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COMMERCIAL SOLVENTS CORP. v. JASSPON

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


August 8, 1950

COMMERCIAL SOLVENTS CORPORATION
v.
JASSPON

The opinion of the court was delivered by: MCGOHEY

This is a motion under Rule 25(a)(1) *fn1" of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an order substituting as parties defendant Gertrude Jasspon and Security-First National Bank of Los Angeles, Executrix and Executor, respectively (hereinafter referred to as Executors), of the Last Will and Testament of Moses Bernard Jasspon, the deceased defendant.

The action was commenced December 2, 1948. Jasspon died in California on November 25, 1949. The Executors appear here 'specially and only for the purpose of opposing plaintiff's motion.'

 Letters Testamentary were issued to the Executors in the Superior Court of the State of California in and for the County of Los Angeles on January 11, 1950. It appears that no inventory has yet been filed and that there has been no final distribution and settlement of the estate. There is nothing in the papers submitted on this motion to indicate that there are any assets within this District, and there are no Surrogate's Court proceedings pending in New York State.

 The notice of motion was served on the Executor and the Executrix in Los Angeles, California, by a Deputy United States Marshal on February 16, 1950, and February 27, 1950, respectively. They are both California residents and the Security-First National Bank is not qualified to do business in New York. The attorneys for defendant were served in New York on March 1, 1950.

 Jurisdiction rests on diversity of citizenship, the amended complaint alleging that plaintiff is a Maryland corporation duly qualified to do business in New York and that defendant was a New York citizen. The action is for an accounting and damages for Jasspon's alleged breaches of his fiduciary duty as plaintiff's vice president in charge of beverage spirits sales. He is asserted to have realized undisclosed profits from transactions he caused plaintiff to enter into; to have appropriated corporate opportunities for his own profit; and to have accepted bribes and other compensation from plaintiff's customers.

 Defendant went to California shortly after service of the complaint, and on January 24, 1949, moved for a change of venue to the Southern District of California claiming that he was a resident of that district then and at the time the action was commenced. A Special Master was appointed to take testimony and report on that issue, but the proceedings have not been completed and the issue of defendant's residence remains undetermined. For the purposes of this motion I have assumed that the venue is proper.

 Since the commencement of the action there have been several motions relating to attempted examination of Jasspon, whose health was apparently too poor to permit the examination to be completed. A suggestion by Judge Leibell that a stipulation of facts be entered into failed of fruition when Jasspon died. Issue was not then joined, Jasspon's time to answer having been adjourned prior to his death to December 15, 1949.

 Rule 25 of the Federal Rules of Civil Procedure, which applies only if the death of the defendant does not extinguish the claim, does not undertake to designate the claims which survive. Under New York Law, by which that question must be determined, *fn2" the instant claim survives since it is one for injury to property. *fn3"

 It would seem therefore that, as the plaintiff has complied with the plain requirements of Rule 25(a)(1), the motion should be granted. The Executors argue, however, that this case is not covered by the Rule -- that the Rule does not mean what it says when it authorizes service 'in any judicial district' -- and that, assuming it does apply, its use here to permit substitution would be in violation of the doctrine of Erie R. Co. v. Tompkins, supra. Neither contention is sound.

 According to the Note of the Advisory Committee on Rules, Rule 25(a)(1) is based upon old Equity Rule 45 *fn4" and old 28 U.S.C.A. § 778 *fn5" The 1921 amendment, adding to Sec. 778 the last two paragraphs quoted in the margin, made it quite clear that Congress intended the section to provide for the substitution of personal representatives appointed in a state other than the one in which the federal court was sitting by service upon them in any state or territory of the United States. *fn6"

 The Executors, while citing no authority in support of their narrow interpretation of Sec. 778, attempt to nullify the effect of the Luster and Plimpton cases. In Luster v. Martin an action was begun in the Wisconsin court against one Hermann to recover funds he was alleged to have obtained as a result of his breach of a reorganization agreement. Hermann was personally served in Wisconsin and had the action removed to the federal court. Upon his death as a resident of Missouri shortly thereafter, plaintiffs, by service of a scire facias pursuant to Sec. 778, substituted his executors who were appointed in Missouri and were residents of that state. The executors, as here, appeared specially and moved to quash the writ. The motion was denied as was their motion to dismiss. On appeal the Circuit Court held that: 'section 778 authorized the revival of the suit against Hermann's executors no matter in what state they were appointed.' 58 F.2d at page 540.

 The Executors here say, however, that the Luster case is distinguishable because the complaint in that case alleged that large sums belonging to Hermann were on deposit in Wisconsin banks and that the Circuit Court said, 58 F.2d at page 539: 'The numerous reasons which appellants assign for dismissal of the complaint will be considered on the assumption that the facts stated in the complaint are true.' The theory being that in the Luster case there was a res subject to the court's jurisdiction -- a fact not present in the instant case.

 It seems extremely doubtful to me that the court in deciding the case attributed any weight to this factor; certainly, the discussion of Sec. 778 quoted above does not advert to it. Indeed there is strong ground to believe that the Court did not give it any weight because, continuing the quotation in the preceding paragraph, the Court said, 58 F.2d at page 539: 'We have examined the supporting and opposing affidavits and find in the statements of Mr. Catlin and Mr. Skamser, two disinterested parties, persuasive support of all of the allegations of the complaint, save the statement therein appearing that large sums of money made up of said trust funds were on deposit in banks in Eau Claire, Wis., and Chicago, Ill.'

 Accordingly, I am unable to accept the asserted distinction. The Connecticut District Court in Plimpton v. Mattakeunk Cabin Colony, supra -- a case indistinguishable from this one -- regarded the Luster case as controlling and held that Sec. 778 authorized revival against executors appointed in another state even though there were no assets in Connecticut.

