Schultz v. McAfee

• Decision Date: 20 March 1958
• Docket Number: No. 1006.,1006.
• Parties: Carl W. SCHULTZ and Donald K. Schultz, a Minor, p.p.a., Plaintiffs, v. Jesse S. McAFEE and Robert McAfee, a Minor, Defendants.
• Court: U.S. District Court — District of Maine

160 F. Supp. 210

Carl W. SCHULTZ and Donald K. Schultz, a Minor, p.p.a., Plaintiffs, v. Jesse S. McAFEE and Robert McAfee, a Minor, Defendants.

No. 1006.

United States District Court D. Maine, S. D.

March 20, 1958.

Robert C. Zampano, East Haven, Conn., Philip M. Isaacson, Lewiston, Me., for plaintiffs.

Burns, Calderwood & Bryant, Dover, N. H., for defendants.

GIGNOUX, District Judge.

This ruling arises following a hearing before this Court upon the issue of improper venue as tendered by defendants in their answer, it having been previously determined that the venue question should be disposed of prior to any trial of the case upon its merits.

Plaintiffs are residents and citizens of New Hampshire. By complaint filed and served on July 13, 1953, they instituted this action against defendants, an adult and his minor son, to recover damages resulting from personal injuries sustained by the son through the negligence of defendants on April 29, 1953. Defendants were alleged in the complaint to be residents and citizens of Maine. The complaint alleges that the matter in controversy exceeds the sum of $3,000, exclusive of interest and costs, and jurisdiction is based solely on diversity of citizenship. 28 U.S.C.A. § 1332.

Defendants seek dismissal of the action on the ground that they were not residents or citizens of the State of Maine at the time of service of the complaint, and that the venue is, therefore, improper under 28 U.S.C.A. § 1391(a), because neither plaintiffs nor defendants were at such time residents of the State of Maine. Plaintiffs deny that the venue is improper and further assert that defendants have waived their right to interpose improper venue as a defense by their earlier participation in the case. Plaintiffs also contend that even if the venue is improper and the defense has not been waived, the appropriate disposition by this Court is not dismissal of the action, but transfer to another and proper district court pursuant to the provisions of 28 U.S.C.A. § 1406(a). By waiver filed subsequent to the hearing, defendants have waived any right they might have to transfer of the action to another district in the event that this Court should conclude that the venue is improper and has not been waived, but that transfer of the action, rather than its dismissal, would be in order.

A somewhat detailed discussion of the prior pleadings and other proceedings in this action, which has been pending in this Court for almost five years, is necessary for an understanding of this opinion.

As indicated, the complaint was filed and served on July 13, 1953. On July 29, 1953, defendants filed a pleading entitled "Defendants' Special Appearance and Motion to Dismiss," in which they moved to dismiss the complaint for insufficient service of process, on the ground that Mrs. Jesse S. McAfee, wife of the adult defendant and mother of the minor defendant, upon whom the service has been made, was not authorized to accept service for defendants. On August 25, 1953, this Court, Clifford, J., presiding, acting on the ex parte petition of the United States Marshal, permitted the return on service of writ to be amended to read that service had been made by leaving a copy of the complaint at defendants' last and usual place of abode. This order contained a specific finding that the amendment would not change the type or manner of service made, was solely for the purpose of correcting an omission in the return and would not prejudice any substantial rights of defendants.

On October 2, 1953, defendants filed a pleading entitled "Defendants' Special Appearance and Motion for Enlargement of Time for Filing Answer," in which they objected to the ex parte order permitting amendment of the marshal's return and asked for an enlargement of time for filing answer "until such time as it has been determined and adjudicated that the Court has jurisdiction over the defendants." No action was taken by the Court with respect to this motion.

On December 5, 1953 defendants filed a pleading entitled "Defendants' Answer and Motion to Dismiss," in which they denied generally all the allegations of the complaint, including the Maine residence and citizenship of defendants, and moved to dismiss the complaint. No specific grounds for the motion to dismiss were stated.

