*1 anyone pay General What the it. landlord, Administration, saw Services throws little of the tenant
fit to demand light rental value light, possible, on
property less and still property itself. value
the market abuse its the court did not
Therefore refusing letter. to admit the discretion by our covered more than The case is Burger, Judge, dissented. ruling case that in another condemnation abuse its did not Court the District refusing “large to admit discretion” actual-
prices had the Government parcels
ly paid of land for certain States, neighborhood. Hannan v. United F.2d U.S.App.D.C.
Affirmed. INC., ASSOCIATES,
B. J. SEMEL East Fire- South B. Semel J. d/b/a Appellants, works, MANUFACTUR- FIREWORKS
UNITED CO., Inc., Appellee. ING
No.
United States Court District of Circuit. Columbia
Argued June Dec.
Decided Rehearing Banc
Petition for En Denied Jan.
Clayton Act, 15 U.S.C. which reads § as follows: “Any suit, action, proceeding or un- against der the laws brought corporation may only judicial district whereof it inhabitant, is an but also in may district wherein it be found or business; process transacts and all may in such cases be served in the inhabitant, district of which it is an wherever be found.” that, looking only We have concluded to those facts as to which there is no dispute us, essential in the record before meaning venue did exist within the appealed the statute. Thus the order from, quashed proc- the service of ess, is reversed. complaint alleged in this action Act, violations of the Sherman 15 U.S.C. 1, 2, illegal price as well as §§ discrimination under the Robinson-Pat- Act, 13(a). man Appellant 15 U.S.C. § corporation is a District of Columbia principal place with its Washington. engaged It is in the busi- distributing ness of fireworks at whole- sale, Ap- in the District and elsewhere. pellee Berger, Mr. Marshall C. New York an Ohio which manu- City, a of the factures member bar the Court fireworks and sells them York, vice, pro throughout of by special of New hac wholesalers and retailers court, factory appellants. United States. leave for Its and office Harry Dayton. Taylor, Jr., Washington, process Mr. E. Service was C., upon appearance appellee Dayton D. appellants. also entered an for effected at its of-
fice. Washing- Springer, Mr. James vanR. complaint was met with a motion ton, C.,D. with Mr. Mc- whom James C. 12(b), Fed.R.Civ.P., Rule to dis- brief, Kay, Washington, C.,D. improper miss for venue. An affidavit appellee. for support represented motion office, property, per- had no Burgee Fahy, McGowan, Before sonnel in the District of Columbia. It Judges. Circuit salesmen, agents, was said that no sales advertising were District used Judge: McGOWAN, to solicit business. were Price lists appeal private spe- us in upon mailed into civil action pre- request. Appellee under the antitrust laws cific cus- had three solely question including sents District, appel- whether tomers in the properly lant, venue of pursuant the action laid in to whom sales were made Day- the District requests Court. issue turns unsolicited received Resulting 12 of ton. merchandise deliveries Dayton.1 assignment by [appellant] all F.O.B. one Sales to out of the [appellee] than of the customers other of certain accounts receivable security payment in 1963 and price totalled $1056.23 $1121.50 other such customer [appellant].” 1964. Sales merchandise sold appellee’s in 1962. Since were $643.20 opposing was submitted An affidavit organization employees had appellant. recited an officer *3 in on oc- the District five bought $69,174.51 of worth appellant of casions. were in Three these appellee in and fireworks autumn of 1963 in connection with hear- $167,- $97,993.87 a total of in ings of a Senate Subcommittee on Juve- fre- paragraphs describe 163.88. Two Delinquency. nile said to have These many conversations, quent telephone “as negotiations, involved no solicitations or concerning month,” twenty-two as,, although [by visits the President “these business, “every aspect [appellant’s] of and in- Affiant included Vice-President] including advertising, promotion, defec- goodwill cidental contacts with customers deliveries, merchandise, cus- [and] tive other visits District.” two Appellee said complaints.” tomers’ by “each in 1964 said to affiant were be assignment upon an day’s to have “insisted” and related of less than a duration arising solely problems appellant’s to this suit and receivable accounts to it of appellant, significant!y, plaintiffs. 