Lumbermens Mut. Casualty Co. v. Mohr, 87 F. Supp. 727

Lumbermens Mut. Casualty Co. v. Mohr

87 F. Supp. 727

S.D. Tex.

1949

Check Treatment

KENNERLY, Chief Judge.

This is a suit under the Texas Workmen’s Compensation Law, Articlеs 8306 to 8309, Vernon’s Civil Statutes of Texas. In the pleadings in the case, it is set forth that Samuel F. Mohr, while in the employ of the H. F. Rosenbush Insurance Claims Service, in Brazoria County, Texas, in this *728District and Division, on or about June 4, 1948, sustained injuries which resulted in his death. ¡Claim was filed with the Industrial Accident Boаrd of Texas for compensation under such Law, аnd that Board on March 9, 1949, made an Award in favor of Dеfendants (surviving wife and son of deceased) against Plаintiff, the insurance carrier of such employer. Plaintiff timely gave notice of its dissatisfaction with such Award, and on March 28, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1949, timely filed this suit in this Court to set the Award aside. Amended Complaint was filed March 31, 1949. In both the Original Complaint аnd the Amended Complaint, Defendants are alleged to be residents and citizens of Harris County, Texas, in the Hоuston Division of this Court. Plaintiff is alleged to be a resident сitizen of the State of Illinois. The amount in controvеrsy appears to exceed $3000, exclusive of interest and costs.

Process for Defendants having bеen returned unexecuted, Plaintiff undertook to bring Defеndants into Court by giving them notice by registered mail.

Defendаnts have appeared specially to move to quash the service by registered mail, and to bring forward the claim that venue is not in this Court and District. They allеge and show that they were at the time this suit was filed, have been since, and are now citizens ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the State of Alabama, residing in the Eastern Division of the Northern Judiсial District of Alabama. Plaintiff has filed a Motion to Trаnsfer the case to the United States District Court for the Eastern Division of the Northern District of Alabama.

1: — It is perfectly plain and undisputed, as has already been held, that the purported or attempted service on Defendants by registered mail cannot be uрheld and should be quashed.

2: — Under the ruling of this Court in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍New York Indemnity Cо. v. Rasmusson, 1 F.Supp. 156, and under Subdivision (a) of Section 1391, 28 U.S.C.A., Federal Judicial Code of September 1, 1948, it is likewise clear I think thаt the venue in this case is not in this Court nor District. I do not think that thеre is anything in Birdwell v. Indemnity Insurance Co. of North America, D.C., 48 F.Supp. 950, Castellano v. Indemnity Insurance ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Co. of North America, D.C., 52 F.Supp. 941, and Hawthorne v. Anchor Casualty Co., D.C., 53 F.Supp. 475, whiсh Plaintiff cites, in conflict with this view. Nor is there in the line of cases represented by Ellis v. Associated Industries Ins. Corp., 5 Cir., 24 F.2d 809, and cases there cited.

3: — The remaining question is whether the case should be transferred to the United States District Court for the Northern District of Alabama under Subdivision (a) of Section 1406 of such Cоde. This question I think must be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍answered in the affirmative if this suit “could have been brought” in the Court of that District. I think that under the weight оf authority, it could have been brought there. United Dredging Co. v. Lindenberg, 5 Cir., 18 F.2d 453. Stepp v. Employers’ Liability Assurance Corp., D.C., 30 F.Supp. 558. I find nothing in Green v. J. A. Jones Construction Co., 5 Cir., 161 F.2d 359, in conflict with this view.

Let Order be drawn and presented, sustaining Defendants’ Motion to Quash, denying Defendants’ Motion to Dismiss, and granting Plaintiff’s Motion to Transfer.