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October 27, 1964

Lena CALLAN, Administratrix of Peter Callan, Deceased, Plaintiff,
LILLYBELLE, LTD., a corporation of New York, Sol Hazen, Irwin Till and Johanna Callan, Defendants

The opinion of the court was delivered by: WORTENDYKE

This action was commenced by the filing of the complaint in this court on July 17, 1962 by the plaintiff-administratrix, a resident of New Jersey.

She alleges that she was appointed administratrix ad prosequendum of Peter Callan, deceased, by the Surrogate of Essex County, New Jersey, on January 27, 1961. She further alleges that, on December 28, 1960, her intestate was a passenger in an automobile operated by the defendant Johanna Callan, alleged to be a resident of New Jersey, which was involved in a collision with a motor vehicle, owned and operated by the defendant Till, and another motor vehicle, owned by the defendant Lillybelle, Ltd. and operated by the defendant Hazen, on a public highway in the City of New York. Each of the motor vehicle operators named in the complaint is charged with negligence causal to personal injuries alleged to have been sustained by plaintiff's intestate. Those injuries are claimed to have aggravated a preexisting physical condition which resulted in his death on December 29, 1960.

 Summons was duly issued following the filing of the complaint in this court, and was served personally upon the defendants Lillybelle, Hazen and Till in the Southern District of New York and upon the defendant Johanna Callan in the District of New Jersey.

 The defendant Johanna Callan filed an answer in which she admitted her residence and citizenship in New Jersey. The other parties concede that admission to be a fact, as well as the allegation that the plaintiff is a resident and citizen of New Jersey, which is also admitted by the defendant Johanna Callan. The common residence and citizenship of plaintiff and defendant Johanna Callan destroys the subject-matter jurisdiction of this court for the conceded lack of diversity of citizenship between those adversary parties.

 The answer of the defendants Lillybelle and Hazen, filed September 18, 1962, admits the pleaded diversity of citizenship between the plaintiff and those answering defendants but affirmatively pleads lack of subject-matter and personal jurisdiction in this court and impugns the sufficiency of service of process upon them.

 On April 8, 1963, the following motions were argued before this Court: (1) by defendants Lillybelle and Hazen to quash service of process and dismiss the complaint as to them; and (2) by defendants Johanna Callan and Till to dismiss the complaint. The plaintiff also moved at the same time for an order granting leave to drop Johanna Callan as a party defendant, and to amend the complaint accordingly and transferring this cause to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. §§ 1404 and 1406.

 By its order of June 13, 1963 on the foregoing motions this court quashed the service of process upon the defendants Lillybelle and Hazen, and dismissed the complaint as to all of the defendants for lack of (diversity) subject-matter jurisdiction. From that order, the plaintiff appealed to the United States Court of Appeals for the Third Circuit, 329 F.2d 646, which, by its opinion filed April 13, 1964, vacated the order and remanded the cause to this court with direction 'to consider the case again in the light of our opinion in United States v. Berkowitz (United States of America v. Lord), 328 F.2d 358 (1964).' Following that remand a pretrial conference was held in this court at which, by stipulation of counsel for the respective parties, the previous motions before this court (except for that of defendants Lillybelle and Hazen to quash service on them, which was not resisted by plaintiff) were brought on for reargument upon the briefs submitted by the parties to the Court of Appeals. At the conclusion of that reargument, this court reserved decision, and this opinion is an expression of that decision.

 The parties presently before this court are the plaintiff, defendant Johanna Callan (both New Jersey residents) and defendant Till (who, although served with process in New York where he resides, has waived his right to challenge this court's lack of personal jurisdiction over him).

 The remaining defendants, Lillybelle and Hazen, have succeeded in quashing the service of process on them in New York. Therefore, they are not subject to this court's personal jurisdiction. They appear specially to challenge, together with defendant Till, this court's subject-matter jurisdiction because of the lack of complete diversity between the parties as a result of the common citizenship of plaintiff and defendant Johanna Callan. But for that lack of complete diversity, this court would, under 28 U.S.C. § 1332(a)(1), have complete subject-matter and personal jurisdiction over plaintiff and defendant Till (and would have over defendants Lillybelle and Hazen if such personal jurisdiction over them here could be acquired).

