Lavietes v. Ferro Stamping & Mfg. Co.
| Decision Date | 29 June 1937 |
| Docket Number | No. 592.,592. |
| Citation | 19 F. Supp. 561 |
| Parties | LAVIETES v. FERRO STAMPING & MFG. CO. et al. |
| Court | U.S. District Court — Western District of Michigan |
Rich, Munro and Willis, of Detroit, Mich., for plaintiff.
Wiley, Streeter, Smith & Ford and Barnes, Kisselle, Laughlin & Raisch all of Detroit, Mich. (Stuart C. Barnes, of Detroit, Mich., of counsel), for defendants.
The plaintiff is a resident of the state of New York. There are eleven defendants. Four are Michigan corporations having their principal offices and places of business in the Southern Division of the Eastern District of Michigan. Three are individuals, each residing within the Southern Division of the Eastern District of Michigan. The remaining four defendants are foreign corporations, respectively of the states of Ohio, Connecticut, Delaware, and Pennsylvania. None of the defendants are residents of the Northern Division of the Eastern District of Michigan. Neither do any of the defendants maintain their offices or principal places of business within said Northern Division of this District. All defendants who were served with process were served in the Southern Division and none were served in the Northern Division.
Nine of the defendants have appeared specially and moved to set aside the service and dismiss the bill of complaint for want of jurisdiction of the defendants because the action alleged in the bill of complaint is not one which in its nature is local to the Northern Division of the Eastern District of Michigan. The bill of complaint shows, and it is admitted, that the plaintiff is a nonresident and the cause of action does not grow out of any business conducted by the defendants or any of them in the Northern Division of the district. Federal jurisdiction is invoked solely upon the diversity of citizenship. There is no question but that plaintiff could have brought the suit in the Eastern District of New York, where he resides, and there is no question but that he has a right to bring his suit in the Eastern District of Michigan, where several of the defendants reside. The only question involved is whether the plaintiff is limited within the Eastern District of Michigan to the Southern Division, which is the only division of said district in which any of the defendants reside, or whether he is at liberty to bring his suit in either one of the two divisions of the district.
The plain language of the Judicial Code seems to answer the question. Michigan contains two judicial districts, viz., the Eastern District and the Western District. Each of these districts contains two divisions, viz., a Northern Division and a Southern Division.
If this nonresident plaintiff wished to avail himself of his right to sue the defendants in the state of Michigan where some of the defendants reside, he must come to the Eastern District of Michigan, where some of the defendants reside, and he could not go to the Western District where none of the defendants reside. His suit is, therefore, brought in the proper district according to the provision of sections 112 and 113 of title 28 of the United States Code Annotated, reading as follows:
There are, however, two divisions in the Eastern District of Michigan, and in order to determine whether this nonresident plaintiff may select either division or whether he is limited to the division in which some of the defendants reside, we need only to turn to section 114 of title 28 of the United States Code Annotated, reading as follows:
"When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division."
It will be noted that Congress used almost the same words and sentence in giving instructions as to selecting the proper division within the district as was used in giving instructions as to selecting the proper district within the state. On the facts of our case, sections 112 and 113 eliminate the Western District of Michigan and point to the Eastern District as the only one available. Section 114 eliminates the Northern Division of the Eastern District and clearly states that if this suit is brought in Michigan it must be brought in the Southern Division of the Eastern District. Page v. Chillicothe (C.C.) 6 F. 599; United States v. Eddy (C.C.) 28 F. 226.
Counsel for plaintiff, in a carefully prepared brief, contend that the special act creating the two divisions in the Eastern District of Michigan should prevail over the general law above quoted, and that the special act contains language which permits the bringing of a suit by a nonresident plaintiff against a resident of the district in either division which the plaintiff wishes to select. The special act in question is found in section 168, title 28, United States Code Annotated, reading as follows:
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...D.C.W.D.La.1933, 3 F.Supp. 946; Sartor v. Arkansas Natural Gas Co., D.C.W.D. La.1933, 7 F.Supp. 1016; and Lavietes v. Ferro Stamping & Mfg. Co., D.C.E.D. Mich.1937, 19 F.Supp. 561. 7 28 U.S.C. § 1391(c). Prior to 1948 the appropriate venue provisions were found in section 51 of the Judicial......
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...510, at 511; Walsh & Wells, Inc., v. City of Memphis, D.C.Tenn., 1940, 32 F.Supp. 448, at 449; and Lavietes v. Ferro Stamping & Mfg. Co., D.C.Mich., 1937, 19 F.Supp. 561, at page 563, which hold that a United States District Court cannot order a change of venue from one division to another ......
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