Garden Homes v. Mason

• Decision Date: 03 December 1956
• Docket Number: No. 5099.,5099.
• Parties: GARDEN HOMES, Inc., Plaintiff, Appellant, v. Norman P. MASON, as he is Commissioner of Federal Housing Administration, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

238 F.2d 651 (1956)

GARDEN HOMES, Inc., Plaintiff, Appellant, v. Norman P. MASON, as he is Commissioner of Federal Housing Administration, Defendant, Appellee.

No. 5099.

United States Court of Appeals First Circuit.

December 3, 1956.

Angus M. MacNeil, Somerville, Mass., for appellant.

Daniel Needham, Jr., Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This is an appeal from an order by the district court dismissing an action removed from the state court in which it was begun. The ground of dismissal was the insufficiency of service of process upon the defendant.

The primary facts are not in dispute. By writ dated August 9, 1955, the plaintiff instituted this action against "Norman P. Mason, as he is Commissioner of Federal Housing Administration in Chelmsford" in the District Court of Somerville, a District Court of the Commonwealth of Massachusetts. By the terms of the writ, the return date of the action was October 9, 1955. On or about August 15, 1955, a deputy sheriff of Middlesex County left under the door of the house owned by Norman P. Mason in Chelmsford, Mass., a summons and an attested copy of the writ. The return of the deputy sheriff stated that these papers were left "at his last and usual place of abode to wit: 4 Delwood Road, Chelmsford * * *." No other service of process was made or attempted in this action. On or about September 29, 1955, a copy of the plaintiff's declaration was delivered to the United States Attorney for the District of Massachusetts, who thereafter, on October 10, 1955, filed the defendant's petition for removal with the Clerk of the United States District Court for the District of Massachusetts. The plaintiff filed with the district court a motion to strike the petition for removal, a claim for jury trial, and a motion to remand. The defendant filed a motion to dismiss on the grounds of insufficiency of process and insufficiency of service of process. The district court allowed the defendant's motion to dismiss on the ground that service of process was ineffective, and on January 6, 1956, entered the order from which the present appeal was taken.

The motion to dismiss was based upon the failure of the appellant to secure effective service on Norman P. Mason, Commissioner of Housing Administration. Effective service is, of course, the keystone to a court's personal jurisdiction over the defendant, and it is clear that this defense is not waived upon removal of an action from the state court to a federal court. Mechanical Appliance Co. v. Castleman, 1910, 215 U.S. 437, 30 S.Ct. 125, 54 L.Ed. 272; General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., 1922, 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244. Similarly, it is well settled that after removal the federal court has the same power to determine whether or not there is jurisdiction over the defendant as the state court had. In other words, because the jurisdiction of the federal court on removal is, "in a limited sense, a derivative jurisdiction", Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 1922, 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671, if the state court lacked jurisdiction of the parties the federal court acquired none. See Freeman v. Bee Machine Co., Inc., 1943, 319 U.S. 448, 449, 63 S.Ct. 1146, 87 L.Ed. 1509. And in ascertaining its jurisdiction the federal court may inquire into the sufficiency of service of process made prior to removal. Mechanical Appliance Co. v. Castleman, supra; Harrison v. Steffen, D.C.E.D.Ky.1943, 51 F.Supp. 225.

In determining whether or not service of process was effective to invoke the jurisdiction of the district court in the present case, it should first be noted that the declaration in the state court discloses that this is a suit against Norman P. Mason not individually but in his official capacity as Commissioner of Federal Housing Administration. This is made abundantly clear by the fact that each of the first four counts in the plaintiff's declaration is based on acts of "the defendant or his predecessor in office," for whose conduct he is asserted to be responsible. Indeed, the plaintiff conceded in oral argument that, were he to be successful in this action, he would attempt to execute not upon the personal property of Norman P. Mason but upon the assets of the Federal Housing Administration. The service of process attempted by the appellant may have been appropriate under the section of the General Laws of Massachusetts which prescribes the manner of acquiring jurisdiction over individual defendants, Mass.G.L.(Ter.Ed.1932) c. 223, § 31, but this technique will not suffice in an action in which the Federal Housing Administration as a federal agency is the real defendant in interest.

The Federal Housing Administration is an agency of the United States created under an Act of Congress, 48 Stat. 1246, which authorized the President "to create a Federal Housing Administration, all of the powers of which shall be exercised by a Federal Housing Administrator * * *." 12 U.S.C.A. § 1702. Federal courts have determined that, for purposes of service of process and diversity of...