Weinberg v. COLONIAL WILLIAMSBURG, INCORPORATED

• Decision Date: 11 April 1963
• Docket Number: No. 62-C-1117.,62-C-1117.
• Parties: Ruth WEINBERG and Milton S. Weinberg, Plaintiffs, v. COLONIAL WILLIAMSBURG, INCORPORATED, and Williamsburg Restoration, Incorporated, Defendants.
• Court: U.S. District Court — Eastern District of New York

215 F. Supp. 633

Ruth WEINBERG and Milton S. Weinberg, Plaintiffs, v. COLONIAL WILLIAMSBURG, INCORPORATED, and Williamsburg Restoration, Incorporated, Defendants.

No. 62-C-1117.

United States District Court E. D. New York.

January 24, 1963.

On Reargument April 11, 1963.

COPYRIGHT MATERIAL OMITTED

Solomon M. Lowenbraun, New York City, for plaintiffs.

Patterson, Belknap & Webb, New York City, John V. Duncan, Ambrose L. Cram, Jr., New York City, of counsel, for defendants.

ZAVATT, Chief Judge.

This is an action to recover damages for personal injuries allegedly suffered by the plaintiff Ruth Weinberg when she fell in the roadway outside the Williamsburg Inn in Williamsburg, Virginia, while going to board a bus. The Inn is owned and operated by defendant Williamsburg Restoration, Incorporated (hereinafter referred to as "Restoration") and the bus was owned and operated by defendant Colonial Williamsburg, Incorporated (hereinafter referred to as "Colonial"). The plaintiff-husband's action is for loss of consortium. The action was commenced in the Supreme Court, Queens County, State of New York and removed to this Court on October 15, 1962. Service on both defendants was made by personal service on one Ruth Haupert, an employee of the Jackson Hole Preserve, Inc., at an office at Room 5425, 30 Rockefeller Plaza, New York, N. Y., which it shares with defendant Colonial, among others. Both defendants now move to dismiss this action on the following grounds:

(1) that neither of the defendants has been properly served with process in accordance with the requirements of Fed. R.Civ.P. 4 and Fed.R.Civ.P. 12(b) (5);

(2) that neither of the defendants has sufficient minimum contacts with the State of New York to subject them to the in personam jurisdiction of this Court. Fed.R.Civ.P. 12(b) (2);

(3) that, in the event the defendants are found to be subject to the jurisdiction of this Court, the action be transferred to the United States District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a).

In opposition the plaintiffs contend:

(1) even if the original service of process was defective, this Court may allow the issuance of new process under 28 U.S.C. § 1448;

(2) in removing this action the defendants, by failing to contest the questions of defective service and lack of personal jurisdiction in the State Court, have in some manner lost their right to raise these questions in this Court;

(3) defendants' contacts with the forum are sufficient to subject them to the jurisdiction of this Court;

(4) defendants have entered a general appearance by joining their objections to jurisdiction with a motion to transfer the action pursuant to 28 U.S.C. § 1404(a).

The service of process would appear to be defective under Fed.R.Civ.P. 4(d) (3) since the person served was not an officer, managing agent, general agent or person authorized to receive service of process on the defendants. Nor would the service appear to be proper under § 229, New York Civil Practice Act, which would suffice for federal purposes under Fed.R.Civ.P. 4(d) (7) if its requirements had been met, since the person served had no connection with either defendant. The Court will not, however, dismiss on this ground since, in a removed action, if the original service was defective, service of new process under 28 U.S.C. § 1448 may be authorized. If such authorization were granted, would the defendants be subject to the in personam jurisdiction of this Court?

The Activities in New York State of Colonial

Colonial is a charitable corporation (incorporated in Virginia) engaged in restoring Williamsburg, Virginia and its exhibition to the public. With one exception hereinafter noted, the income derived from its operation is banked in Virginia and operational disbursements are made therefrom. Meetings of the Board of Trustees are held in Williamsburg, Virginia, or in Arkansas, the State of residence of Winthrop Rockefeller, Chairman of the Board. It appears that all of its officers and employees, save those mentioned infra, are residents of Virginia. In order to facilitate visits to the several buildings on its grounds, Colonial owns and operates buses and provides free transportation thereon to visitors.

