The opinion of the court was delivered by: WYATT
This is a motion by the sole defendant Alfred Margolis (hereafter Margolis) and also by his insurer, Government Employees Insurance Company (Geico), to vacate an attachment of an automobile liability insurance policy issued by Geico to Margolis and to dismiss the complaint for lack of jurisdiction over the person or property of Margolis. Fed.R.Civ.P. 12(b)(2).
The action was commenced in the New York Supreme Court on August 16, 1968 by the service in New York of an order of attachment (signed by Mr. Justice Loreto on August 12, 1968) and a complaint upon Geico. A summons and complaint were thereafter served on Margolis on August 27, 1968. It does not seem to be stated in the papers where service was made on Margolis but it is undisputed that he was served in New Jersey, as authorized by N.Y. CPLR § 314. See also N.Y. CPLR § 6213. On September 25, 1968, Margolis, by his attorney, filed in this Court a petition for removal. By order with memorandum opinion filed December 5, 1968, a motion by plaintiffs to remand this action to the state court was denied and it was held that the action had been properly removed.
Margolis and Geico, by the present motion, attack the validity of the attachment under New York law and, assuming its validity under that law, challenge its constitutionality under federal law. Involved is the New York procedure for attachment of an insurance policy as authorized by Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966) and elaborated in Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669 (1967), motion for reargument denied, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). See also Victor v. Lyon Associates Inc., Hanover Ins. Co., Appellant, 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967), appeal dismissed for want of a substantial federal question, Hanover Ins. Co. of New York v. Victor, 393 U.S. 7, 89 S. Ct. 44, 21 L. Ed. 2d 8 (1968).
The present action arose from an automobile accident in Morris County, New Jersey. There are five plaintiffs, each of whom avers one or more causes of action in the complaint. It is alleged that plaintiffs Anna Varady and Dorothy Detelj, with Gerald Detelj (7 year old son of Dorothy), Richard J. Marshall and Lawrence K. Marshall, were standing on a sidewalk in Morris County, New Jersey, when an automobile operated by Margolis veered across the road, jumped a curb and struck the five persons standing on the sidewalk. According to the complaint, all five persons were seriously injured and Lawrence K. Marshall died as a result of his injuries. There are ten separate claims in the complaint.
The first claim is by Anna to recover for her injuries.
The second claim is by Anna's husband, John, to recover his compensable losses because of the injuries to Anna.
The third claim is by Dorothy to recover for her injuries.
The fourth claim is by Dorothy's husband, Joseph, to recover his compensable losses because of the injuries to Dorothy.
The fifth claim is by Gerald Detelj but whether he is a plaintiff or not is uncertain. He is not described as a plaintiff in the caption and in paragraph 2 is said to be 7 years old. The fifth claim refers to him as a plaintiff and is to recover for his injuries.
The sixth claim is by Gerald's father, Joseph, to recover his compensable losses because of the injuries to Gerald.
The seventh claim is by Richard J. Marshall but whether he is a plaintiff or not is uncertain. He is not described as a plaintiff in the caption and in paragraph 3 is said to be 8 years old. The seventh claim refers to him as a plaintiff and is to recover for his injuries.
The eighth claim is by Richard J. Marshall's father, Richard H. Marshall, to recover his compensable losses because of the injuries to Richard J. Marshall.
The ninth claim is by Richard H. Marshall as Administrator ad prosequendum of the Estate of Lawrence K. Marshall to recover for the injuries to ...