Orange Theatre Corp. v. Rayherstz Amusement Corp., No. 8368.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BIGGS, MARIS, JONES, GOODRICH, and McLAUGHLIN, Circuit
• Citation: 139 F.2d 871
• Parties: ORANGE THEATRE CORPORATION v. RAYHERSTZ AMUSEMENT CORPORATION et al.
• Docket Number: No. 8368.
• Decision Date: 10 January 1944

139 F.2d 871 (1944)

ORANGE THEATRE CORPORATION
v.
RAYHERSTZ AMUSEMENT CORPORATION et al.

No. 8368.

Circuit Court of Appeals, Third Circuit.

Argued October 19, 1943.

Decided January 10, 1944.

139 F.2d 872

Israel B. Greene, of Newark, N. J., for appellant.

Joseph Steiner, of Newark, N. J., for appellee.

Before BIGGS, MARIS, JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff filed a complaint in the District Court for the District of New Jersey under the Sherman Anti-Trust and Clayton Acts, 15 U.S.C.A. § 1 et seq., for treble damages and for equitable relief. The suit is against a corporate defendant and five individual defendants, David Weinstock, Benjamin Weinstock, Harry Brandt, J. Joshua Goldberg and Emanuel Hertzig. The three individual defendants first named were served in the Southern District of New York on October 17, 1940 upon process issued out of the District Court for the District of New Jersey and the two individual defendants last named were served in the Eastern District of New York on October 21, 1940. Counsel for the plaintiff and counsel for the individual defendants entered into a stipulation on November 7, 1940 and another on November 22, 1940 purporting to extend their time to answer or otherwise move with respect to the complaint. On November 25, 1940, within the extended period, the five individual defendants filed and served notice of a joint motion to quash the service of process and dismiss the complaint. The district court granted the motion and the plaintiff appealed to this court. Both in the district court and upon appeal in this court the parties treated the motion as raising only the defense of improper venue. We held that the defense of improper venue must be asserted within twenty days after the service of the summons and complaint and that since the motion had not been served within that period and since the stipulations to extend the time were ineffective because not approved by the district court the motion was untimely and the court should not have granted it. 130 F.2d 185.

Upon remand the district court reinstated the complaint and granted the defendants an extension of time within which to answer or otherwise move with respect to it. The extension was granted under the authority conferred upon the district court by Civil Procedure Rule 6(b), 28 U.S. C.A. following section 723c, under which the court had ample power, in its discretion, to extend the time for serving a motion or answer. Within the extended time the individual defendants again moved to quash the service of process upon them and to dismiss the complaint. The district court again granted their motion and the appeal now before us followed. Upon this appeal the parties have again treated the

139 F.2d 873

motion as raising the question of improper venue. While the second motion is in substantially the same form as the first, our further study has convinced us that the defense which it seeks to assert is not that of improper venue but rather want of jurisdiction of the court over the persons of the individual defendants. Although this objection was not urged either in the court below or here it is clearly raised in the motion and if sustained it supports the order appealed from. It is accordingly open for our consideration. Helvering v. Gowran, 1937, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224; Riley Inv. Co. v. Commissioner, 1940, 311 U.S. 55, 59, 61 S.Ct. 95, 85 L.Ed. 36

The motion was "For an order dismissing the complaint as to the said defendants and each of them on the ground that, as appears from the petition for process and the return of the United States Marshal with respect to service on each of the said defendants that none of the said defendants was served as required by the General Venue Statute, but, on the contrary, that they and each of them were served without the District of New Jersey, and in the case of the defendants David Weinstock and Benjamin Weinstock in the Southern District of New York, and in the case of the defendants J. Joshua Goldberg and Emanuel Hertzig in the Eastern District of New York and in the case of Harry Brandt in the Southern District of New York, all contrary to the statute and practice and rules of this Court in such case made and provided."

While it will be seen that reference was made in the motion to the general venue statute it is quite clear that this reference was wholly meaningless since the sole grounds alleged in support of the motion relate not to venue but to the service of process, namely that the individual defendants were served outside the District of New Jersey. Thus we see that the objection raised by the motion is based upon the extraterritorial character of the service upon these defendants and that the motion does not complain of the fact that the suit was brought in a district other than that of which they are inhabitants.

We adhere to the view expressed in our former opinion that if the motion is to be treated as raising merely the defense of improper venue the time within which it should have been served commenced to run from the time of service of the summons and complaint and that the unapproved stipulation did not serve to extend the time. If, however, we treat the motions, as we...