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GAMLEN CHEM. CO. v. DACAR CHEM. PRODS. CO.

DISTRICT COURT, W.D. PENNSYLVANIA


October 30, 1944

GAMLEN CHEMICAL CO.
v.
DACAR CHEMICAL PRODUCTS CO. et al.

The opinion of the court was delivered by: GIBSON

GIBSON, District Judge.

Counsel for defendants have moved to dismiss the complaint as to all defendants, to determine the citizenship of the parties in advance of pleading, and to quash the service upon Emil J. Datesh and Margaret A. Datesh.

The general motion to dismiss will be denied. Some phases of the pleading may be questioned, but the issues are properly determinable upon trial of the main issue.

 The contention of the defendants as to citizenship of the parties only relates to the individual defendants. The Dacar Chemical Products Company is a corporation of Ohio, and as to it, none of plaintiffs being citizens of that State, the motion has no application. As to the other defendants it appears that all the persons composing the partnership complainant are claimed to be citizens of California, and none of defendants appear to be citizens of that State, therefore no failure of the case exists by reason of any non-diversity of citizenship.

 No controversy appearing upon defendants' contention that Emil J. Datesh and Margaret A. Datesh were not citizens of Pennsylvania and were not personally served by the Marshal, the motion of counsel for defendants to quash the summons as to the defendants must be allowed. The presumption of regularity of the Marshal's service has been overturned.

 The motion of the defendants to dismiss the complaint as to all defendants having come on to be heard, upon consideration thereof, it is ordered, adjudged and decreed that said motion be and hereby is overruled and denied; and it is further ordered that the motion of the defendants to determine the citizenship of the persons composing the partnership of the plaintiff in advance of pleading by the defendants be and hereby is denied.

 And it is further ordered that defendants, Dacar Chemical Products Company and Nicholas J. Datesh answer the complaint herein in twenty (20) days from the date hereof.

 The motion of defendants to quash the alleged service of summons upon Emil J. Datesh and Margaret A. Datesh is hereby allowed, and the service upon each of said persons is hereby set aside and quashed.

19441030

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