C-O-TWO FIRE EQUIPMENT CO. v. BARNES, Judge.
No. 10512.
United States Court of Appeals Seventh Circuit.
Feb. 1, 1952.
Writ of Certiorari Granted April 21, 1952. See 72 S.Ct. 763.
Throughout this period petitioner made known to its employees its preference for the Teamsters. In April, Cain told Todd that he would like to have Todd assist the Teamsters in their organization campaign, and in September, Sweeney asked Todd, who had become UAW‘s organizer, to discontinue his activities for the UAW, and said “they [petitioner] could get rid of anybody they wanted to.”
We see no need to recite here the evidence relating to the discharge of Charles Todd. It is correctly summarized in the intermediate report of the trial examiner, and the facts are set forth in the Board‘s decision at 94 N.L.R.B. No. 23.
It has repeatedly been held that an employer may not intrude in matters concerning the self-organization of his employees. He must refrain from all interference. He must maintain a strictly neutral attitude. Especially is this so where the adherence of the employees is being sought by rival labor organizations. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S. Ct. 615, 81 L.Ed. 893; Valley Mould & Iron Corp. v. National Labor Relations Board, 7 Cir., 116 F.2d 760; National Labor Relations Board v. Reynolds Wire Co., 7 Cir., 121 F.2d 627; National Labor Relations Board v. Burry Biscuit Corp., 7 Cir., 123 F.2d 540; National Labor Relations Board v. Sunbeam Electric Co., 7 Cir., 133 F.2d 856, 857; National Labor Relations Board v. Kropp Forge Co., 7 Cir., 178 F.2d 822, 825; National Labor Relations Board v. General Shoe Corp., 6 Cir., 192 F.2d 504, 507; and National Labor Relations Board v. J. Greenebaum Tanning Co., 7 Cir., 110 F.2d 984.
In applying the principles enunciated in the cases cited we must remember that it is not our function to weigh conflicting testimony and pass upon the credibility of witnesses, and we may not reject inferences drawn by the Board from proven facts merely because different inferences might seem to us more reasonable. And we must observe the rule that the requirement for canvassing the whole record does not mean that we may displace the Board‘s choice between two fairly conflicting views, even though we might justifiably have made a different choice had we been the trier of the facts. Angwell Curtain Co. v. National Labor Relations Board, 7 Cir., 192 F.2d 899, 904. Now, with these rules in mind, after reviewing the entire record, we think there was sufficient evidence, considered as a whole, to abundantly establish that Todd was discharged because of his union activities; that the Employee Representative Plan was a company-dominated labor organization; and that by giving support and assistance to the Teamsters, petitioner interfered with, restrained and coerced its employees in the rights guaranteed by
Enforcement decreed.
George I. Haight, John W. Hofeldt, Andrew J. Dallstream, Fredric H. Stafford, Chicago, Ill., for respondent.
Before MAJOR, Chief Judge and LINDLEY and SWAIM, Circuit Judges.
MAJOR, Chief Judge.
The question for decision is whether the definition of corporate “residence” for venue purposes contained in
On June 26, 1951, Cardox Corporation, an Illinois corporation, instituted in the Northern District of Illinois, Eastern Division, its action against C-O-Two Fire Equipment Company, as defendant, charging patent infringement. The complaint alleged that the action arose under the patent laws of the United States, and venue was predicated upon the allegation, “defendant * * * is a corporation organized and existing under the laws of the State of Delaware, and is licensed to do business in the State of Illinois, is a resident of and has a regular and established place of business in and is doing business in the Northern District of Illinois, Eastern Division, with offices at 444 North Lake Shore Drive, Chicago, Illinois.” It will be noted that there was no allegation that “the defendant has committed acts of infringement” in the District where the suit was instituted. Predicated upon this ground the defendant, on July 12, 1951, filed its motion for a dismissal of the action because of a failure to allege proper venue. Defendant also suggested to the court that instead of dismissing the action it would be appropriate to transfer it, under the discretionary provision of
The defendant in support of its motion submitted affidavits of its president and secretary, admitting that defendant was licensed to do business and had a place of business within the Northern District of Illinois but stating that such business as was transacted there was not related to the alleged infringing acts and that defendant had committed no alleged infringing acts within the Northern District of Illinois, and admitting that it had committed acts of the kind complained of in the State of New Jersey, where the defendant maintained its principal office and manufacturing plant, kept all of its books and records relating to the alleged infringing activities
On October 15, 1951, the District Court, Honorable John P. Barnes presiding, respondent herein, entered an order denying defendant‘s motion to dismiss or in the alternative to transfer the cause, and ordered the defendant to answer the complaint within thirty days.
