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MEYER v. MOORE-MCCORMACK LINES

January 2, 1975

Joseph MEYER, Plaintiff,
v.
MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff, v. ARDELL MARINE CORP., Third-Party Defendant



The opinion of the court was delivered by: BRUCHHAUSEN

MEMORANDUM and ORDER

 BRUCHHAUSEN, District Judge.

 The plaintiff moves for an order pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, striking the Fifth, Sixth, and Seventh defenses interposed by the defendant, Moore-McCormack Lines, Inc.

 The defendant cross-moves for an order pursuant to said Rule 12(f) striking a portion of paragraph Ninth of the complaint, alleging jurisdiction predicated upon diversity of citizenship, and transferring this action to the admiralty side of the court, without a jury.

 This action is for personal injuries, allegedly sustained on October 3, 1968 by the plaintiff longshoreman against the vessel, S. S. Mormacpenn, owned, operated, and controlled by the defendant, Moore-McCormack Lines, Inc. The plaintiff alleges that he was injured, during his employment, while aboard said vessel. The defendant, shipowner, subsequently impleaded Ardell Marine Corp., the employer of the plaintiff, alleging indemnity over, if the defendant is held liable to the plaintiff.

 Both sides have submitted a chronology of events, concerning this suit. The more important facts indicate that the accident allegedly occurred on October 3, 1968 aboard the defendant's vessel. A notice of lien was then served on December 4, 1969 upon the defendant by the compensation carrier. This fact was not listed in the chronology of events, submitted by the defendant. The action was commenced on August 24, 1970 by service of a summons in the New York State Supreme Court, New York County. A notice of appearance was served, together with a demand for the complaint on September 2, 1970. Approximately two years later the complaint was tendered and rejected by the defendant. At the time of this tender there was a pending motion by the defendant to dismiss for failure to serve a copy of the complaint. This motion was granted by the Hon. Peter A. Quinn, Justice of the Supreme Court, New York County, and the order of dismissal signed and filed on September 18, 1972. A motion for reconsideration was denied by Justice Quinn on April 30, 1973. Thereafter, the present action was commenced in this court on June 19, 1973. The defendant appeared on July 27, 1973, and finally a stipulation was entered into staying all discovery pending the determination of these motions.

 The motion of the plaintiff to strike the Seventh defense, and the cross-motion of the defendant concerning subject matter jurisdiction may be resolved simultaneously. The defendant merely attacks lack of subject matter jurisdiction on the law side of the court.

 The cross-motion of the defendant is well taken. The affidavit of Hubert F. Carr, the Corporate Secretary and Vice President of the defendant states that the defendant is a Delaware corporation with its principal place of business in New York City.

 In Testa v. Moore-McCormack Lines, Inc., 229 F. Supp. 154 (S.D.N.Y.) the Court held in part at pages 155-156:

 
"Where diversity jurisdiction involves the citizenship of a corporation, it is now necessary to allege both the state of incorporation and of the principal place of business of a corporation, or at least that the principal place of business is in a state other than that of which a plaintiff is a citizen * * * *."

 Further, the Court held in part:

 
"Absent diversity jurisdiction, it appears settled that there would be no jurisdiction of this cause as a civil action on the law side." Cases cited.

 It is apparent that since the plaintiff is a citizen of New York State and the defendant has its principal place of business in New York State, the requisite of diversity is absent. Therefore, the action must be transferred to the admiralty side of the court without a jury. See also Moore's Federal Practice, 2nd Edition, Vol. 7A, pages 418-420.

 The Fifth and Sixth defenses are interrelated. The Fifth defense alleges that the plaintiff is guilty of laches in the prosecution of his suit, and the Sixth defense alleges that the suit because of the plaintiff's laches was dismissed on the merits for failure to serve a complaint in the New ...


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