Coleman v. American Export Isbrandtsen Lines, Inc.
| Decision Date | 21 November 1968 |
| Docket Number | Docket 32922.,No. 249,249 |
| Citation | 405 F.2d 250 |
| Parties | Ned COLEMAN, Plaintiff, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant and Third-Party Plaintiff-Appellant, v. ATLANTIC & GULF STEVEDORES, INC., Third-Party Defendant-Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
George W. Sullivan, New York City (Lilly, Sullivan & Purcell, Thomas E. Tisza, New York City of counsel), for defendant and third-party plaintiff-appellant.
Martin J. McHugh, New York City (McHugh & Leonard, James M. Leonard, New York City, of counsel), for third-party defendant-respondent.
Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.
Plaintiff Coleman, a longshoreman employed by John McGrath Corporation, brought this action in the District Court for the Southern District of New York to recover for injuries sustained aboard the S.S. Exchequer, a vessel owned and operated by defendant American Export Isbrandtsen Lines, Inc., while the ship was in Hoboken, N. J. American Export filed a third-party complaint under F.R. Civ.P. 14(a) against Atlantic & Gulf Stevedores, Inc., claiming that any liability to Coleman on its part would be due to the negligence of Atlantic & Gulf in having failed properly to secure a hatch when the Exchequer was in Philadelphia, Pa. before sailing to Hoboken. Atlantic & Gulf is a Pennsylvania corporation, having its principal office in Philadelphia and engaged in stevedoring at that port but assertedly not doing business in New York. The summons and complaint were served by a United States marshal on Atlantic & Gulf at its Philadelphia office, avowedly pursuant to the second sentence of F.R.Civ.P. 4(f). This sentence, added by a 1963 amendment, provides:
"In addition, persons who are brought in as parties pursuant to Rule 14, or as additional parties to a pending action or a counterclaim or cross-claim therein pursuant to Rule 19, may be served in the manner stated in paragraphs (1)-(6) of subdivision (d) of this rule at all places outside the state but within the United States that are not more than 100 miles from the place in which the action is commenced, or to which it is assigned or transferred for trial; and persons required to respond to an order of commitment for civil contempt may be served at the same places."
Atlantic & Gulf moved to dismiss the third party complaint for lack of jurisdiction. The court granted its motion. See to the same effect Karlsen v. Hanff v. Manchonoc Trawler Corp., 278 F. Supp. 864 (S.D.N.Y. 1967); contra, Sevits v. McKiernan-Terry Corporation (New Jersey), 270 F.Supp. 887, 891 (S. D.N.Y. 1967). American Export has appealed; we disagree and reverse.1
The service of process here appears to fit the language of the Rule snugly enough. Atlantic & Gulf was brought in as a party pursuant to Rule 14. It was served in the manner provided in Rule 4(d) (3). And the place of service was not more than 100 miles from the Federal Courthouse in the Southern District of New York.
Atlantic & Gulf contends that the new provision of Rule 4(f) simply allowed service outside the state where the court is sitting with respect to persons already subject to the jurisdiction of that state. For example, if Atlantic & Gulf had been doing business in New York but had no office there, the amendment would permit personal service to be made on it in Philadelphia pursuant to Rule 4(d) (3). If the amendment had done no more than that, it would have accomplished little. Most states have statutes, like New York CPLR § 313, providing for out-of-state service on persons subject to the jurisdiction of their courts, and Rule 4(d) (7) was amended in 1963 to overcome whatever doubts had previously existed as to the ability of a federal court to utilize these. See Giffin v. Ensign, 234 F.2d 307, 311 (3 Cir. 1956); Deveny v. Rheem Mfg. Co., 319 F.2d 124 (2 Cir. 1963) (Clark, J.); and Wolfe v. Doucette, 348 F.2d 635 (9 Cir. 1965), upholding out-of-state service under the less clear language of Rule 4(d) (7) prior to the amendment. The Notes of the Advisory Committee, which we quote in the margin,2 show that the purpose of the amendment was not simply to provide a second way of serving persons already subject to the state long-arm statutes, but rather to allow complicated controversies to be ended by a single lawsuit if all the necessary third parties could be found within 100 miles of the courthouse. See 2 Moore, Federal Practice ¶ 4.422 (2d ed. 1967). Since Congress has power "to provide that the process of every District Court shall run into every part of the United States," Robertson v. Railroad Labor Board, 268 U.S. 618, 622, 45 S.Ct. 621, 622, 69 L.Ed. 1119 (1925), the Supreme Court as its delegate can provide that process shall be effective if served within 100 miles of the courthouse even if a state line intervenes, and we are convinced that Rule 4(f) exercised this power. To be sure, process can be validly served in another state within the "bulge" created by Rule 4(f) only on persons over whom that state has jurisdiction and, very likely, only on persons within that class over whom it has chosen to exercise it. While in Arrowsmith v. United Press International, 320 F.2d 219, 228 n. 9 (2 Cir. 1963), decided shortly before amended Rule 4(f) became effective, we noted that some problems on the latter score might arise, nothing in that opinion, cited by the district judge, suggested the result here reached. See 2 Moore, supra, at 1293-36. There can be no doubt whatever that Pennsylvania can and does provide that a Pennsylvania corporation with its principal office in Pennsylvania and doing business there can be validly served at its headquarters in Philadelphia, 12 P.S.App.R.C.P. Nos. 2179 and 2180.
...
To continue reading
Request your trial
-
Kipperman v. McCone
...United States ex rel. Armstrong v. Wheeler, 321 F.Supp. 471, 476-478 (E.D.Pa. 1970). See also Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250, 251-253 (2 Cir. 1968). While Section 1391(e) makes possible the exercise of jurisdiction over individuals found beyond the territor......
-
Heft v. Aai Corp.
...whole. See Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 442, 66 S.Ct. 242, 90 L.Ed. 185 (1946); Coleman v. Am. Exp. Isbrandtsen Lines, Inc., 405 F.2d 250, 251-53 (2d Cir.1968) (Friendly, J.); Gamble v. Lyons Precast Erectors, Inc., 825 F.Supp. 92, 94 (E.D.Pa.1993).19 But cf. Pinker, 292 F.......
-
School Dist. of Kansas City v. State of Mo.
...was indeed amenability to suit. See Pierce v. Globemaster Baltimore, Inc., 49 F.R.D. 63 (D.C.Md.1969); Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250 (2nd Cir. 1968). Nevertheless, these cases still remain in agreement with the more traditional decisions, to which this Cou......
-
Eugene Iovine, Inc. v. Rudox Engine & Equipment Co.
...personal jurisdiction over a third-party defendant before it can adjudicate the third-party claim. Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250, 251-52 (2d Cir.1968). This Court may assert personal jurisdiction over a non-resident in a diversity action only where a New Y......