United States v. Travelers Indemnity Company
| Decision Date | 07 March 1963 |
| Docket Number | 1889,1877,1901,1945,1912,1954,No. 1852,1896-1898,1917,1964.,1947,1937,1900,1852 |
| Parties | UNITED STATES of America, for the Use and Benefit of R. W. FINE, et al., Plaintiffs, v. TRAVELERS INDEMNITY COMPANY, a corporation, Defendant, and fourteen other cases. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED No. 1852:
White & White, Rolla, Mo., and Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Mo., for plaintiff.
Francis L. Kenney, Jr., St. Louis, Mo., and Farrington & Curtis, Springfield, Mo., for defendants.
White & White, Rolla, and Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Mo., for plaintiff.
Rafter & Biersmith, Kansas City, Mo., for defendant.
Cohn & Lentz, Waynesville, Mo., for plaintiffs.
Kenney & Flint, St. Louis, Mo., and Farrington & Curtis, Springfield, Mo., for defendants.
Miller, Fairman, Sanford, Carr & Lowther, Springfield, Mo., for plaintiffs.
Rafter & Biersmith, Kansas City, Mo., for defendants.
Green, Hennings, Henry, Evans & Arnold, St. Louis, Mo., and Miller, Fairman, Sanford, Carr & Lowther, Springfield, Mo., for plaintiff.
Farrington & Curtis, Springfield, Mo., and Kenney & Flint, St. Louis, Mo., for defendants.
Claude T. Wood, Richland, Mo., for plaintiff.
Owens & Purser, Austin, Tex., and Rafter & Biersmith, Kansas City, Mo., for defendants.
Claude T. Wood, Richland, Mo., for plaintiff.
Owens & Purser, Austin, Tex., and Rafter & Biersmith, Kansas City, Mo., for defendants.
Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for plaintiff.
Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, Mo., and Rafter & Biersmith, Kansas City, Mo., for defendants.
Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for plaintiff.
Lincoln, Haseltine, Keet, Forehand & Springer and Farrington & Curtis, Springfield, Mo., for defendants.
James & Hasler, St. Louis, Mo., for plaintiff.
Lincoln, Haseltine, Forehand, Keet & Springer, Springfield, Mo., for defendants.
Lashly & Neun, St. Louis, Mo., for plaintiff.
Rafter & Biersmith, Kansas City, Mo., for defendants.
Cohn & Lentz, Waynesville, Mo., for plaintiffs.
Farrington & Curtis, Springfield, Mo., for defendants.
Ernest A. Brooks, II, St. Louis, Mo., Lilley & Cowan, Springfield, Mo., Owens & Purser, Austin, Tex., for plaintiff.
Farrington & Curtis, Springfield, Mo., and Francis L. Kenney, Jr., St. Louis, Mo., for defendants.
Kappel & Neill, St. Louis, Mo., and Cohn & Lentz, Waynesville, Mo., for plaintiffs.
Rafter & Biersmith, Kansas City, Mo., for defendants.
Miller, Fairman, Sanford, Carr & Lowther, Springfield, Mo., for plaintiff.
Farrington & Curtis, Springfield, Mo., Francis L. Kenney, Jr., St. Louis, Mo., for defendants.
Miller, Fairman, Sanford, Carr & Lowther, Springfield, Mo., for plaintiffs.
Rafter & Biersmith, Kansas City, Mo., for defendants.
By various orders of consolidation and by virtue of the excellent cooperation of counsel, the Court has before it consolidated briefs relating to common legal questions involved in the numerous Capehart cases pending on the docket of this Court in its Southern Division at Springfield.1 This Memorandum will indicate how we will rule the questions of law discussed. After further pre-trial conference, presently scheduled at Springfield on March 14, 1963, additional orders may be made leading to the final disposition of those cases on the merits. We shall discuss the questions in the order presented by the briefs.
Defendants suggest that "the first, and most intriguing question, which arises under the Capehart Program concerns the fundamental issue of jurisdiction over the subject matter of suits by claimants". Defendants contend that such jurisdiction is not vested in this Court by either Section 270b of Title 40, United States Code (the Miller Act) or by Section 1352 of Title 28, United States Code.2 Plaintiffs contend that we have jurisdiction under either or both.
