Vitkus v. Clyde S.S. Co.

• Decision Date: 13 March 1916
• Citation: 232 F. 288
• Parties: VITKUS v. CLYDE S.S. CO. (two cases).
• Court: U.S. District Court — Eastern District of New York

232 F. 288

VITKUS v. CLYDE S.S. CO. (two cases).

United States District Court, E.D. New York.

March 13, 1916

Baltrus S. Yankaus, of New York City, for plaintiff.

Haight Sandford & Smith, of New York City, for defendant, appearing specially.

CHATFIELD District Judge.

In each of the above cases, as in several others decided herewith motion has been made to this court, prior to the interposition of an answer, for an order setting aside the alleged service of the summons and complaint and dismissing the action, upon grounds which will be stated specifically as each one is taken up for discussion. In each instance the defendant making the motion has appeared 'specially' by attorneys for the purpose of making these motions, and in each instance the defendant has intended to avoid a waiver of the right to object to the jurisdiction of the court over the case, while moving upon the alleged failure to acquire jurisdiction over the person of the defendant making the motion.

The plaintiff urges certain grounds for denying the motion in each instance, which are common to the various cases, and which therefore need be discussed but once. In each case the service of the summons has been made upon some person who the plaintiff claims, under the laws of the state of New York, represents the defendant sufficiently to enable the plaintiff to acquire jurisdiction by delivering the summons to that individual.

The actions are at law, and are of course governed by section 914 of the Revised Statutes (Comp. St. 1913, Sec. 1537), providing that in actions at law the 'practice, pleadings, and forms and modes of proceeding * * * shall conform, as near as may be,' to those of the state within which the court is held. The plaintiff therefore claims that the laws of the state relating to the methods of service of papers, unless specifically changed by statute of the United States, shall control, and that jurisdiction over the cause of action and over the person of the defendant may be obtained in all cases and in the same way in which jurisdiction over the cause of action and over the persons of the defendant could be obtained in an action started in the Supreme Court of the state and removed into the federal court for this district on the ground of diversity of citizenship.

With this proposition, the defendants take issue. If actions are started and removed into this court, the sufficiency of the service under the state law is still tested by the necessities required to give jurisdiction in an action instituted at the outset in the federal court. Goldey v. Morning News, 156 U.S. 518, 522, 15 Sup.Ct. 559, 39 L.Ed. 517.

But, when an action is started in the United States court, the statutes creating jurisdiction and relating to the service of papers now embodied in Judicial Code, Secs. 24 to 27 and 40 to 68, can in no way be superseded by the laws of the state. The provisions of section 914, Revised Statutes, supra, do not enlarge the specific enactments of the sections mentioned. On the contrary, they are merely applicable, so far as they may be used, to carry out those sections.

As was held in the case of Kuzma v. Witherbee, Sherman & Co., 232 F. 286, decided in this court on the 25th of May, 1915, service outside of the district, within the same state, upon a single defendant, residing in another district, can be made only in actions of a local nature, and in such a case the summons must issue to the marshal of the other district. The present actions under consideration are not local in their nature, and the summons or process was directed to the marshal of this district. It certainly could not run beyond the boundaries of the district, and the provisions of the New York state Code are not effective to enlarge the district or the territory within which the suit may be brought. Atkins v. Fibre Disintegrating Co., 2 Fed.Cas.at page 84 (No. 602) . The 'District Courts of the United States cannot send their process into another district, in suits at common law or in equity, and thereby obtain jurisdiction of the person. ' Harkness v. Hyde, 98 U.S.at page 478, 25 L.Ed. 237; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Insurance Co. v. Bangs, 103 U.S. 439, 26 L.Ed. 580. This limitation has been removed by statute in some instances, such as by section 59 of the Judicial Code, but none of these cover the present case.

Second. The plaintiff in each case claims that under the state Code of New York no objection as to jurisdiction over the cause of action or over the person of the defendant can be raised except by demurrer or answer. Section 487, Code of Civil Procedure of New York. This proposition is denied by all of the defendants, and it may be assumed that upon a special appearance in the United States court an application to set aside an alleged service of summons and complaint, either for defect in the service itself or for lack of jurisdiction over the person of the defendant, may be made by motion or by plea, if that application be presented to the court before the question raised has been waived by a voluntary appearance, or what is equivalent thereto. Goldey v. Morning News, supra; Shaw v. Quincy Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768. It is in the nature of a special plea to jurisdiction and must be made as soon as the defect appears, for, as has been seen, the right not to be sued in any district other than the one where the defendant resides, or to object to the manner of service, may be lost by waiver. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; Southern Pacific Co. v. Denton, 146 U.S. 206, 13 Sup.Ct. 44, 36 L.Ed. 942.

We must therefore look to the manner in which the process of the court has been obtained, issued, and served, and to the action of the defendant in seeking to avoid what is claimed by the plaintiff to be a valid service of that process, so as to bring the defendant int...