Electronic Race Patrol, Inc. v. National Trailer Convoy, Inc.
| Decision Date | 24 February 1961 |
| Citation | 191 F. Supp. 364 |
| Parties | ELECTRONIC RACE PATROL, INC., Plaintiff, v. NATIONAL TRAILER CONVOY, INC. and Southwest Casualty Insurance Company, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Tell, Cheser, Werner & Breitbart, New York City, for plaintiff; Benjamin L. Tell, New York City, of counsel.
Reilly & Reilly, New York City, for defendant National Trailer Convoy, Inc.; William J. Tobin, New York City, of counsel.
Plaintiff and defendant are both foreign corporations and neither has its principal place of business in New York. The case has been removed from the New York Supreme Court to this court upon the ground of diversity of citizenship. Defendant, pursuant to section 221(c) of the Motor Carriers Act, 49 U.S.C. § 321(c), having named a person on whom process can be served in the State of New York, process has been served upon him. Defendant moves that the complaint be dismissed on the grounds that the venue is improper and the court does not have jurisdiction of the subject matter.
Neither defendant nor plaintiff submits any facts to indicate whether defendant is doing business within the State of New York. The motion is based upon the statement that the action is one against a motor carrier for damages to property shipped from Florence, Kentucky, to Laurel, Maryland, that the cause of the damage was an accident which occurred near Hebron, Ohio, that the contract of carriage was made in Kentucky and that therefore a court in New York ought not to be burdened with the case.
Defendant makes the point that it is entitled to relief on the ground of forum non conveniens but submits no facts to substantiate that position so that, if relief is to be afforded it, it must be on the ground that, as a matter of law, the venue is improper or the court without jurisdiction.
The venue of removed actions is governed by section 1441(a) of title 28 U.S. Code. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 73 S.Ct. 900, 97 L.Ed. 1331. That section provides that the court to which the case shall be removed is "the district court * * * for the district and division embracing the place where such action is pending". This action was removed to the district court for the district embracing the place where it was pending in the state court so that the statute, as it reads literally, has been satisfied.
That leaves open, however, the question whether this court has jurisdiction. It certainly has jurisdiction of the person of defendant because the agent authorized by defendant to receive process was served. The question of jurisdiction of the subject matter remains. That question must be answered by New York State law. If the New York Supreme Court did not have jurisdiction of the subject matter defendant could not breathe life into the case by removing it to the district court even if the district court would have had jurisdiction of it as an original matter. Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671; Caraway v. Ford Motor Company, D.C. W.D.Mo.W.D., 144 F.Supp. 295.
Under the New York law, suits may be maintained against a foreign corporation by another foreign corporation in only four cases. Section 225 of the New York General Corporation Law reads as follows:
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Weinberg v. COLONIAL WILLIAMSBURG, INCORPORATED
...Finance Corp., 30 F.R.D. 43 (D.Conn. 1962); 1A Moore, Federal Practice 1383 (federal law), with Electronic Race Patrol, Inc. v. National Trailer Convoy, Inc., 191 F.Supp. 364 (S.D.N.Y.1961) (dictum) (state law). In many cases the question may be crucial since a state need not exercise its f......
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Monarch Industrial Corp. v. American Motorists Ins. Co.
...66 L. Ed. 671 (1922); Devlin v. Flying Tiger Lines, Inc., 220 F.Supp. 924, 928 (S.D. N.Y.1963); Electronic Race Patrol, Inc. v. Nat'l Trailer Convoy, Inc., 191 F.Supp. 364 (S.D.N.Y.1961). Defects in the jurisdiction of the state court as respects subject matter or parties is "not cured by r......
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Farrell v. Piedmont Aviation, Inc.
...Fidan v. Austral American Trading Corp., 8 Misc. 2d 598, 168 N.Y.S.2d 27 (Sup.Ct.1957); Electronic Race Patrol, Inc. v. National Trailer Convoy, Inc., 191 F.Supp. 364 (S.D.N.Y.1961). The state courts have applied the restriction without regard to whether jurisdiction over the defendant was ......
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Rounds v. Rea, 95-CV-0497S(F).
...having consented to service of process conferring jurisdiction over the nonresident defendant. Electronic Race Patrol, Inc. v. National Trailer Convoy, Inc., 191 F.Supp. 364, 365 (S.D.N.Y. 1961) (action against motor carrier for damages to property shipped from Kentucky to Maryland resultin......