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ATLANTIC STEAMERS SUPPLY CO. v. INTERNATIONAL MARI

June 8, 1967

ATLANTIC STEAMERS SUPPLY CO., Inc., Plaintiff,
v.
INTERNATIONAL MARITIME SUPPLIES CO., Ltd., Defendant


Thomas F. Murphy, District Judge.


The opinion of the court was delivered by: MURPHY

THOMAS F. MURPHY, District Judge.

Each party moves for directly opposite relief. Plaintiff's motion, which was served first (April 3, 1967), is made under Rule 55(b)(2) Fed.R.Civ.P. and our civil rule 8(b), for the entry of a default judgment in the sum of $181,835.91, because of the failure of defendant to answer the complaint.

 Defendant moves under Rule 12(b) Fed.R.Civ.P., to dismiss the complaint for lack of personal jurisdiction over it. To help in the resolution of both motions we ordered and held a hearing on May 29, 1967.

 Jurisdiction is premised on diverse citizenship, the plaintiff being a New York corporation, while the defendant is incorporated under the laws of Switzerland.

 The complaint is based upon a written contract between the parties, by the terms of which plaintiff was appointed defendant's "correspondent" and was obligated to furnish supplies and stores to certain vessels designated by the defendant. Plaintiff was to be paid by submitting to the defendant in Switzerland, the invoices for the goods supplied. The defendant in turn, would deduct 5% as its commission.

 According to the certificate of the clerk of this court, he forwarded on February 3, 1966, by registered mail, copies of the summons and complaint to defendant at its address in Geneva, Switzerland. The clerk was requested to do this by the affidavit of one of plaintiff's attorneys, sworn to February 2, 1966, in which he stated that the defendant transacted business in this state at the material times set forth in the complaint and that the cause of action set forth in the complaint arose out of such conduct of business by defendant. Accordingly, he stated, plaintiff was entitled to serve the defendant out of the state under the provisions of sections 302(a) 1 and 313 of the New York Civil Practice Law and Rules. CPLR 302(a) 1 provides for personal jurisdiction over a non-domiciliary under certain circumstances, and CPLR 313 permits out of state service in the event that § 302 is applicable. Thus the plaintiff requested that the clerk address and dispatch, in accordance with Rule 4(i)(1)(D) Fed.R.Civ.P., a copy of the summons and complaint to the defendant by registered mail, return receipt requested. The clerk has also certified that no answer has been received or filed.

 On March 22, 1966, defendant's former counsel served its general notice of appearance on behalf of defendant and on the same day served a notice of motion to dismiss the complaint or, in the alternative, for a stay of the action under the United States Arbitration Act, 9 U.S.C. § 3, until arbitration might be had, there being a specific provision in the agreement for arbitration. We granted the motion by order dated April 13, 1966, and the plaintiff appealed, its objection being that the arbitrator was biased. This appeal was never perfected. Eventually a stipulation was signed by the attorneys and so ordered by Judge Palmieri on December 5, 1966. It reads as follows:

 
"1. That, notwithstanding the order of Judge Murphy herein made on April 13, 1966, each party hereby waives arbitration and agrees that for the purposes of this action no motion for arbitration shall be deemed to have been made by defendant.
 
"2. That defendant's time to answer or move herein is hereby extended to and until January 20, 1967."

 The former lawyers for the defendant, either misunderstanding the rules or being advised not to answer, failed to answer by the agreed date (January 20, 1967). The parties, however, were not inactive. On December 5th, the same date the stipulation was so ordered, plaintiff served a notice to take defendant's deposition in New York. In turn the defendant moved under Rule 30(b), for a protective order quashing the notice and also asking for a stay of proceedings pending its making of a motion to dismiss under Rule 12(b), because it alleged the service of process in Switzerland was in violation of the Swiss Penal Code. Plaintiff cross moved for discovery and inspection pursuant to Rule 34.

 Judge McLean in a memorandum-opinion dated March 9, 1967, vacated the notice in part and fixed the place of examination of defendant at Geneva and provided for payment of counsel fees and expenses. He also denied without prejudice, plaintiff's motion under Rule 34 for discovery and inspection. Judge McLean's order on both motions was signed on March 31, 1967. The defendant argues that by virtue of Rule 12(a), it had ten days from this date to make a 12(b) motion. The defendant's 12(b) motion was served on April 4, 1967.

 Not to let things quiet down too rapidly, the plaintiff then renewed, on March 31st, its motion under Rule 34 for discovery and inspection. This motion was argued on April 6th before Judge Herlands who referred it to the pretrial examiner for report. On April 14, 1967, Judge Herlands ordered the defendant to produce at Geneva, certain of its records for inspection.

 On these undisputed facts it seems clear that defendant is in default. Under no theory can a Rule 30(b) motion extend a defendant's time to answer. Rule 12(a) extends the time to serve a responsive pleading only when a motion is made that is permitted under Rule 12. Rule 30(b) obviously is not Rule 12. Defendant's former counsel almost concedes this, in that he characterizes the default, if there is one, as being merely technical. Even if we were inclined under Rule 60(b) to relieve the defendant from such default because of mistake, inadvertence or excusable neglect, the defendant has failed to submit a sufficient affidavit of merits. At most, the affidavit of the former attorney for the defendant contains two or three conclusory statements alleging as defenses the breach of three covenants (which are not otherwise explained) and the recision of the contract based upon a cable by the plaintiff. This cable referred to a letter, which the defendant's counsel has in his possession, and such letter clearly shows that plaintiff was rescinding because defendant had not paid it the amount for which it is now suing.

 Although under the facts of the case, the defendant is clearly in default, the question still remains whether this default can be attacked at this time on jurisdictional grounds. We think this issue can be disposed of quite readily. Rule 60(b)(4) authorizes the court to relieve a party from a final judgment if the judgment is void. If in personam jurisdiction over the defendant was lacking, this court has no jurisdiction to enter a judgment against it. Munter v. Weil Corset Co., 261 U.S. 276, 43 S. Ct. 347, 67 L. Ed. 652 (1923); ...


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