Opposition Brief — Schwartz v. Eaton

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| ; a a Office-Supreme Court, U.S, -

; . + pou _— % « J . ‘ FILED ;

wea = —— oe Me aes SEP 9.1966. ,

is | IN THE

. | : ; * JOHN

Supreme Court of the United Staten |

- Ocroser Term 1966. -

No. 441. >

9 mes oe - 7%, en

Sanpor Scuwartz,

Petitioner,

7 against ¢

Cyrus S. Eaton, Watrer J. Tuony, Cyrus S. Eaton, Jr., %

Curnton W. Murcuison, Anita O’Keerre Youne, as Ex-

ecutrix of the Estate of Roser R. Younc, Deceased,

mere , Respondents, :

and

~ Rozpert Bowman, Roserr J. Becktey, Herpert Firzpatrick, *

_Auuan B, Kirsy, Winuiam H. Lirscoms, Harry C. Tuomp-

son, Tuomas J. Dercan, Jr., Darnum L. Cotton, Rocer H.

. Fercer, Martin 8. F, Fornertnamam, Fay A. LeFevre,

‘ Swney W. Ricnarpson, ALLEGHANY Corporation and Tue |

- Cuesapeake & Onto Ramway Co,,

oa Defendants,

i~]

ON PETITION FOR 4A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

& a

> BRIEF FOR RESPONDENT ANITA O°KEEFFE YOUNG,

AS EXECUTRIX OF THE ESTATE OF ROBERT YOUNG,

DECEASED, IN OPPOSITION :

Tuomas F. Daty .

Wituiam E. McCurpy, Jif

Counsel for Respondent Anita

O’Keeffe Young, as Executriax

_ Of the Estate of Robert R.

‘Young, Deceased aol

25 Broadway |

. New York, New York 10004».

*

aoe

IN THE

| Supreme Court of the United States.

anaes: Term 1966

«

No. 441

Sanpor Scuwartz,

Petitioner,

against

Cyrus 8S. Eaton, Watter. J. Tuony, — S. Eaton, jn.

Cuinton W. Murcursoy, Anita O’Kerrre Youne, as Ex.

ecutrix of the Estate of Rosert R. Youne, Deceased,

: Respondents,

and |

Rozert Bowman, Rosert J. Bucxiey, Herpert FIrzPaTRIck, '

Auan B. Kirsy, Witi1am H. Liescoms, Harry C. T Hom. |

son, Tuomas J. Dencan, Jz., Darnum L. Coton, Rocrer H.

f'ERGER, Martin S. F. ForHEerincHaM, Fay A. LeFevre,

Stoney W. Ricuarpson, ALLEGHANY Corporation and THE

CHESAPEAKE & Onto Ramway Co.,

Defendants.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT: -

BRIEF FOR RESPONDENT ANITA O’KEEFFE YOUNG,

ws EXECUTRIX OF THE ESTATE OF ROBERT YOUNG,

ee IN OPPOSITION

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oN

Questions Presented

1.. Maya visio’ representative be substituted pursu-

ant to Rule 25(a)(1) of the Federal Rules of Civil Proce-

_ dure for a deceased defendant who was never served with

process and never made an appearance? :

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2. May a personal representative be substituted for a

deceased defendant pursuant to Rule 25(a) of the Federal —

Rules of Civil Procedure without notice to ‘we. representa-

tive?

| 3. May an action be maintained in a tala court —

against the personal representative of a deceased defendant

where there has been no valid order of substitution and the

limitation period of Rule 25(a) (1) of the Federal Rules of

: Civil Procedure has expired?

4. May a suit be brought under the Investment Com- —

pany Act in a district court in New York against a de-

ceased defendant’s personal representative in the repre-

sentative’s capacity as a Rhode Island, executrix, where ©

the court never had jeriacietion over the deceased defend-

ant? |

5. Does. extra-territorial service of process under the

Investment Company Act confer jurisdiction over the per-

_ son as to any non-federal claim?

—™. 6. Did the cause of action asserted against Robert R.

Young under the Investrnent Company Act sur®ive his

| death?

7. Is’the action against Anita O'Keeffe Young —

by ” statute of limitations?

; Statutes and Rules Involved

Federal Rules of Civil Procedure, Rule 25(a) os prior

C to ite amendment as of July 1, 1963: °

- Rule 25. Substitution of Parties » a

(a) Death. ee

1. Ifa party dies and the claim is not thereby extin-

guished, the court’ within 2 years after the death may

a,

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_order ‘substitution of ‘the proper parties. If substitu-

“tion is not so made, the action shall be dismissed as to

the deceased party. The motion for substitution may

be made by the successors or. representatives of the

“deceased party or’by any party and, together with the

notice of hearing, shall be served on the parties as pro-

vided in Rule 5 and upon persons nof* parties in the

‘manner provided in Rule 4 for the service of a sum- |

mons, and may be served in any judicial district.-

Statement

Respondent Anita O’Keeffe Young adopts the brief in

opposition submitted by respondents Cyrus S. Eaton, Wal-

ter J. Tuohy, and Cyrus S. Eaton, Jr., and sets’ forth in

this brief only additional reasons why the petition should

be denied as to her and, in order. to preclude any claim of

waiver, refers to reasons why the complaint should be dis-

missed as to her which were raised but not ruled upon in

* . the courts below.

