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Zelson v. Thomforde

decided: June 13, 1969.


Seitz, Aldisert and Stahl, Circuit Judges.

Author: Per Curiam


On April 26, 1968, a complaint was filed in the United States District Court for the District of New Jersey charging the defendant-appellee Thomforde with the negligent operation of a motor vehicle resulting in damages to the plaintiffs-appellants as a consequence of an accident which occurred on March 9, 1966.*fn1 The jurisdiction of the court was based on diversity of citizenship.*fn2

The accident occurred on the Delaware-Memorial Bridge which spans the boundary between Delaware and New Jersey. Ordinarily a complaint filed either in Delaware*fn3 or New Jersey*fn4 upon such a cause of action would be barred by a two-year statute of limitations. Believing New Jersey law to be applicable, appellants claimed relief from the New Jersey statute of limitations under N.J.S.A. 2A:14-22,*fn5 which tolls the statute when the cause of action is against nonresidents of the state for as long a period as the defendant is not available in New Jersey for service of process. Defendant-appellee Thomforde, joined by Wickes Lumber Co., filed a motion to dismiss, on the sole ground that the New Jersey relief statute does not accrue to the benefit of nonresidents and is therefore unavailable to appellants. The court below did not directly reach this question.

The district court determined that because the accident occurred on the Delaware-Memorial Bridge, to which Delaware presumably has title by virtue of compacts between the states of New Jersey and Delaware and other legislation, the situs of the accident was in Delaware.*fn6 On the basis of this determination, the court ruled, on its own motion, that the service of process which had been made on appellees was improper and no personal jurisdiction had been obtained over them. The court therefore dismissed the complaint, stating:

It is undisputed that the accident in question occurred on the Delaware-Memorial Bridge, on the up-ramp section of the span. And, since the bridge is entirely within the State of Delaware both as to title and by reason of these compacts, the purported service of process under the New Jersey "longarm" statute is invalid. See R.S. 39:7-2, N.J.S.A. which pertains to operation of motor vehicles by non-residents within the State of New Jersey, with provision for service of process upon the Director of Motor Vehicles. * * *

We reverse the dismissal of the complaint.

Jurisdictional objections which may be raised at any time by the parties, or by the court sua sponte, relate to subject matter jurisdiction.*fn7 Louisville & N.R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908); Mansfield, Coldwater & Lake Michigan R'way Co. v. Swan, 111 U.S. 379, 4 S. Ct. 510, 28 L. Ed. 462 (1884); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 27 (8th Cir. 1964); McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa.1961); 1A Barron and Holtzoff, Federal Practice and Procedure § 370, p. 509 (Wright ed. 1960).

Jurisdictional objections to the court's power over the person are waived unless timely asserted by motion or answer.*fn8 In re Natta, 388 F.2d 215, 220 (3d Cir. 1968); Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543, 546 (3d Cir. 1967); United States v. Article of Drug, 362 F.2d 923, 926-927 (3d Cir. 1966); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3rd Cir.), cert. denied sub nom., Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S. Ct. 1057, 88 L. Ed. 1573 (1944); Tiernan v. Dunn, 295 F. Supp. 1253 (D.R.I.1969);*fn9 O'Connor v. Western Freight Ass'n., 202 F. Supp. 561, 564 (S.D.N.Y.1962).*fn10 Thus, because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, Petrowski v. Hawkeye-Security Ins. Co., 350 U.S. 495, 76 S. Ct. 490, 100 L. Ed. 639 (1956), 1A Barron and Holtzoff, supra at § 370, a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion, as here, or otherwise. Cf. Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 (2d Cir. 1966), where it was held to be error for the district court to dismiss a suit for improper venue, on its own motion, where defendants had challenged service of process but no objection to venue had been made. Also, in Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372 U.S. 909, 83 S. Ct. 723, 9 L. Ed. 2d 718 (1963), the court struck down the dismissal of an action on the basis of the statute of limitations where that defense had not been raised. The court said:

The raising of the defense of the statute of limitations, * * * is a personal privilege of the defendant. If it fails to take advantage of that privilege in the manner provided by law, it is waived. It was no concern of the district court and that court had no right to apply the statute of limitations sua sponte. [Footnote omitted.] 307 F.2d at 412.

Since the possible invalidity of the service of process under New Jersey's long arm statute is a matter of personal jurisdiction, the court below was in error in dismissing the action without the issue having been raised below by defendant-appellees, and, therefore, any objections to service of process are deemed to have been waived.

The order of the court below will be reversed and the case remanded for further proceedings ...

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