It is unnecessary to determine whether or not the Miller Act might confer jurisdiction over the subject matter, because our controlling appellate court has definitely determined that such jurisdiction is vested in this Court by Section 1352 of Title 28, United States Code. Continental Casualty Co. v. United States of America for the Use and Benefit of Robertson Lumber Co., 8th Cir., 1962, 305 F.2d 794, cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231 () in footnote 4 on page 798, held that "as was recognized in Westerman Use of Westerman, 5 Cir., 285 F.2d 98, another basis for federal jurisdiction of a suit on a Capehart bond is to be found in 28 U.S.C.A. § 1352 which provides that the State and federal courts shall have concurrent jurisdiction with respect to all actions brought on any bonds required by `any law of the United States'". It was further noted that "a Capehart bond is clearly a bond required by a `law of the United States,' hence federal jurisdiction on such a bond is established without regard to any relationship between the Miller Act and the Capehart Act".
The Tenth Circuit, on this separate jurisdictional question under discussion, consistently held in United States for Use and Benefit of Miles Lumber Co. v. Harrison and Grimshaw Construction Co., 10th Cir., 1962, 305 F.2d 363, cert. denied 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229 () that "we see no jurisdictional problem here as the bond was executed under a law of the United States". We have studied defendants' constitutional argument to the contrary but find it without merit.
We therefore hold that Section 1352 of Title 28, United States Code, vests this Court with jurisdiction over the subject matter of the pending cases.3
In several cases "D & L Construction Co. and Associates" is joined as a party defendant. It is undisputed that it is a joint venture whose members are a California corporation and two California limited partnerships composed of California residents. Defendants argue that since "neither a partnership nor a joint venture can be either sued or served as such" under Missouri law, the causes pending against that named defendant should now be dismissed and any purported service quashed.
Plaintiffs, on the other hand, while agreeing that defendants "have correctly summarized the law of the State of Missouri concerning the suability of partnerships", nevertheless contend that Rule 17(b) of the Rules of Civil Procedure contains an applicable exception to the principle that a party's capacity to sue or be sued is ordinarily to be determined by State Law.
The pertinent portion of Rule 17(b) provides that "capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States * * *" 2 Barron and Holtzoff, Federal Practice and Procedure, § 487 at page 50, correctly points out that the exception contained in Rule 17(b) "introduced no great change in the practice in the federal courts existing before the Rules were adopted". Judge Learned Hand, in Sperry Products v. Association of American Railroads, 2 Cir., 1942, 132 F.2d 408, pointed out that the exception in Rule 17(b) covers the same ground and, in effect, codified the rule of decision announced by the Supreme Court in United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975 (1922).
3 Moore's Federal Practice ¶ 17.25 at pages 1410 and 1412, states that "the `except' clause takes care of actions where jurisdiction is based upon a federal right". The precise question concerning jurisdiction over the person of the joint venture therefore turns on whether the causes of action here involved assert "a substantive right existing under the Constitution or laws of the United States" within the meaning of the exception in Rule 17(b).
The point of beginning is a fair analysis of Robertson Lumber, supra. As a district court we are bound not only by the precise holding of that case but we feel we must also fairly, and without technical nicety, accept and apply its basic rationale to the cases now pending before us.
On the other hand, our duty in this regard must not reduce itself to a black letter acceptance of words taken out of context. We are also under a duty to examine and pass on contentions made by subsequent litigants which raise questions that may not have been examined in nor determined by Robertson Lumber.
In Robertson Lumber the sole "question for decision (was) whether the notice provisions contained in the bond in suit were valid" (l. c. 798 of 305 F.2d). Plaintiff in that case contended that "a Capehart housing contractor is entitled to all the protection of the Miller Act" and also contended that "the procedural provisions of the Miller Act * * * extend to bonds executed under the Capehart Act" (l. c. 796 of 305 F.2d).
The main thrust of defendant's argument was that the language of the 1956 Capehart Act Amendment, which provided that all Capehart contracts "shall provide for the furnishing by the contractor of a performance bond and a payment bond with a surety or sureties satisfactory to the Secretary of Defense", must, or at least should, be construed to mean, (as the argument was later accepted by the Court) that "the Secretary of Defense or his designee has the power to prescribe the form and contents of a Capehart bond" (l....
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