Speir v. Robert C. Herd & Co.

• Decision Date: 16 November 1960
• Docket Number: Civ. No. 11046.
• Citation: 189 F. Supp. 436
• Court: U.S. District Court — District of Maryland
• Parties: Edward S. SPEIR v. ROBERT C. HERD & CO., Inc. and Western Maryland Railway Co., and Newtex Steamship Corporation, a Delaware corporation.

189 F. Supp. 436

Edward S. SPEIR v. ROBERT C. HERD & CO., Inc. and Western Maryland Railway Co., and Newtex Steamship Corporation, a Delaware corporation.

Civ. No. 11046.

United States District Court D. Maryland.

November 16, 1960.

John J. O'Connor, Jr., O'Connor & Preston, Baltimore, Md., for plaintiff.

George W. P. Whip, Baltimore, Md., appearing specially, for defendant Newtex Steamship Corporation.

THOMSEN, Chief Judge.

Defendant Newtex has requested the court to include in the order to be entered on the opinion filed herein October 24, 1960, 189 F.Supp. 432, a statement that "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." See 28 U.S.C.A. § 1292(b), added to sec. 1292 by Public Law 85-919, 72 Stat. 1770, Sept. 2, 1958.¹

Newtex states in its brief: "While it is most desirable to have the order overruling the Motion to Quash recite the necessary matters as provided in paragraph (b) of Section 1292 of Title 28 U.S.C.A. to insure the propriety of an appeal from the order, we believe there is authority for holding that an order overruling a Defendant's Motion to Quash is such a final determination of that question that the order is appealable". However, in the cases cited by defendant the district court had vacated the service, Knight v. Stockard S.S. Corp., 2 Cir., 214 F.2d 727, or dissolved an attachment, Swift & Co. Packers, et al. v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206. As the Supreme Court said in the latter case: "Appellate review of the order dissolving the attachment at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible. * * * The situation is quite different where an attachment is upheld pending determination of the principal claim. Such was Cushing v. Laird, 107 U.S. 69 2 S.Ct. 196, 27 L.Ed. 391, which is urged on us. In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds." 339 U.S. at page 689, 70 S.Ct. at page 865. Newtex recognizes this distinction, but argues that the rights of Newtex cannot be adequately protected while the litigation of the main claim proceeds because, Newtex fears, the entry of a general appearance and the filing of an answer may be "a waiver of the special appearance and the rights set forth in the preliminary Motion".

Those fears are without adequate foundation. This is a civil action. Special appearances to challenge jurisdiction over the person or improper venue are not necessary under the Federal Rules of Civil Procedure, 28 U.S.C.A.; Moore's Federal Practice, 2d Ed., Vol. 2, pp. 1308, 2219, 2262-2264. "* * * Rule 12 has abolished for federal courts the age-old distinction between general and special appearances." Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, 874. A party may raise the defenses numbered (1-5) in Rule 12(b), and losing thereon proceed to litigate on the merits, and losing on the merits appeal and attack the judgment both on the merits and on such grounds (1-5) as he has urged.² Moore, op. cit., vol. 2, p. 2261.

Newtex cites two opinions by Judge Hoffman, Efentakis v. S/T World Legion, E.D.Va., 165 F.Supp. 773, and Nolan v. Jensen (The Else Basse), E.D. Va., 171 F.Supp. 351, 358. Both were admiralty cases, to which the Federal Rules of Civil Procedure did not apply. In Massachusetts Bonding & Ins. Co. v. Concrete Steel Bridge Co., 4 Cir., 37 F.2d 695, also cited by Newtex, the defendant appeared specially and filed a plea in abatement denying that the cause of action arose in West Virginia, before filing its motion to quash the writ and the return. The court held that under applicable law the "special appearance" should be treated as a general appearance and that the filing of the plea in abatement constituted a waiver of any objection to jurisdiction over the person. This decision was rendered before the Federal Rules of Civil Procedure were adopted, and is not authoritative now. Certainly it is not out of line with the general rule that an objection to the jurisdiction over the person is waived by proceeding on the merits before the objection has been ruled on, but is not waived by proceeding on the merits thereafter.

It appears, therefore, that I should rule on the request made by Newtex for a statement under sec. 1292(b). In view of the decision of Judge Cullen, cited in my previous...