Cook v. Bostitch, Inc.
| Decision Date | 27 February 1964 |
| Docket Number | No. 220,Docket 28176.,220 |
| Citation | 328 F.2d 1 |
| Parties | Dennis E. COOK and Employers Mutuals Liability Company of Wisconsin, also known as Employers Mutuals of Wausau, Plaintiffs-Appellants, v. BOSTITCH, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert Silagi, New York City, for appellants.
Hampton & Dietel, New York City, William F. McNulty, New York City, of counsel.
Before SWAN, MOORE and SMITH, Circuit Judges.
This action was commenced against Bostitch, Inc. and its subsidiary, Bostitch Eastern, Inc., by service of process upon the subsidiary's office manager within the territorial limits of the United States District Court for the Eastern District of New York. Both defendants are Rhode Island corporations. They moved to quash service for lack of jurisdiction in the court, and plaintiffs cross-moved to take the depositions of the defendants. The court allowed the depositions to be taken. Upon the summons, complaint, motion papers, depositions and oral argument, Judge Abruzzo granted the motion to quash service on Bostitch, Inc. but held valid the service of process on Bostitch Eastern. His order was dated February 27, 1963. By stipulation of the parties, the action was thereafter discontinued against Bostitch Eastern. The appeal is from that part of Judge Abruzzo's order which holds invalid the attempted service on Bostitch, Inc. by serving its subsidiary.
The above facts present a question of appellate jurisdiction which we must determine, although the parties have not mentioned it. Where there is only one defendant, an order quashing service is final and appealable. Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 517, 43 S.Ct. 170, 67 L.Ed. 372. Where there are several defendants, such an order is final only if it quashes service as to all. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 264, 13 S.Ct. 590, 37 L.Ed. 443; Piascik v. Trader Navigation Co., 2 Cir., 178 F.2d 886, 887; Minnesota Min. & Mfg. Co. v. Technical Tape Corp., 7 Cir., 208 F.2d 159; Youpe v. Moses, 94 U.S.App.D.C. 21, 213 F.2d 613. Consequently, prior to discontinuing their action against Bostitch Eastern, plaintiffs did not have an appealable order. The problem is whether the discontinuance cured this defect. We think it did. It left Bostitch the sole remaining defendant. This is analogous to the situation where appellate jurisdiction requires a certificate under Rule 54 (b), F.R.Civ.P., and the certificate is lacking when the appeal is taken but is supplied later. This court has held that the later certificate makes valid the appeal. Kaufman & Ruderman, Inc. v. Cohn & Rosenberger, 2 Cir., 177 F.2d 849, 850; Channapragada S. Rao v. Port of New York Authority, 2 Cir., 222 F.2d 362.
Being satisfied as to our appellate jurisdiction, we turn to the merits of the appeal. We shall adopt the appellant's statement of facts.
While feeding cardboard into a box making machine, Cook's right hand was carried under the safety guard and was crushed by the rollers of the machine. The machine was manufactured by Bostich, Inc. The accident happened on July 9, 1959 and in the course of Cook's employment in the State of Oregon, where he resided. The accident resulted from a violation of the safety code of Oregon. Under the Workmen's Compensation Law of the State, Cook's claim against his employer was settled for $20,000, paid to him by his employer's insurance carrier, co-plaintiff Employers Mutuals Liability Company of Wisconsin. Pursuant to the settlement agreement, the insurance carrier became subrogated to the extent of $20,000 to Cook's claim against any third party. Cook attempted to serve Bostitch, Inc., in Oregon, but could not obtain service upon it. Bostitch, Inc. is a Rhode Island corporation and maintains its factory and office in that State. It is not qualified to do business in either New York or Oregon. It sells and services its products chiefly through wholly owned subsidiaries. One of them is Bostitch Eastern, Inc. This is also a Rhode Island corporation but is qualified to do business in New York State and maintains its office and warehouse in Long Island City.
The appellants contend that corporate separation between the parent and subsidiary is merely formal, not real. The district court...
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...jurisdiction is based upon diversity of citizenship, is governed by the law of the state where the court sits. See also Cook v. Bostitch, 328 F.2d 1 (2d Cir. 1964). But while this court must look to the law of New York State to determine whether Cruzeiro would be subject to its jurisdiction......
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...For, in diversity actions (such as this) the amenability of a foreign corporation to sue is determined by state law. Cook v. Bostitch, Inc., 328 F.2d 1 (2d Cir. 1964); Arrowsmith v. United Press Int'l, 320 F.2d 219, 6 A.L.R.3d 1072 (2d Cir. 1963). The "long arm" statute of Rhode Island, 2 G......
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