Lewis v. United Air Lines Transport Corporation

Citation29 F. Supp. 112
Decision Date18 August 1939
Docket Number64,72,No. 44,106.,44
CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
PartiesLEWIS v. UNITED AIR LINES TRANSPORT CORPORATION et al., and three other cases.


Day, Berry & Reynolds, of Hartford, Conn., and Harold E. Drew, of Derby, Conn., for plaintiffs Adelaide B. Lewis, Jennie Marie Doty, Mary Eliza Hitchcock Veblen, and Anna Brostuen.

Wiggin & Dana, Frederick H. Wiggin, and Frank E. Callahan, all of New Haven, Conn., for United Aircraft Corporation.

Pond, Morgan & Morse, of New Haven, Conn., for United Air Lines Transport Corporation.

Watrous, Hewitt, Gumbart & Corbin and William B. Gumbart, all of New Haven, Conn., for Bethlehem Steel Co.

HINCKS, District Judge.

These cases are now before the court upon a show cause order issued upon the application of the Bethlehem Steel Company, heretofore impleaded as a third-party defendant herein, requiring the parties to show why the service of process upon Bethlehem should not be set aside. On hearing and on brief Bethlehem's only contention has been that as to it the proceedings lack a proper venue under Section 51 of the Judicial Code, 28 U.S.C.A. § 112.

The facts are as follows. These are four civil actions. In one case, the plaintiff Lewis is a citizen of Connecticut; in another, the plaintiff Doty is a citizen of Massachusetts; in another the plaintiff Veblen is a citizen of California; and in another the plaintiff Brostuen is a citizen of North Dakota. In each case the original defendants were United Air Lines Transport Corporation, a citizen of Illinois, and United Aircraft Corporation, a citizen of Delaware. The actions were brought originally to the Superior Court for Hartford County in this State, each complaint alleging that the plaintiff's decedent was killed in the crash in Ohio of an airplane owned and operated by Air Lines and charging Air Lines with negligence (a) in the operation of the plane and (b) in failing properly to inspect a cylinder in the engine of the plane, a defect in which is alleged to have been a contributing cause of the crash, and charging that Aircraft had manufactured and sold said allegedly defective cylinder to Air Lines and was negligent in the manufacture thereof. The actions were removed to this court on the motion of Aircraft.

Thereafter Aircraft, alleging that if said cylinder was defective, the defect was caused by Bethlehem, impleaded Bethlehem, a citizen of Delaware, as a third-party defendant. The third-party complaint charged Bethlehem (a) with breach of an implied warranty of fitness of the forging sold by Bethlehem to Aircraft which Aircraft had used in the manufacture of the cylinder in question, and (b) with negligence in that the alleged defects, if any, in the cylinder "were due to the negligence of Bethlehem" which had sold to Aircraft the forging from which Aircraft had machined the cylinder. The third-party complaint was brought under the provisions of Rule 14 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which reads as follows:

"(a) When Defendant May Bring in Third Party. Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses as provided in Rule 12 and his counter-claims and cross-claims against the plaintiff, the third-party plaintiff, or any other party as provided in Rule 13. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant."

Bethlehem was served by substituted service upon the Secretary of State. No question was raised, however, as to the validity of the substituted service. The entire controversy turns upon the contention of Bethlehem that as to it the proceedings lack a proper venue under Section 51 of the Judicial Code.

This statute, Section 51(a) of the Judicial Code, 28 U.S.C.A. § 112 (a) provides: "* * * no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant;"

Section 24 of the Judicial Code, 28 U.S. C.A. § 41, reads as follows:

"The district courts shall have original jurisdiction as follows:

"(1) First. Of all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * * or (b) is between citizens of different states."

It has long been recognized that the statutory jurisdiction of courts is implemented by an ancillary jurisdiction lacking express statutory recognition. Cf. Murphy v. Robinson, 214 Mass. 585, 102 N.E. 75. The doctrine of incidental or ancillary jurisdiction is of great importance in federal jurisprudence which, by reason of the dual nature of our Government, is constantly concerned with the line of demarkation between the judicial authority of the federal courts and that of the state courts. Section 24 of the Judicial Code, 28 U.S.C.A. § 41, constitutes the Congressional outline of the requisites of "original jurisdiction" of the federal courts. Times without number cases have arisen in which it became necessary to determine whether a given proceeding involved a matter of "original" jurisdiction within the meaning of the statute or only of jurisdiction ancillary to that of some other civil action. Thus gradually was evolved a doctrine that a federal court having jurisdiction of a civil action was vested with ancillary jurisdiction over a supplemental proceeding dependent upon the principal suit even though the supplemental proceeding, viewed independently, lacked the attributes of federal jurisdiction, provided the subject-matter of the supplemental proceeding was "(1) to aid, enjoin, or regulate the original suit; (2) to restrain, avoid, explain, or enforce the judgment or decree therein; or (3) to enforce or obtain an adjudication of liens upon, or claims to property in the custody of the court in the original suit. Such a dependent suit is but a continuation in a court of equity of the original suit, to the end that more complete justice may be done." Brun v. Mann, 8 Cir., 151 F. 145, at page 150, 12 L.R.A.,N.S., 154.

It must be noted that the scope of ancillary jurisdiction depends only upon the subject-matter of supplemental proceeding. The number, identity or relationship of the parties affected by the supplemental proceedings have nothing to do with the existence of ancillary jurisdiction over the subject-matter. Thus it has long been established that ancillary jurisdiction over the subject-matter may obtain even though the supplemental proceeding brings in new parties. Cf. Labette County Com'rs v. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698; Krippendorf v. Hyde, 110 U.S. 276, 4 S.Ct. 27, 28 L.Ed. 145; Root v. Woolworth, 150 U.S. 401, 14 S.Ct. 136, 37 L.Ed. 1123; Alexander v. Hillman, 296 U.S. 222, 56 S.Ct. 204, 80 L.Ed. 192.

It is, I think, quite clear that the subject-matter of the third-party complaints here involved has no such relation to the subject-matter of the original actions as to create a jurisdiction which is ancillary within the meaning of the definition quoted and the cases cited above. Indeed, until the new Federal Rules of Civil Procedure became effective, apparently no case went so far as to hold that an action in personam by one tort-feasor against his co-tortfeasor or against any other third person could constitute the subject-matter of a jurisdiction which was ancillary to that obtaining in an orginal action on the tort. Generally such actions were viewed as original actions, rather than merely supplemental proceedings. McEvoy v. Waterbury, 92 Conn. 664, 104 A. 164.

However, by Equity Rule 30, 28 U.S. C.A. following section 723, it was provided:

"The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without crossbill, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final decree in the same suit on both the original and the cross-claims.

"When in the determination of a counterclaim complete relief cannot be granted without the presence of parties other than those to the bill, the court shall order them to be brought in as defendants if they are subject to its jurisdiction."

But in Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750, 45 A.L.R. 1370, and Kaumagraph Co. v. General Trade Mark Corp., D. C., 12 F.Supp....

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