having a direct interest therein, is an indispensable party.
Plaintiff urges that jurisdiction over the indispensable,
non-resident, individual defendant can be effected pursuant to
Rule 4(d)(7) of the Federal Rules of Civil Procedure, 28
U.S.C.A., which provides that it is sufficient if service upon an
individual is made in the manner prescribed by the law of the
state in which made. At the present stage of the proceedings no
service, either personal, substituted or other service, has been
made upon the defendant. It is therefore unnecessary at this time
for the court to determine whether service under Rule 4(d)(7) in
the manner provided by Section 140 of the Illinois Civil Practice
Act or Section 138 thereof, Ill.Rev.Stat. 1949, c. 110, §§ 138,
140, would give this court jurisdiction over said individual
It is requested that in pursuance of Section 1655 of the
Judicial Code, 28 U.S.C.A. and Rule 4(e), the court may order the
individual defendant to appear and defend. The Judicial Code
section, or so much as is pertinent here, provides: "In an action
in a district court to enforce any lien upon or claim to, or to
remove any incumbrance or lien or cloud upon the title to, real
or personal property within the district, where any defendant
cannot be served within the State, or does not voluntarily
appear, the court may order the absent defendant to appear or
plead by a day certain. * * *"
Rule 4(e) provides: "Whenever a statute of the United States or
an order of court provides for service of a summons, or of a
notice, or of an order in lieu of summons upon a party not an
inhabitant of or found within the state, service shall be made
under the circumstances and in the manner prescribed by the
statute, rule, or order."
Moore, Federal Procedure, Volume 2, 1002-1003 states that the
above rule does not "authorize the court in an original or
independent action, in the absence of a federal statute, to make
an order for service upon a party not an inhabitant of or found
within the state."
Jurisdiction is exercised under Section 1655, when an action is
determined to be in rem or quasi in rem as distinguished from an
action in personam. The plaintiff's complaint as previously
analyzed is for (1) rescission and cancellation of an agreement
pursuant to which the corporate defendant has became the title
holder of certain realty, or (2) enforcement of an agreement on
assignment of invention rights which the corporate defendant is
exploiting under license.
It is clear from a reading of the complaint that the primary
basis for the action is that individual defendant coerced and
fraudulently caused the plaintiff to enter in to the dower waiver
agreement. In Patterson v. Gray, 7 Cir., 1933, 62 F.2d 387, 391
a widow brought an action against the trustee of her deceased
husband's estate to cancel and set aside an agreement whereby she
released her entire interest in the estate. She asserted she had
been misled and deceived as to the extent and value of the
estate. The court affirmed a dismissal of the suit for lack of
jurisdiction stating that the facts pleaded constituted a legal
action for deceit and did not come within the character of action
covered by Section 57, present Section 1655. In the instant case
it further appears that no decree can be entered giving plaintiff
any of the other relief she seeks until the charges of coercion
are determined. Maya Corporation v. Smith, D.C.Del., 32 F.2d 350
and Wilhelm v. Consolidated Oil Corp., 10 Cir., 84 F.2d 739.
In considering the second phase of the plaintiff's complaint
regarding the alternative relief of specific performance of the
invention assignment agreement, it is generally held that the
property rights in patents is not such tangible property within
the district as would justify the court in proceeding against
parties who are non-residents. Standard Stoker Co. v. Lower,
D.C.Md. 1931, 46 F.2d 678.
The action herein not being of the class of suit specified in
Section 1655 of the Judicial Code, the court cannot by an order
in lieu of summons acquire jurisdiction of
the non-resident individual defendant. Since the individual
defendant has been joined, the motion to dismiss the complaint is
overruled and the proceedings are stayed until such time as
proper service is had on the individual defendant.
© 1992-2003 VersusLaw Inc.