170 F. Supp. 442 (E.D. Ark. 1959)
Preston W. Grace and Charlotte B. Grace, his wife, citizens of Arkansas, brought this action against three defendants referred to collectively as Bankers Group for damages for alleged breach of a written contract for the exchange of real and personal property.1 Alternatively, they sought specific performance of the contract and the alleged amendments thereto.2
The defendant Bankers Life & Casualty Co. is an Illinois corporation authorized to do and doing an insurance business in Arkansas.3 John D. MacArthur is a citizen of Illinois and the controlling stockholder, chairman of the board, and president of the defendant corporation.4 Ronnie Smith is a citizen of Tennessee.5
The complaint was filed on July 21, 1958, and summons was issued on the same day.6 Jurisdiction of the corporate defendant was obtained by service on the Arkansas State Insurance Commissioner. This service is not challenged.7 Service on MacArthur was attempted under Act 347 of 1947.8 The Marshal’s return as to Smith recites that the writ came to hand on July 21, 1958. On the same day he served the same by personally delivering to him a copy of this writ, together with a copy of the Complaint, on the Braniff Airplane, Flight No. 337, non-stop flight from Memphis, Tenn. to Dallas, Texas. The copy was delivered at 5:16 P.M. at which time the airplane was in the Eastern District of Arkansas and directly above Pine Bluff, Arkansas, in said District.9
The motion to quash filed by MacArthur alleges that he has not done any business or performed any character of work or service in the State of Arkansas. He has not appointed the Secretary of State of the State of Arkansas as an Agent for acceptance of service of process upon him. There has been no lawful service of process upon him, and the Court is without jurisdiction over his person.10 Smith’s motion asserts that he has not been properly served with process in this action within the State of Arkansas. This Court is without jurisdiction over the person of said defendant.11 The motions have been submitted upon written briefs.12
Whether a passenger aboard a commercial aircraft flying over the Eastern District of Arkansas is within the territorial limits of the State for purposes of service of process under Rule 4(f) of the Federal Rules of Civil Procedure?13
Rule 4(f) of the Federal Rules of Civil Procedure provides that all process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held.14 An aircraft flying over a state is within that state and subject to its jurisdiction.15 The sovereign power of a state extends to the air space above its territory.16 This power is subject only to federal regulation of air traffic under the commerce power.17
Yes. The established facts show that Preston W. Grace and Charlotte B. Grace filed their complaint on July 21, 1958, against the Bankers Group defendants including Ronnie Smith.18
The Marshal’s return recites that on the same day he served Smith by personally delivering copies of the summons and complaint on Braniff Airplane Flight No. 337 at 5:16 P.M. while the plane was directly above Pine Bluff, Arkansas, in the Eastern District of Arkansas during a nonstop flight from Memphis to Dallas.19 The court determines that this places the plane and its passengers within the territorial limits of the State of Arkansas for service purposes under Rule 4(f).20 Arkansas has adopted provisions of the Uniform Aeronautics Act declaring that sovereignty in the airspace rests with the state and that crimes, torts, and contractual relations occurring on aircraft over the state are governed by Arkansas law.21 This confirms that the aircraft and passengers are within state borders.22
The court distinguishes this from federal preemption issues and concludes that ordinary commercial flight in navigable airspace keeps the passengers amenable to service.23
The motion of the defendant Ronnie Smith to quash service of summons is denied because service occurred within the territorial limits of Arkansas.24
Whether, when a non-resident defendant's motion to quash service of process presents factual questions intertwined with the merits of the case, ruling on the motion should be reserved until trial?25
Under Rules 12(b) and (d) of the Federal Rules of Civil Procedure, the court may reserve ruling on a motion to quash service until trial.26 The motion must raise disputed factual questions that are intertwined with the merits of the case.27 Granting the motion must not dispose of the case entirely.28 The defendant must be likely to appear at trial in any event due to connections with other parties.29
Yes. The established facts indicate that John D. MacArthur moved to quash service attempted under Act 347 of 1947 on grounds that he had not done business in Arkansas and had not appointed the Secretary of State as agent.30 The motion raises issues including whether Ronnie Smith was acting as MacArthur’s agent.31
This involves disputed factual questions that go both to personal jurisdiction and to the ultimate merits of the contract claim between the Graces and the Bankers Group.32 Reserving the ruling allows the case to develop fully on the merits without prejudice to MacArthur.33 It avoids the risk of piecemeal appeals that could require retrial.34 It achieves no substantial saving in time or expense because the corporate defendant Bankers Life & Casualty Co. was properly served through the Insurance Commissioner and MacArthur’s position makes his appearance at trial probable regardless.35
The court therefore defers decision until trial when the factual questions may appear in clearer focus.36
Ruling on the motion of John D. MacArthur to quash service of summons is reserved until the trial.37