Colonial has three bank accounts in New York, N. Y.: one is used for petty cash expenses incurred at Room 5425, 30 Rockefeller Plaza; one for the deposit of gifts to Colonial, which are either transferred to the Williamsburg accounts or are invested in securities held in New York; the third is a custody account the purpose of which has not been explained to the Court. Two officers of Colonial reside in New York. One is a vice-president who in recent years has performed no active duties in connection with Colonial. The other is an assistant secretary whose part time duties in connection with Colonial are only of a minor clerical nature. Most of the time of this person is devoted to activities not related to Colonial or Restoration. Mr. Kenneth Chorley, its retired President and a former President of Restoration, is employed by Colonial and Restoration as a consultant to each of said defendants. He is a resident of New Jersey. Only a portion of his activities are connected with Colonial. He has substantial connections with other projects, including employment by other charitable corporations. As consultant to Colonial and Restoration he occupies a portion of the office of Jackson Hole Preserve, Inc., at Rockefeller Plaza. Colonial and Restoration each pay him a salary and Colonial contributes toward the cost of the operation of the said office. Colonial and Restoration pay his salaries by check drawn against funds on deposit in banks in Williamsburg, Virginia. The papers submitted to the Court do not reveal the source of payment by Colonial of its portion of any other office expenses nor do they reveal the source of the funds on deposit in Colonial's petty cash bank account in New York. The Manhattan Telephone Directory contains two listings under the name Colonial Williamsburg Inc. One is that of the defendant Colonial's office; the other is the number of an independent hotel reservation service which books reservations for a number of hotels, including those of Restoration at Williamsburg.

The Activities in New York State of Restoration

Restoration, a Virginia corporation, is and has been for many years a wholly owned subsidiary of Colonial. It operates three hotels, including the Williamsburg Inn, a theater and other business properties at Williamsburg. All management functions, other than the activity of its retired President employed by it as a consultant as noted above, take place in Virginia. Restoration avails itself of the services of the independent hotel reservation agency mentioned supra. Reservation requests received by that agency are forwarded to Restoration in Virginia for confirmation. The activities of its consultant, Mr. Chorley, in New York do not appear to be any greater than his activities in connection with Colonial. Restoration, however, pays no part of his office expenses and does not otherwise avail itself of the Rockefeller Center office.

Have Defendants Waived Question of Jurisdiction?

In determining whether the defendants are subject to the jurisdiction of this Court plaintiffs' contention, that defendants have waived the right to object to adequacy of service or jurisdiction over the person by joining their motions on that ground with one seeking to transfer the action in the event they are found subject to the Court's jurisdiction, must be rejected. Fed.R.Civ.P. 81(c) provides that the Federal Rules of Civil Procedure are applicable to removed actions after removal. Fed.R.Civ.P. 12(b) clearly provides that "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

Plaintiffs' contention appears to be that the only way the defendants might have objected to the defective service and the alleged lack of personal jurisdiction would have been to make a special appearance pursuant to Section 237-a of the N.Y.C.P.A. in the Supreme Court, Queens County. In point of fact all that the defendants did in this action in the Supreme Court, Queens County, was to properly file a copy of the removal petition with the clerk of that court. Fed.R. Civ.P. 12(b) provides that motions objecting to jurisdiction over the person, the sufficiency of venue and adequacy of service are properly raised by motion made before pleading. All of defendants' motions are therefore timely and entirely proper.

The fact that the New York courts have held that the filing of a removal petition effects a general appearance, thus waiving any objections to defective service and jurisdiction over the person Farmer v. National Life Ass'n, 138 N.Y. 265, 33 N.E. 1075 (1893); Tierney v. Helvetia Swiss Fire Ins. Co., 138 App.Div. 469, 122 N.Y.S. 869, 870 (2d Dep't 1910) has no impact on what is purely a federal procedural matter. The only opportunity a state court would have to make such a determination under current practice would be after the federal court, to which the action was originally removed, has determined that it lacks jurisdiction. See Farmer v. National Life Ass'n, supra. Moreover, the Supreme Court of the United States on several occasions has rejected plaintiff's argument. Freeman v. Bee Machine Co., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509 (1943); Cain v. Commercial Publishing Co., 232 U.S. 124, 34 S.Ct. 284, 58 L.Ed. 534 (1914); Wabash Western Ry. v. Brow, 164 U.S. 271, 17 S.Ct. 126, 41 L.Ed. 431 (1896); Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517 (1895). As these authorities indicate, to hold otherwise would be contrary to the terms as well as the spirit of federal removal legislation. Federal removal jurisdiction depends upon acts of Congress and cannot be limited or defeated by state law. The removal legislation seeks to have the...