United States v. Reid

• Decision Date: 04 April 1952
• Docket Number: Civ. No. 2220.
• Citation: 104 F. Supp. 260
• Parties: UNITED STATES v. REID.
• Court: U.S. District Court — Eastern District of Arkansas

104 F. Supp. 260

UNITED STATES v. REID.

Civ. No. 2220.

United States District Court E. D. Arkansas. W. D.

April 4, 1952.

James T. Gooch, U. S. Atty., Harry E. McDermott, Jr., Asst. U. S. Atty., Little Rock, Ark., for plaintiff.

Wright, Harrison, Lindsey & Upton, and Edward L. Wright, all of Little Rock, Ark., for defendant.

LEMLEY, District Judge.

This cause, which has been transferred to this court from the Western District of Tennessee pursuant to 28 U.S.C.A. § 1404 (a), is before the Court upon the defendant's motion to dismiss. Said motion has been submitted upon the record in the case, the record in a similar case instituted by the Government against the defendant in this court which was dismissed without prejudice, and written briefs. While we do not believe that the action should be dismissed, we are of the opinion that it was improperly transferred to this court and that it must be remanded to the court from whence it came.

In order to understand the questions presented by the pending motion, a review of the history of this litigation is desirable:

This is an action brought by the Government against the defendant, H. E. Reid, under 49 U.S.C.A. § 621, to recover a civil penalty for an alleged violation of one of the safety regulations of the Civil Aeronautics Board, which violation is alleged to have taken place at Little Rock, Arkansas, in this District on October 3, 1949. Defendant is a pilot employed by the Chicago and Southern Airlines, Inc., and is a citizen of Tennessee, residing at Memphis.

On January 2, 1951, the Government filed an original action in this court against the defendant based upon the above-mentioned alleged violation of a safety regulation; summons was issued, and purported service was made upon the defendant on January 19, 1951 by delivering copies of the summons and complaint upon his wife at his home address in Memphis. On March 29, 1951, defendant appeared specially and moved to quash the service on the ground that it was made beyond the territorial limits of this court and outside the State of Arkansas. This motion was confessed by the Government, and, on April 4, 1951, we entered an order quashing the service. Subsequently the Government moved to dismiss the case without prejudice on the ground that no service had been obtained on the defendant; on May 1, 1951, we granted said motion, and the case was so dismissed.

On September 20, 1951, the Government filed the instant suit in the United States District Court for the Western District of Tennessee, the complaint stating the same claim for relief as was set forth in the complaint originally filed here. Service was obtained upon the defendant in Tennessee by serving his wife with copies of the summons and complaint at the defendant's home in Memphis. On October 23, 1951, defendant appeared specially in this latter action and moved to dismiss for improper venue, contending that the action was local in its nature and could only be maintained in the Eastern District of Arkansas where the alleged violation occurred. This motion was overruled on December 4, 1951, and the defendant thereafter answered. On December 18, 1951, the Government filed a motion to transfer the case to this District for trial, which motion was sustained by the Court in Tennessee over the objection of the defendant, and the case was transferred here.

In the motion to dismiss pending before us the defendant asserts: "(a) That this court does not have jurisdiction over the person of the defendant because service of summons was had upon him in Memphis, Tennessee, which is outside the territorial limits of this court and the State of Arkansas; and (b) That this lack of jurisdiction over the person of the defendant has been previously adjudicated by order of this court entered April 4, 1951, and the issue thereto is res judicata." In defendant's memorandum brief in support of his motion it is said: "* * * The order removing the cause back to this court is ineffective to confer jurisdiction vicariously where it could not be conferred originally. Stated another way, the order seeks to accomplish by indirection that which could not be accomplished directly and which has already been adjudicated in favor of the defendant. * * * We urge that the order of this Court entered April 4, 1951, is res judicata and that the government cannot by indirection accomplish that which it failed to do directly." In said brief, defendant cites Ripperger v. A. C. Allyn & Company, Inc., D.C.N.Y., 37 F.Supp. 373, affirmed, 2 Cir., 113 F.2d 332; and he likewise cites and quotes from Shapiro v. Bonanza Hotel Company, Inc., 9 Cir., 185 F.2d 777.

