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DE GEORGE v. MANDATA POULTRY CO.

June 9, 1961

Florence R. DE GEORGE, Administratrix of the Estate of Ann Marie Minning, deceased
v.
MANDATA POULTRY COMPANY and Ray P. Zimmerman



The opinion of the court was delivered by: WOOD

The defendants have moved to dismiss the plaintiff's complaint on the grounds 1) that the defendant Zimmerman was not validly served with process, and the Court therefore has not obtained personal jurisdiction over him; and 2) that venue was improperly laid in the Eastern District of Pennsylvania. The plaintiff has moved the Court to transfer this action to the Middle District of Pennsylvania instead of dismissing it, contending that the service of process upon the defendants was valid, but admitting that venue in the Eastern District was improperly laid.

I. Re Validity of Service of Process

 The defendant Zimmerman filed an affidavit stating that service was attempted upon him by the delivery of a copy of the summons and complaint to his sixteen-year-old daughter at his residence in the Middle District of Pennsylvania. The purported service was made by a marshal from the Eastern District of Pennsylvania. Defendant Zimmerman contends that the sixteen-year-old girl was not a proper person to receive the summons and complaint, and the marshal from the Eastern District had no authority to serve a resident of the Middle District. We think that neither contention is correct.

 Rule 4(d)(1) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides in pertinent part as follows:

 'Service shall be made as follows:

 (1) Upon an individual * * * by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *.'

 The first question presented by the defendant Zimmerman's argument is whether a sixteen-year-old girl is 'per se' a person of unsuitable age and discretion for the purpose of receiving process. Professor Moore points out that under old Equity Rules 13, delivery had to be made to 'some adult person who is a member of or resident in the family;' whereas Rule 4 permits delivery to be made to someone who is not an adult, but is of suitable age and discretion. Moore's Federal Practice, Vol. 2, p. 930. We see no reason for finding that this sixteen-year-old girl was not a person qualified to receive process under Rule 4, particularly in light of the fact that the rule has been changed so that the person receiving the process need not be an adult.

 The second question presented by the defendant Zimmerman's argument is whether the marshal from the Eastern District could validly cross over into the Middle District of Pennsylvania and there deliver the summons and complaint.

 Rule 4(c) provides in part as follows:

 'Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court * * *.'

 Professor Moore states:

 'It should be noted that Rule 4(c) provides that service of all process shall be made by a United States marshal. It does not provide for service by the marshal or, as in former Equity Rule 15 * * * 'the marshal of the district.' The drafting of Rule 4(c) in respect of this particular matter is highly significant * * *. In any event, the statute, by eliminating the words 'throughout the district,' makes it clear that the marshal may serve the process of the court of his district beyond the territorial limits of such district * * *.' (Moore's Federal Practice, Vol. 2, pp. 919 and 920.

 A marshal from the Eastern District of Pennsylvania may therefore serve a summons and complaint in any district within the Commonwealth of Pennsylvania. Such service is clearly contemplated by Rule 4(c), particularly when read in conjunction with Rule 4(f) which provides:

 'All process other than a subpoena may be served anywhere within the territorial limits of the state in which the ...


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