The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
Motion by the defendants McKiernan-Terry Corporation (Delaware) and Radcom Division of Litton Industries, Inc., pursuant to Rules 12(b) and 17(b) of the Federal Rules of Civil Procedure to dismiss the complaint, as amended, and quash the service of process as to said defendants on the grounds that said defendants are non-existent and cannot be sued in this action, and because attempted service of process upon these non-existing corporations was ineffectual, is granted.
Motion by defendants McKiernan-Terry Corporation (Delaware), Radcom Division of Litton Industries, Inc. and Litton Systems, Inc. pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the third count of the complaint, as amended, on the ground that it fails to state a claim upon which relief can be granted, is denied.
Plaintiff brings this action for injuries allegedly suffered by him on the high seas while he was performing his duties as a member of the United States Navy aboard the aircraft carrier U.S.S. Constellation.
Plaintiff claims that his injuries were caused by the failure of an arresting engine (used in aircraft landings aboard the U.S.S. Constellation) manufactured by the defendants and sold by them to the U.S. Navy.
With respect to the first motion, it is plaintiff's contention that there is much confusion about corporate relations of the defendants and the existence of some of the defendants, and to protect himself, he sued all of the defendants, since he was not sure where the ultimate liability rested. Plaintiff claims that the bringing of this motion is merely a dilatory tactic on the part of defendants Radcom and McKiernan-Terry Corp. (Delaware).
The court after a perusal of the documentary evidence presented by the defendants, finds that such evidence clearly establishes that Radcom is a successor by change of name under Delaware law to McKiernan-Terry Corporation (Delaware). McKiernan-Terry Corporation (Delaware) was merely the former name of Radcom.
The documentary evidence also clearly establishes that Radcom merged into Litton Systems, Inc. pursuant to Delaware and Maryland law and Litton was the sole surviving corporation.
Corporate existence and the capacity of a corporation to be sued are determined by the law of the state of incorporation. Fed.R.Civ.P. 17(b). See Chicago T & T Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S. Ct. 125, 82 L. Ed. 147 (1937); Walder v. Paramount Publix Corp., 132 F. Supp. 912 (S.D.N.Y.1955); Newmark v. Abeel, 102 F. Supp. 993 (S.D.N.Y.1952).
Delaware law is the applicable law and under Delaware law it is settled that the separate corporate existence of a constituent corporation ceases upon merger and the emerging corporation is the only corporation with capacity to be sued and process cannot be served on the constituent corporation. Delaware Gen.Corp.Law § 259. See Argenbright v. Phoenix Finance Co. of Iowa, 21 Del.Ch. 288, 187 A. 124 (1936). See also United States v. Borden Co., 28 F. Supp. 177 (N.D.Ill.) modified, 308 U.S. 188, 60 S. Ct. 182, 84 L. Ed. 181 (1939). Therefore, the separate corporate existence of Radcom ceased upon merger with Litton Systems, Inc.
In view of the fact that Radcom and McKiernan-Terry Corp. (Delaware) had ceased to exist they could not properly be served with process. Fed.R.Civ.P. 12(b)(4) & (5); neither could the court have in personam jurisdiction over them. Fed.R.Civ.P. 12(b)(2). Further, the complaint, as amended, could not state a claim against Radcom and McKiernan-Terry Corp. (Delaware), since they had ceased to exist. Fed.R.Civ.P. 12(b)(6).
In addition, both Radcom and McKiernan-Terry lacked capacity to be sued under Delaware law. Fed.R.Civ.P. 17(b).
The second motion is made by defendants Radcom, McKiernan-Terry Corp. (Delaware) and Litton Systems, Inc.
It is directed at the third cause of action of the amended complaint only. This third cause of action pleads an implied warranty of fitness for use, allegedly running to the plaintiff, arising out of the sale of the engine by defendants to the Navy and pleads further that plaintiff's injuries resulted from defendants' breach of this implied warranty.
Jurisdiction in this case is predicated on diversity of citizenship and therefore the law of the State of New York applies, Erie R. Co. v. Tompkins,
304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), including its conflict of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Since the alleged wrong occurred on the high seas, plaintiff's claim is for a maritime tort. Rogers v. City of ...