McDaniel v. Drotman
| Decision Date | 29 February 1952 |
| Docket Number | No. 365.,365. |
| Citation | 103 F. Supp. 643 |
| Parties | McDANIEL v. DROTMAN. |
| Court | U.S. District Court — Western District of Kentucky |
Rodes K. Myers and Leland Logan, Bowling Green, Ky., for plaintiff.
No appearance for defendant.
The plaintiff and defendant were involved in an automobile accident in Tennessee on December 4, 1949. On December 2, 1950, this action was filed in this district. The defendant is a citizen and resident of Texas. Process was issued and copies of the summons and complaint were served by the United States Marshal upon the defendant in Texas on December 7, 1950. The defendant has not answered or in any way entered his appearance. The process which was served on the defendant beyond the territorial limits of this state is obviously not a valid service. F.R.C.P. 4 (f), 28 U.S.C.A.
On motion of the plaintiff the case was continued at the regular May term of court. This continuance was granted to enable the plaintiff to try and perfect his service of process or to determine what steps he might take to save his lawsuit.
At the call of the docket at the beginning of the present term, on November 12, 1951, no progress toward getting the defendant before the court had been made. The court threatened to dismiss the case for want of prosecution, but at the further request and on motion of the plaintiff continued the case and assigned it for trial for January 22, 1952. At the call of the case on that day the plaintiff announced that since the defendant was not before the court he (the plaintiff) was not ready for trial.
The plaintiff then requested time to look further into the matter of jurisdiction and venue and to be allowed to submit a brief on the question. Time was granted until February 15.
On February 13, the plaintiff filed his brief in which he argues the point that the court should transfer the case to the Western District of Tennessee where the accident occurred. No motion is made seeking such a transfer or the invoking of the provisions of Title 28, U.S.C.A. §§ 1404(a) and 1406(a).
Had such a motion been made I do not believe it should be sustained. It is set forth in the plaintiff's brief that Tennessee has a statutory provision that nonresident users of its highways consent to be sued in either the state or federal courts of Tennessee for incidents growing out of automobile accidents on its highways. Consequently, he reasons that since the Western District of Tennessee has jurisdiction of the action and process could be had upon the defendant by reason of this Tennessee statute that the case should be transferred.
According to the authority of Morris v. Sun Oil Co., D.C., 88 F.Supp. 529, it may be that the venue of the action would lie in the federal court of the Western District of Tennessee. The plaintiff did not select that forum. He selected this district. Having selected his forum I do not believe he can now, without having the defendant before the court, be permitted to have his case transferred. This court has no jurisdiction of the defendant. He is not before the court.
Section 1391(a) of Title 28 U.S. C.A., fixes the venue of actions such as this in the district of either the defendant or the plaintiff. The additional venue granted by the forum non conveniens statute cannot be prostituted to such procedure as the plaintiff asks here. That statute was to benefit both parties and in my judgment was enacted primarily to meet an evil of advantage being taken of defendants by suing them in distant and supposedly unfriendly courts. The statute was never intended and cannot be applied to aid a plaintiff who selected one forum and because he is unable to get proper service of process...
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...Semble under 28 U.S.C. § 1404(a), Hargrove v. Louisville & Nashville Ry. Co., D.C.W.D.Ky.1957, 153 F.Supp. 681; McDaniel v. Drotman, D.C.W.D.Ky.1952, 103 F.Supp. 643; Wilson v. Kansas City So. Ry., D.C.W.D.Mo. 1951, 101 F.Supp. 56; cf. Scarmardo v. Mooring, D.C.S.D.Tex.1950, 89 F.Supp. 936;......
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Hohensee v. News Syndicate, Inc.
...v. Shubert, D.C.S.D.N.Y. 1959, 175 F.Supp. 793, appeal dismissed, Goldlawr v. Heiman, 2 Cir., 1960, 273 F. 2d 729; McDaniel v. Drotman, D.C.W.D. Ky.1952, 103 F.Supp. 643. We think that a close reading of the section will make it clear that it is available to a plaintiff only where the court......
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...the Courts are in disagreement. Independent Productions Corp. v. Loew's, Inc., D.C.S.D.N.Y. 1957, 148 F.Supp. 460; McDaniel v. Drotman, D.C.W.D.Ky.1952, 103 F.Supp. 643; Wilson v. Kansas City So. Ry., D.C.W.D.Mo.1951, 101 F.Supp. 56; Fistel v. Beaver Trust Co., D.C.S.D.N.Y. 1950, 94 F.Supp.......
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