79 F.R.D. 531 | D. Conn. | 1977
RULING ON MOTION TO DISMISS
The defendant in this action, Jack B. Jacobs (Jacobs) is the trustee in dissolution for Market Publications, Inc. (Market), a Delaware corporation. While in Connecticut in connection with the dissolution, Jacobs was served in a state court action brought by plaintiffs Joseph J. Hanson (Hanson) and Alfred A. Spelbrink (Spelbrink), former directors and the president and vice-president, respectively, of Market, and by plaintiffs Conference Management, Inc. and Elouise Spelbrink, as transferees for value of the interests of Hanson and Spelbrink, respectively, in securities of and claims against Market. Having removed this action from state court, defendant now moves to dismiss, alleging, inter alia, that this Court lacks personal jurisdiction over
A brief summary of the background of this litigation will help illuminate the present issue.
In determining whether a federal court should recognize an immunity from service on these facts, it is important first to understand the nature of the immunity being sought. In the oft-cited language of the Supreme Court,
[t]he privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.
Lamb v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 318, 76 L.Ed. 720 (1932), quoting Stewart v. Ramsay, 242 U.S. 128, 130, 37 S.Ct. 44, 61 L.Ed. 192 (1916).
The facts of the present case are somewhat unusual, however. In the normal case the party served comes into the jurisdiction in connection with a proceeding in that jurisdiction and is served with process relating to a second proceeding in that same jurisdiction. By contrast, the defendant Jacobs was served here when he came into Connecticut in conjunction with a proceeding pending in Delaware. Thus the case is more like Republic Productions, Inc. v. American Fed. of Musicians, 173 F.Supp. 330 (S.D.N.Y.1959). In that case the defendant was served in New York after going there to be deposed in connection with an action pending in California. In this case, as in that one, defendant’s presence in the jurisdiction was occasioned by his participation in proceedings unrelated to any before this Court or any court of this state. The court in Republic, although ruling on immunity as a federal issue, recognized that the only interested forum was the state in which the affected proceedings were pending, i. e., California, and concluded that it was “necessary to ascertain what view the California courts would take of the claimed exemption since the motion must rest upon the premise that service should be quashed as a matter of comity in order to aid the administration of justice in the California state courts.” 173 F.Supp. at 333. Similarly, as a matter of comity, Delaware’s interest will be considered in deciding whether a federal court should recognize an immunity from process on these facts.
I turn now to a determination of whether, as a matter of federal law, the defendant is immune from service of process in this case. The general rule of immunity is that “witnesses, parties and attorneys coming from another jurisdiction are exempt from service of civil process during the period required for their attendance in court.” Shapiro & Son Curtain Corp. v. Glass, 348 F.2d 460, 461 (2d Cir.), cert. denied, 382 U.S. 942, 86 S.Ct. 397, 15 L.Ed.2d 351 (1965). The defendant here, a trustee
Plaintiffs argue that defendant should be analogized to a non-resident plaintiff because he has made use of Connecticut judicial processes in arranging for the depositions of the plaintiffs and in resisting plaintiff’s motion to quash. Because Connecticut does not recognize immunity for a non-resident plaintiff attending his action, Bishop v. Vose, 27 Conn. 1, 12-13 (1858), this analogy is urged in the mistaken belief that Connecticut law governs the scope of immunity. As indicated above, however, the scope of immunity is an issue not governed by Erie R. Co. v. Tompkins, but is instead a matter of federal law. The federal rule clearly is that a non-resident plaintiff who comes into the jurisdiction to utilize the state courts is immune from service in a federal action, Page Co. v. Macdonald, 261 U.S. 446, 43 S.Ct. 416, 67 L.Ed. 737 (1923), just as he is when he is a plaintiff in a federal action. Shapiro, supra; Sheeran v. Ravella, 18 F.R.D. 411 (M.D.Pa.1956). Insofar as defendant’s situation resembles that of a non-resident plaintiff, immunity is proper.
Alternatively, plaintiff may be analogized to an attorney who enters a jurisdiction to take depositions in furtherance of a proceeding pending elsewhere. That was the situation presented in Durst v. Tautges, Wilder & McDonald, 44 F.2d 507 (7th Cir. 1930). There the attorney was held to be immune from service made while he was in the jurisdiction for the taking of depositions in a case pending in his home state.
The case for immunity in this action is even stronger than in those arguably analogous situations. An attorney seeking to take depositions on behalf of a client is an “officer of the court,” but only in a very generalized sense. By contrast, defendant Jacobs was personally appointed by the Delaware court to serve as trustee and was specifically authorized by the court to come to Connecticut to take depositions. Moreover, unlike a plaintiff who comes into a foreign jurisdiction in pursuit of some personal benefit, the trustee here came to Connecticut not to advance his own interests but to fulfill his obligation to the Delaware court and to the shareholders of the dissolved corporation. I see no reason to afford a trustee less protection from service than a private plaintiff enjoys.
For the foregoing reasons, the motion to dismiss is granted.
. Defendant’s motion to dismiss raises four distinct grounds for dismissal, but only the issue of immunity from service has been briefed. In view of the disposition on that issue, it is unnecessary to consider the others.
. The factual background is taken primarily from the defendant’s moving papers and his affidavit. Plaintiffs have not challenged his version of the events preceding the present suit.
. This action was filed in the Court of Chancery of the State of Delaware in and for New Castle County and is entitled Reilly et al. v. Market Publications, Inc., et al., Civil No. 4963, 1975.
. Joseph J. Hanson and Alfred A. Spelbrink v. Marshall Goldberg and Jack B. Jacobs, No. 031158.
. Specifically, plaintiffs urge that Connecticut law should apply. Even if they were correct about the source of law, however, it is by no means certain that Connecticut would refuse to recognize immunity in this instance. It may be that Connecticut has recognized immunity only for witnesses, Murphy v. Dantowitz, 142 Conn. 320, 328, 114 A.2d 194 (1955), and for civil defendants, Wilson Sewing Machine Co. v. Wilson, 51 Conn. 595 (U.S.C.C., D.Conn.1884), while refusing it to non-resident plaintiffs, Bishop v. Vose, 27 Conn. 1, 12-13 (1858). Nevertheless, there is nothing to indicate that Connecticut has yet considered or would refuse to recognize immunity on the facts of this case.
. There is apparently no Delaware authority on the issue of immunity as presented by the facts of this case, but there is no reason to believe that Delaware would apply a rule different from the one applied infra.