Cain v. Commercial Publishing Co.

Background

A Mississippi citizen sued the Commercial Publishing Company, a Tennessee corporation, for libel in a Mississippi circuit court, alleging the paper’s wide circulation in Mississippi. The plaintiff served summons by delivering copies to two men in Jackson described as the company’s agent and correspondent. The company petitioned to remove the case to federal court, gave the required bond, and then filed a special appearance and a plea saying the state court never acquired jurisdiction because the company had no agent or office in Mississippi.

Reasoning

The single legal question was what Sections 29 and 38 of the Judicial Code require after removal. The Court examined whether a defendant who removes a suit must immediately plead to the complaint’s merits within thirty days, or may first challenge whether state-court service was valid. The Court held that “plead” includes a plea attacking jurisdiction or service of process, and a removing defendant may raise that defense in federal court. The opinion relied on earlier decisions recognizing that removal does not force a defendant into a general appearance and preserves the ability to contest jurisdiction.

Real world impact

The ruling means a defendant who moves a case to federal court can ask that court to decide whether it was properly served, rather than being forced to answer the complaint on the merits right away. That protects out-of-state or corporate defendants from being haled into state courts through possibly improper service and keeps removal an effective tool for securing a federal forum.