 Nor can there be any constitutional problem raised by Sec. 778, as so interpreted and applied. Manifestly the judicial power of the United States extends throughout the 48 states. Article III, Sec. 1 of the Constitution provides: 'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.' Article III, Sec. 2 provides: 'The judicial Power shall extend * * * -- to Controversies * * * -- between Citizens of different States * * *.'

 'The discretion, therefore, of Congress as to the number, the character, the territorial limits of the courts among which it shall distribute this judicial power, is unrestricted except as to the Supreme Court.' (emphasis supplied.) *fn7" 'Congress could provide for service of process anywhere in the United States.' *fn8"

 So, also, there is no violation of the 'due process' clause of the Fifth Amendment since the notice provided for was 'reasonably calculated to give * * * actual notice of the proceedings and an opportunity to be heard.' *fn9"

 But, say the Executors, even if formerly they could have been substituted under Sec. 778, such substitution is no longer possible. The argument runs as follows: During the period from September 16, 1938 (the effective date of the Federal Rules of Civil Procedure), to September 1, 1948 (the effective date of new Title 28 U.S.C.A.), Sec. 778 and Rule 25 existed side by side and together regulated the substitution of parties, Rule 25(a)(1) provides that the notice of motion be served on persons not parties in the manner provided in Rule 4 for the service of a summons, and that it 'may be served in any judicial district.' Rule 4(f) provides: 'All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state.' From this, the Executors argue that Sec. 778 was the 'statute of the United States' referred to in Rule 4(f) as providing for out-of-state service and which justified the authorization in Rule 25(a)(1) for service 'in any judicial district.' They then say that such justification vanished upon the enactment of new Title 28 which repealed Sec. 778. Consequently, they conclude, there is now no warrant for reading Rule 25 so as to permit the revival here attempted.

 The heart of this ingenious argument is its reliance upon Rule 4(f) to make the extraterritorial service provision in Rule 25(a)(1) dependent upon the existence of Sec. 778. Rule 4(f), however, has no application here at all. The reference in Rule 25(a)(1) is to 'the manner provided in Rule 4' (emphasis supplied), which is found in subdivisions '(c) By Whom Served', '(d) Summons: Personal Service' and '(e) Same: Other Service.' Subdivision (f) 'Territorial Limits of Effective Service' clearly does not describe ' manner of service.' (Emphasis supplied.) Thus this argument that the repeal of Sec. 778 changed the meaning of Rule 25(a)(1) fails.

 The Revision Act of 1948 repealed Sec. 778 because it was 'Superseded by Rules 25 and 81 of the Federal Rules of Civil Procedure.' *fn10" Rule 25(a)(1) does no more than restate the substance of Sec. 778. *fn11" It is, therefore, not in violation of 28 U.S.C.A. § 2072 *fn12" or Rule 82, *fn13" and clearly authorizes substitution and revival against these Executors. *fn14"

 This holding is not contrary to the doctrine of Erie R. Co. v. Tompkins, supra. Diversity jurisdiction was granted to the federal courts in order to circumvent the apprehended danger that an out-of-state litigant might be subjected to local bias in the courts of the state in which his adversary resided. The doctrine of the Erie case, on the other hand, condemns the discrimination against local residents which resulted from the application of different rules of decision merely because an action upon a state-created right was brought in a federal court. *fn15"

 The Executors' position is that since they could not be substituted by service of a notice of motion in California if this action had been pending in the New York court, they will, if the motion is granted, be subjected in this court to the type of discrimination that Erie v. Tompkins intended to prevent. That argument, however, fails to recognize 'The distinction between original jurisdiction and retaining it in a pending cause.' *fn16" Revival constitutes a continuance of the original action against Jasspon, not the bringing of a new one against his Executors. *fn17" Rule 25(a)(1) is procedural. *fn18" It merely provides for 'the manner and the means by which a right to recover, as recognized by the State, is enforced * * *' *fn19" by a court having venue, as well as power to decide the issues in the action, which is jurisdiction of the subject matter. *fn20"

 New York has created a substantive right which the plaintiff says the defendant Jasspon violated. Jasspon could validly ask for no more than that plaintiff's claim be decided in this court under the same rules of decision New York would apply if the case were heard in its courts. There is nothing in the Erie case which gives the Executors a right to demand more than their testator could claim. New York has created no right in them or Jasspon which the application of Rule 25(a)(1) will impair.

 Clearly recovery might be had if the Executors were before the New York court. On this motion it is assumed that the decedent was available to be brought before the state court and was properly before this court. New York has not limited the plaintiff's right of action to decedent alone, but extends that right against the latter's estate so that his Executors could be substituted if they were available for service within the state. This requirement of availability for proper service is not a state-imposed limitation on or curtailment of the right of action, like a statute of limitations. *fn21" In other words, New York in so far as it may or can has created a right in the plaintiff against Jasspon while he was alive and against his estate after his death. The accident of foreign Executors, which brings into play the constitutionally recognized limitation on state process, certainly cannot be translated into a state-imposed limitation on the right. It merely erects an obstacle to the 'manner and mode' by which the state-created right can be enforced in the state court. That obstacle might indeed be insurmountable if there were not available to the plaintiff a court free from the limitations which erect the obstacle. This court is free from them, and its rules clearly establish a procedure by which the state-created right may be enforced under the state's rules of decision. Executors contend in the name of Erie for a result which would involve this court's reshaping of a state-created right -- a result which is contrary to the whole spirit of the Erie doctrine. Erie v. Tompkins does not require us to withhold the aid of Federal procedures to the vindication and enforcement of state-created rights in accordance with its rules of decision. On the contrary, it seems to me, it commands us to make that aid available.

 The motion is therefore granted.

 Settle order.


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