Moss v. Atlantic Coast Line R. Co.

• Citation: 149 F.2d 701
• Decision Date: 28 May 1945
• Docket Number: No. 326.,326.
• Parties: MOSS v. ATLANTIC COAST LINE R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

149 F.2d 701 (1945)

MOSS v. ATLANTIC COAST LINE R. CO.

No. 326.

Circuit Court of Appeals, Second Circuit.

May 28, 1945.

Albert Blumenstiel and Jacobs & Blumenstiel, all of New York City, for appellant.

James J. Mennis and Stewart & Schearer, all of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

The plaintiff, a citizen of Pennsylvania, was injured in a railway accident in North Carolina, while a passenger on the defendant's train. The defendant is a Virginia corporation, having its principal place of business in North Carolina, but also maintaining a place of business in the City of New York. It has never filed any consent to be sued in New York, but we will assume for argument that it does enough business in New York to require it to file the consent required by § 210(1) of the General Corporation Law of that state, Consol.Laws, c. 23 — a consent which subjects it to service upon all claims wherever arising. § 225(4) of the General Corporation Law. Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432, 111 N. E. 1075, L.R.A.1916F, 407, Ann.Cas. 1918A, 389. The defendant moved to dismiss the complaint on the ground that the district court had no jurisdiction over the claim under § 112 of Title 28 U.S.C.A. because the defendant was not a "resident" of New York. The judge so held and the appeal presents the single question whether the venue was proper.

In Neirbo v. Bethlehem Shipbuilding Corporation, Inc., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, the Supreme Court held, that, when a foreign corporation had in another state given a consent to be sued, it became a "resident" within § 112. The question here is whether if the corporation does enough business within the state to require it under the local law to file such a consent, but does not file one, it is as much a "resident" as though it had actually complied with the law. It is, so far as we can find, still an open question whether, if the state law requires consent to service in actions upon claims arising outside its borders, from a foreign corporation doing business within it, and the corporation does business without filing the consent, it subjects itself to personal service upon claims arising outside, as it would have subjected itself, had it complied with the local statute; or whether in that case the corporation may be served only in actions upon claims arising within the state. Louisville & Nashville R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711, did not decide the point, for the court held that the claim arose within the state where the consent had been filed — a consent which, it was assumed, was limited to claims arising within the state. Thus, so far as we can see, it might still be held that in a state like New York, which exacts a submission to personal service in suits upon every kind of claim, a corporation which should, but does not, file such a consent, may be subject to personal service in actions upon claims arising outside the state; and, if that be true, it could be argued here, that, for purposes of venue, such a corporation should also be held to be a "resident" of the state.

We think ourselves spared from entering into this speculation, because of what was said in Neirbo v. Bethlehem Shipbuilding Corporation, Inc., supra (308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437). We should have been in more doubt, had not the opinion dealt with earlier decisions of the court which had held that a foreign corporation doing business outside the state of its incorporation without filing a consent, was not a "resident." Par...