Poe v. Kuyk, Civ. A. No. 76-292.

• Decision Date: 12 April 1978
• Docket Number: Civ. A. No. 76-292.
• Citation: 448 F. Supp. 1231
• Parties: Lewis W. POE, Plaintiff, v. Charles F. G. KUYK et al., Defendants.
• Court: U.S. District Court — District of Delaware

448 F. Supp. 1231

Lewis W. POE, Plaintiff, v. Charles F. G. KUYK et al., Defendants.

Civ. A. No. 76-292.

United States District Court, D. Delaware.

April 12, 1978.

COPYRIGHT MATERIAL OMITTED

Lewis W. Poe, pro se.

John X. Denney, Jr., Asst. U. S. Atty., Dept. of Justice, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, District Judge.

This case highlights the difficulties which occur when a plaintiff who is unhappy with the result obtained in one court attempts to proceed under a different theory of the case in a second court. Specifically, the issue is whether a prior determination by another district court regarding the availability of nationwide service of process under 28 U.S.C. § 1391(e) is binding upon this court when the defendants remain the same but the capacity in which they are sued differs.

Proceeding pro se, plaintiff avers that while stationed at Dover, Delaware, as a pilot and captain in the United States Air Force, he was wrongfully and maliciously arrested, subsequently confined at Wright-Patterson United States Air Force Medical Center, Ohio and finally separated from military service pursuant to a medical disability. In a long and discursive complaint, plaintiff alleges that the roles played and decisions made by a number of defendant commanding officers,¹ culminating in his confinement and discharge, operated as a conspiracy in violation of the United States Constitution. Also alleging violations of the Air Force's own regulations, it is not apparent from the face of the complaint that plaintiff has availed himself of appropriate administrative remedies designed to cure defective discharges.²

Instead, he has chosen to proceed in this court against the named defendants, all of whom were servicemen at the time of the alleged violation.³ Asserting a claim of damages against these defendants in their individual capacities, plaintiff has expressly disclaimed reliance on the Federal Tort Claims Act and has confirmed at oral argument, that he was not interested in pursuing either the United States as a defendant or the named defendants in their official capacities. Quite possibly the reason for this is that plaintiff has filed several suits in other districts which, based on the operative facts asserted here, rely upon these very theories of relief.⁴

The United States has entered an appearance on behalf of defendants and has moved to dismiss for insufficiency of service of process and lack of jurisdiction over the defendants, none of whom are located in Delaware. Official immunity and servicemen's immunity are advanced as other grounds for dismissal of the complaint. Finally, defendants claim that the complaint is so prolix and non-specific that a responsive answer is impossible. Apparently, the government is not overly concerned about the concurrent actions taken by plaintiff in other districts and has not sought dismissal pursuant to principles of judicial preclusion. However, this Court cannot indulge in so sanguine a view of this situation.

Modern forms of pleading permit and principles of judicial economy demand that all claims arising out of the same facts be presented at one time. It is simply not fair to require a defendant to return to court time and time again to defend against the same allegations as plaintiff moves from one theory of recovery to another. Likewise, it is not in the best interests of judicial economy to have the same facts litigated in multiple suits against different defendants if the defendants can be joined in one suit consistent with the principles of jurisdiction, venue and service. As this Court once stated:

"At some point there should be finality for both the litigants and the courts. For the litigants, one thorough airing on a non-merits point should be enough. For the courts, there is achieved judicial economy inherent in avoidance of duplicative, successive litigation. Rather than encourage forum shopping, the federal system, heavily overburden with litigation which must be heard, should not countenance, and cannot afford the luxury of permitting the same plaintiff to litigate the same issue with no demonstration of changed circumstance which would affect the outcome. . . ." (footnote omitted)

Pastewka v. Texaco, Inc., 420 F.Supp. 641, 646 (D.Del.1976), aff'd, 565 F.2d 851 (3d Cir. 1977).

Reasserting the general validity of this view, the Court concludes that it is particularly appropriate in the context of this case which is brought against military personnel who by virtue of their specialized mission have been insulated to some degree from judicial review.⁵ If deference is paid to the general proposition that the military should concentrate on defending the country instead of lawsuits, it ought to be applied with greater force when the same facts are sought to be litigated over and over again.