 The plaintiff therefore moves to drop Johanna Callan as a defendant (either under F.R.Civ.P. 15 or 21) in order to retain complete diversity jurisdiction in this court. If that motion is granted, plaintiff moves further that the case then be transferred, under 28 U.S.C. §§ 1404(a) or 1406(a), to the Southern District of New York where personal jurisdiction can be acquired over defendants Lillybelle and Hazen. In support of this latter motion, plaintiff claims that whichever statute of limitations is applicable (New York or New Jersey) *fn1" has run and would bar a new action in the Southern District of New York against any or all defendants. Plaintiff has assumed that the complaint was filed here (less than two years after the accident) before the applicable statute of limitations (either that of New York or of New Jersey) had run.

 The right of the plaintiff to drop Johanna Callan as a party defendant in order to retain diversity jurisdiction in this court is clear. The facts in the case at bar are strikingly similar to those which confronted then Chief Judge Forman of this court (now a member of the Court of Appeals), in Ackerley v. Commercial Credit Co., D.C.N.J.1953, 111 F.Supp. 92. In that case, as in the case at bar, an administratix sued for the alleged wrongful death of her New Jersey decedent against numerous defendants, including a New Jersey corporation (Central Railroad Company of New Jersey). Defendants moved to dismiss the complaint for lack of jurisdiction by reason of the lack of complete diversity of citizenship between the plaintiff on the one hand, and all of the defendants on the other. The plaintiff countered with a motion to permit her to amend the summons by dropping, as a party defendant, the New Jersey corporation and to file an amended complaint omitting any reference to that defendant. It was conceded that the plaintiff was a resident of New Jersey and the defendant which the plaintiff sought to drop was a corporation of that State. Judge Forman held:

 'There is ample authority that such an amendment is permissible, if the party dismissed is not an indispensable party. (Citing Dollar S.S. Lines v. Merz, 9 Cir. 1934, 68 F.2d 594 and States v. John F. Daly Inc., D.C.Pa.1951, 96 F.Supp. 479.) * * * An indispensable party is defined as one having such an interest in the controversy that a final decree cannot be made without either affecting his interest or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience, see Chidester v. City of Newark, 3 Cir., 1947, 162 F.2d 598, 600. Tortfeasors, such as Central Railroad of New Jersey (the New Jersey corporation) is alleged to be, are not indispensable parties to an action against one of their number * * * (Citing Picking v. Pennsylvania Railroad Co., 3 Cir. 1945, 152 F.2d 753, cert. den. 1947, 332 U.S. 776 (68 S. Ct. 38, 92 L. Ed. 361) and Sauer v. Newhouse, D.C.N.J.1938, 24 F.Supp. 911). Thus, unless the fact that the statute of limitations has run is a bar, the plaintiff may be permitted to amend in the manner she has requested. * * * The time within which the plaintiff could commence this action had now run. Fed.Rules Civ.Proc. rule 15(c), 28 U.S.C.A., however, provides that, "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.' This rule has been applied to amendments to complaints which were designed to give the court jurisdiction, Christensson v. Hogdal, D.C. Cir., 1952 (91 U.S.App.D.C. 251), 199 F.2d 402; Zellem v. Herring, D.C.W.D.Pa.1951), 97 F.Supp. 103. Plaintiff's claim after making her proposed amendment (dropping the corporate defendant) would arise out of exactly the same occurrence as before, but the moving defendants contend that the plaintiff cannot take advantage of Rule 15(c) because of the special nature of the statute of limitations contained in the New Jersey Wrongful Death Act. * * *

 'There is no question but that this court must apply the New Jersey statute of limitations requiring that the action be brought within two years of the death of the decedent. * * * The Supreme Court has held that in a diversity of citizenship case the statute of limitations of the state whose law governs the substantive questions at issue is not tolled until the plaintiff has taken the steps required by state law. Thus, although a plaintiff in such a suit files a complaint before the running of the state statute of limitations, he is barred by that statute if he does not also fulfill the state requirement that summons be served in order to toll the statute. * * * (Citing Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530 (69 S. Ct. 1233, 93 L. Ed. 1520).) The holding in the Ragan case would not bar the plaintiff in this controversy, for an action is commenced when the complaint is filed, both under Federal Rule 3 and under New Jersey Rule 3:3-1 (now Rule 4:3-1). * * * Not only is New Jersey law the same as the federal law in respect t commencement of an action, it is also the same in respect to relation back of amendments to a complaint to the date of filing the original complaint. * * * By the terms of Rule 15(a) a court should grant leave to amend freely when justice so requires. It has been held that a court should consider the request for leave to amend under subsection 'a' of the rule uninfluenced by whether, under Rule 15(c), the amendment would or would not relate back, and that once the amendment has been allowed, if the defendant pleaded limitation, the court would then act upon the plea in light of the ...

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