2 F.R.D. 278 | D.N.J. | 1941
A petition for process was filed with the complaint herein, and in said petition the plaintiff prayed that process of summons issue out of this court directed to the several United States Marshals of the several districts within the United States of America, where the defendants could be found or process legally served.
The summonses issued and five defendants now seek an order dismissing the complaint. The petition for process states they are nonresidents of the State of New Jersey, and the returns of the United States Marshals report that three of the defendants
The action is civil, grounded on the federal antitrust laws
The jurisdiction of this court is determined by Acts of Congress enacted in pursuance to the Constitution. Apart from the powers that are inherent in a judicial tribunal after such tribunal has been lawfully created, the district courts can exercise no jurisdiction that is not conferred upon them by legislative enactment.
The motion of the said five defendants must prevail unless we find statutory authority for the services in question.
The legal relief is sought by the plaintiff under Section 4 of the Clayton Act
The plaintiff seeks equitable relief through Section 16 of the Clayton Act
If jurisdiction depended upon diversity of citizenship and amount involved, suit could be brought only in the district of the residence of either the plaintiff or the defendant, but jurisdiction in this matter rests upon laws of the United States
The service of process outside this state and in districts located in the State of New York upon natural persons, who are named as defendants in an antitrust action for three-fold damage and injunctive relief in this district is unsupported by Sections 4, 12 and 16 of the Clayton Act and the pertinent part of the General Venue Statute.
The motion of David Weinstock, Benjamin Weinstock, J. Joshua Goldberg, Emanuel Hertzig and Harry Brandt to dismiss the complaint is granted as to each of them.
The plaintiff contends that the defendants in question have waived their right to the dismissal because they filed their motion twenty days after the dates on which they were served with summons.
The record shows that the twenty days had not expired as to the defendants, Emanuel Hertzig and J. Joshua Goldberg, but they had expired as to the defendants, David Weinstock, Benjamin Weinstock and Harry Brandt, when the attorney for the plaintiff and the attorney for all five defendants entered into a stipulation wherein the time to answer or otherwise move with respect to the complaint was extended.
Under Rule 12(b),
The new rules have avoided all distinction between demurrers, motions, exceptions for insufficiency and pleas. Special appearances to challenge jurisdiction over the person or improper venue are not necessary. Objections that the court has not secured jurisdiction over the defendant or that the venue is improper may be pleaded in the answer and the defendant waives nothing by so doing.
The theory of the new rules of civil procedure is that the quick presentation of defenses or objections should be encouraged, and when the defendants in question decided to do by motion what the stipulation gave them the right to do in the responsive pleadings, they were proceeding in a manner consistent with the spirit of said rules, and the court looks to the substance rather than to the form.
David Weinstock, Benjamin Weinstock and Harry Brandt.
J. Joshua Goldberg and Emanuel Hertzig.
Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq.
Legal relief.
Equitable relief.
J. Harvey Ladew et al. v. Tennessee Copper Company, 218 U.S. 357, 31 S. Ct. 81, 54 L.Ed. 1069.
Title 15 U.S.C.A. § 15. Similar provision in Sec. 7 of Sherman Act, 15 U.S.C.A. § 15 note.
Title 15 U.S.C.A. § 22.
Title 15 U.S.C.A. § 26.
The Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq.
Exceptions are not applicable.
Pertinent part of Title 28 U.S.C.A. § 112.
See Rule 4(f), Federal Rules of Civil Procedure, 28 U.S.C.A. following Section 723c.
Title 28 U.S.C.A. § 112.
Title 28 U.S.C.A. following Section 723c.
Moore’s Federal Practice, Vol. I, page 649.