On October 29, 1951, the defendant (hereinafter referred to as the petitioner) filed in this court its petition for writ of mandamus to the Honorable John P. Barnes, directing that he vacate and set aside the order entered October 15, 1951, denying the motion to dismiss or in the alternative to transfer the case. To this petition an answer was filed by respondent on November 14, 1951, disclaiming interest in the cause or the issues thereof other than such interest as any other citizen of the United States should have. On November 27, 1951, Cardox Corporation, plaintiff in the suit below, was, upon its petition, given leave to intervene in this court and to contest the issuance of the writ sought by petitioner. (Cardox Corporation will be hereinafter referred to as the intervenor.)
In the beginning, we conclude that this court has the power to issue the writ of mandamus and, if petitioner is correct in its position, that it is an appropriate case for the exercise of such power. Ford Motor Co. et al. v. Ryan, 2 Cir., 182 F.2d 329, 330; Paramount Pictures, Inc., et al. v. Rodney, 3 Cir., 186 F.2d 111, 116. Cf. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207. We need not labor this point, however, because intervenor in its brief raises no question in this respect and in oral argument conceded both the power of the court and the appropriateness of the remedy.
The question for decision stated in the beginning, in reality, simmers down to the inquiry as to whether venue in a patent infringement suit can properly be laid in a District other than that of its incorporation, even though it has a regular and established place of business in such District, in the absence of an allegation that it has committed acts of infringement therein.
Petitioner in support of its position contends that
The intervenor contends that
Much is said by the parties in their briefs relative to the interpretation or construction which should be given to the two sections in controversy but, in our view, it is more accurate to state that the issue depends upon whether the two sections must be read together or, more pointedly, whether
Thus, the former section is general and applies only to a corporation, while the latter is special, relating to a specific subject matter and evidently is applicable to individuals as well as corporations. We agree with the intervenor‘s contention that the phraseology of
On the other hand, intervenor‘s contention, if accepted, would result in partial if not complete emasculation of
The two alternatives for venue in
A reading of the provision recast conformable to intervenor‘s contention makes it apparent, so we think, that the first alternative as a venue limitation becomes abortive and the second meaningless if not inconsistent. What purpose could be served in limiting venue to the District where the defendant resides if that includes not only the District of its incorporation but also a District either in which it is licensed to do business or is doing business? And if a corporation can be sued where it “is doing business,” what possible purpose can be served by the second venue alternative, “where the defendant has committed acts of infringement and has a regular and established place of business“? Intervenor‘s contention would permit a suit to be brought in the District where the defendant “is doing business” but not in the District where it has a “regular and established place of business” in the absence of a showing that the defendant “has committed acts of infringement” in such District. Such an anomalous theory, if embraced, would make a dead letter out of the second alternative in the patent venue section. The plaintiff in determining proper venue for his suit against a corporation for patent infringement would hardly need to read
In the Stonite case, 315 U.S. 561, 62 S. Ct. 780, 86 L.Ed. 1026, the court held that a general venue statute must give way to Sec. 48, the special statute relating to venue in patent infringement suits. The court reasoned that the special statute was not affected by general provisions, that the former was adopted “to define the exact jurisdiction of the federal courts in actions to enforce patent rights,” and that such purpose indicated that Congress did not intend “to dovetail with the general provisions relating to the venue of civil suits, but rather that it alone should control venue in patent infringement proceedings.” True, this decision was prior to the adoption of the present Code and is, therefore, not decisive of the instant question, but the rationale which the court employed is, in our opinion, pertinent to the present situation. Especially is this so when no purpose to change the existing law is evidenced by a reading of the two sections under consideration or by the Reviser‘s Notes shown in connection therewith. And it doesn‘t seem likely that Congress would have made such an important departure from the law as it then existed relative to venue in patent infringement cases without so stating.
