Surpitski v. Hughes-Keenan Corporation, 6689.

Decision Date06 June 1966
Docket NumberNo. 6689.,6689.
Citation362 F.2d 254
PartiesVictor SURPITSKI, Plaintiff, Appellant, v. HUGHES-KEENAN CORPORATION, etc., et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Edward D. Tarlow, Boston, Mass., with whom John Lecomte, Princi & Lecomte, and Bradley, Barry & Tarlow, Boston, Mass., were on brief, for appellant.

Mark A. Michelson, Boston, Mass., with whom Will J. Bangs and Choate, Hall & Stewart, Boston, Mass., were on brief, for Hughes-Keenan Corp., etc., appellees.

Paul Fulton, Boston, Mass., with whom John J. Tannian, Arlington, Mass., was on brief, for Aerial-Lift Repair, Inc., appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

OPINION OF THE COURT.

PER CURIAM.

The sole question to which we will address ourselves in this case is one of practice — how quickly may the whistle be sounded on a plaintiff who is seeking to show that a foreign defendant is subject to service within the jurisdiction. Plaintiff's complaint was filed on August 31, 1965 and served the same day on the Massachusetts Secretary of State as alleged agent for defendant United States Air Conditioning Corp., hereafter Air, and Aerial-Lift Repair, Inc., hereafter Aerial.1 Air is a Delaware corporation, with its principal place of business in Ohio. Aerial is of Connecticut. A further named defendant, who was not served and did not appear, is one Gould, alleged to be a citizen of Connecticut. Plaintiff is a citizen of Massachusetts. The complaint alleges that the plaintiff sustained personal injuries while working in a "Sky-worker," a sort of derrick-operated crow's-nest, because of negligent manufacture by Air and maintenance by Aerial.

On September 17 plaintiff granted Air an extension of time to plead. On October 1 Air moved to quash service and dismiss for lack of jurisdiction. Plaintiff filed interrogatories to Air on October 14, addressed to jurisdictional issues, and filed a request for admission of facts on October 26. Instead of answering the interrogatories Air filed extensive affidavits and a memorandum in support of its motion to dismiss.

On November 1, on whose instigation does not appear, a hearing was called on Air's motion to dismiss. Plaintiff reported to the court the state of the record. The court's response was that plaintiff must file affidavits in one week. On November 4 Air filed answers and objections to plaintiff's demand for admission of facts. On November 8 plaintiff filed affidavits. On November 12 Air finally answered the interrogatories, accompanied by a supplementary memorandum in support of its motion to dismiss.

Meanwhile, on November 3, defendant Aerial had filed a similar motion to dismiss. Both of these motions came on for hearing on November 15. Plaintiff apparently expected that this was to be an evidentiary hearing, and had a number of witnesses present under subpoena. The court stated that it would not take testimony, that plaintiff would have "48 hours to file some sort of a motion," and that the court would "take the matter under advisement."

On November 17, plaintiff moved to be allowed to file further interrogatories to Air, to be allowed to examine witnesses, and for a continuance to prepare further his case on jurisdiction. On the same date, he filed more affidavits, and on December 8, he filed interrogatories to both Air and Aerial. On ...

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    ...Liberian M/V Caledonia, 443 F.2d 10 (4th Cir. 1971); Fraley v. Chesapeake & Ohio Ry., 397 F.2d 1 (3d Cir. 1968); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966); Urquhart v. American-La France Foamite Corp., 79 U.S.App.D.C. 219, 144 F.2d 542, 544, cert. denied, 323 U.S. 783, ......
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    ...Caledonia, 443 F.2d 10, 11 (4th Cir.1971); Fraley v. Chesapeake and Ohio Ry Co., 397 F.2d 1, 3 (3d Cir.1968); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255 (1st Cir.1966); Gleneagle Ship Management Co. v. Leondakos, 602 So.2d 1282, 1284 (Fla.1992); Hart Holding Co. v. Drexel Burnham L......
  • Williamson v. Tucker
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 20, 1981
    ...such a motion before a plaintiff has had a chance to discover the facts necessary to establish jurisdiction. Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966); Collins v. New York Central System, 327 F.2d 880 (D.C. Cir. 1963). Other courts have refused to uphold such a motion w......
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    • United States
    • U.S. District Court — District of Rhode Island
    • March 29, 1982
    ...the First Circuit has cautioned courts to proceed slowly when deciding jurisdictional issues. In Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966) (per curiam), the First Circuit reversed a district court's dismissal of a suit against a foreign corporation for lack of personal ......
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