1. In the of the affidavit these case Most and place in the recites of merchandise have taken that “deliveries communications [appellant] in Mr. Martin have been made to factory United’s of Columbia. transportation affidavit, Dayton, Paragraph admits that in with of his arranged entirely by [appellant].” in If this three different occasions on thought He deliv- somehow to take these of Columbia. he visited the District however, customarily trips, made re- eries of what are as outside these dismissed solely hearings shipments, ferred as F.O.B. then in connection with by would element a claim Sub-Com- be essential States Senate Every- Delinquency. appellee re- had so tailored and mittee Juvenile operations during thing his visits was stricted its as to be he did else all, thereby good being will interstate commerce at beyond as ‘incidental brushed aside calls reach of federal What he antitrust contacts with customers.’ counsel, were, appellee’s good laws. knowledge whose will But contacts’ ‘incidental lasting appel- fact, nature of sessions true operations reasonably approximately least. lee’s in- hours major prob- complete, ferred as to be realistic as sessions handled These lems that pos- per- with on a has made no such claim. sible, by It is still had to be dealt person than over careful of ac- basis rather restriction one's son tivities, par- solely problems telephone, which arise to do intrastate to, ticularly preparation a new if one with season commerce buyers wants even industry. As a result come the fireworks who from out of the state. sessions, I able to avoid But these the business choice to seek making Dayton, pro- trip greater at least one benefits latitude by operations normally to make.” vided I would have had within the contem- plation Clause, between “The constant communications Commerce then myself amenability one of and concerned the burdens is to fed- defendant including aspect plaintiff’s sanctions, Defendant eral business. the lib- assignment requirements eralized that it obtain an insisted my my customers, most accounts in the District of whom were located “During period the entire rela- my Columbia, order secure own tionship plaintiffs defendant, between and Likewise, I was account defendant. defendant and were in continual com- touch defendant about in constant munications. Sometimes these communi- promotion, things advertising, such through my visiting cations deliveries, merchandise, cus- defective plan Dayton, defendant’s Ohio. Usual- complaints, nu- tomers’ and all other ly, they long were made distance tele- naturally arise merous matters would phone Dayton conversations and between $100,000 my Washington. out of almost worth busi- office There would many twenty-two telephone year.” be as ness conversations a month between defendant generated appellant’s ap- frequent telephonic stant resales communi- pellee’s products. aspects cation about all of their business relationships, including appellant’s own last-mention- It will noted that-this relations with its customers —a circum- gave ed affidavit a different version stance active interest be- “goodwill” admittedly paid by calls practice assign- cause of requiring appellee’s in 1963. officers appellant’s ment it of receivables. filing prompted of a further movant, denying appel- affidavit equally appellee had It seems clear that meetings description lant’s these personnel permanent no base insisting they involved business District; heavily, if not it relied generalized good- discussions than other provi- entirely, exchanges. will travelling sion of services which a those agent or a otherwise salesman disposed local motion was heard expected supply; and that have been solely *4 on these the District Court uniformly policy adhered a trade together legal to affidavits, memo- with shipping products its F.O.B. argument by parties. randa and oral The court’s recited more than order trying In relate these facts to “having improp- found that that venue is governing law, to the is erly Dis- laid as to defendant interpreting to a remember that we are Columbia,” quashed. trict of is service statute, resolving constitu not a objection juris tional to the assertion of II Compare diction. International Co. Shoe
Putting
Washington,
310,
one side the clash
to
be
v.
State
U.S.
154,
tween
affidavits
as to what occurred
S.Ct.
L.Ed.
