Carlisle v. Kelly Pile & Foundation Corporation, Civ. No. 6380.

• Decision Date: 26 June 1947
• Docket Number: Civ. No. 6380.
• Parties: CARLISLE v. KELLY PILE & FOUNDATION CORPORATION.
• Court: U.S. District Court — Western District of Pennsylvania

72 F. Supp. 326

CARLISLE v. KELLY PILE & FOUNDATION CORPORATION.

Civ. No. 6380.

District Court, E. D. Pennsylvania.

June 26, 1947.

William M. Alper, of Philadelphia, Pa., for plaintiff.

Stephen J. McEwen, of Philadelphia, Pa. (Richard A. Smith, of Philadelphia, Pa., on the brief), for defendant.

BARD, District Judge.

This case is before the Court on defendant's motion to dismiss the complaint.

The plaintiff, master of the motor tug "Cyrene", instituted the present action to recover damages for injuries which he allegedly sustained as a result of falling into an uncovered hatch on a barge owned and operated by the defendant. The plaintiff is a citizen and resident of the State of New Jersey. The defendant is a corporation organized and existing under the laws of the State of New York. The alleged injury to the plaintiff occurred while the barge was moored to a pier at Lewes, Delaware.

I will consider separately the three reasons which the defendant has assigned in support of its motion to dismiss the complaint.

The first reason advanced by the defendant is that the plaintiff's claim is barred by the applicable statute of limitations, which it contends is the statute of limitations of the State of Delaware, where the accident occurred. Under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the defense of statute of limitations may not be raised by motion, but must be affirmatively pleaded. Kraushaar v. Leschin, D. C.E.D.Pa., 4 F.R.D. 143; Massachusetts Bonding & Ins. Co. v. Darby, D.C.W.D. Mo., 59 F.Supp. 175. Therefore, I cannot consider the validity of this defense on the present motion.

The second reason which the defendant advances in support of its motion to dismiss the complaint is that venue of this action is improperly laid in this district. The defendant points to the fact that jurisdiction of the instant case is based upon diversity of citizenship, and relies upon Section 51 of the Judicial Code, 28 U.S.C. A. § 112, which provides that "where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

Although the defendant in the instant case is a New York corporation, it was granted a Certificate of Authority to transact business in the Commonwealth of Pennsylvania on May 21, 1941, pursuant to the Business Corporation Law of May 5, 1933, P.L. 364, 15 P.S. § 2852-1001 et seq. In order to obtain this certificate the defendant was required to designate the Secretary of the Commonwealth and his successor in office as its true and lawful attorney for receiving service of process. 15 P.S. § 2852-1004(6).

Neirbo Co. v. Bethlehem Shipbuilding Corp. Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, decided that Section 51 of the Judicial Code, supra, merely accords to the defendant a personal privilege of objecting to the venue of suits brought against him in districts wherein, under this section, he may not be compelled to answer, and that a designation by a foreign corporation, in conformity with a valid statute of a state and as a condition of doing business within it, of an agent upon whom...