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STAR v. ROGALNY

September 11, 1957

GEORGE STAR AND MAMIE STAR, PLAINTIFFS,
v.
JOSEPH ROGALNY, DEFENDANT.



The opinion of the court was delivered by: Juergens, District Judge.

Jurisdiction of this court is founded upon the diversity of citizenship provision of Section 1332, Title 28 U.S.C.A.

Complaint was filed on March 5, 1957 charging the defendant, a resident of the State of Indiana, with negligence in the operation of his automobile causing it to collide with the automobile of the plaintiffs, resulting in personal injury to the plaintiffs. On March 28, 1957, an amendment to the complaint was filed. On March 11, 1957, service was attempted on the defendant in the State of Indiana. A motion to quash return of service of summons or to dismiss action was filed by the defendant on April 15, 1957, which was, on April 22, 1957, confessed by the plaintiffs. Thereafter, on April 25, 1957, service was again attempted on the defendant in the State of Indiana, to which the defendant filed a motion to quash return of service of summons or to dismiss action which was also confessed by the plaintiffs.

Thereafter personal service was had on the defendant by the United States Marshal whose endorsement on the return reads as follows:

    "Served Joseph Rogalny personally by handing
  him a summons and complaint at 507 State St.,
  Hammond, Ind., this 28th day of June 1957."

Defendant on July 17, 1957, filed his motion to quash return of service of summons or to dismiss action for the reason that:

    "2. It appears from the Amendment to the
  Complaint herein that the defendant is a
  non-resident of the State of Illinois and is a
  resident of the State of Indiana, and he is
  therefore not subject to service of process
  issued out of this Court in the State of
  Indiana."

Rule 4(d)(1) and 4(d)(7) of the Federal Rules of Civil Procedure, 28 U.S.C.A. read as follows:

    "(d) Summons: Personal Service. The summons and
  complaint shall be served together. The plaintiff
  shall furnish the person making service with such
  copies as are necessary. Service shall be made as
  follows:
    "(1) Upon an individual other than an infant or
  an incompetent person, by delivering a copy of
  the summons and of the complaint to him
  personally or by leaving copies thereof at his
  dwelling house or usual place of abode with some
  person of suitable age and discretion then
  residing therein or by delivering a copy of the
  summons and of the complaint to an agent
  authorized by appointment or by law to receive
  service of process. * * *
    "(7) Upon a defendant of any class referred to
  in paragraph (1) or (3) of this subdivision of
  this rule, it is also sufficient if the summons
  and complaint are served in the manner prescribed
  by any statute of the United States or in the
  manner prescribed by the law of the State in
  which the service is made for the service of
  summons or other like process upon any such
  defendant in an action brought in the courts of
  general jurisdiction of that state."
    "Substitute service upon a nonresident
  individual in a law action in the federal court
  in the manner prescribed by valid State statute
  of the character previously discussed has been
  held sufficient under the Conformity Act and the
  Rules. And Rule 4(d)(7) expressly provides that
  service may be so made in all actions instituted
  in the federal district courts. Rule 4(d)(7) does
  not, however, have the effect of making such
  service valid if the method of service prescribed
  in the State statute is objectionable for lack of
  due process. Service made in the manner
  prescribed by State law, while permitted by Rule
  4(d)(7), is always subject to constitutional
  notices as to the validity of such service."

Rule 4(d)(7) specifically provides that in addition to other modes of service as may be prescribed by the rules, "it is also sufficient" if the summons and complaint are served in the manner prescribed by the law of the State in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State. If the rule-making bodies intended that summons issued out of the federal courts shall be restricted to the territorial limits of the State in which the court sits, why would they insert in Rule 4(d)(7) the language following the word "or" as above set forth. Why waste time and space with meaningless provisions.

A State has the right to protect its citizens and it has the further right to pass laws which will be in furtherance of such protection. When any non-resident comes into a State, which right he has, he is subject to the laws of that State and he is answerable for the violations of the laws of that State. If the valid laws of such State provide that for any tortious act committed while in that State, upon suit being filed, personal service of summons, together with a copy of the complaint, shall be sufficient for the courts of the State to proceed against him, even though a non-resident, he is amenable to that law. He was subservient ...


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