Whitehead v. Atlantic Life Ins. Co., Civ. A. No. 2903.

• Decision Date: 19 April 1945
• Docket Number: Civ. A. No. 2903.
• Citation: 60 F. Supp. 255
• Parties: WHITEHEAD v. ATLANTIC LIFE INS. CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

60 F. Supp. 255

WHITEHEAD v. ATLANTIC LIFE INS. CO. et al.

Civ. A. No. 2903.

District Court, W. D. Pennsylvania

April 19, 1945.

Max V. Schoonmaker and Valera Grapp, both of Pittsburgh, Pa., and Maurice J. O'Sullivan, of Kansas City, Mo., for plaintiff.

Smith, Buchanan & Ingersoll, Allen T. C. Gordon, and William Booth, all of Pittsburgh, Pa., for defendants.

GIBSON, District Judge.

Each defendant has moved to dismiss the complaint for lack of jurisdiction, improper venue, insufficiency of process and insufficiency of service of process under Federal Rules of Civil Procedure, rule 12(b), 28 U.S.C.A. following section 723c. For that purpose the defendants have specially appeared.

The Atlantic Life Insurance Company is a corporation of the State of Virginia and the Bankers National Life Insurance Company is a corporation of New Jersey. The complainant is a resident of Missouri.

Neither of the defendants has an office of its own within the State of Pennsylvania, but each has issued some policies of insurance from its home office pursuant to requests from independent insurance agents in the state. Each, pursuant to the requirements of the Pennsylvania Insurance Law, has appointed the Insurance Commissioner its agent upon whom all process against the Company may be served, and upon such appointment the plaintiff relies as determining the sufficiency of the venue in the instant case. The defendants, on the other hand, contend that the facts alleged in the complaint established neither jurisdiction nor proper venue in this court.

The instant action is based upon an alleged infringement of plaintiff's copyright. The plaintiff, as stated, is a citizen and resident of Missouri, and of the defendants, one is a corporation of Virginia and the other of New Jersey. Thus we have an action brought in the Western District of Pennsylvania by a nonresident of the District against other nonresidents, and in which the complaint fails to state that any infringement of the copyright occurred in this District or in Pennsylvania.

The status of the action depends upon the scope to be given the insurance law of Pennsylvania which requires all foreign insurance companies desiring to conduct any part of their business in the state to appoint the Insurance Commissioner as their agent to accept service of process upon them. If, after an insurance company has authorized the Commissioner to accept service of process in its behalf, that authorization enables any nonresident of the District to bring an action in the Federal Court against it, upon a cause of action not connected with the insurance business of the defendant and not alleged to have occurred in the District or in Pennsylvania, then no question can exist as to the propriety of alleging venue in this District. This court, however, finds itself unable to agree with this proposition.

The Pennsylvania Insurance Act, by requiring the appointment of the Insurance Commissioner to accept service on behalf of the insurance company, was designed to protect residents of the state in their dealings with the company, but could not have the effect of widening federal jurisdiction. True, it has been held that a federal court in a state having such a statute is a court of the state and the act applies to service of process in that court. But it cannot be held to apply to a federal case, in the face of objection to the venue, where none of the causes of action arose in the state or belonged to its resident, and in which the general jurisdiction of the subject matter was wholly in United States Courts. The instant case is one in which a state court would not have jurisdiction even with consent of the defendants. The basis of the action is a law of the United States.

Attention has been called to Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, and Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U. S. 4, 60 S.Ct....