Further
during
appellee’s
more,
the 1963 calls of
offi
the venue
which we
statute with
upon
Washington,3
appellant
generalized
cers
in
cer
deal is not
in
reach but
its
emerge
dispute.
tain
in
by
facts
as not
One was intended
to
im
be an
by ap
is that
portant
private
volume of sales made
in
facet
the scheme
pellee
appellant
to
Bill
promote
objec
was substantial.
remedies
to
devised
ings
$70,000
$100,000
of the order of
to
is
tives of the antitrust
laws.4 Thus it
annually
insignificant
dealing
myriad
are not
in most
that
of the
the lore
cases
nothing
businesses,
certainly
is
problem
requi
there
with the familiar
of the
suggest
they
in this
to
corporate presence
record
that
are
ren
site indicia of
to
in
so
A
corporation
the fireworks
trade.
second is
to
der
that
directly
in
locally
apposite
eon-
suit
is not
here.5
6,
The District
did not
him
address
note
See
infra.
any
apparent
self in
manner to this
con
flict,
purport
findings
hand,
significant,
nor
to make
of fact
on the one
that
is
generally as, indeed,
required
12,
laying
to
he is not
venue in
addition
deciding
do in
motions under Rule 12.
“an
where a
the districts
52(a),
Appellee
found,”
“may
See Rule
Fed.R.Civ.P.
or
does the
inhabitant”
argument
largely
has cast
here
“trans
district wherein it
same
by
business”;
and,
other,
terms of a claim that
are bound
we
acts
52(a)
disregard
concluding
Rule
trial
service
clause authorizes
findings
they
process
court’s
of fact unless
district where the
of
corporation
clearly
approach
“may
erroneous. We find this
“an inhabitant” or
wholly unpersuasive.
raising
of the
omission of
be found.” Because the
improper
by
defense of
motion
clause
“transacts business”
the last
express
suggests
phrase
dismiss
advance of trial is
the content of that
ly
optional
pleader by
differs from that
gories,
the other two cate
12(b).
answer,
recognized
Rule
If deferred to the
it' has been
that venue
might
process
evidence relevant
to venue will be heard
exist
one district
findings made,
required
the trier of fact and
in another.
See
served
judge
trier,
pre
the
sumably
is the
which would
Eastman Kodak
of New York v.
Co.
pos
Co.,
resolve conflicts.
In this
Photo Materials
273 U.S.
Southern
52(a)
359, 373,
ture Rule
would be relevant.
purposes
pointedly
of Sec
Supreme
characterization
of the
re
Court has
inutility
tion 12 and of the considerations
relevant
much
this
us
minded
of the
purposes.
construing
learning
realization
those
12 of
exegesis
are,
provided
Since
Clayton Act,
we
this
has said that
way
it,
have made
“Con
number
courts
their
seek to
effective
make
as
enacting
light
provides.
S.
Green v. U.
gress’
purpose”
remedial
Chewing
making
Gum
F.2d
test of venue”
“the
statute
(5th
1955);
everyday
Im
v. Renfield
“practical,
business
Cir.
Brandt
it a
carry
Cir.),
porters, Ltd.,
(8th
concept
7. See Wire Co. v. similar there.” Corp., significance United States Steel in meas- The uring jurisdiction of F.O.B. sales (E.D.Pa.1955). process the court There due limitations showing equated surely first found venue to exist on not to be years defining seller had in two sold and relevance to with their created the a venue $600,000 prod- by Congress delivered some of its worth as an incident jurisdiction. petition assertion, ucts On in the form of the anti- rehearing pointed laws, plenary it was out of its Commerce trust “ shipments basis, ‘long- power. were on an F.O.B. The so-called Clause having passed buyer concept,” title seller since it relates arm’ *6 goods jurisdic- normally jurisdiction, the before tion the entered not reach of is allegedly having thought venue. The court con- of as extended a original decision, stating Congressional adhered its of struction a venue stat- passage-of-title concepts deriving that sequences and con- from ute In the Commerce Clause. comprehended event, Judge interesting were not with- it is that practical transacting concept eventually the in 12 found Christensen case, business embodied in We in venue to exist the Intermountain