Pittman v. Compton

• Decision Date: 04 January 1968
• Docket Number: Civ. No. 67-208.
• Citation: 277 F. Supp. 772
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: F. Don PITTMAN and Jim Gaffney, Co-administrators of the Estate of Donald E. Deaton, Deceased, Plaintiffs, v. A. Paul COMPTON, M. D. and Oklahoma Baptist General Convention, an Oklahoma Corporation, d/b/a Grand Valley Hospital, Defendants.

277 F. Supp. 772

F. Don PITTMAN and Jim Gaffney, Co-administrators of the Estate of Donald E. Deaton, Deceased, Plaintiffs, v. A. Paul COMPTON, M. D. and Oklahoma Baptist General Convention, an Oklahoma Corporation, d/b/a Grand Valley Hospital, Defendants.

Civ. No. 67-208.

United States District Court N. D. Oklahoma.

January 4, 1968.

Floyd L. Walker, Tulsa, Okl., for plaintiffs.

John R. Richards, Tulsa, Okl., for defendants.

ORDER

DAUGHERTY, District Judge.

Plaintiffs as Administrators of the Estate of Donald E. Deaton, Deceased, brought this suit in the District Court for Creek County, Oklahoma, for the wrongful death of Deaton. Before summons was served on either Defendant, Plaintiffs dismissed the Defendant, Oklahoma Baptist General Convention from their suit in the State District Court. The Defendant Compton was thereafter served in Colorado because he had become a non-resident of Oklahoma since the date this cause of action accrued. Compton has removed the case to this Court and now moves to dismiss the action because of lack of jurisdiction on the grounds of improper venue and service in the District Court of Creek County, Oklahoma.

If the Creek County District Court had no jurisdiction of this case at the time of the Defendant's (Compton's) petition for removal, this Court cannot acquire jurisdiction¹.

The Defendant objects to the venue of the case being laid in the Creek County District Court, on the theory that where a joint transitory action is brought against both resident and nonresident defendants, venue lies in the county where the resident defendant resides, or, if a corporation, where it is situated or has its principal place of business. This is the tenor of the Oklahoma venue statutes (12 O.S. § 131 et seq.) and one of the long-arm statutes (12 O.S. § 187). The corporation named in the Complaint, however, never became a party as it was never served. In fact, it was dismissed before any summons was served, and no service was ever issued as to it. With the corporation out of the suit, the Complaint still states a cause of action against the Defendant Compton, who is the only Defendant in the case and is a non-resident. As only the parties actually in the case are determinative of venue,² it follows that venue where the only defendant is a non-resident may properly be laid in the county of Plaintiff's residence (12 O.S. § 137), which in this case is Creek County. The Creek County District Court was, therefore, not without jurisdiction because of improper venue.

The Defendant next objects to the process served on him by the Sheriff of Denver County, Colorado, in that it did not specify the proper time for return of the summons as provided in 12 O.S. § 175, thus requiring him to answer in less time than the statute provides. Out of state personal service is authorized by 12 O.S. § 187(b) and must be effected in the manner provided in 12 O.S. § 175. Personal service out of state is also authorized by 12 O.S. § 1701.04 and the proper methods of effecting service are specified in 12 O.S. § 1702.01. Among these methods is "personal delivery in the manner prescribed for service within this state;" 12 O.S. § 1702.01(a) (1). This method is described in 12 O.S. § 155. The date when the summons is returnable is different: in § 175, it must be more than twenty-one days after the date of the summons, and under § 155, return may be made from ten to sixty days after the date of the summons. Here, the Plaintiffs made the summons returnable in fifteen days, with answer to be filed within twenty days thereafter in accordance with 12 O.S. § 283.

It is true that failure to follow the procedures prescribed by statute will make the process on which suit is predicated fatally defective.³ However, this is not here the case. The method of service utilized by Plaintiff...