# National Labor Relations Board v. E. L. Clark, Owner, Jim H. Pierce, Lessee of the Ashville-Whitney Nursing Home

> Court of Appeals for the Fifth Circuit · October 4, 1972 · 468 F.2d 459

URL: https://www.frixlaw.com/law-library/cases/9458808

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. L. CLARK, Owner, Jim H. Pierce, Lessee of the Ashville-Whitney Nursing Home, Respondents
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 4, 1972
- **Citations:** 468 F.2d 459; 81 L.R.R.M. (BNA) 2353
- **Precedential status:** Published
- **Opinion:** Dissent by Godbold
- **Judges:** Wisdom, Godbold, Ro-Ney
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458808

## How later opinions describe it (automated extraction)

- holding that when a defendant "has in fact changed his residence but to all appearances is still occupying a former dwelling, substituted service at the former dwelling is proper”

## Opinion text

GODBOLD, Circuit Judge
(dissenting) :
I have difficulty with the conclusion that Clark is jointly liable with Pierce, predicated upon valid service upon Clark of the charge and the complaint. I agree that the purported service upon Clark was not unconstitutional. But I disagree as to the statutory adequacy of service under 29 U.S.C. § 161 (4).
There is no evidence that Clark received actual notice. There is no evidence, or even contention, that the Board relied upon, or even knew about, the records of the state licensing authority. What the Board did know about and did rely upon was that the nursing home, which formerly was owned by Clark, continued in operation with no *468 outward change and with Pierce, who had been the administrator, continuing in charge.
In the absence of a requirement of statute, the citizen has no duty to inform a govermental agency which subsequently may subject him to administrative action, or to inform the world at large, when he sells or leases his business or ceases to carry on business at the place that theretofore had been his principal place of business. The concept of an “apparent place of business” is a new wrinkle. If Congress had meant “what appears to be a principal place of business,” it would have been easy to say so. There is enough confusion over whether an agent by estoppel is an agent for purposes of service of process, see 2 Moore, Federal Practice ¶¶ 4.12, at 1052, 1056-57, 4.22 [1], at 1116-19 (2d ed. 1970); 30 A.L.R. 176 , without burdening the law with an “apparent place of business” concept.
Cases holding that a former dwelling is a “usual place of abode” within the meaning of Fed.R.Civ.P. 4(d)(1), which provides for service on an individual “by leaving [the summons] at his dwelling house or usual place of abode,” do not support the holding in this case. The transiency of some individuals occasionally persuades courts to impart elasticity into the term “usual place of abode.” See, e. g., Skidmore v. Green, 33 F.Supp. 529 (S.D.N.Y.1940). Businesses are not as transient as individuals, however, and there is no concomitant need to stretch “principal place of business” beyond its common import.
Even without analysis of legislative policies underlying the “principal place of business” requirement, the majority’s precedents are readily set apart from this ease by the force of their own facts. For example, in Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144 (D.Ariz.1970), the court upheld service on an individual by service on his daughter at his alleged “former” apartment, In support of its holding, the majority noted, inter alia, that at the time of service (1) defendant was paying rent for the apartment, (2) defendant had not notified the apartment manager that he had moved, (3) the apartment manager considered defendant his lessee, (4) defendant left the family automobiles at the apartment, and (5) defendant received his mail at the apartment. Additionally, the court relied heavily on the defendant’s actual receipt of notice. “[T]here is no claim of . prejudice by reason of the manner or time in which notice was received .” Id. at 149 . In this case, the Board did not establish a nexus between Ashville-Whitney and Clark at the time of the purported service even approximating the nexus established in Blaekhaivk Heating, nor, more importantly, did the Board establish actual notice to Clark.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458808. Public record. Not legal advice.