Granger v. Kemm, Inc., Civ. A. No. 38027.
| Decision Date | 02 February 1966 |
| Docket Number | Civ. A. No. 38027. |
| Parties | Harold GRANGER and John Dean v. KEMM, INC. and Continental Transportation Lines. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Nicholas Kozay, Jr., Philadelphia, Pa., for plaintiffs.
Harry F. Brennan, LaBrum & Doak, Philadelphia, Pa., for Continental Transportation Lines.
Perry S. Bechtle, John G. Veith, Philadelphia, Pa., for Kemm, Inc.
Howard R. Detweiler, Philadelphia, Pa., for U. S. Electrical Motors, Inc. and Harold Granger.
The plaintiffs, citizens and residents of Connecticut, have instituted this diversity action against the defendants for damages sustained in an automobile collision on the Pennsylvania turnpike in Cumberland County, in the Middle District of Pennsylvania. The defendant, Continental Transportation Lines, is a corporation authorized to do business in the City and County of Philadelphia in the Eastern District of Pennsylvania while the defendant Kemm, Inc. is a corporation organized under the laws of Ohio. There is no averment in any of the pleadings that Kemm does business or is licensed to do business in the Eastern District of Pennsylvania.
The defendant Kemm, Inc. has moved to dismiss the action as to it because of a lack of proper venue.
Under 28 U.S.C. § 1391(a) & (f), a diversity action must be brought "only in the judicial district where all the plaintiffs or all defendants reside", or if the suit involves an automobile collision, "in the judicial district wherein the act or omission complained of occurred". Under 28 U.S.C. § 1391(c), the residence of a corporation for venue purposes is the district where "it is incorporated or licensed to do business or is doing business."
Applying this statute to the case at bar, it is evident that this action must be brought in the District of Connecticut where the plaintiffs reside or in the Middle District of Pennsylvania where the collision occurred. It cannot be instituted in the Eastern District of this Commonwealth because neither all the plaintiffs nor all the defendants reside or do business here and the accident did not happen within its borders.
However, the records of this court indicate that while the complaint was filed on June 11, 1965, the defendant's motion to dismiss for lack of venue was not filed until August 6, 1965. With certain exceptions not relevant here, Rule 12(h) of the Federal Rules of Civil Procedure provides that "a party waives all defenses and objections which he does not present either by motion * * * or if he has made no motion, in his answer or reply." The...
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Township of Long Beach v. City of New York
...plaintiff's proposition that the federal defendants waived their right to object on the ground of improper venue. Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa. 1966), upon which plaintiff relies, involved a situation wherein the defendant filed no answer, but simply brought a motion objec......
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Oltman v. Holland America Line Usa, Inc.
...have concluded, to the contrary, that an affirmative defense is waived if asserted in an untimely response. E.g., Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa.1966) (answer under Fed.R.Civ.P. 12(a) is required within 20 days after service of the complaint and unless an objection to venue ......
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Bechtel v. Liberty Nat. Bank
...See, e. g., Farmers Elevator Mutual Insurance Co. v. Carl J. Austad & Sons, Inc., 343 F.2d 7 (8th Cir. 1965); Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa.1966); Nelson v. Victory Electric Works, Inc., 210 F.Supp. 954 (D.Md.1962), aff'd, 338 F.2d 994 (4th Cir. 1964). One noted commentator......
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...v. Mirisch, 355 F.2d 369 (2d Cir.1966); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir.1944); Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa.1966); Nelson v. Victory Electric Works, 210 F.Supp. 954, 956 (D.Md.1962). All defendants in these four actions, except North......