[Download] "Usatorres v. Marina Mercante Nicaraguenses" by Eleventh Circuit U.S. Court of Appeals " eBook PDF Kindle ePub Free
eBook details
- Title: Usatorres v. Marina Mercante Nicaraguenses
- Author : Eleventh Circuit U.S. Court of Appeals
- Release Date : January 16, 1985
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
The question in this appeal is whether a party removing an action to federal court waives defenses raised in a motion filed in the state court if that motion is not included in the removal petition. The district court summarily denied the appellant's motion for dismissal for lack of proper service. After a jury trial and verdict for the plaintiff, the defendant appealed the denial of the motion to dismiss. We hold that the appellant did not waive the defense; therefore we reverse. The plaintiff-appellee initially filed this action in Florida state court. The complaint alleged personal injuries due to negligence. Service was by publication ordered by the court. The defendant-appellant filed a motion to dismiss and/or quash service of process in the state court; he thereafter removed the case to the federal district court pursuant to 28 U.S.C. ร§ 1441. The plaintiff filed a motion in opposition to removal, which the district judge treated as a motion to remand the case to the state court. The defendant filed a response to the motion to remand and an answer to the complaint. The answer included the defense of lack of personal jurisdiction due to improper service of process. The district court denied the motion to remand and in the same order referred to defendant's motion to dismiss that had been filed in the state court, ruling that because no copy of that motion had been filed in the district court it would be ""deemed denied."" Thereafter the defendant filed a new motion to dismiss in the district court. The district court summarily denied this motion, apparently relying on its earlier reasoning that the defense had been waived. The case was then tried to a jury. Judgment was for the plaintiffs in the amount of $275,000. This appeal ensued.