Opinion
Proceeding on motion to dismiss action. The District Court, Foley, J., held that extension of time to answer and filing of answer before motion to dismiss action for insufficiency of service of process upon defendant-movant would not bar relief requested.
Order accordingly.
Jacob M. Olshansky, Albany, N.Y., for plaintiff.
Whalen, McNamee, Creble & Nichols, Albany, N.Y., Dwight, Royall, Harris, Koegel & Caskey, New York City, of counsel, for defendant TCF Film Corp.
FOLEY, District Judge.
Defendant, TCF Film Corporation, moves to dismiss this action for insufficiency of service of process upon it. Apparently, TCF Film Corporation was dissolved on December 1, 1952, and previously it was named Twentieth Century-Fox Film Corporation, such name being changed formally to TCF Film Corporation on September 27, 1952. The plaintiff uses the name Twentieth Century-Fox Film Corporation in its complaint, but admittedly as a New York corporation in dissolution.
There is no contradiction offered by the plaintiff to the affidavit of Pantages, upon whom service was made, that at the time of service he had no connection whatever with TCF Film Corporation or Twentieth Century-Fox Film Corporation, nor did he occupy any of the positions outlined in Rule 4(d)(3) Federal Rules of Civil Procedure, 28 U.S.C.A., or New York Civil Practice Act, § 228.
The defense of insufficiency of process is set forth in the Sixth Defense of the Answer. The extension of time to answer and the filing of the answer before this motion does not bar the relief requested under Rule 12(d) of the Federal Rules. See Keil Lock Co., Inc., v. Earle Hardware Manufacturing Co., D.C., 16 F.R.D. 388, and the authorities cited therein.
The motion is granted only under the provisions of Rule 12(d); the service of the summons and complaint is set aside and quashed as to this defendant and the complaint is dismissed as to it for lack of jurisdiction over the person by reason of ineffective service of process, and
It is so ordered.