The Government contends, on the other hand, that the case should not be dismissed, and, further, that the order of transfer was proper and that the case should be tried here. Alternatively, it argues that if we should hold that the transfer was improper, the case should be remanded to the Western District of Tennessee.

We agree with the defendant that this court has no jurisdiction over his person, but we do not think that our lack of such jurisdiction stems from any defect in service of process upon him; nor do we think that the doctrine of res judicata is applicable here. While the claim or cause of action alleged in the complaint filed in Tennessee is the identical claim set up in the original proceeding filed in this district, the instant case is a different lawsuit from the original one, and the service upon which the Government now relies is a different service from that obtained in the original suit. As stated, the present action was commenced in the Western District of Tennessee, and service was effected within the territorial limits of the Court for said District. In our opinion said service was valid under Rule 4(d)(1) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and vested the federal court in Tennessee with jurisdiction of the person of the defendant; if the case was properly transferred to this District we likewise have jurisdiction over him. With respect to res judicata it is to be pointed out that our order of April 4, 1951 merely quashed the original service on the defendant, which was admittedly invalid; we passed on nothing except the validity of that particular service, and, as indicated, the Government is now relying upon an entirely different service; our holding that the original service was invalid is in no sense res judicata of the validity of the present service or of the jurisdiction of this Court in the present proceeding. The facts in Ripperger v. A. C. Allyn & Company, Inc., supra, were materially different from the facts in the instant case, and the decisions in that case are not pertinent here.

This brings us to a consideration of what is, to our mind, the real question in the case, and that is whether or not the federal court in Tennessee properly transferred the action to this court for trial under the provisions of 28 U.S.C.A. § 1404(a), which provides that: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Since the power of a federal court to transfer a case to another district is entirely statutory, U. S. v. Eleven Cases, More or Less, of Ido-Pheno-Chon, D.C.Or., 94 F.Supp. 925, 926-927, and since Section 1404(a) only permits a transfer to a district where the suit "might have been brought" originally, it is obvious that the meaning of the quoted phrase is of controlling importance. If this district is one in which this action might have been brought originally within the meaning of said section, then the transfer was proper; on the other hand if this suit could not have been brought here originally, then the Tennessee court had no power to transfer it here, and, as will be hereinafter pointed out, we have no jurisdiction over the defendant's person which would entitle us to try the case.

If the phrase "any other district * * * where it might have been brought", simply means a district in which venue could be properly laid and an action "commenced" within the meaning of Rule 3 of the Federal Rules of Civil Procedure, which provides that an action is "commenced" by the filing of a complaint with the court, then the Court in Tennessee clearly had power to transfer the cause to us since venue in this district is present, and the complaint could be filed here; as a matter of fact, this was done in the original proceeding instituted by the Government, but the latter was unable to obtain service upon the defendant. On the other hand, if the phrase refers to a district wherein the defendant is actually amenable to process so that the court in that district can obtain jurisdiction of his person, then this district is not one in which the action might have been brought because the defendant, a citizen of Tennessee, is not amenable to the process of this court.¹

In two district court cases, decided in 1950, the view was taken that the word "brought", as used in Section 1404(a), was synonymous with "commenced", as used in Rule 3, and that if venue was present in the transferee district, the fact that the defendant was not actually amenable to process therein was not material. Otto v. Hirl, D.C.Iowa, 89 F.Supp. 72; McCarley v. Foster-Milburn Co., D.C.N.Y., 89 F. Supp. 643. While this view of the meaning of the phrase in question supports the Government's contention that the instant transfer was proper, it has been rejected by the only two appellate courts which have had occasion to consider the problem; these courts have held that "brought" as used in 1404(a) is not synonymous with "commenced", as used in Rule 3, and that the phrase, "any other district * * * where it might have been brought" refers to and means a district where the defendant is actually amenable to process. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; and Shapiro v. Bonanza Hotel...