The opinion of the court was delivered by: LEVET
This is an action by Henry Evans, Jr., plaintiff, a longshoreman, against the above-named defendants, owners of a certain vessel known as the MÅ Dyvi Atlantic (hereinafter known as the " shipowner"). The shipowner, in turn, filed a third party complaint against Pittston Stevedoring Corp. as third-party defendant (hereinafter known as "Pittston").
When the case came on at conference on December 19, 1973, counsel appeared before me in preparation for trial, at which time this motion for dismissal for lack of personal jurisdiction was raised and argued.
The facts relative to the service of the complaint were substantially as follows:
(1) The original complaint was filed in this court on April 19, 1969 and it has been conceded that this complaint was not served upon defendants or any one else.
(2) An amended complaint was filed on June 16, 1970 but there is no evidence of service of this complaint.
(3) A second amended complaint was filed on March 23, 1972. It is conceded that the validity of service of this complaint or lack of it will determine the result of this motion.
The second amended complaint which, as stated, is the only complaint reputedly served, alleged in substance the following:
(1) Plaintiff is a resident and citizen of New Jersey.
(2) Defendants had a place of business in New York and committed a tortious act within the State of New York.
(3) The vessel Dyvi Atlantic was moored in Port Newark, New Jersey.
(4) The accident to plaintiff occurred in Port Newark, New Jersey.
On September 1, 1972 defendant shipping company filed an answer in which the issue of personal jurisdiction over defendants was raised.
Paragraph Third of the second amended complaint contains the following allegation:
"THIRD: Upon information and belief, that at all times hereinafter mentioned, the defendants and/or each of them had a place of doing business transacted business within the State of New York and committed a tortious act within the State."
However, the cause of action is alleged to have taken place on the 9th day of July 1967 while the vessel was moored at Berth 9, Port Newark, New Jersey.
The records of this court, that is the Southern District of New York, indicate that in a letter dated January 13, 1972 (presumably not delivered to the Clerk of the Court until March 23, 1972) plaintiff's trial counsel asked the Clerk of this Court to serve the second amended summons and complaint upon defendants and third-party plaintiffs by mailing ...