The opinion of the court was delivered by: WORTENDYKE
This is a diversity action for damages alleged to have been sustained by Grace DeFazio on July 29, 1961 while riding in a motor boat operated by the defendant Sandra Wright upon the waters of Budd Lake in the State of New Jersey, as a result of a collision involving that boat and another operated by the defendant Robert Sarlitt, Jr. The complaint alleges that the plaintiffs are residents of the State of New York and that the defendants are residents of the State of New Jersey. It is also alleged that the amount in controversy exceeds the jurisdictional minimum and that the boat, which Sandra Wright was operating at the time of the occurrence complained of, was owned by her parents, the defendants Jack Wright and/or Margaret Wright. The complaint was not filed until July 19, 1963, almost two years after the accident. Summons issued on July 22 but, as will be disclosed below, was not served until December of that year.
The defendant Jack Wright and the defendants Sarlitt have duly appeared and filed answers. Jack's answer denied the alleged New Jersey citizenship of Sandra and Margaret Wright. He thereafter moved this Court to quash the service of summons upon Sandra Wright and Margaret Wright. Subsequently the same attorneys who appeared for Jack Wright noticed a motion in behalf of Sandra and Margaret to quash the service of summons upon them, basing that motion upon the same affidavit upon which Jack Wright had based his motion in behalf of Sandra and Margaret.
The Marshal's return discloses that the original summons and a copy of the complaint were served upon Margaret and Sandra Wright respectively, on December 26, 1963, by handing to and leaving a true and correct copy thereof with Jack Wright personally, as husband of Margaret and father of Sandra, in Montclair, New Jersey.
In his affidavit in support of his motion to quash the service upon Sandra and Margaret Wright, dated January 15, 1964, Jack Wright disclosed that he resided in New Jersey, that he is married to Margaret Wright and that he has a daughter, Sandra Wright, as a result of said marriage. He further deposed that, as of that date, he had been separated from his wife, Margaret, for the then past four months, during which she did not reside with him nor have her usual place of abode at his residence. His affidavit further disclosed that Margaret Wright is a resident of Scot Run, Pennsylvania, where she maintains her usual place of abode, and that their daughter, Sandra, who is 17 years old, resides with her and attends school at the same place. The affidavit adds that it was made by reason of the fact that the summons and complaint was served upon Jack Wright for Margaret Wright and for Sandra Wright.
Following the filing of the affidavit of Jack Wright, an associate of the attorney for the plaintiffs filed an affidavit in the case which disclosed that he had made diligent efforts to locate the residence of Sandra Wright and Margaret Wright within the State of New Jersey without success but had ascertained that their last known address in New Jersey was at 15 Center Street, Budd Lake. Based upon the affidavit of Jack Wright, the deponent averred that the correct mailing address of Sandra and Margaret Wright is Scot Run, Pennsylvania. Accordingly, the attorney for the plaintiffs procured an alias summons, the return of which shows that, on February 3, 1964, the Marshal served said alias summons, with a copy of the complaint, upon Miss Sandra Wright and upon Mrs. Margaret Wright, via registered mail, return receipt requested, addressed to them at Scot Run, Pennsylvania. The return receipts indicate that each of the addressees received her copy of the summons and complaint.
For the purpose of amplifying the record respecting the circumstances underlying the questions raised by the motions to quash service, the Court ordered the parties between whom the issue was raised to show cause why the motions should not prevail, and, upon return of that order, heard the testimony of the defendants Wright relevant thereto. That testimony disclosed the following.
From May of 1961 through July of 1963, all three members of the Wright family, Jack, Margaret and Sandra (and a son who is not a party to this action) resided together in New Jersey. On the date of the accident, July 29, 1961, the motor boat, which was owned by the parents and which allegedly caused the accident, was being operated on the waters of Budd Lake in New Jersey by Sandra Wright, who was then about 14 years old. The boat was kept by the parents in Budd Lake for the entire summer of 1961.
Margaret Wright testified that she left the State of New Jersey and separated from her husband in 'the latter part of July (1963) * * * possibly the 25th, 29th, some place in there' and took up residence in Scot Run, Pennsylvania, taking her daughter Sandra, and their son, with her. The complaint in this action had been filed on July 19, and summons had issued on July 22. Margaret and her husband reunited in March, 1964, at the Pennsylvania address where they have since resided with their son and daughter, as one household.
The husband, Jack Wright, was personally served with the summons and complaint on December 26, 1963, in Montclair, New Jersey, where he was working at a construction site. At the same time, he was served by the Marshal with copies for Margaret and Sandra, which he turned over to an insurance agent three or four days later. The personal service of the summons upon Jack Wright was, therefore, not effected at his then usual place of abode (despite the recital in his affidavit to the contrary).
These motions present three questions: (1) Can Jack Wright, who concededly was personally served with the original summons, be heard to attack the service of either the original or the alias summons upon his wife and daughter, under the circumstances disclosed in his affidavit? (2) Was the substituted service upon Sandra and Margaret Wright through Jack Wright, attempted by the Marshal, effective to vest this Court with jurisdiction over them in light of the conceded fact that on the date of such attempted substituted service they did not reside at the place of abode of Jack Wright nor have their place of abode in New Jersey? (3) Was the service by registered mail of the alias summons upon Sandra and Margaret Wright, by virtue of F.R.Civ.P. 4(e) and N.J.R.R. 4:4-4(j), as amended, effective to extend this Court's jurisdiction to each of them?
The first question must be answered in the negative, and Jack Wright's motion is therefore dismissed.
Turning to the third question, we must look to the provisions of F.R.C.P. 4(e), as amended effective July 1, 1963, for the purpose of determining whether the attempted service of alias summons upon Sandra and Margaret by registered mail was effective to vest this Court with personal jurisdiction over each of them in this action. That subsection of the rule provides, in pertinent part, that 'Whenever a * * * rule of court of the state in which the district court is held provides (1) for service of a summons * * * upon a party not an inhabitant of or found within the state, * * * service may * * * be made under the circumstances and in the manner prescribed in the * * * rule.' N.J.R.R. 4:4-4(j) as recently amended, effective January 2, 1964, provides in pertinent part that 'Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. * * *' The foregoing New Jersey Rule is therefore, by the provisions of F.R.C.P. 4(e), in effect a rule of this Court, and the service on Margaret and Sandra was valid if it was valid under the provisions of the New Jersey rule.
The conditions of N.J.R.R. 4:4-4(j) were strictly complied with in the present case: the appropriate affidavit was filed by an associate of the plaintiffs' attorney; the copies of the summons and complaint were mailed to Margaret and Sandra Wright by registered mail; and the receipts constitute evidence that the copies were actually received by both addressees. No judicial decision interpretive of the foregoing quoted portions of the amended New Jersey Rule has been disclosed either by counsel or the Court's own research. Finding that the manner of service required by the Rule was complied with in the present case, we must determine then only whether such service was in this case 'consistent with due process of law' as required by the Rule.
The issue is whether, on the facts of ...