Luke v. Dalow Industries, Inc., Civ. A. No. 83-0242-R.
| Decision Date | 15 July 1983 |
| Docket Number | Civ. A. No. 83-0242-R. |
| Parties | Kenneth Glen LUKE v. DALOW INDUSTRIES, INC. |
| Court | U.S. District Court — Eastern District of Virginia |
Jay G. Kauffman, Richmond, Va., for plaintiff.
A.C. Epps, Dennis O. Laing, William B. Cave, Christian, Barton, Brent & Chappell, Richmond, Va., for defendant.
This removed action is before the Court on defendant's motion to dismiss.
Petitioner, Dalow, was the defendant in the civil action brought against it in the Circuit Court of the City of Richmond, Division I, entitled Kenneth Glen Luke v. Dalow Industries, Inc. That action was instituted by plaintiff Luke by the filing of his motion for judgment on 22 March 1983. Plaintiff served upon the Secretary of the Commonwealth the motion for judgment pursuant to Va.Code § 8.01-328.1 (Supp.1982) (). Defendant Dalow filed in the Circuit Court its motion to quash process and to dismiss.
Having properly removed the action, defendant now seeks a ruling from this Court on its motion to dismiss. The burden is on plaintiff to establish jurisdiction through proof of proper service of process pursuant to Virginia statute even though the action is removed from a Virginia court to federal court. Consolidated Engineering Co. v. Southern Steel Co., 88 F.R.D. 233, 235 (E.D.Va.1980).
The construction of a long-arm statute involves a two-step analysis. It must be determined whether the statutory language of the long-arm statute permits service of process under the particular facts and circumstances on a nonresident defendant, and then it must be determined whether the exercise of personal jurisdiction under the statute violates the due process clause of the United States Constitution. Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir.1981).
Considering the particular facts and circumstances, defendant argues that Luke's complaint should be dismissed for three reasons. First, defendant says, Va. Code § 8.01-329(A1) (Supp.1982) was not complied with. This new subsection was added in 1977 and states in part:
The affidavit in this case was executed by Jay G. Kauffman, attorney for Luke, the party plaintiff. This new subsection is a part of an extremely technical area of the law. Its language was presumptively carefully chosen to further some appropriate official purpose. The General Assembly chose "party" to designate who should file the affidavit. Kauffman, a nonparty, is not within the explicit terms of the statute dealing with this carefully structured area of the law.
The Virginia Supreme Court dealt with a similar problem in Fayette Land Co. v. Louisville & N.R., 93 Va. 274, 24 S.E. 1016 (1896). The court there interpreted a Virginia statute1 that required that an affidavit state that unknown persons interested in the subject matter of the suit were, in fact, "unknown." The statute did not designate who the affiant need be. The court held that the statute was satisfied when an agent of the corporate plaintiff filed the affidavit. Since it would be impossible for a corporation, per se, to execute an affidavit the court found that the statutorially required affidavit could be executed by counsel as agent for plaintiff corporation. The court noted, significantly for purposes of this case, that the statute "does not say by whom the affidavit is to be made." Id. at 282, 24 S.E. at 1017. Here there is no impediment to the individual party plaintiff stating by affidavit that to his own knowledge the defendant is a non-resident and the last address known to the plaintiff. The knowledge of plaintiff's counsel is not sought by the statute.2 Quite conceivably the lawyer's knowledge on the subject could be quite different from that of the plaintiff himself. But under the statute the lawyer's knowledge is immaterial. This statute does say by whom the affidavit is to be made. Thus the affidavit upon which service was based in this case was defective.
Second, defendant argues, plaintiff has not carried his burden in proving that, under the Virginia Code, the corporation was "transacting business" in this State. The general rule is, before a nonresident can be said to be transacting business in the State he must satisfy the minimum contacts rule. There must be some act by which the defendant purposely avails himself of the privilege of...
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...the exercise of personal jurisdiction does not violate the Due Process Clause of the United States Constitution. Luke v. Dalow Indus., Inc., 566 F.Supp. 1470, 1471 (E.D.Va.1983). To satisfy constitutional due process a defendant must have certain minimum contacts with the forum state such t......
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