Wilson v. Kansas City Southern Ry. Co.

• Decision Date: 01 November 1951
• Docket Number: No. 7048.,7048.
• Citation: 101 F. Supp. 56
• Parties: WILSON v. KANSAS CITY SOUTHERN RY. CO. et al.
• Court: U.S. District Court — Western District of Missouri

101 F. Supp. 56

WILSON v. KANSAS CITY SOUTHERN RY. CO. et al.

No. 7048.

United States District Court W. D. Missouri, W. D.

November 1, 1951.

John C. Henderson, Oakland, Cal., Almer T. Adair, Kansas City, Mo., for plaintiff.

Richard S. Righter, Winston H. Woodson and James F. Walsh, all of Kansas City, Mo., for defendants Kansas City Southern Ry. Co., and Louisiana & Arkansas Ry. Co.

RIDGE, District Judge.

In this action, originally filed October 6, 1947, in the Superior Court of the State of California, in and for the County of Contra Costa, plaintiff claimed damages against the defendants jointly, for personal injuries alleged to have been sustained by her while a passenger on a train operated in the State of Arkansas, "under the control and management of defendant Kansas City Southern Railway Company." The act of negligence charged in the original and subsequent complaints filed therein is stated as follows: "Defendant John Doe, a Porter, acting within the scope of his authority as an agent of (the corporate) defendants, was (negligent in causing a) door (of the coach in which plaintiff was riding as a passenger) to catch plaintiff's right foot, with so much force and violence, that a bone in said foot was fractured, and plaintiff was permanently injured."

Process issuing out of the above State Court was served on defendant Atchison, Topeka and Santa Fe Railway Company (hereafter called Santa Fe), in the State of California. Jurisdiction of that Court over the person of the defendants The Kansas City Southern Railway Company (hereafter called K.C.S.), and of that of the defendants The Louisiana-Arkansas Railway Company, and Louisiana-Arkansas and Texas Railway Company (hereafter called L. & A.) was attempted to be obtained by "Order of Publication of Summons" made on October 10, 1947, by the State Court, premised upon an "Affidavit for Publication" containing among other things, the following recital: "That said above named corporations (K.C.S. and L. & A.) maintain no office or place of transaction of business, or any office within the State, (California), capable or authorized to receive process on behalf of either of said corporations. That said defendants' Post Office address is 114 West 11th Street, Kansas City, Missouri."

Thereafter, by timely and proper removal proceedings, this action was removed to the District Court of the United States for the Northern District of California, Southern Division. On December 29, 1947, the defendants K.C.S. and L. &. A. filed in that District Court "notice of motion of special appearance to quash service of summons and vacate order of publication." Said motion was sustained on July 28, 1948, and service of process herein attempted to be had on said defendants was "quashed and vacated."

December 30, 1947, defendant Santa Fe filed in the above District Court "notice of motion to quash, vacate and set aside service of summons" as to it. Said motion was subsequently overruled. Thereafter, defendant Santa Fe filed motion for summary judgment, premised on the fact that on the face of the original and first amended complaint plaintiff revealed that she had no right of action against the Santa Fe, by reason of the occurrence therein alleged. While the last mentioned motion was pending, plaintiff, on May 22, 1951, filed what she terms "notice of motion for removal of cause to proper jurisdiction," under Section 1404, Title 28 U.S.C.A., praying transfer of the venue of this cause from the District Court of the United States, Northern District of California, Southern Division, to the United States District Court for the Western Division of the Western District of Missouri. In an affidavit made in support thereof, plaintiff conceded that she probably had no valid cause of action against the Santa Fe, by reason of the occurrence alleged in the complaint herein; but further stated that she believed her claim was "a meritorious action against" the K.C.S. and L. & A., but "(t)hat plaintiff could not at this time file a new action (against said defendants) in the proper jurisdiction because of the running of the statute of limitations, and would suffer irreparable loss and injustice if not allowed to have this cause transferred to the District Court of the United States for the Western Division of the Western District of Missouri." In said affidavit, plaintiff further stated that the last mentioned Court "is the proper court to try the above entitled cause," although she alleges "that all of the plaintiff's witnesses reside in the states of Arkansas and Texas, (that) it would be for the convenience of said witnesses to have said cause transferred to" this jurisdiction.

On July 17, 1951, on stipulation entered into between plaintiff and Santa Fe, the latter's "motion for summary judgment" was sustained and judgment entered accordingly in favor of Santa Fe and against plaintiff, on the cause of action alleged in the then pending complaint. On the same date, the District Court of the United States, Northern District of California, Southern Division, entered the following "order for change of venue": "Good Cause Showing from affidavit and motion of counsel for plaintiff, it is hereby ordered that the venue of this cause as applied to all of the defendants herein, except the Atchison, Topeka and Santa Fe Railway, a corporation, be transferred from this court to the District Court of the United States for the Western District of Missouri, Western Division under the provisions of section 1404, 28 U.S.C.A., and the clerk of this court shall forthwith forward all the files in said proceedings, together with a copy of this order."

After transcript of previous proceedings had in this cause was lodged in this Court, plaintiff, on August 23, 1951, without order of this Court, filed a second amended complaint. On ex parte application, made to the Clerk of this Court, plaintiff had summons issued thereon; and service was had on defendants K.C.S. and L. & A., by the Marshal of this District, on August 23, 1951. Said defendants have now filed motion to dismiss, premised on the following grounds: (1) This Court lacks jurisdiction of this action; (2) The alleged cause of action is barred by the statute of limitation; (3) Plaintiff's petition for change of venue is insufficient; (4) Plaintiff was not entitled under the law to move to transfer the venue of this cause to this Court under Section 1404, supra. Said defendants have also filed motion to quash service of process had upon them by the Marshal of this District, as above stated, on the ground (1) that the "transfer of this cause from the Northern District Court of California to this District was illegal and invalid, and an abuse of the Court's discretion"; (2) "This Court cannot acquire jurisdiction of the person, because the transferring Court did not have jurisdiction of the person and the transfer was illegal and void"; (3) "No venue where suit was instituted."

From the above state of facts, it appears that when the instant action was commenced in the State Court of California, and thereafter removed to the Federal Court, located in that State, neither the State Court nor the Federal Court had any jurisdiction over the person of the defendants K.C.S. and L. & A. herein. In light of the ruling made by the District Court in California, quashing and vacating service of process in California had on said defendants; and the acknowledgment made by plaintiff in her motion to transfer, that said defendants "maintain no office or place of transaction of business, or any office within the State (California) capable or authorized to receive process on behalf of either of said corporations" we shall assume, as a fact, that neither defendant K.C.S. nor L. & A. was amenable to personal process, and therefore not subject to suit in any court, state or federal, located in the State of California, on the claim here asserted by plaintiff against said defendants. It is further apparent, from the foregoing, that prior to entry of the order by the District Court in California, transferring venue of this cause from that Court to this Court, plaintiff conceded that she never did have a valid claim or cause of action against the Santa Fe, the only defendant originally named, that the instant record reveals was amenable to suit in the State of California, on the cause of action stated in all the complaints filed herein. Thus, the issue that is now presented is whether the instant action was "properly brought" against defendants K.C.S. and L. & A., in the State Courts of California, removed to the Federal Courts, and later transferred to this Court pursuant to the intent and purpose of Section 1404(a), supra, so that defendants may now be served with process out of this Court, and required to defend the instant claim made against them.

Subsection (a) of Section 1404 of the Judicial Code, Title 28 U.S.C.A. § 1404(a), provides: "For the convenience...