274 F. 104 | D. Del. | 1921
This is a suit m equity instituted by shareholders of Superior Oil Corporation, organized under the laws of Delaware, and Atlantic Refining Company, s Pennsylvania corporation. The plaintiffs are residents of states other than Pennsylvania and Delaware. The bill of complaint alleges, in part, that 325,000 shares of the capital stock of the Delaware corporation were fraudulently and unlawfully issued by it to the Pennsylvania corporation, and that a certain contract entered into by and between the defendant corporations in June, 1920, was made in like manner. The relief sought is that the transactions by which the Pennsylvania company acquired the shares of stock in question be set aside; that the Pennsylvania company be required to restore the status quo of the Delaware company as of the time prior to the happening of those transactions; that an account of damages be taken; that the Pennsylvania corporation be required to repay to the Delaware corporation such damages together with all dividends collected by it upon the capital stock of the latter company; that the contract of June, 1920, be canceled, and an account-lie taken of the damages sustained by the Delaware company by reason of that contract; and that the Pennsylvania company be decreed to pay the same. Service was had upon the Delaware corporation and upon the person designated by the Pennsylvania corporation as its authorized Delaware agent for service of process. The latter company appeared specially and moved for an order setting aside the service, and for a decree dismissing the bill as to it, upon the ground that this court is without jurisdiction to entertain the suit, in that this district is not the district of the residence of either the plaintiffs or the Atlantic Refining Company. The Delaware corporation also filed a motion to dismiss the bill of complaint as to it, assigning 30 reasons therefor. The motion of the Pennsylvania company will be first considered.
“Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” McNeely v. E. I. Du Pont de Nemours Powder Co. (D. C.) 263 Fed. 252.
■■ “When in any suit commenced in any District Court of -the United States to enforce any legal or equitable lien upon or claim to, or to remove any incum-brance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto,” service may be had upon such nonresident or absent defendant without regard to the residence of the plaintiff.
The latter section necessarily implies that, even though jurisdiction be founded only on the fact that the suit is between citizens of different states, yet if the object of the suit brings it within the class described in this section the court of the district in which the suit is brought may entertain it, notwithstanding none of the parties thereto reside in such district. Kentucky Coal Lands Co. v. Mineral Development Co., 219 Fed. 45, 133 C. C. A. 151; Louis. & Nash. R. R. v. West Un. Tel. Co., 234 U. S. 369, 34 Sup. Ct. 810, 58 L. Ed. 1356. It is difficult to perceive any lack of applicability of section 57 to the present suit. The bill of complaint sets up the diversity of citizenship'of the parties required by section 24 of the Judicial Code. That the shares of stock in issue are personal property, and are, for the purposes of this suit, within this district would seem to have been put beyond dispute by the Revised Code of Delaware of 1915. Section 1930 thereof provides:
“The shares of stock in every corporation shall be deemed personal property. * * * ”
Section 1986 of that Code says:
' “Eor all purposes of title, action, attachment, garnishment and jurisdiction of all courts held in this state, but not for the purposes of taxation, the situs of the ownership of the capital stock of all corporations existing under the laws of this state, whether organized under this chapter or otherwise, shall be regarded as in this state.”
The bill will be dismissed for prolixity and uncertainty, unless within 20 days from the filing of this opinion it be amended.
£sairo? oilier cases see same topic &‘KEY-NUMBER in .ail Key-Numbered Digests & Indexes