Basing jurisdiction solely on diversity of citizenship, an
Illinois railroad corporation brought suit in a federal district
court in Kentucky against an Indiana owner of a truck which, while
on temporary business in Kentucky, collided with an overpass of the
railroad, causing a derailment. The defendant was apprised of the
action through service of process on the Secretary of State of
Kentucky, in accordance with a Kentucky statute. The Kentucky
statute did not require the designation of an agent for the service
of process, and the defendant had made no such designation.
Held: under 28 U.S.C. § 1391(a), the defendant's motion
that the case be dismissed on the ground of improper venue should
have been granted. Pp.
346 U. S.
339-342.
(a) The defendant did not impliedly consent to be sued in a
federal court in Kentucky simply by driving his motor vehicle on
the highways of that State. Pp.
346 U. S.
340-341.
(b) The fact that a nonresident motorist who comes into Kentucky
can, consistent with the Due Process Clause of the Fourteenth
Amendment, be subjected to suit in the appropriate Kentucky state
court is irrelevant to his rights under 28 U.S.C. § 1391(a). P.
346 U. S.
341.
(c)
Neirbo Co. v. Bethlehem Corp., 308 U.
S. 165, distinguished. Pp.
346 U. S.
341-342.
201 F.2d 582, reversed.
In a suit in a federal district court based solely on diversity
of citizenship, the defendant's motion that the case be dismissed
on the ground of improper venue was overruled, and there was a
verdict for the plaintiff. The Court of Appeals affirmed. 201 F.2d
582. This Court granted certiorari. 345 U.S. 950.
Reversed, p.
346 U. S.
342.
Page 346 U. S. 339
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
For present purposes, the facts may be briefly stated. The
railroad brought suit in the United States District Court for the
Western District of Kentucky against Olberding, the owner of a
truck, which, while on temporary business in Kentucky, collided
with an overpass of the railroad, causing a subsequent derailment.
Jurisdiction was based on diversity of citizenship, plaintiff being
an Illinois corporation and Olberding a citizen of Indiana.
Olberding was apprised of the action through service of process on
the Secretary of State in Frankfort, Kentucky, according to the
Kentucky Nonresident Motorist Statute.
* He entered a
special appearance and moved that the case be dismissed on the
ground of improper venue. The motion was overruled, and the case
went to trial, resulting in a verdict for the plaintiff. The Court
of Appeals for the Sixth Circuit affirmed, 201 F.2d 582. Its ruling
on venue, in the situation here presented, is in direct conflict
with that of the First Circuit in
Martin
Page 346 U. S. 340
v. Fishbach Trucking Co., 183 F.2d 53, with which the
Third Circuit has recently agreed,
McCoy v. Siler, 205
F.2d 498. To resolve the conflict, we granted certiorari. 345 U.S.
950.
This is a horse soon curried. Congress, in conferring
jurisdiction on the district courts in cases based solely on
diversity of citizenship, has been explicit to confine such suits
to "the judicial district where all plaintiffs or all defendants
reside." 28 U.S.C. § 1391(a). This is not a qualification upon the
power of the court to adjudicate, but a limitation designed for the
convenience of litigants, and, as such, may be waived by them. The
plaintiff, by bringing the suit in a district other than that
authorized by the statute, relinquished his right to object to the
venue. But unless the defendant has also consented to be used in
that district, he has a right to invoke the protection which
Congress has afforded him. The requirement of venue is specific and
unambiguous; it is not one of those vague principles which, in the
interest of some overriding policy, is to be given a "liberal"
construction.
It is not claimed that either the corporate plaintiff or the
individual defendant here was a "resident" of Kentucky. The sole
reason why the plaintiff was allowed to bring this action in the
federal court of Kentucky was that a consent to be sued in that
state was attributed to the defendant. And this attribution was
then made the basis of a waiver of his rights under the federal
venue provision. Concededly the defendant did not, in fact
,consent. He impliedly consented, so the argument runs, to be sued
in the federal court of Kentucky simply by driving his automobile
on the highways of Kentucky, which has the familiar statute holding
nonresident motorists amenable to suit for accidents caused by
their negligent operations within the State.
It is true that, in order to ease the process by which new
decisions are fitted into preexisting modes of analysis,
Page 346 U. S. 341
there has been some fictive talk to the effect that the reason
why a nonresident can be subjected to a state's jurisdiction is
that the nonresident has "impliedly" consented to be sued there. In
point of fact, however, jurisdiction in these cases does not rest
on consent at all.
See Scott, Jurisdiction over
Nonresident Motorists, 39 Harv.L.Rev. 563. The defendant may
protest to high heaven his unwillingness to be sued, and it avails
him not. The liability rests on the inroad which the automobile has
made on the decision of
Pennoyer v. Neff, 95 U. S.
