Opinion
No. 182, Docket 27824.
Argued December 12, 1962.
Decided January 7, 1963.
John D. Fassett, New Haven, Conn. (Wiggin Dana, New Haven, Conn., on the brief), for plaintiff-appellant.
Donald F. Keefe, New Haven, Conn. (Richard G. Bell, and Gumbart, Corbin, Tyler Cooper, New Haven, Conn., on the brief), for defendant-appellee.
Before WATERMAN, SMITH and HAYS, Circuit Judges.
This civil action in which jurisdiction is based on diversity of citizenship, the amount in controversy exclusive of interest and costs exceeding $10,000, was dismissed because "The allegations of the complaint do not assert the essential factual elements necessary to effect service under the Connecticut civil process statute, Sec. 52-59(a) against non-resident defendants." This we hold to be error. No such requirement of pleading in the complaint of the basis for substituted service is found in the Federal Rules of Civil Procedure, and would, we think, depart from the spirit of Rule 8(a). On a proper showing, defective purported service may of course be quashed, but defects in service may be waived, or, even after a defective attempted service, effective personal or other service may yet be had. A complaint alleging a claim within the diversity jurisdiction should not be dismissed because it does not also allege the manner in which service is to be accomplished.
Reversed and remanded.