularly between plaintiff and the said Central Railroad of New Jersey, were made by Seaboard Coal Dock Company, Incorporated, Reading Company, Isbrandtsen Company, Inc., and the Baltimore and Ohio Railroad Company. Plaintiff then moved for an order permitting her to amend the summons by dropping as a party defendant the Central Railroad Company of New Jersey and to serve and to file an amended complaint omitting from it any allegation with respect to that defendant.
It is not disputed that plaintiff in this action, a resident of New Jersey, has joined as a defendant a resident of the same state, namely, Central Railroad of New Jersey, and that if the said defendant, Central Railroad of New Jersey, remains in the case, this court will lack jurisdiction. Admitting this, plaintiff seeks to amend her complaint by dropping that defendant and by deleting all allegations as to it.
There is ample authority that such an amendment is permissible, if the party dismissed is not an indispensable party. The case of Dollar S.S. Lines v. Merz, 9 Cir., 1934, 68 F.2d 594, concerns an appeal from a judgment in a diversity of citizenship case wherein two of the defendants who were proper parties were from the plaintiff's state. In reversing a judgment for the plaintiff, the circuit court ordered a new trial, stating:
"Where, because of the joinder of proper, though not indispensable, parties as defendants, there is not merely on the record but in fact no such diversity of citizenship as to give jurisdiction, the District Court may permit a dismissal of such parties and thereby establish jurisdiction with retroactive effect. * * *" 68 F.2d at page 595.
There is other authority to the same effect as to the power of a district court to allow such an amendment dismissing a party not indispensable, States v. John F. Daly, Inc., D.C.E.D.Pa.1951, 96 F.Supp. 479; see 3 Moore's Federal Practice, pp. 836 et seq.; 4 Federal Rules Service Commentary § 15a241.
An indispensable party is defined as one having such an interest in the controversy that a final decree cannot be made without either affecting his interest or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience, see Chidester v. City of Newark, 3 Cir., 1947, 162 F.2d 598, 600. Tortfeasors, such as Central Railroad of New Jersey is alleged to be, are not indispensable parties to an action against one of their number, Picking v. Pennsylvania Railroad Co., 3 Cir., 1945, 152 F.2d 753, certiorari denied 1947, 332 U.S. 776, 68 S.Ct. 38, 92 L.Ed. 361; Sauer v. Newhouse, D.C.N.J.1938, 24 F.Supp. 911; see 3 Moore's Federal Practice, p. 2153. Thus, unless the fact that the statute of limitations has run is a bar, the plaintiff may be permitted to amend in the manner she has requested.
This rule has been applied to amendments to complaints which were designed to give the court jurisdiction, Christensson v. Hogdal, D.C.Cir., 1952, 199 F.2d 402; Zellem v. Herring, D.C.W.D.Pa.1951, 97 F.Supp. 103. Plaintiff's claim after making her proposed amendment would arise out of exactly the same occurrence as before, but the moving defendants contend that the plaintiff cannot take advantage of Rule 15(c) because of the special nature of the statute of limitations contained in the New Jersey Wrongful Death Act.
The moving defendants are not helped, therefore, by these cases.
There is no question but that this court must apply the New Jersey statute of limitations requiring that the action be brought within two years of the death of the decedent. Guaranty Trust Co. of N. Y. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. The Supreme Court has held that in a diversity of citizenship case the statute of limitations of the state whose law governs the substantive questions at issue is not tolled until the plaintiff has taken the steps required by state law. Thus, although a plaintiff in such a suit files a complaint before the running of the state statute of limitations, he is barred by that statute if he does not also fulfill the state requirement that summons be served in order to toll the statute. Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; see also Meyers v. Slotkin, D.C.E.D.N.Y.1952, 13 F.R.D. 191.
The holding in the Ragan case would not bar the plaintiff in this controversy, for an action is commenced when the complaint is filed, both under Federal Rule 3 and under New Jersey Rule 3:3-1. But certain language in the Ragan case suggests that perhaps New Jersey law should govern the question whether an amendment to the complaint will relate back to the date of the original filing or whether an amendment will be deemed to state a new cause of action and therefore be barred if the statute of limitations has run. In the Ragan case, Justice Douglas wrote, 337 U.S. at pages 533, 534, 69 S.Ct. at page 1235.
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