Nowell v. Nowell

• Decision Date: 31 December 1968
• Docket Number: Civ. A. No. 67-963-M.
• Parties: Iris Calder NOWELL v. Ames NOWELL, Lawrence Ames Nowell, and the National Shawmut Bank of Boston.
• Court: U.S. District Court — District of Massachusetts

296 F. Supp. 640

Iris Calder NOWELL v. Ames NOWELL, Lawrence Ames Nowell, and the National Shawmut Bank of Boston.

Civ. A. No. 67-963-M.

United States District Court D. Massachusetts.

December 31, 1968.

Brooks Potter, Mark A. Michelson, Choate, Hall & Stewart, Boston, Mass., for plaintiff.

Stephen A. Moore, Gaston, Snow, Motley & Holt, Boston, Mass., for defendant National Shawmut Bank.

No appearance for individual defendants.

MEMORANDUM OF DECISION

MURRAY, District Judge.

This is an action brought by a California citizen against her former husband and trustees of a trust corpus located in Boston.¹ Plaintiff's former husband is one of the trustees, and is a citizen of Texas. The other trustees are a citizen of Colorado and a national banking association with its principal place of business in Boston ("the Bank"). The action was commenced by service of a summons, complaint and trustee writ on defendant Bank.

I. Introduction

Plaintiff's complaint alleges that her former husband, Ames Nowell, owes her money on an unsatisfied judgment recovered in the United States District Court for the Northern District of Texas (Count I), and owes her the costs of appeal from that judgment in the Court of Appeals for the Fifth Circuit (Count II). The complaint further alleges that Ames Nowell owes her money under a separation agreement in writing, or, alternatively, under the terms of a Mexican divorce decree which incorporated the separation agreement as part of the decree of the Mexican court; that he intends never to pay plaintiff any sums payable to her under such agreement or under such divorce decree; and that the obligation of Ames Nowell to pay plaintiff money at fixed times under such agreement or such divorce decree is continuing and is now in full force and effect (Count III). The complaint further alleges that Ames Nowell "is presently the only beneficiary of the trust held by the Bank * * * entitled to receive payments of income therefrom, and such income payments are mandatory". Thus, plaintiff seeks in this action (1) to satisfy her claims against her former husband for money due and owing her by applying the income payments now due him under the trust and seized by the trustee process; (2) to impress an equitable charge or lien upon future income payable to him to secure any present indebtedness and future payments which may become due her under the separation agreement or Mexican divorce decree; and (3) specific performance of the separation agreement or Mexican divorce decree.

Plaintiff has moved for leave to amend and to amend her complaint pursuant to Federal Rule of Civil Procedure 15(a), and these motions have been granted. By order dated April 17, 1968, this court dismissed the original complaint, finding:

(1) that plaintiff has not shown that the action is between citizens of different states, and

(2) that jurisdiction over the defendants is not obtained by the procedure invoked by the plaintiff * * *.

Prior to entering its order, the court heard argument on the various grounds urged by defendant Bank. In addition, argument was heard on the Bank's motion to quash the trustee writ. At no time in these proceedings have the individual defendants appeared, and, for all that shows on the papers before the court, no notice has been given them concerning this proceeding. Since the matter has been fully argued previously, the motion to dismiss is treated as a renewed attack upon the amended complaint. Consideration will also be given to the Bank's motion to quash the trustee process issued in this case. This motion is also treated as if it was renewed here. At the outset, however, it seems clear from plaintiff's motion to amend that she has cured the Bank's objections to the allegations in her original complaint concerning the citizenship of defendant Ames Nowell. It is now alleged that Ames Nowell is a citizen of Texas, while previously plaintiff claimed only that he was "of parts unknown". Thus, the first reason supporting this court's former order of dismissal can no longer stand.

