Opinion
Civil Action No. 7133.
March 9, 1948.
Paul H. Snow and Henry Lawlor, both of Boston, Mass., for plaintiff.
Edmund J. Moore, and Noel W. Deering, both of Boston, Mass., for defendant.
Action by James R. Kelley against Delaware, Lackawanna Western Railroad. On motion to dismiss for lack of jurisdiction.
Motion granted.
The defendant's motion to dismiss for lack of jurisdiction has been heard upon the affidavit of Clyde F. Farmer, vice president in charge of traffic of the defendant, who maintains an office in New York City, and upon the oral testimony of Daniel L. Norton, who maintains an office for the defendant at the North Station Office Building, 150 Causeway Street, Boston, Massachusetts. The question raised by the defendant's motion to dismiss is whether the defendant is "doing business within the Commonwealth of Massachusetts" so as to make it amenable to process in this Commonwealth. The facts in this case seem to be on all fours with those set forth in Robert M. Green v. Chicago, Burlington Quincy Railway Company, 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916. This defendant operates an office in Boston from which several men work throughout the New England territory, soliciting business for the company's railroad line which operates between Binghamton, New York, and Hoboken, New Jersey. The men who work out of this office are concerned only with freight traffic, as they do not handle the passenger business from here, and they are engaged in no activity other than selling the road's services. I feel bound to apply the law laid down in the Green case, supra, in spite of the recognition of a tendency in later decisions to construe more broadly the activities of a corporation in a state other than the one in which its physical properties are located. See Canadian Pac. Ry. Co. v. Sullivan et al., 1 Cir., 126 F.2d 433, and St. Louis Southwestern Railway Company of Texas v. Robert Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486. On the basis, then, of the Green case, supra, I feel that this Court is without jurisdiction, and the motion to dismiss is allowed.