Intervenor‘s argument that the residence of a corporation was not defined in
Intervenor places much stress upon Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, and asserts that practically every argument advanced by the petitioner here was made by the petitioner in that case and rejected by the Supreme Court. We are of the view that the reasoning of the Collett case is inapplicable here, and in any event not controlling. There, the court held that
We think it apparent that the situation before the court in that case was quite different from that of the instant case. There, the court was dealing with two sections, one which bestowed venue and the other which provided for transfer when venue was properly laid, and the latter did not “limit or otherwise modify any right granted in” the former. Thus the court
The instant question has been before the District Courts in a number of cases, some precisely in point and others persuasive because of their close analogy. The weight of such decisions militates strongly against the intervenor‘s position. One of the best reasoned opinions is that of District Judge Harrison in Gulf Research & Development Co. et al. v. Schlumberger Well Surveying Corp., 92 F.Supp. 16, 19. Among other things he stated, 92 F.Supp. at page 19, “The Reviser‘s Notes make it evident that today, 1400(b) stands in the same situation as did Section 109 at the time of the Stonite opinion in 1942 and that the Stonite case is just as much in point now as then,” and “I hold that Section 1391(c) is not complementary to Section 1400(b); that the word ‘resides’ in Section 1400(b) means the same as the word ‘inhabitant’ in the former Section 109, and that the interpretation placed upon said former Section 109 applies to its revision as set forth in the revised Section 1400(b).” This opinion is also interesting from the fact that Judge Harrison reached a result opposite to that reached by two of his associates on the same court. Farr Co. v. Gratiot et al., D.C., 92 F.Supp. 320, and Radio Corp. of America v. Paramount Pictures, Inc., D.C.S.D.Cal.1950, an unreported decision. The opinion in the Farr case was written by District Judge Hall. The opinions in these two cases, that is, in Gulf and Farr, written by Judges in the same District, contain about all that can be said on the opposing sides of the controversy. We think Judge Harrison reached the right result.
In Nachtman v. Jones & Laughlin Steel Corp., D.C., 90 F.Supp. 739, 740, the court held that
In Fischer v. Karl et al., D.C., 84 F.Supp. 53, 55, the court stated: “In a word, to grant this motion would be to render
We cite without further comment the other cases which support in one form or another petitioner‘s position. Ackerman v. Hook et al., 3 Cir., 183 F.2d 11; Arkay Infants Wear, Inc., v. Kline‘s Inc. et al., D.C., 85 F.Supp. 98; Rava v. Westinghouse Electric Corp., D.C., 90 F.Supp. 707; Curtis et al. v. Madovoy et al., D.C., 84 F.Supp. 637; Aetna Ball & Roller Bearing Co. v. The Federal Bearing Co., Inc., decided by Judge Igoe in the Northern District of Illinois.
Holding as we do that venue was improperly laid, the relief sought by the petitioner must be granted.
Thus, two alternatives are provided, (1) a dismissal of the case or (2) if it be in the interest of justice, a transfer to the appropriate District. Respondent, therefore, is directed to give effect to one or the other of such alternatives, without prejudice to his right to decide which it shall be.
LINDLEY, Circuit Judge (dissenting).
The problem here seems to me a simple one.