It is uncontroverted that although plaintiff filed her

complaint on January 18, 1957, Robert R. Young, a named

défendant, never entered an appearance and was never

served with process. ” Robert R. Young died on J anuary 25,

1958 (Y. A. 7a, 12a).* A

_ By a notice of an dated June 29, 1959, plaintiff

‘brought a motion under Rule 25 of the Federal Rules. of

Civil Procedure** to substitute Anita O Keeffe Young,

* All references are to the Young Appendix in the Court of Ap-

peals which petitioner’s attorney has informed respondent Young’s

attorneys has been submitted to this Court as part of the Record with-

out change in the numbering of pages.

** The Rule 25 referred to throughout. this brief is ; the Rule prior

. to its amendment as of July 1, 1963.

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(Y. A. 14a-19a). Despite the notice requirement of Rule

25(a)(1), it is undisputed that the notice of motion was

never served upon her. : ‘

-. On July 17, 1959, the District Court ordered Anita

O’Keeffe Young as executrix substituted for Robert R.

Young and granted plaintiff leave to file a supplemental

complaint and serve it on Anita O’Keeffe Young (Y..A.

18a-19a). A summoris and. supplemental complaint were

-served, on Anita O'Keeffe acaicead in Rhode Island on July

. 23, 1959.

Botweeti October-22, 1963, and November 12, 1963, all

respondents moved for summary Judgment and dismissal

of the complaint. Ingddition, Anita O'Keeffe Young moved ~

for an order i the order of substitution and dismiss-

ing the action as to her (Y. A. la-5a).

On October 25, 1965, the District Court sii the re-

-spondents summary judgment: and ordered the complaint ©

dismissed as to them for lack of jurisdiction over the suh-

"ject matter (244 F.Supp. 51). On May 19, 1966, the Court

of Appeals affirmed (360 F.2d 211). Neither court ruled

on the separate contentions of respondent Anita O’Keeffe

Young. :

ARGUMENT

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Respondent Anita O’Keeffe Young Adopts the Brief

in Opposition of Respondents Cyrus S. Eaton, Walter’

oo * Tuohy, and Cyrus S. Eaton, Ira,

' The petition should be denied as to respondent’ Anita ©

O’Keeffe Young for the reasons set forth 1 in the brief of

® Shubert, 175 F.Stpp

sub nom. Goldiawr Inc. v. Heiman, 288 F, 2d 579 (2d Cir.

eo

for certiorari §

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respondents Cyrus S. Eaton, Walter J. Tuohy, and Cyrus 8.

‘Eaton, Jr., and respondent Anita O’Keeffe a adopts

the brief of those respondents. - __ Se

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tae De

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Additional Points of Petitioner Anita O’Keeffe

_Young. «— 3

First, as Set forth above, it is undisputed that Robert R.

' Yoiing never entered an appearance and was never served’

with process, although he did not die for over a year after

the complaint was filed. It was early held in United States

_-v, Fields, 25 Fed. Cas. 1067 (No. 15,089) (S. D. » %, 1859),

that substitution is improper’ where the court never had

jurisdiction ver the deceased defendant, and the petition

ld be denied on this ground alone as to

’Keeffe Young. See Goldlawr, Inc. v..

3, 797-98 (S.D.N. Y. 1959), aff'd

respondent Anita

1961), cert. dismissed as to one defendant | and rev’d on

other grounds’ as to the other ee 369 U. S. 463

_ (1962). Sea

Second, as also set forth above, } it is undisputed that the

. notice of the motion for substitution was never served upon

Anita O’Keeffe Young despite the clear notice requirement

sof Rule 25(a)(1) of the Federal Rules of Civil Procedure.

The order-of substitution is therefore invalid, as has been -

held in Turnbaugh v. Pennsylvania R. R.,, 34 Spe .

(E.D. Pa. 1963) (semble), and, there having been-no valid

- substitution within two years following the death of Robert’

R. Young, the action must be dismissed,as to him pursuant

to the mandate of ‘Rule 25(a)(1) and on the authority of

Anderson v. Yungkay, 329 U.S. 482 (1947).

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Dated: September 9, 1966 ye

6.

Other defenses raised by respondent Anita O’Keeffe

Young, which are referred to here to preclude any possible

claim of waiver, are (1) an action based upon the Invest-

- ment Company Act did not survive the death of Robert R.

Young, (2) service upon Anita O’Ke&ffe Young as executrix °

‘in Rhode Island was insufficient to bring her into the action

in the district:court in New York, (3) extraterritorial serv-

ice of summons and complaint could not confer any juris-

diction over respondent Anita O’Keeffe Young as to any

- non-federal claim, and (4) any action is barred by fhe ap-

plicable statute of limitations.

Conclusion as .

It is respectfully submitted that the eranting of certio-

rari is not warranted and the petition should be denied.

E)

: Respectfully ) submitted, |

Tuomas F. Daty

Wis E. Mc€onby, JR.

Attorneys for Respondent Anita |

- O’Keeffe-Young as: Executrix of

the Estate of Robert R. Young

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