714, as it has on so many aspects of our social scene.
The potentialities of damage by a motorist, in a population as
mobile as ours, are such that those whom he injures must have
opportunities of redress against him provided only that he is
afforded an opportunity to defend himself. We have held that this
is a fair rule of law as between a resident injured party (for
whose protection these statutes are primarily intended) and a
nonresident motorist, and that the requirements of due process are
therefore met.
Hess v. Pawloski, 274 U.
S. 352. But to conclude from this holding that the
motorist, who never consented to anything and whose consent is
altogether immaterial, has actually agreed to be sued, and has thus
waived his federal venue rights, is surely to move in the world of
Alice in Wonderland. The fact that a nonresident motorist who comes
into Kentucky can, consistent with the Due Process Clause of the
Fourteenth Amendment, be subjected to suit in the appropriate
Kentucky state court has nothing whatever to do with his rights
under 28 U.S.C. § 1391(a).
This conclusion is entirely loyal to the decision and reasoning
of
Neirbo Co. v. Bethlehem Corp., 308 U.
S. 165. There, the defendant, a Delaware corporation,
was sued by a nonresident of New York in the United States District
Court for the Southern District of New York, and we found the venue
requirements of what is now 28 U.S.C. § 1391(a) satisfied because
Bethlehem had designated
Page 346 U. S. 342
an agent in New York "upon whom a summons may be served within
the State of New York." 308 U.S. at
308 U. S. 175.
We held that this constituted an "actual consent" to be sued in New
York, not the less so because it was "part of the bargain by which
Bethlehem enjoys the business freedom of the State of New York."
Ibid. We further held, following
Ex parte
Schollenberger, 96 U. S. 369,
96 U. S. 377,
that this consent extended to all courts sitting in New York, both
federal and state. Of course, this doctrine would equally apply to
an individual defendant in situations where a state may validly
require the designation of an agent for service of process as a
condition of carrying on activities within its borders, and such
designation has, in fact, been made.
See Kane v. New
Jersey, 242 U. S. 160. But
here no such designation was required or made, and hence the
Neirbo case has no applicability.
The judgment is
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
* Ky.Rev.Stat, 1953, §§ 188.020-188.030. The Kentucky statute,
like the one upheld in
Hess v. Pawloski, 274 U.
S. 352, in substance provides that a nonresident
motorist who operates his automobile on the state's highways makes
the Secretary of State his agent for service of process in any
civil action arising out of such operation. There is also set up a
procedure for serving the summons on the Secretary of State, who,
in turn, is to notify the nonresident defendant by registered
mail.
On the other hand, the statute under consideration in
Kane
v. New Jersey, 242 U. S. 160,
specifically required the nonresident motorist to register his
vehicle annually and formally to designate the Secretary of State
an agent upon whom process might be served. Penalties were provided
for use of the state's roads without complying with these
requirements.
MR. JUSTICE REED, with whom MR. JUSTICE MINTON joins,
dissenting.
The unfortunate effect of this decision on federal venue, its
uniformity and availability, in so important a field as torts by
out-of-state motorists, causes me to dissent from the views of the
Court. Under
Neirbo Co. v. Bethlehem Corp., 308 U.
S. 165, a different doctrine of venue would be applied
to motor torts committed by foreign corporations doing business in
a state than is applied to an individual motorist driving his own
car through a state. From the opinion, I would assume that a
corporation not doing business in a state, but causing a car to be
driven therein, would be immune from suits for torts in the federal
courts in that state. The decision bars a nonresident injured party
from seeking damages, on allegation of
Page 346 U. S. 343
diversity, from a nonresident motor operator or owner in the
United States District Court having jurisdiction over the place of
the accident in which the motor vehicle is involved.
No question is or can now be raised against the
constitutionality of the Kentucky statute to secure the presence of
an out-of-state motorist in the state courts to respond to damages.
It is the form generally approved for protection against
out-of-state wrongdoers by motor operation, and is not subject to
attack for lack of due process. [
Footnote 1] The
Page 346 U. S. 344
single issue decided by the Court is that such process does not
waive venue under 28 U.S.C. § 1391(a):
"A civil action wherein jurisdiction is founded only on
diversity of citizenship may, except as otherwise provided by law,
be brought only in the judicial district where all plaintiffs or
all defendants reside."
The provision was substantially the same when the
Neirbo case was decided. The clause then read:
". . . but where the jurisdiction is founded only on the fact
that the action is between citizens of different States, suit shall
be brought only in the district of the residence of either the
plaintiff or the defendant."
