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FASHION NOVELTY CORP. v. COCKER MACH. & FOUNDRY CO

September 17, 1971

FASHION NOVELTY CORPORATION OF NEW JERSEY and United Textile Corporation, Plaintiffs,
v.
COCKER MACHINE AND FOUNDRY COMPANY, Defendant


Lacey, District Judge.


The opinion of the court was delivered by: LACEY

LACEY, District Judge:

 These matters come on by way of motions by the defendant to dismiss the amended complaint of one of the plaintiffs, United Textile Corporation. Plaintiffs sue for damages, direct and consequential, allegedly sustained by them, resulting from defective machinery and equipment purchased by them from the defendant, and thereafter used by them in their business.

 Action was originally commenced solely by the plaintiff Fashion Novelty Corporation of New Jersey (Fashion) by complaint filed September 13, 1968. Pursuant to order entered on July 8, 1971, the complaint was amended to add United Textile Corporation (United). United, it appears, is substantially an alter ego of Fashion. *fn1" Presumably it was recently discovered that while Fashion was the nominal purchaser of the machinery in suit, it was actually United which utilized it. The control of Fashion and United is in the same hands and at the same facility, and management apparently operates, and has operated, both corporations as one with no discernible distinction between them as to officers, policies, facilities, sales or production. *fn2"

 The defendant now addresses various motions to the amended complaint, as follows:

 1. Motion to dismiss as to United for the reasons (a) that the amended complaint was served by United's attorney (already of counsel in this proceeding as attorney for Fashion); (b) without a summons; and (c) upon defendant's attorney and not the defendant itself.

 
"4(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose * * *.
 
"4(d) Summons: Personal Service. The summons and complaint shall be served together. * * *
 
"(3) Upon a domestic or foreign corporation * * * by delivering a copy of the summons and of the complaint to an officer, a managing or general agent * * *."

 F.R. Civ. P. 5(a) and (b) provide:

 
"(a) * * * every pleading subsequent to the original complaint * * * shall be served upon each of the parties. * * *
 
"(b) * * * whenever under these rules service is required * * * to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. * * *"

 The amended complaint clearly is "subsequent to the original complaint" and thus falls squarely within the quoted provisions of Rule 5. Were it intended otherwise, the draftsmen of the Rules could and would have obviously provided therefor, by requiring for example that where a complaint was amended to add a new party plaintiff, the new pleading "shall be served * * * in the manner provided for service of summons in Rule 4." *fn3"

 The requirement that the summons accompany the "original complaint" is also significant: it is at this point that the court acquires jurisdiction over the person of the defendant. 2 Moore, Federal Practice, 4.03 at 961 (1970). Jurisdiction here having been acquired over the defendant when the "original complaint" was served with summons, there is no requirement that it be reasserted by a second summons.

 Moore, supra, 5.04 [1] at 1327, discusses when, under Rule 5(a), a new pleading must be served on a party (not the ...


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