agree. thought parent-subsidiary he because the problem Cudahy, Intermountain Ford Tractor Sales Co. where it was Massey-Ferguson F.Supp. Ltd., juris- that North Carolina did not have (D.Utah 1962), person, involved a claim of over diction the defendant’s respect parent broadly in light venue of a Canadian in should be viewed the corporation by relationships Supreme reason of its Court had said what the in later subsidiary. scope Soophony an American with The court about the liberalized appeared to think claim that the turned of Section upon proper reading a of Cannon Cudahy Packing Co., Co. v. 8. Commonwealth Edison Federal Co. v. Co., F.Supp. Pacific Electric Cudahy 1962). (N.D.Ill., But did either not involve And see Ohio-Midland generally Light Co., antitrust laws 12 in or Section Power & Co. v. Ohio Brass particular. F.Supp. (S.D.Ohio 1962); for breach was action Pub contract, question was whether Co. v. lic Service Federal Pacific Elec foreign corporation parent F.Supp. (D.N.M.1962); a tric Reid through University Minnesota, in business subsidiary North Carolina F. (N.D.Ohio 1952). Supp. so as to be to suit num What Judge preoccupation necessary there. Christensen’s ber of dollars to found venue Cudahy is, obviously, highly concept with is evidenced the fact a relative quoted paragraph shape that he closed the in in from other takes factors particular setting. dissent with the sentence: “And Cf. Donlan v. besides, Cudahy Carvel, (D.Md.1961). Ias read the ease a appellee suddenly an officer of The statute we called to con- Had non-legal “Any provides, pro- asked, context, suit, in a “Are strue action ceeding doing any against you District laws the antitrust * * * may brought Columbia,” would, his we sur- answer interrogator may mise, “Yes.” His district wherein be found have been Clay- at him or transacts *.” understand to mean one customer District ton Act 38 Stat. 15 U.S.C. least § § for an amount looked to and, practical
purchases;
the more
majority
holding
on two
rests
The
interrogator
man of business
such an
Mfg. Co.
of United Fireworks
“contacts”
was,
more he would have assumed
First,
the District of Columbia.
appellee was in
and continuous
close
points
to the “substantial”
volume
such
about
their
touch with
customer
Semel,
District
sales
United
is what
mutual business concerns. This
majority
corporation.
Columbia
The
pondered
had mind when
the affidavit
stresses
these sales but
pri-
problem
in relation to
Manager
undis-
appellant’s
General
give
suits,
vate
decided
negotiations
leading up
puted
that all
injured party
scope
to sue
wider
all
deliveries
merchan-
these sales
Scophony.
home.9 See United States v.
Dayton,
place
Ohio. More-
took
dise
Corp., supra.
The exact
limits of
just
over,
ordi-
not
these deliveries were
clearly fixed,
scope
we
not be
nary
shipments,
F.O.B.
seller
appellee had,
basis of
think this
arranging
shipment,
trans-
least
for
brought
us,
the record before
himself
goods
shipping firm
porting
them.
within
buyer merely paying the
depot, and the
majority opinion
judgment
costs,
appealed
re-
seems
from
as the
The
transport
suggest.
not
for fur-
United did
and the case remanded
versed
arrange transportation
proceedings
here-
inconsistent
ther
Dayton;
plant
all
Semel
its own
with.
arrangements
shipment
for
so
It is
ordered.
point.
“contact”
other
majority
is tele-
finds with the
BURGER,
(dissenting):
of-
phone
United's
conversations between
Dayton
employees
and Semel
ficers
“longarm”
majority
stretches
Washington.
majority
relies
beyond
concept
both
statute and rea-
to show
“contacts”1
these tenuous
sonable need.
re-
Neither
Washing-
“transacts
business”
history
lied
nor its
furnishes a basis
undisputed
ton,
C.,
evi-
D.
face
finding
proper
I there-
here.
*7
here,
agents
and
respectfully
it has no
dence that
fore
dissent.
disposition
say
Congress
under
a
transfer
of motion to
not to
intend
This is
1404(a).
Section
ed that
case must be tried where
brought.
first
courts
The district
purchased a
D.C.
