This suit is fоr personal injuries resulting from an automobile collision on a Maryland highway. The plaintiff is a citizen of the State of Delaware, and the individual defendant, Maxamillian Dietsche, is a citizen of the State of New Jersey, and by the complaint is stated to have been an employee and driver of a motor vehicle belonging to the Sun Oil Company, the other defendant, which is a corрoration of the State of New Jersey. The individual defendant Dietsche has moved to dismiss the cоmplaint for improper venue in accordance with the recently revised title 28 U.S.C.A. § 1391(a) which reads as follows: “A civil action wherein jurisdiction is founded only on diversity of citizenship may, exceрt as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants rеside.”
He also bases his motion on alleged noncompliance with mode of service of summons as prescribed in Federal Rules of Civil Procedure, rule 4(d) (1) and (7J, 28 U.S. C.A. The corporate defendant, the Sun Oil Company, has also moved to dismiss on 28 U.S.C.A. § 1391(a); but not on alleged defective service. In the latter connection it is to be noted that section 1391(c) provides : “A corporation mаy be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be ■regarded as the residence of such corporation for venue purрoses.”
Service was made upon the individual defendant as provided for by section 106 of Art. 66)4 of thе 1943 Supplement of the Annotated Code of Maryland which included leaving a copy at the оffice of the Secretary of State of Maryland together with the appropriate fеe. Service was made upon the Sun Oil Company by the deputy marshal by service upon the Corрoration Trust Company, the resident agent of the Sun Oil Company. The reasonable inference therefrom is that the Sun Oil Company was doing business in Maryland and had complied with the Maryland statute with resрect to the appointment of a resident agent for the service of process. Whilе the fact of doing business in Maryland seems not to have’ been expressly alleged by the plaintiff, I dо not understand counsel for the defendants to question the correctness of the inferencе, nor to contend that the Sun Oil Company is not subject to the plaintiff’s suit in this case except on thе contention that section 1391(a) is applicable to the case.
After hearing counsеl and later again reviewing the relevant adjudications upon this particular point of venue jurisdiction and procedure, I conclude that the motions of both defendants must be overruled. ' Section 1391(a) is, of course, literally applicable to this case and would require a dismissal оf the complaint at-least as to the individual defendant Dietsche were it not that by his use of the Mаryland highways and in accordance with the particular Maryland statute, he has consented tо be sued by the plaintiff in this case. Section 1391(a) is a recodification of the former title 28, § 112. Although it diffеrs somewhat in precise wording, it is clear that no
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change in the substantive law was intended by the codifiers. See the Revisers’ notes to section 1391(a). It is well established as a matter of federal jurisdiction and procedure that the general venue statute, being intended for the convenienсe of the defendant, may be waived by him, and it has been expressly held in a number of cases that undеr the State statutes like those in Maryland, Pennsylvania and New York, such a waiver of venue provisiоn by a nonresident will be effective as a consent to be sued both in the State and federal courts of the State where the accident occurred. Steele v. Dennis, D.C.Md.1945,
It is contended for the defendant Dietsche that service in accordance with the Maryland statute is not in compliance with the requirements of F.R.C.P. Rule 4(d) (1) or (7); but this contention is untenable. In part, rule 4(d) (1) authorizes service “Upon an individual other than an infant or an incompetent person * * * by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to reсeive service of process.”
Service upon the Secretary of State is authorized by the Maryland statute. And also rule 4(d) (7) provides that “it is also sufficient if the summons and complaint are served * * * in the manner prescribed by the law of the state in which the service is made for the servicе of summons or other like process upon any such defendant in an action brought in the courts оf general jurisdiction of that state.”
See the cases cited in the annotation to the rule in Bender’s Fed.Practice Manual, page 11; and also Clancy v. Balacier, D.C.S.D.N.Y.1939,
For these reasons I have concluded that the motions of both defendants must -be overruled. It is so ordered by the court.