Janus v. J. M. Barbe Co.

57 F.R.D. 539, 17 Fed. R. Serv. 2d 246, 1972 U.S. Dist. LEXIS 10598
CourtDistrict Court, N.D. Ohio
DecidedDecember 21, 1972
DocketCiv. No. C 72-232
StatusPublished
Cited by7 cases

This text of 57 F.R.D. 539 (Janus v. J. M. Barbe Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Janus v. J. M. Barbe Co., 57 F.R.D. 539, 17 Fed. R. Serv. 2d 246, 1972 U.S. Dist. LEXIS 10598 (N.D. Ohio 1972).

Opinion

MEMORANDUM AND ORDER RE: MOTION TO DISMISS

KALBFLEISCH, Senior District Judge.

This cause is before the Court on defendant J. M. Barbe Company’s motion to dismiss, filed on June 27,1972.

I.

Defendant J. M. Barbe Company avers that the amended complaint herein should be dismissed for two reasons. First, it is contended that since this cause was not transferred to this Court until after the Ohio statute of limitations had expired, “the action was not commenced within the proper time.” Second, the defendant J. M. Barbe Company contends that since the amended complaint which names the “J. M. Barbe Co.” as a defendant was not filed until after the expiration of the Ohio statute of limitations, no cause of action exists as to this defendant. As propounded by defendant in its brief in support of this motion:

“ * * * [A]t the time the Amended Complaint was filed and transferred to Ohio it was as if no prior lawsuit had been filed.”

II.

The record in this action indicates that plaintiff filed suit originally on November 4, 1971, in the Northern District of Illinois, Eastern Division. The complaint named “J. M. Barbe, Individually and d/b/a J. M. Barbe Co., and Roy A. Smith” as defendants in an action for physical injuries allegedly received on November 7, 1969, near the City of Akron, Ohio. Jurisdiction of the Illinois Court was invoked on the basis of diversity of citizenship, plaintiff being an Illinois resident and the defendants being Ohio residents.

On November 16, 1971, service of process was completed by personally serving David Barbe, President of the J. M. Barbe Co.1 See Exhibit A.

J. M. Barbe Co. entered its appearance in the Illinois Court on January 21, 1972, and on January 28, 1972, moved to quash service of summons and to dismiss.2 On February 18, 1972, the portion of the defendant’s motion directed to quashing of the summons was sustained by the Illinois Court and leave was granted to file an amended complaint naming the J. M. Barbe Company, a corporation, as a party defendant. It was further ordered that the instant cause would be transferred to the Northern District of Ohio, Eastern Division.

On April 13, 1972, service of the amended complaint was effected by personally serving David Barbe, as President of the J. M. Barbe Company.

III.

This Court may review the decision of the transferor court and make its own decision as to the propriety of transferring this cause. See Goldlawr, Inc. v. Heiman, 288 F.2d 579 (2d Cir. 1961), rev’d. on other grounds 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962).

Upon consideration, this Court finds that:

1. The statute of limitations was tolled in this case when plaintiff filed his action in the Northern District of II-[541]*541linois, Eastern Division, on November 4, 1971;

2. The transfer in this cause was proper under the provisions of 28 U.S. C.A. § 1406(a);

3. The amended complaint in the above-entitled cause does not relate back to the original filing of this action; and

4. The J. M. Barbe Company is not a proper party defendant in the above-entitled cause.

IV.

The general' rulé relative to the tolling of a state statute of limitations is that the federal court must look to the state requisites when these requisites are made an integral part of the statute. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Sylvester v. Messler, 246 F.Supp. 1 (E.D.Mich. 1964) , aff’d. 351 F.2d 472 (6th Cir. 1965) , cert. denied 382 U.S. 1011, 86 S. Ct. 619, 15 L.Ed.2d 526 (1966). The Ohio statute of limitations which applies to actions for personal injuries is Section 2305.10, Ohio Revised Code. It states:

“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

The case of Mahan v. Ohio Auto Rentals Co., 207 F.Supp. 383 (S.D.Ohio 1962), correctly interprets the posture of the law as it now stands, and states:

“Specifically, it is held that in the absence of a contrary provision constituting an integral part of an applicable statute of limitations the determination of the commencement of an action is a procedural question and that Rule 3 [Fed.R.Civ.P.] is controlling.” 207 F.Supp., at 384.

Thus in construing the Ohio statute of limitations the Court in Mahan, supra, held that since the method of tolling was not an integral part of the statute Rule 3, Fed.R.Civ.P., controls. Rule 3 states that:

“A civil action is commenced by filing a complaint with the court.”

Thus defendant’s contention that service was required to toll the Ohio statute of limitations is not well taken.

Y.

The Court must next look to defendant’s contention that since the Illinois Court lacked jurisdiction of the defendants it could not transfer the cause to this district and should properly have dismissed it.

In reviewing the facts in the instant cause the Court determines that this action could have been transferred to this district pursuant to the provisions of either 28 U.S.C.A. § 1404(a) or 28 U.S.C. A. § 1406(a), since:

“Transfer under § 1404(a) is possible only if venue is proper in the original forum and federal jurisdiction existed there. If federal jurisdiction is lacking, there is no power to do anything with the case except dismiss. If venue is improper, transfer, if at all, must be under § 1406(a). Though earlier district court cases had been to the contrary, several courts of appeals have now held, by analogy to the Supreme Court’s holding with regard to § 1406(a), that a court may order a § 1404(a) transfer even though it lacked jurisdiction over the person of the defendant.” [Footnotes omitted.] 1 Barron & Holtzoff, Federal Practice and Procedure (Bound Cumulative Supplement) 380 (1971).

In the case of Goldlawr, Inc. v. Hei-man, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed. 2d 39 (1962), the Supreme Court advanced the rule set forth above. Gold-lawr was a private antitrust action brought in the United States District Court in Pennsylvania. On a motion to dismiss the suit for improper venue and want of personal jurisdiction over the defendants, the court transferred the [542]*542cause to the Southern District of New York. Upon transfer, the defendants moved to dismiss, alleging that since the Pennsylvania court had no jurisdiction over them it lacked the power to transfer.

Mr. Justice Black, speaking for the Supreme Court, stated:

“The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.

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57 F.R.D. 539, 17 Fed. R. Serv. 2d 246, 1972 U.S. Dist. LEXIS 10598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janus-v-j-m-barbe-co-ohnd-1972.