Coburn v. Coleman

15 Citing cases

  1. Brush v. Harkins

    9 F.R.D. 604 (W.D. Mo. 1949)   Cited 4 times

    Plaintiffs Charles Brush and Alice M. Brush have filed motion to dismiss Court II of defendant's counterclaim and separate motion to dismiss Count II of defendant's counterclaim or to make National Grange Fire Insurance Company party-plaintiff or, in the alternative, party-defendant, upon the ground that defendant has heretofore been indemnified by the insurance carrier and has subrogated all her rights therein to such carrier.          The plaintiffs justify their motions upon the theory of Coburn v. Coleman, D.C., 75 F.Supp. 107. In this case, 75 F.Supp. pages 108 and 109, the court held the defense or objection of lack of capacity to sue or to be sued must be raised by motion prior to answer or in the answer itself, otherwise, the defendant is held to have waived the objection.

  2. Landry v. Two R. Drilling Company

    511 F.2d 138 (5th Cir. 1975)   Cited 63 times
    Describing the burden as "featherweight"

    As a result, the defendant's objection to Mrs. Landry's authority is construed to have been waived. Coleman v. Coleman, 75 F. Supp. 107 (D.S.C. 1947). See Wright Miller, supra, at § 1295.

  3. Klebanow v. New York Produce Exchange

    344 F.2d 294 (2d Cir. 1965)   Cited 149 times
    Holding that a mere allegation that a defendant violated antitrust laws is insufficient to state a claim for damages under federal pleading rule

    Although the defense of lack of capacity is not expressly mentioned in rule 12(b), the practice has grown up of examining it by a 12(b)(6) motion when the defect appears upon the face of the complaint. See Hershel Cal. Fruit Prods. Co. v. Hunt Foods, Inc., 119 F. Supp. 603 (N.D. Cal. 1954); Coburn v. Coleman, 75 F. Supp. 107 (W.D.S.C. 1947); compare Jacques Krinj En Zoon v. Schrijver, 151 F. Supp. 955 (S.D.N.Y. 1957), an approach widely employed for the statute of limitations defense, see 2 Moore, Federal Practice ¶ 12.10 (2d ed. 1964). In any event, the plaintiffs have not objected, and the portion of the motion relating to capacity could be regarded as a pre-answer motion for summary judgment, entertained by the judge in his discretion.

  4. Jones v. Schellenberger

    196 F.2d 852 (7th Cir. 1952)   Cited 15 times
    In Jones v. Schellenberger, 196 F.2d 852 (7 Cir.), cert. den., 344 U.S. 876, 73 S.Ct. 171, 97 L.Ed. 679 (1952), a nonresident administrator brought suit for an accounting against the defendant.

    By reason of this rule, it has been held that the issue is waived unless raised either in the answer or prior thereto. Coburn v. Coleman, D.C., 75 F. Supp. 107, 109; Suders v. Campbell, D.C., 73 F. Supp. 112; Woodbury Granite Co. v. United States, 59 F. Supp. 150, 103 Ct.Cl. 226. Thus, defendant could not have raised the issue of capacity but, with an adverse decree, procured the appointment of an Illinois administrator of his own selection, apparently for the purpose of having such administrator substituted as party-plaintiff so that the accounting might proceed with a friendly adversary.

  5. Young v. Pattridge

    40 F.R.D. 376 (N.D. Miss. 1966)   Cited 10 times

             Capacity to sue is not one of the exceptions stated in the new Rule 12(h)(2). See also Montellier v. United States, 202 F.Supp. 384 (E.D.N.Y.1962) and Coburn v. Coleman, 75 F.Supp. 107 (W.D.S.C.1947). Of interest also are the cases cited by the Advisory Committee in its note with respect to the new Rule 12 as favoring waiver. They are Keefe v. Derounian, 6 F.R.D. 11 (N.D.Ill.

  6. Montellier v. United States

    202 F. Supp. 384 (E.D.N.Y. 1962)   Cited 31 times

    Failure to comply with Rule 9(a) precludes the defendant from raising the issue at the conclusion of the trial. Waldrip v. Liberty Mutual Ins. Co., 11 F.R.D. 426 (W.D. La. 1951); Coburn v. Coleman, 75 F. Supp. 107 (W.D.S.C. 1947). Failure to raise this issue by motion or answer constitutes a waiver.

  7. Barnes v. Union Pacific Railroad Company

    139 F. Supp. 198 (D. Idaho 1956)   Cited 4 times
    Dismissing claims against individual defendant on grounds that ADA, ADEA and Title VII do not permit individual liability

    The Court of Appeals, although it stated that the doctrine laid down by the liberal courts was the better one, declared that its decision was controlled by the provisions of a West Virginia statute, Code, 44-5-3, which specified that "No person not a resident of this State shall be appointed or act as executor, administrator, curator, guardian, or committee." This decision was later cited with approval in Coburn v. Coleman, D.C., 75 F. Supp. 107, 109, and Holt v. Middlebrook, D.C., 119 F. Supp. 295, 297, affirmed 4 Cir., 214 F.2d 187. As previously stated, § 15-317, Idaho Code, declares that "No person is competent to serve as administrator or administratrix who is: 1. Not a bona fide resident of the state."

  8. Banking & Trading Corp. v. Reconstruction Finance Corp.

    15 F.R.D. 360 (S.D.N.Y. 1954)   Cited 5 times

    If the defense of lack of capacity to sue is raised by motion, the motion should be made before the answer. Coburn v. Coleman, D.C.W.D.S.C.1947, 75 F.Supp. 107; Kucharski v. Pope & Talbot, supra; cf. Chemacid S. A. v. Ferrotar Corp., D.C.S.D.N.Y.1942, 3 F.R.D. 45.

  9. Hershel California Fruit Products Co. v. Hunt Foods

    119 F. Supp. 603 (N.D. Cal. 1954)   Cited 10 times

    Code Civil Procedure, §§ 367, 369 The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Coburn v. Coleman, D.C.W.D.S.C., 75 F. Supp. 107; Brush v. Harkins, D.C.W.D.Mo., 9 F.R.D. 604. The complaint should be dismissed as to plaintiff Aron Hershel Trust with leave to amend.

  10. Carlson v. United States

    14 F.R.D. 21 (W.D. Ky. 1953)

    Plaintiff alleges, however, that since plaintiff's cause of action arises under the law of the United States, the law of Kentucky is not controlling.          Defendant's Counsel relies upon Brown's Adm'r v. Louisville & Nashville R. R. Co., 97 Ky. 228, 30 S.W. 639 and Chesapeake & Ohio Ry Co. v. Ryan's Adm'r, 183 Ky. 428, 209 S.W. 538, and the following Federal cases— to the effect that a representative of an estate not properly appointed cannot maintain an action in Federal Court— Coburn v. Coleman, D.C., 75 F.Supp. 107,Downing v. Howard, D.C., 68 F.Supp. 6, affirmed 3 Cir., 162 F.2d 654,Carter v. Pennsylvania Railroad Co., D.C., 9 F.R.D. 477 and Boyle v. Curtis Publishing Co., D.C., 11 F.R.D. 92.          Plaintiff's principal reliance for authority to make the substitution is the case of Deupree v. Levinson, 6 Cir., 186 F.2d 297.