1. Two other
customers
expressly empowered
have been
to trans
goods.
ad
In
of
$2820.93
total of
worth
fer civil cases for
convenience of
“the
dition, employees
five
parties
witnesses,
in the interests
none
to the District of Columbia
visits
justice.”
1404(a).
§
28 U.S.C.
purpose
sales;
two of them
cases,
apply
to
been
to
civil
litigation, and
in connection with this
whether instituted
by
or
the Government
hearings
three were
connection with
private party.
a
United States v.
on Juvenile
the Senate Subcommittee
City Lines,
Inc.,
National
assign
Delinquency.
an
United received
(1949);
L.Ed.
appel
of accounts receivable
ment
Pictures,
Rodney,
Inc.,
Paramount
majority correctly
refuses
The
lant.
Cir.)
(3d
denied,
F.2d 111
cert.
340 U.S.
any
rely
more
these
extent on
even
(1951).
Cf., Fandel
“contacts.”
tenuous
Thus a determination
that venue exists
American
Arabian
Oil
App.D.C.
Section 12
does not conclude the
836 right5 Intermountain Ford Tractor I Sales Co. v. think it still has that do Massey-Ferguson Ltd., F.Supp. 930, go 210 not see seller could farther how 932, (D.Utah 1962). right That case involved than United has exercise equipment shipped directly simply into the local done. United has not “trans- * * * acting district ordinary Canadian defendant. The business court refused to jurisdiction. base venue such sense” in this usual shipments, because clear “[t]he evidence ly property shipped indicates into company Utah the Canadian was sold prior shipment (Em Ibid. phasis added.)4 great weight of au thority Soophony, supra, and after Judge sup accords with Christensen and ports the District Court’s dismissal SOUTHLAND COR- MANUFACTURING present case. See Ohio-Midland PORATION, Petitioner,
Light Co., & Power Co. v. Ohio Brass v. F.Supp. (S.D.Ohio 1962); 221 405 Fried LABOR, Respondent. SECRETARY OF Co., man v. United Trunk F. States 204 No. 19219. Supp. (S.D.N.Y.1962); 366 Friedman v. United States Court of Co., Trunk 148 States F.R.D. Columbia Circuit. (S.D.N.Y.1962); Republic Ac Bruner ceptance Corp., F.Supp. (E.D. Argued Nov. 1965. Ark.1961); Dazian’s, Inc. v. Switzer Decided Dec. Bros., (N.D.Ohio 1951); F.Supp. Rehearing Petition for En Banc and/or Corp. Seaboard Terminals v. Standard Rehearing Petition for before the Co., F.Supp. (S.D.N.Y.1940); Oil Division Denied Jan. Corp. Seaboard Terminals v. Standard Oil F.Supp. (S.D.N.Y.1938); Capital Airlines, McManus v. F. cf. Supp. (E.D.N.Y.1958); Windsor Loew’s, Inc., F.Supp.
Theatre Co. v. (D.D.C.1948). question
The basic here is whether a right still has the to restrict
its business “transactions” to a chosen geographical being area and thus to avoid
subjected far-away to suit localities. Although Ford, supra, parent corporation Intermountain the Canadian exercised question propriety subsidiary’s did involve the “direct control” over parent corporation of subsidiary as to a whose stores within district of Utah. Id. did within the He held that business relevant Cannon Co. district, majority opinion Cudahy recog- Packing Co., nizes, language quoted (1925), above was ad- did dressed proper the contention that venue was not control the facts before Id. at him. corpo- because “the Canadian 937-938. directly doing ration was business shipper necessary, district of Utah because as 5. It is not in order to avoid subjecting particular sent into the state which were di- oneself to suit in a subsidiary state, pur- rected not to its as the to limit one’s operated by purely operations, chaser but to the stores intrastate as the ma- subsidiary jority opinion suggests to other dealers in its footnote 1. Although Surely at 932. interstate proper Christensen found to suit under Section 12 Ford, products may Intermountain it was district into which its commingled quanti- basis of the control between carried others parent corporation subsidiary, so that ties.