Opinion
Action by Charles Bogar against Paul Szentmiklosy to recover damages for alleged slander. On defendant's motion to quash the return of service of summons and complaint.
Motion granted.
A. H. Friedman and Prichard, Lawler, Malone & Geltz, all of Pittsburgh, Pa., for plaintiff.
Joseph H. Reich, of Pittsburgh, Pa., for defendant.
McVICAR, District Judge.
This is an action to recover damages for alleged slander. Jurisdiction is invoked on the basis of diversity of citizenship. It is alleged in the complaint that the plaintiff is a citizen of the City of McKeesport, Allegheny County, Pennsylvania; that the defendant is a citizen of the State of New York. Service was made on the defendant in the State of New Jersey. The action is now before us on defendant's motion to quash the service of summons and complaint, on the ground that the service was not authorized by law, being made in the State of New Jersey.
Defendant, in his argument, relies upon Federal Rules of Civil Procedure, rules 4(f), 12(b), 28 U.S.C.A. following section 723c. Rule 4(f) provides that: ‘ All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state.’ No statute was cited which would authorize a service outside of the State of Pennsylvania in this case. Rule 12(b) provides, inter alia: ‘ Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, * * *.’
Plaintiff's attorney, at the oral argument, asked for leave to file a brief, which was granted until January 18, 1945. He has not filed a brief.
The Court is of the opinion that the contention of the defendant is correct and that his motion should be granted.