Summary
allowing affidavit in support of Rule 12(b) motion
Summary of this case from In re Mar-Kay Plastics, Inc.Opinion
No. 8045.
May 2, 1953.
Wm. G. Boatright, Kansas City, Mo., Nick C. Spanos, Beverly Hills, Cal., for plaintiff.
Spencer, Fane, Britt Browne and Joseph J. Kelly, Jr., Kansas City, Mo., for 20th Century Fox Film Corp.
Watson, Ess, Whittaker, Marshall Enggas and James C. Wilson, Kansas City, Mo., for Loew's Inc., Paramount Film Dist. Corp., RKO Radio Pictures, Inc., Warner Bros. Pictures Distr. Corp., United Artists Corp., Columbia Pictures Corp. and Universal Film Exchanges, Inc.
The codefendant, American Broadcasting-Paramount Theatres, Inc., has moved to dismiss and quash service of process on it. It says that its former name was United Paramount Theatres, Inc. Service of process was attempted by serving Harold B. Lyon as "manager" in Kansas City, Missouri, and that this was done on February 17, 1953. The motion to quash service and dismiss the action as to said defendant contains extensive recitals to the effect that Harold Lyon "is not and never has been an officer, director, agent or employee of American Broadcasting-Paramount Theatres, Inc., and is not and never has been authorized to accept service on behalf of said corporation."
The affidavit in support of the motion contains a further recital that, "said corporation is not a resident or an inhabitant of the State of Missouri or of the Western District of Missouri. It is not present nor can it be found in the State of Missouri or in the Western District of Missouri, and it has not consented to service of process in connection with actions filed in said State of Missouri or the Western District of Missouri or appointed any person as its agent to accept or receive such service. Said corporation has no agents, registered or otherwise, in said State or District and is not doing, transacting or soliciting business of any kind or character in the State of Missouri or in the Western District of Missouri." This affidavit was executed by Leonard H. Goldenson, who deposes that he is the president of the said defendant and that said corporation is organized under the laws of New York, and, as stated, was formerly named United Paramount Theatres, Inc., and by the latter name was sued.
No opposing affidavit or affidavits have been filed and under the authority of Thomas v. Furness (Pacific) Limited, 9 Cir., 171 F.2d 434, it is the duty of the court to sustain said motion, and accordingly said motion is sustained. The service of process is quashed and the petition as to said defendant is dismissed.