Rabiolo v. Weinstein, 15263.
| Decision Date | 23 February 1966 |
| Docket Number | No. 15263.,15263. |
| Citation | 357 F.2d 167 |
| Parties | William RABIOLO, Plaintiff-Appellant, v. Myron WEINSTEIN, Richard Jordan, Ronald Pontius and Bernard Smith, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Eugene T. Devitt, Chicago, Ill., for appellant.
John W. Douglas, Asst. Atty. Gen., Civil Division, Dept. of Justice, Washington, D. C., Edward V. Hanrahan, U. S. Atty., Chicago, Ill., Alan S. Rosenthal, Martin Jacobs, Attys., Dept. of Justice, Washington, D. C., for appellees.
Before HASTINGS, Chief Judge, and KILEY and MAJOR, Circuit Judges.
Plaintiff by this action sought to recover damages from defendants, special agents of the United States Secret Service, for allegedly invading his rights under the Fourth and Fifth Amendments to the United States Constitution. In summary, his complaint alleged that on March 2, 1959, an indictment was returned in the Northern District of Illinois, charging him with "passing, uttering and selling certain counterfeit obligations of the United States." Pursuant to that indictment, the four defendants arrested plaintiff and, incident thereto, conducted a search of his home. During the search certain personal property, including "counterfeit notes," was seized.
On April 24, 1959, a second indictment was returned in the same District, charging plaintiff with possession of counterfeit obligations of the United States. At the trial on this indictment, the evidence obtained by the Secret Service agents during their search following the first indictment was used against him. Plaintiff was convicted on this charge and sentenced to imprisonment for two years.
The complaint further alleged that the defendants "conspired with each other to act beyond the scope of their authority as Secret Service Agents" and agreed to abridge plaintiff's constitutional rights. This was accomplished, so it was alleged, by arresting him pursuant to an indictment which "was returned and used as a pretext by said defendants to search plaintiff's home `as an incident of his arrest,'" without a search warrant, by seizing certain personal property and by unreasonably delaying in taking him before a committing officer.
Defendants by the United States Attorney moved to dismiss the complaint because (1) the Court lacked jurisdiction over their persons, (2) the Court lacked jurisdiction over the subject matter, and (3) the complaint failed to state a claim upon which relief could be granted.
On June 3, 1965, the Court entered an order dismissing the complaint, from which plaintiff appeals. The order recited, * * *"
The first contention advanced by defendants in support of an affirmance of the Court's order of dismissal is that the Court acquired no jurisdiction over the persons of defendants. The Court made no ruling on this point and it is apparent that when it denied dismissal for lack of jurisdiction it referred to the subject matter. Notwithstanding this rather awkward situation, we think, on the record as presented, that the order of dismissal must be affirmed because of the lack of personal jurisdiction.
Plaintiff did not have process served upon defendants...
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Tillay v. Idaho Power Co.
...entered granting its motion to dismiss." Read v. Ulmer, supra, 308 F.2d at 917, quoted with approval and followed in Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966), cert. denied, 391 U.S. 923, 88 S.Ct. 1816, 20 L.Ed.2d 659 (1968). While neither case has been overruled, neither have......
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Briggs v. Goodwin
...F.Supp. 1263, 1266 (D.Haw.1976) (semble). See also Kletschka v. Driver, 411 F.2d 436, 442 (2d Cir. 1969) (dicta); Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966) (dicta). On the other hand, Paley v. Wolk, 262 F.Supp. 640, 642-643 (N.D.Ill.1965), cert. denied, 386 U.S. 963, 87 S.Ct. ......
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Hegwood-Metcalf v. Truex
...to dismiss for insufficient service and a 12(b)(2) motion to dismiss for lack of personal jurisdiction). See also Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966); Evans v. Indiana, 908 N.E.2d 1254, 1258 (Ind. App. 2009). In determining whether service was proper, the court reviews t......
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Sierra Club v. Tenn. Valley Auth.
...not dispense with the necessity for service in order to acquire personal jurisdiction.” 654 F.Supp. at 132 (quoting Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir.1966)). Other venue-conferring statutes have similarly been held not to confer personal jurisdiction. See Robertson v. R.R. La......