On March 22, 1954 defendants filed a document entitled, "Defendants' Memorandum of Law in Support of Motion to Dismiss," in which they repeated their contentions with respect to improper service of process and, for the first time, specifically raised the defense of improper venue.

After a lapse of three and one-half years, the delay being largely the result of the vacancy on this Court, a hearing was scheduled on September 24, 1957, before Delehant, J., serving by assignment, upon the assumption that a motion to dismiss for improper venue had been tendered by defendants and was ready for ruling. By memorandum filed September 30, 1957, the Court found that no formal motion to dismiss for improper venue had been filed by defendants, but that defendants had tendered the issue of improper venue in their answer and were entitled to hearing thereon. An order was entered directing that a hearing be held as to the issue of improper venue prior to any trial of this action on its merits.

In compliance with such order, hearing was held before this Court on December 23, 1957. This opinion is based on the evidence adduced at this hearing, on the pleadings and on the waiver of right to transfer filed by defendants.

The evidence introduced at the hearing shows conclusively that the adult defendant, Captain Jesse S. McAfee, U. S. N., entered the United States Naval Academy in 1927 from Waco, Texas, where he was residing with his parents; that from that time until July 13, 1953 (date of service in the instant case) he had never established any other permanent residence, but was constantly being shifted by the Navy; that his visits to Texas were infrequent, but always to his parents' home; that his parents moved several times but always remained within the State of Texas; that no room was permanently set aside for him at his parents' home; that he always considered Texas as his home; that he maintained a Texas driver's license and registered his car in Texas; that he never voted, because Texas did not allow servicemen to vote by absentee ballot until 1955; that he owned no residence prior to the date of service in this case; that his residence in Maine had been in Government quarters and ancillary to his naval service at the Portsmouth Naval Shipyard in Kittery, Maine; that such residence had been terminated on the day following service of summons because of prior orders of transfer to a new station at Guam; and that his son Robert, the other defendant, was at the time of service a minor residing with his parents.

From the foregoing, it is clear that at the time of service the domicile of both defendants was Texas, and not Maine. Yarborough v. Yarborough, 1933, 290 U.S. 202, 211, 54 S.Ct. 181, 78 L.Ed. 269; Mangene v. Diamond, 3 Cir., 1956, 229 F.2d 554; Price v. Greenway, 3 Cir., 1948, 167 F.2d 196; Finger v. Masterson, D.C.W.D.S.C.1957, 152 F. Supp. 224; see, Restatement, Conflict of Laws, §§ 21(c) and 30(c).

And it is domicile which decides the proper venue in this action, for 28 U.S.C.A. § 1391(a) provides:

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.

and "reside" means "are domiciled." Sherman v. Collin, D.C.Me.1953, 117 F. Supp. 496.

Thus, plaintiffs being domiciled in New Hampshire and defendants being domiciled in Texas, venue is improper by the terms of 28 U.S.C.A. § 1391(a). This is so even though, as in the instant case, the service of the summons and complaint may have been proper. Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39; Finger v. Masterson, supra.

Venue, however, may be waived. See Olberding v. Illinois Central R. Co., supra, 346 U.S. 340, 74 S.Ct. 85, and such waiver may be accomplished impliedly as well as expressly. Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 168, 60 S.Ct. 153, 84 L.Ed. 167.

There has quite clearly been no express waiver in the instant case, and this Court would, therefore, ordinarily next consider whether or not there has been an implied waiver by defendants under the provisions of Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A., because of the earlier filed motions to dismiss for improper service of process, and for enlargement of time; or under the provisions of 28 U.S.C.A. § 1406(b) because of defendants' failure to interpose "timely and sufficient" objection to the venue. For the reasons hereinafter set forth, however, this Court has concluded that even if the defense of improper venue has not been waived by defendants, this case should not be dismissed, but should be transferred to a proper district under 28 U.S.C.A. § 1406(a). In view of defendants' waiver of right to transfer, it therefore becomes unnecessary to determine whether or not there has been a waiver of venue, and the Court will assume that it has not been waived as a defense.

28 U.S.C.A. § 1406(a) provides:

(a)

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