Urso v. Scales
| Decision Date | 03 May 1950 |
| Docket Number | Civ. A. No. 10122. |
| Citation | 90 F. Supp. 653 |
| Parties | URSO v. SCALES et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Joseph Sternberger, Philadelphia, Pa., for plaintiff.
Peter P. Liebert, 3d, Philadelphia, Pa., for defendants.
As the result of a collision on the Berks County Highway, Pennsylvania, the plaintiff, Oliver J. Urso, a citizen of Washington, D. C., instituted the present action against the defendants, Y. D. Scales and Morton Freed, citizens of Texas and New York respectively.
The motion presently before the Court is to dismiss the complaint for improper venue.
1. The plaintiff invoked the jurisdiction of this Court on the ground of diversity of citizenship. Where jurisdiction is founded only on diversity of citizenship an action may be brought only in the judicial district where all plaintiffs or all defendants reside. 28 U.S.C.A. § 1391(a).
2. It is the argument of counsel for defendants that since all of the parties reside outside the place of suit, the Eastern District of Pennsylvania, the venue provisions of 1391(a) have not been satisfied and the action should be dismissed.
3. The provisions of Section 1391 (a) supra, merely accord to a defendant a personal privilege of objecting to the venue of suits brought against him in districts wherein under the Section he may not be compelled to answer. The privilege accorded may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct. Such loss of the privilege may be regarded negatively as a waiver or positively as a consent to be sued.
4. An expression of the law relative to venue requirements is found in Neirbo Co. v. Bethlehem Shipbuilding Corporation, Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437. In that case, the Supreme Court of the United States held that a foreign corporation by its designation under State law of an agent for the service of process had consented to be sued in the Federal Courts of that State, notwithstanding a Federal venue statute to the contrary. It further held that the latter finding is not a subjection of Federal procedure to the requirements of State law, but a recognition that State legislation and consent of parties may bring about a state of facts which will authorize the Federal Courts to take cognizance of a case. See Ex parte Shollenberger, 96 U.S. 369, 24 L.Ed. 853 and Carlisle v. Kelly Pile and Foundation Corporation, 3 Cir., 175 F.2d 414.
5. The sole question then is whether there is anything in the instant case which constitutes consent on the part of the defendants to be sued in a district not provided for in the Federal venue provisions of 1391(a). We think there is, for reasons appearing below.
At the time of the collision in question, one of the defendants, Freed, a nonresident of the Commonwealth of Pennsylvania and an employee of the other defendant, Scales, also a non-resident of the Commonwealth of Pennsylvania, was operating a motor vehicle owned by Scales on a Berks County Highway within the Commonwealth of Pennsylvania. The effect of Freed's operation of the motor vehicle within the Commonwealth of Pennsylvania and Scales' ownership of said motor vehicle was to subject both Freed and Scales to...
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