Another preliminary matter may be summarily disposed of. The Bank objected to the original complaint on the ground that it did not join as a defendant the third trustee of the trust involved. In plaintiff's amended complaint, Lawrence Ames Nowell has been named as a party defendant. By affidavit dated February 26, 1968, the Bank stated that it, Ames Nowell, and Lawrence Ames Nowell are the present trustees of the trust. It follows there can be no objection to the complaint on the ground that it fails to name indispensable parties to the lawsuit. Whether the absent trustees can be served with process in this case is a different question, and it will be taken up later.²

II. Plaintiff's Choice of Forum

A. The Foreign Judgment Registration Statute

As to other questions raised, it is important to point out what this action does not involve. It is not an ancillary execution proceeding on a judgment recovered in another federal district court and registered here. While 28 U.S.C. § 1963 (1964) provides that such a judgment "shall have the same effect as a judgment" recovered here and "may be enforced in like manner", it is not alleged that the Texas judgment has been registered as required by that section, and no copy of that judgment is presently before the court that could be deemed "registered". Plaintiff has chosen not to follow the section 1963 registration procedure, and this case cannot be viewed as one arising under that section. Rather, that part of plaintiff's complaint seeking recovery on her Texas judgment must be considered a new and independent proceeding.³

B. Subject-Matter and Personal Jurisdiction Generally

There is no question in this action concerning the subject-matter jurisdiction of the court. This is a controversy between citizens of different states, and, under 28 U.S.C. § 1332(a) (1) (1964), the court has jurisdiction over the dispute between the parties.⁴ Since the plaintiff's former husband, Ames Nowell, is a non-resident, however, the question posed is whether this court is authorized by statute or rule, considering the allegations in the complaint, as amended, to affect his interest in property located within the District of Massachusetts.⁵ This court has no in personam jurisdiction over the defendant, and no long-arm statute is applicable to this case. The plaintiff requests, however, that the court order her former husband "to appear or plead by a day certain" pursuant to 28 U.S.C. § 1655 (1964).

C. Venue

The statute from which section 1655 was derived has been the subject of many judicial constructions. It has received due notice from commentators.⁶ In 1875 it was re-enacted as part of an act prescribing the venue requirements for actions in the United States Courts.⁷ The first part of that venue act, as modified over the years, is now 28 U.S.C. § 1391 (Supp. III 1967). Relevant is subsection (a) of that section, which reads as follows:

A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.

A series of cases,⁸ including an 1894 Supreme Court decision,⁹ have held that the general venue requirements now contained in section 1391(a) are not applicable to actions properly within section 1655. Thus, since plaintiff is a citizen of California and her former husband, the defendant Ames Nowell, is a citizen of Texas, venue is proper in this district if this case falls within section 1655. On the other hand, venue is improper if it is to be determined solely by reference to section 1391(a).

D. Service of Process under Rule 4 (e)

Prior to the 1963 Amendments to the Federal Rules of Civil Procedure, it had been consistently held that a civil action originally brought in a district court could not be commenced by attachment.¹⁰ In 1963, however, Rule 4(e) of the Federal Rules of Civil Procedure was amended to provide in relevant part as follows:

* * * * * *

Whenever a statute or rule of court of the state in which the district court is held provides * * * for service upon or notice to * * * a party not an inhabitant of or found within the state to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may * * * be made under the circumstances and in the manner prescribed in the statute or rule.¹¹

Together with a complementary change in Rule 4(f),¹² this amendment permits the commencement of an original action by trustee process.¹³ Rule 82 provides, however, that "these rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein". The restriction imposed by section 1391(a) must limit the venue of actions commenced under Rule 4(e) because of the injunctive language of Rule 82. Manifestly, this limitation was not unforeseen by the Advisory Committee on Rules for Civil Procedure. The Committee's Notes to amended Rule 4(e) state categorically that "the necessity of satisfying subject-matter jurisdictional requirements and requirements of venue will limit the practical utilization of these methods of effecting service".¹⁴

E. Notice to "Appear or Plead" under 28 U.S.C. § 1655: The Pre-Existing Lien Rule

The question presented for decision in view of plaintiff's request that notice issued to defendant pursuant to section 1655 is whether this action on a judgment and a separation agreement or divorce decree is "an action * * * to enforce * * * a lien upon or claim to * * * personal property within the district * * *." 28 U.S.C. § 1655 (1964). Defendant Bank's motion to dismiss is grounded in part on the contention that this is not such an action and therefore the District of Massachusetts does not provide proper venue. Plaintiff's complaint is...