In
Neirbo, we held that, since the foreign corporation
had consented to be sued in the courts of the state, the consent
extended to the federal courts sitting in the state. 308 U.S. at
308 U. S. 171,
308 U. S. 175.
The same reasoning that led to the subjection of foreign
corporations to federal litigation in the
Neirbo case
leads me to the conclusion that the out-of-state motorist should
likewise be so held. The motor car has lengthened the radius of the
individual's activities. We have upheld the constitutional power of
the states to compel redress of wrongs, through the use of the
automobile at the place of their happening. It is done through the
consent of the party benefiting from his privilege to use the
highways of the state. The District Courts have consistently ruled
that the appointment of an agent for service of process by driving
on state highways is a waiver of federal venue. [
Footnote 2]
Page 346 U. S. 345
I see no difference of substance between the signing of a paper
under the New York statute upon which
Neirbo is based and
the acceptance, by action in driving a motor car, of the privilege
of using state highways under the Kentucky statute. In each case,
there was no federal venue except by waiver and consent. Both the
Neirbo Corporation and this out-of-state motorist, in my
opinion, waived objection to federal venue. The
Hess case
determined that the difference between the "formal and implied
appointment" of an agent for service "is not substantial" under the
Due Process Clause. 274 U.S. at
274 U. S. 357.
[
Footnote 3] The
Neirbo case held that consent to service on an agent for
service of process waived objection to federal venue. The same
rule, if applied to this situation, would achieve a like desirable
result, trial at the logical place, the location of the incident
that gives rise to the cause of action.
I would affirm the judgment.
[
Footnote 1]
Hess v. Pawloski, 274 U. S. 352. The
statute there involved, so far as pertinent, read:
"The acceptance by a nonresident of the rights and privileges
conferred by section three or four, as evidence by his operating a
motor vehicle thereunder, or the operation by a nonresident of a
motor vehicle on a public way in the commonwealth other than under
said sections, shall be deemed equivalent to an appointment by such
nonresident of the registrar or his successor in office, to be his
true and lawful attorney upon whom may be served all lawful
processes in any action or proceeding against him, growing out of
any accident or collision in which said nonresident may be involved
while operating a motor vehicle on such a way, and said acceptance
or operation shall be a signification of his agreement that any
such process against him which is so served shall be of the same
legal force and validity as if served on him personally."
Mass.Acts 1923, c. 431, § 2.
In
Neirbo Co. v. Bethlehem Corp., 308 U.
S. 165, the provision was for a designation by the
corporation "of the secretary of state as its agent upon whom all
process in any action or proceedings against it may be served
within this state." McKinney's N.Y.Laws, c. 23, General Corporation
Law, § 210.
The Kentucky statute in this case reads:
"Any nonresident operator or owner of any motor vehicle who
accepts the privilege extended by the laws of this state to
nonresidents to operate motor vehicles or have them operated within
this state shall, by such acceptance and by the operation of such
motor vehicle within this state, make the Secretary of State his
agent for the service of process in any civil action instituted in
the courts of this state against the operator or owner arising out
of or by reason of any accident or collision or damage occurring
within this state in which the motor vehicle is involved."
Ky.Rev.Stat. 1953, § 188.020.
[
Footnote 2]
Falter v. Southwest Wheel Co., 109 F.
Supp. 556;
Archambeau v. Emerson, 108 F. Supp.
28;
Jacobson v. Schuman, 105 F.
Supp. 483;
Kostamo v. Brorby, 95 F. Supp.
806;
Burnett v. Swenson, 95 F.
Supp. 524;
Thurman v. Consolidated School
Dist., 94 F. Supp.
616;
Urso v. Scales, 90 F.
Supp. 653;
Steele v. Dennis, 62 F. Supp.
73;
Krueger v. Hider, 48 F.
Supp. 708.
Contra: Waters v. Plyborn, 93 F. Supp.
651.
[
Footnote 3]
Cf. Knott Corp. v. Furman, 163 F.2d 199. In this case,
plaintiff, a citizen of Massachusetts, sued the corporation in the
United States District Court for the Eastern District of Virginia,
for injuries received during a hotel fire. The defendant, a
Delaware corporation, operated the hotel on a United States
military reservation. No written appointment of any state officer
as agent for service of process had been filed by the corporation.
Venue was challenged and the Fourth Circuit ruled that the
corporation had waived the federal venue provisions under a statute
which read:
"3. If any such company shall do business in this State without
having appointed the Secretary of the Commonwealth its true and
lawful attorney as required herein, it shall, by doing such
business in the State of Virginia, be deemed to have thereby
appointed the Secretary of the Commonwealth its true and lawful
attorney for the purposes hereinafter set forth."
Va.Code Supp.1946, § 3846a. The language of this statute is
certainly analogous to that of the Kentucky statute,
n 1,
supra.