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BAILEY v. DELL PUBL. CO.

April 20, 1992

DONALD BAILEY, Plaintiff,
v.
DELL PUBLISHING COMPANY, INC., DARING BOOKS, CHARLES J. PATTERSON and G. LEE TIPPIN, Defendants.


Lewis


The opinion of the court was delivered by: TIMOTHY K. LEWIS

LEWIS, District J.

 Presently before this court are motions for summary judgment filed by defendant Dell Publishing Company, Inc. ("Dell") and defendant Daring Books ("Daring"), and a motion to dismiss filed by G. Lee Tippin. For the following reasons, the motions for summary judgment and to dismiss will be granted. *fn1"

 FACTS

 Defendants Charles J. Patterson and G. Lee Tippin wrote a book entitled The Heroes Who Fell From Grace (Heroes). The subtitle of the book is The True Story of Operation Lazarus, the Attempt to Free American POW's from Laos in 1982. Patterson personally participated in Operation Lazarus and recounted his experiences to Tippin, a retired U.S. Army Colonel.

 The passage of the book at issue in this lawsuit provides:

 Gordon Wilson called on the 25th. When Gritz asked about the team members' pay, Gordon said that over $ 27,000 had been collected in the fund raising. However, he claimed that there was nothing left because Jack Bailey and retired Congressman Donald Bailey (no relation) had taken off with the money to Geneva, Switzerland.

 This passage is the only mention of plaintiff Donald Bailey in the book.

 Plaintiff was a Congressman from the beginning of 1979 through the end of 1982, and from January 1985 to January of 1989, he was Auditor General of the Commonwealth of Pennsylvania.

 Daring initially published the book in December of 1985 in a limited hard-bound edition. On March 7, 1986, Daring and Dell entered into a Reprint Agreement pursuant to which Dell published a June 1987 paperback edition.

 Plaintiff filed a praecipe for issuance of a writ of summons on May 13, 1988, in the Court of Common Pleas of Allegheny County. Filing a praecipe for a writ of summons pursuant to Pa.R.Civ.P. 1007 is sufficient to toll the running of the statute of limitations. 2 Goodrich & Amram 2d, Standard Pennsylvania Practice § 1007:2. The subsequently filed complaint alleged causes of action for defamation and invasion of privacy against the four named defendants. Plaintiff theorized that an ordinary reading of the passage in Heroes would be that he had engaged in criminal embezzlement. Pursuant to 28 U.S.C. § 1441, the action was removed to this court based on the parties' diversity of citizenship.

 DISCUSSION

 A. Motion to Dismiss

 As a preliminary matter, the court will address defendant Tippin's motion to dismiss for insufficiency of service of process.

 On June 29, 1988, Dell removed the action to this court. At the time of removal, neither Tippin nor Patterson had been served with process in connection with the state action. On August 25, 1988, plaintiff filed, in the court of common pleas, a praecipe to reinstate the complaint in the state action. Then on September 23, 1988, plaintiff filed affidavits in the state action which purport to show that service of the reinstated complaint was made on Tippin and Patterson.

 Exclusive jurisdiction vests in the federal court once a state court action has been removed. Fischman v. Fischman, 470 F.Supp. 980, 984 (E.D. Pa. 1979). Thus, because the plaintiff's filings in the state court occurred after the removal, the procedure employed by plaintiff was improper.

 Apparently, plaintiff recognized this mistake and attempted to correct service of process by issuing a summons and complaint to Tippin on October 12, 1988, and to Patterson on October 18, 1988. Title 28 U.S.C. § 1448 provides:

 In all cases removed from any State court . . . in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process ...


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