Alger v. Hayes

• Decision Date: 05 January 1972
• Docket Number: No. 71-1320.,71-1320.
• Citation: 452 F.2d 841
• Parties: Gerald ALGER and Frelove Alger, Appellees, v. Larry HAYES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.2d 841 (1972)

Gerald ALGER and Frelove Alger, Appellees, v. Larry HAYES, Appellant.

No. 71-1320.

United States Court of Appeals, Eighth Circuit.

January 5, 1972.

Peterson & Holtze, Theodore N. Treat, Jr., Minneapolis, Minn., for appellant.

Ronald Schumeister, Minneapolis, Minn., for appellees.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

This is an appeal from a jury verdict rendered in a personal injury case. The two issues raised on appeal relate to the personal jurisdiction over the defendant and his objection to the court's comments. We affirm.

Defendant, Larry Hayes, is a sergeant in the United States Air Force. While stationed in California on April 30, 1969, he was involved in an auto accident with plaintiffs near Barstow, California. At the time of the accident plaintiffs were citizens of the State of Minnesota. Suit was thereafter filed by plaintiffs in the United States District Court of Minnesota. On June 6, 1969, summons was served on the defendant in Brooklyn, New York, by a United States Marshal for the Eastern District of New York. There is no dispute that this manner of service on a nonresident of Minnesota was improper. Service of process (other than a subpoena) is limited to the territorial boundaries of the state in which the district court is located. Rule 4, Fed.R. Civ.P. Lack of jurisdiction over the person, however, is a personal defense which may be waived if not timely asserted or properly preserved thereafter. It is plaintiffs' contention that (1) the defendant did not timely object to the lack of jurisdiction over his person and (2) if he did, his conduct thereafter constituted a waiver of this jurisdictional defense.

Defendant filed a late answer and asserted among other defenses that the court "lacks jurisdiction and venue." Defendant simultaneously served plaintiffs with interrogatories and requested production of all medical information. Pretrial conferences were held on four occasions before the case was tried. None of these proceedings was recorded.

Defendant asserts that in the first of these conferences, December 17, 1969, he made an oral motion to dismiss because of lack of jurisdiction over his person. Plaintiffs urge that the only argument raised at the conference was improper venue, that no mention of defect in service of process was raised. The docket entry of the district court reflects only that defendant made "an oral motion to dismiss" and that it was denied.¹

On August 5, 1970, a third pretrial conference was conducted. At this meeting the defendant submitted a written motion to dismiss based on lack of jurisdiction over his person. It is not disputed that this motion was made and argued although the minutes of the proceedings do not mention it or indicate any ruling was made.

On August 24, 1970, at a final pretrial conference the parties' attorneys reached a tentative settlement figure and informed the judge that the case was settled pending approval from defendant's insurance carrier. The carrier, however, refused to accept the agreed settlement figure and the case came on for trial on February 4, 1971. On the day of trial the court, recalling defendant's earlier motion, suggested that the parties proceed to trial on the theory that, if he lost, defendant would pay a verdict for the plaintiff. Defendant's counsel replied: "If it is a fair and just verdict, we certainly are willing to pay for it." Trial resulted in the verdict for plaintiff which is the subject of this appeal.

Our review of the record satisfies us that defendant did not assert any objection to jurisdiction over his person in the answer filed. Furthermore, we find that even if the defendant is given the benefit of the doubt of the ambiguity of his own pleading, defendant's counsel thereafter waived any objection to personal jurisdiction.

Admittedly, defendant's responsive answer that the court "lacks jurisdiction" was ambiguous as to whether jurisdiction over the person or jurisdiction over the subject matter was the basis of the attack. The ambiguity was emphasized when defendant attached interrogatories seeking information relating to the amount of damages. It is conceivable that by the alleged defense and these interrogatories defendant was attacking the good faith allegation of jurisdictional amount. Cf. Nelson v. Keefer, 451 F.2d 289 (3 Cir. 1971).

However, we do not rely on the ambiguity alone. We look to the subsequent proceedings for clarification of defendant's intent. Defendant urges that he presented an oral motion to dismiss for lack of personal jurisdiction at the first pretrial conference. Plaintiffs have lodged an affidavit with this court denying that a motion raising this issue was made. Rule 7(b) requires applications for an order to be in writing "unless made during a hearing or trial." The type of "hearing" at which there is no need for reducing a motion to writing is one in which the proceedings are recorded. Hammond-Knowlton v. Hartford-Connecticut Trust Co., 26 F.Supp. 292, 293 (D.Conn.1939); Mitchell v. Public Service Coordinated Transport, 13 F.R.D. 96 (D.N.J.1952). The rule is explained in In re J. & M. Doyle Co., 130 F.2d 340, 341 (3 Cir. 1942): "If no written motion is filed . . . it is apparent that within a very brief time neither the adverse parties nor the court will be able to tell what took place." Judge Goodrich added in Raughley v. Pennsylvania R.R., 230 F.2d 387, 391 (3 Cir. 1956):

"In the conduct of any organization which has many things to do, some form of system is required lest everything become so botched that the business cannot be done. This applies to the running of an army, a mercantile establishment or a court. We think rule 7(b) (1) is to be taken as meaning what it says."

Clearly the dictates of Rule 7(b) apply in a situation such as this where a party applies under Rule 12(d) for a determination of a pleaded jurisdictional defense in an unrecorded pretrial conference. The effect of noncompliance here is that this court is unable to determine either from the pleadings or the initial proceedings, whether the defense was properly raised.

The only act which could resolve the ambiguity in defendant's favor occurred too late to justly allow the construction defendant contends for. Under Rule 12(b) Fed.R. Civ.P. a defendant may raise the defense of lack of jurisdiction over the person either by motion before pleading or in the answer. However, it is a well settled rule that if the defense is neither raised by motion before answer nor stated in the answer, it cannot be raised for the first time by motion after the answer. Drabik v. Murphy, 246 F.2d 408 (2 Cir. 1957). The first written motion attacking personal jurisdiction was filed in August of 1970. This was one year after defendant had been served with process. By this time the parties had engaged in extensive pretrial preparation. Prior to this conference defendant had (a) served interrogatories on plaintiffs and received their responses, (b) demanded and received plaintiffs' witness and exhibits lists, (c) furnished plaintiffs with his witness and exhibits lists, (d)...