Against this background, the Court considers the motion to dismiss raising inter alia the question of whether service is proper upon these defendants. Because none of the defendants reside in Delaware and none have been properly served under F.R.Civ.P. 4,⁶ service is sought to be effectuated under 28 U.S.C. § 1391(e) permitting nationwide service of process in certain circumstances.⁷ In a prior lawsuit against all these defendants filed in the District of Hawaii, plaintiff sought unsuccessfully to effectuate service under section 1391. The district court in Hawaii found plaintiff's reliance on section 1391 misplaced and dismissed the action concluding that "it had no jurisdiction over the defendants pursuant to Title 28, United States Code, Sections 1391(e) and 1361."⁸ That decision is now on appeal in the Ninth Circuit.

Ordinarily, a determination regarding the sufficiency of service and in personam jurisdiction in one district would be a finding peculiar to the facts in that district such as whether the defendant resides there or has sufficient contacts in the forum and would not be especially relevant to a like inquiry in another district. However, when the threshold issue of whether service was proper upon these defendants was decided by reference to section 1391(e) which requires an interpretation of law, that issue is considered to have been fully litigated under tenets of estoppel.⁹

The complaint filed in the District Court of Hawaii, although somewhat longer,¹⁰ is essentially identical to the one filed in the District of Delaware. Naming the same defendants, it alleges the same conspiracy stating the same facts in support of the allegations and seeks the same form of relief, namely compensation and punitive damages and appropriate equitable relief. The sole distinguishing feature between the two suits is the representation made at oral argument that the suit filed in the District of Hawaii is against defendants in their official capacities whereas, in the instant case, plaintiff opposes defendants in their individual capacities.

Because the defendants were not present in Hawaii at the time the action was commenced there and consequently were not subject to service in Hawaii under F.R. Civ.P. 4, plaintiff relied on 28 U.S.C. § 1391(e) as the vehicle by which to establish jurisdiction over the named defendants. This position was expressly rejected by the District of Hawaii.¹¹

Since the defendants are likewise not present in the District of Delaware, jurisdiction over the defendants is possible only if 28 U.S.C. § 1391(e) is deemed applicable. This determination can be made, if at all, only by a contrary ruling to that already determined adversely to the plaintiff.

That plaintiff is suing these defendants for damages in their individual capacities does nothing to enhance plaintiff's position. Whether section 1391 applies, in the first instance, to damage claims brought against individuals is in itself a controversial matter.¹² The view the Court would independently take of that particular problem is unimportant. What is germane is that this Court could not address that issue without encroaching upon the determination of another court regarding the application of 28 U.S.C. § 1391(e) to these identical defendants in an action by the same plaintiff based on a different legal theory arising from the same operative facts. It is concluded the judgment on that issue, albeit a non-merits judgment, must be given full effect and cannot now be the subject of second guessing.¹³

Plaintiff asserts that even if service is ineffective, defendants have waived this defect by the appearance of the United States Attorney whose objections on the motion to dismiss exceeded defendants' challenge to service. Nothing could be further from the fact. Rule 12(b) of the Federal Rules of Civil Procedure, in eliminating the use of special appearances for the purpose of contesting jurisdiction, contemplates that all objections be brought at once. Indeed, rule 12(b) explicitly provides that "no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." It should further be noted that, with few exceptions, if defendant fails to join his defenses or objections in a single motion, he "cannot make a second motion raising other such defenses or objections." C. Wright, Handbook of the Law of Federal Courts 316 (3d ed. 1976). See Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir.), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944).

Finally, plaintiff requests, pursuant to 28 U.S.C. § 1406, that if service is defective, the Court cure the defect by transferring the case to a district in which it could have been brought. Because such a transfer would exacerbate the already active forum shopping which has occurred, a transfer would not be in the interests of justice and consequently is denied.

For the foregoing reasons, defendants' motion to dismiss the complaint will be granted. Resolution of the issue of service was determined in the District of Hawaii as a...