Tiernan v. Dunn
| Decision Date | 06 February 1969 |
| Docket Number | Civ. A. No. 3471. |
| Citation | 295 F. Supp. 1253 |
| Parties | Joseph J. TIERNAN, Jr. in his capacity as Administrator of the Estate of James E. Tiernan v. Patricia DUNN in her capacity as Administratrix of the Estate of Richard J. Dunn. |
| Court | U.S. District Court — District of Rhode Island |
James M. Jerue, William C. Dorgan, Providence, R. I., for plaintiff.
Joseph A. Kelly, Providence, R. I., for defendant.
This is a diversity action in which the plaintiff, the administrator of the estate of the decedent, James Tiernan, seeks recovery of damages for the allegedly wrongful death of the decedent. The plaintiff alleges that the plaintiff's decedent was riding in the car of the defendant's decedent and was killed in an automobile-tractor-trailer collision in Plainville, Massachusetts on April 10, 1964 due to the negligence of the defendant's decedent. The plaintiff commenced action against the defendant on March 25, 1965. The record shows that service of process was made on the defendant personally on April 7, 1965 in Attleboro, Massachusetts by the United States Marshal for the District of Massachusetts and on the defendant as administratrix of her husband's estate by service on the clerk of the Westchester Surrogate's Court in White Plains, New York by the United States Marshal for the Southern District of New York on April 8, 1965. Thereafter, on May 7, 1965, the defendant answered to counts 3 and 4 of the plaintiff's complaint and moved to dismiss counts 1 and 2. The motion to dismiss was granted and an order was entered on July 22, 1965. Because of the continued vitality of counts 3 and 4, the case has remained on the calendar, and discovery has continued to the present. Moreover, the plaintiff has filed a motion to vacate the order of dismissal of July 22, 1965, as to the first two counts because of a decision of the Rhode Island Supreme Court, recently handed down, which reverses the prior law upon which that order of dismissal was based. The defendant has now moved to dismiss this action under Fed. R.Civ.P. 12(b) (5) for lack of in personam jurisdiction and improper service of process. The defendant contends that she was never in Rhode Island but was a citizen and resident of New York at the time of the happening of the accident and a citizen and resident of Massachusetts at the time of the commencement of this action. She concludes that she never was nor could have been either personally subject to this court's jurisdiction or properly served with process within the territorial limits of this district, as required by Fed.R.Civ.P. 4(f). Plaintiff argues that jurisdiction over the person exists under the R.I. "minimum contacts" statute, § 9-5-33 R.I.G. L.1956, as amended, which is applicable in the federal courts by operation of Fed.R.Civ.P. 4(f) & 4(d) (7), and that service was also therefore proper, and finally that, in any case, defendant has waived these defenses under Fed.R.Civ. P. 12(g) & (h).
In his argument concerning satisfaction of the minimum contacts statute the plaintiff makes reference to the allegedly numerous and various contacts of the defendant's decedent with Rhode Island as shown by certain of the answers and statements in certain of the pre-trial materials in the case. The court is not inclined at this juncture of the proceedings to maintain a factual hearing on minimum contacts; nor is it disposed to treat this motion as one for summary judgment. Instead, the court prefers to treat this motion on the basis of the waiver arguments.
Fed.R.Civ.P. 12(g) concerns consolidation of defenses in one motion and states in pertinent part:
A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted * * *.
As applied to the facts of this case, Rule 12(g) would seem to have required the defendant to have included her motions to dismiss for insufficient service of process and lack of in personam jurisdiction in her motion to dismiss for failure to state a claim. Specifically, under the second sentence of Rule 12(g) the defendant moved under Rule 12 (...
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...pre-trial motions.” 5C C.A. Wright & A.R. Miller, Federal Practice and Procedure § 1391, at 506 (3d ed. 2004), quoting Tiernan v. Dunn, 295 F.Supp. 1253, 1256 (D.R.I.1969). See Yeldell v. Tutt, supra at 539 ( rule 12 seeks “to expedite and simplify proceedings in the [courts]” [citation omi......
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...it. To conclude otherwise would undermine the purpose of Rule 12(g) and (h) to promote efficiency and finality. See Tiernan v. Dunn, 295 F. Supp. 1253, 1256 (D.R.I. 1969) ("To permit this defense to be raised now would undermine the very purpose of Rule 12(g), (h), which is the avoidance of......
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...purpose of Rule 12(g), (h),which is the avoidance of time-consuming, piece-meal litigation of pre-trial motions." Tiernan v. Dunn, 295 F. Supp. 1253, 1256 (D.R.I. 1969). For these reasons, the Court will dismiss the Supplemental Motion to Dismiss.7 III. MOTION TO TAKE JUDICIAL NOTICE AND RE......
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Zelson v. Thomforde, 17589.
...874 (3rd Cir.), cert. denied sub nom., Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944); Tiernan v. Dunn, 295 F.Supp. 1253 (D.R.I.1969);9 O'Connor v. Western Freight Ass'n., 202 F. Supp. 561, 564 (S.D.N.Y.1962).10 Thus, because personal jurisdiction may be c......