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

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtBARD
Citation72 F. Supp. 326
PartiesCARLISLE v. KELLY PILE & FOUNDATION CORPORATION.
Docket NumberCiv. No. 6380.
Decision Date26 June 1947

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

72 F. Supp. 327
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...

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5 practice notes
  • Frabutt v. New York, Chicago & St. Louis R. Co., Civ. A. No. 114.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 Mayo 1949
    ...Ry. Co., D.C., 41 F.Supp. 898, 904. The following cases hold to the contrary: Carlisle v. Kelly Pile & Foundation Corp., D.C., 72 F.Supp. 326; Weber v. United States, D.C., 8 F.R.D. 161; Massachusetts Bond & Ins. Co. v. Darby, D.C., 59 F.Supp. 175; Lockwood v. Hercules Powder Co., D......
  • Carlisle v. Kelly Pile & Foundation Corporation, No. 9732.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 Mayo 1949
    ...the decision of the District Court should be affirmed. --------Notes: 1 The court below first refused to dismiss the complaint. See 72 F.Supp. 326. Upon consideration, however, of the decision of this court in Dehne v. Hillman Inv. Co., 3 Cir., 110 F.2d 456, the motion to dismiss was grante......
  • Lunn v. United Aircraft Corporation, Civ. A. No. 2063.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 23 Febrero 1960
    ...for this was cited Curtis v. Drybrough, D.C.W.D.Ky., 70 F.Supp. 151, 154 and Carlisle v. Kelly Pile & Foundation Corp., D.C.E.D.Pa., 72 F. Supp. 326. The Curtis case did not pass upon the question of whether the Statute of Limitations could be raised by a motion to dismiss. The Carlisle......
  • Berry v. Heller, Civil Action No. 8156.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 12 Agosto 1948
    ...§ 1895. 2 See Kraushaar v. Leschin, D.C.E.D. Pa., 4 F.R.D. 143; Carlisle v. Kelly Pile & Foundation Corporation, D.C.E.D.Pa., 72 F.Supp. 326; Wilson v. Seas Shipping Company, Inc., D.C.E.D.Pa., 78 F. Supp....
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5 cases
  • Frabutt v. New York, Chicago & St. Louis R. Co., Civ. A. No. 114.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 Mayo 1949
    ...Ry. Co., D.C., 41 F.Supp. 898, 904. The following cases hold to the contrary: Carlisle v. Kelly Pile & Foundation Corp., D.C., 72 F.Supp. 326; Weber v. United States, D.C., 8 F.R.D. 161; Massachusetts Bond & Ins. Co. v. Darby, D.C., 59 F.Supp. 175; Lockwood v. Hercules Powder Co., D......
  • Carlisle v. Kelly Pile & Foundation Corporation, No. 9732.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 Mayo 1949
    ...the decision of the District Court should be affirmed. --------Notes: 1 The court below first refused to dismiss the complaint. See 72 F.Supp. 326. Upon consideration, however, of the decision of this court in Dehne v. Hillman Inv. Co., 3 Cir., 110 F.2d 456, the motion to dismiss was grante......
  • Lunn v. United Aircraft Corporation, Civ. A. No. 2063.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 23 Febrero 1960
    ...for this was cited Curtis v. Drybrough, D.C.W.D.Ky., 70 F.Supp. 151, 154 and Carlisle v. Kelly Pile & Foundation Corp., D.C.E.D.Pa., 72 F. Supp. 326. The Curtis case did not pass upon the question of whether the Statute of Limitations could be raised by a motion to dismiss. The Carlisle......
  • Berry v. Heller, Civil Action No. 8156.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 12 Agosto 1948
    ...§ 1895. 2 See Kraushaar v. Leschin, D.C.E.D. Pa., 4 F.R.D. 143; Carlisle v. Kelly Pile & Foundation Corporation, D.C.E.D.Pa., 72 F.Supp. 326; Wilson v. Seas Shipping Company, Inc., D.C.E.D.Pa., 78 F. Supp....
  • Request a trial to view additional results

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