Opinion

Harold Noel Arrowsmith, Jr. v. United Press International

  • 320 F.2d 219
  • 6 A.L.R. 3d 1072
  • 7 Fed. R. Serv. 2d 38
  • 1963 U.S. App. LEXIS 5021
Court
Court of Appeals for the Second Circuit
Filed
Jun 11, 1963
Status
Published
Author
Smith
On the bench
Clark, Friendly, Hays, Kaufman, Lumbard, Marshall, Moore, Smith, Waterman
Cited by
726 cases
Authority
More cited than 24.7%

holding that it was error for district court to dismiss action for failure to state a claim prior to addressing challenges to personal jurisdiction and venue, because dismissal on the former ground would be with prejudice, while dismissal for either of the two latter grounds would be without prejudice

How later courts described this case

  • holding that it was error for district court to dismiss action for failure to state a claim prior to addressing challenges to personal jurisdiction and venue, because dismissal on the former ground would be with prejudice, while dismissal for either of the two latter grounds would be without prejudice
  • concluding that Vermont’s long arm statute, which limited suits against foreign corporations to suits brought by its own residents, did not violate equal protection clause of fourteenth amendment or privileges and immunities clause of article four, § 2, of the United States constitution
  • explaining that logic compels consideration of venue first because “[a] dismissal for . . . improper venue does not preclude a subsequent action in an appropriate forum, whereas a dismissal for failure to state a claim . . . is with prejudice”
  • holding that allowing service according to “manner prescribed by the law of the state in which the service is made” does not “displace state statutes as to the taking of jurisdiction” in ordinary diversity actions

Written by the judges who cited it.

The opinion

SMITH, Circuit Judge

(concurring).

While I do not share the doubts as to Vermont’s constitutional power to give its courts jurisdiction over this claim, and incline to the belief that such jurisdiction would be asserted here, Somerville Lumber Co. v. Mackres, 86 Vt. 466 , 85 A. 977 (1913), I agree that Angel v. Bullington, 330 U.S. 183 , 67 S.Ct. 657 , 91 L.Ed. 832 (1947) and Woods v. Interstate Realty Co., 337 U.S. 535 , 69 S.Ct. 1235 , 93 L.Ed. 1524 (1949), look toward application of^ state standards as to amenability to suit^; at least in diversity cases such as this. I also agree that it is desirable that the\ District Judge, experienced in Vermont Law, pass upon the Vermont law issue in the first instance, and that he should dispose first of the issues of jurisdiction and venue before considering whether a claim has been stated on which relief may be granted, all on the present complaint and affidavits or such amplification as he may see fit to allow,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.