*2 оn, Before BROWNING and HUFSTED part, within hereinafter is carried LER, BARTELS,* Judges, Circuit Dis district.” Judge.
trict summary support of its motion for venue, Pied-
judgment based on indicating that presented mont affidavits HUFSTEDLER, Judge: has never corporation that Virginia is a question presented is whether it has done business private may in a antitrust suit be office, agent, prop- or never maintained solely allegations founded that a defend has erty Although Piedmont in California. conspiracy ant was a a member of purchase orders Virginia a few received co-conspirator performed a the fo California, all but by mailed customers rum district. This issue has been trouble those or- products under worth of $535.61 Supreme some evеr since the Court plants locat- shipped and billed to ders were Bankers Life & Co. v. Holland an accommoda- outside California. As (1953) 346 98 L.Ed. Louisiana, Piedmont tion to a customer 106, disapproved attempt to base venue to a California sent one bill for $304.10 also responsibility co-conspir on vicarious оf one shipped to the cost of labels firm to cover ator for the acts of another. Because Louisiana customer. its effectively Bankers Life undermined dispute any of Garden did not co-conspirator, theory we now support presented facts reject expressly any implication in Giusti In- summary judgment. its motion Pyrotechnic Industries 156 stead, Garden chose conspiracy, a that members of and the al- co-conspirator theory of venue another, agents of “transact business” In- one leged vitality of Giusti dustries, purposes where supra. because, under one of them transacts business. York, * Bartels, Judge, of Nеw Eastern District States District Honorable John R. Senior sitting by designation. against Venue for antitrust suits conspiracy member of an antitrust resident corporations section 12 of agent considered an of an out-of- are established can be which conspiracy, member of the so that state 15 U.S.C. § conspirator cаn be considered provides: out-of-state to have transacted business in California. suit, action, “Any proceeding or criticism of Despite Court’s corporation laws against *3 theory Bank- co-conspirator the of venue in judicial district brought only be not in the Holland, ers Life & Co. v. inhabitant, it also in whereof is an but аrgued that Giusti remained any district found or may wherein it be good law in the Ninth Circuit. The district (15 business . . . .” U.S.C. transacts agreed and denied Piedmont’s motion summary judgment “solely for on the au- Piedmont is not undisputed It is The court’s order was thority of Giusti.”1 business” “incorporated” or “licensed to do interlocutory appeal. then certified for Califоrnia, not “reside” and that it does in in and is not “found” California.
II
is
maintains that venue
requirements governing pri-
The venue
because,
the Northern District of California
vate antitrust actions are
in three
set forth
venue,
co-conspirator theory of
under the
separate
general
statutes. The
venue stat-
to have
may
be deemed
ute,
1391, provides
pertinent
28 U.S.C. §
“transact
and to
“agent” in the district
part:
According to Sun
business” in the district.
“(b)
jurisdiction is
A civil action wherein
Garden,
establishes
decision in Giusti
our
solely
diversity of citizen-
not founded
are
co-conspirators
that Piedmont’s resident
ship may
brought only
judicial
the
be
agents and
be deemed Piedmont’s
reside, or in
district where all defendants
by co-conspirators
performed
arose, except
which the claim
as other-
of
can be deemed to be transaction
provided by
wise
law.
business
Piedmont.
“(c)
corporation may
any
A
be sued
judicial
incorporated
district in which it is
of
decadеs
A review of more than three
doing
or licensed to do business or is
theory of
experience with the
business,
judicial
and such
district shall
that,
of
regardless
venue convinces us
regarded
be
of
cor-
residence
such
had, Sun Gar-
strength
may
it once
(28
poration
purposes.”
U.S.C.
longer tenable
is no
theory
den’s
of venuе
(c).)&
§§
theory
in this Circuit. The
called its
what has been
given
of venue was
Special
of this
by a decision
“illegitimate birth”
Clayton
suits are outlined in the
Act. Sec-
thirty years ago
Giusti
court more than
tion 4 of the
15 U.S.C. §
Industries, supra, 156 F.2d
provides
pertinent part:
dis-
fireworks
a California
351.2
“Any person
injured
who shall be
in his
man-
charged
group of fireworks
tributor
property by
any-
business or
reason of
ufacturers,
Delaware
Triumph, a
including
thing
forbidden
the antitrust
laws
conspiracy.
price-fixing
corporation, with a
sue therefor in
district court of
fireworks
charged that
complaint
The
in which the
United States in the district
organized an association
manufacturers had
is
has аn
defendant
resides or
found or
that the
(15
the sale of fireworks
agent,
.
.
. .”
to control
U.S.C. ought
level
judge recognized
to be done at the Ninth
1. The district
that substantial
up
worry
validity
it
there.
about
. . Let them
doubt had been cast on the
They
started it.”
but he ex-
pressed the belief that Giusti was still control-
Circuit,
ling authority
spite
Theory
Co-Consрirator
Byrnes,
of Bankers
“Bringing
going
Proper Perspec-
to be
Up-to-Date
Life. He concluded that “if there’s
into
of Venue
tive,”
change
(1966).
in the law in that
...
11 Antitrust Bulletin
improp-
transfer order
meeting in
Fran-
held a
San
association had
was asked
venue. The
Court
er
was blacklisted.
plaintiff
cisco at which
mandamus.
by writ of
the order
vacate
alleged conspiracy,
At the time of
question decided
Although the actual
conducting busi-
regularly
Triumph was not
ap-
was not an
mandamus
was that
Court
Triumph
qualified
later
ness in California.
a severance and
remedy to vacate
propriate
doing
After
in the state.
to do business
order,
unanimоusly ex-
the Justices
transfer
years, Tri-
several
business in California for
co-conspirator theo-
pressly disapproved
Pursuant
the state.
umph withdrew from
that:
majority observed
ry of venue. The
Code,
Civil
the California
to section 411 of
the anti-
“While a criminal action
of withdrawal
Triumph filed a certificate
where the
аny district
trust laws lies in
with the California
business
from intrastate
part carried
conspiracy was formed or in
provid-
certificate
Secretary of
State.
committed
an overt act was
on or where
Triumph
consented to service
thereof,
Congress by
in furtherance
*4
process
Secretary of
on the Califоrnia
State
limits on ven-
placed
15
definite
U.S.C. §
upon a lia-
subsequent
in
action based
Certainly
damage actions.
ue in treble
prior to Tri-
bility incurred
California
many
doing that
Congress realized in so
umph’s withdrawal.
as
not lie in one district
cases would
such
Triumph
plaintiff
served
Giusti
defendants,
was
unless venue
to all
Secretary
through thе
of State.
California
must, therefore, have contem-
waived. It
quash
of the
Triumph
service
moved
might be
proceedings
plated that such
complaint
the
on
summons
to dismiss
sepa-
filed in
and transferred or
severed
grounds
the
that it had not transacted
petition-
originally.
rate districts
Thus
during
alleged
the
business in California
a
thеory
the earmarks of
er’s
has all
Tri-
conspiracy.
granted
The district court
to ex-
ingenious attempt
frivolous albeit
umph’s
appeal
was taken to
motion and
(346
at
74
pand the statute.”
U.S.
reversed, holding
Tri-
this court. We
that
omitted).)
(footnote
at 149
S.Ct.
objections
venue
umph had waived
agreed that
dissenting Justices
The three
appointing
Secretary
as its
the
of State
co-conspirator theory of
(156
agent.
F.2d at
In the course of
that the mandamus
“frivolous”
however,
opinion,
that ser-
we also said
have been considered
question should not
“continued acts
vice was
because the
was based
when the severanсe order
conspirators
constitut-
California”
(346
compelling” reasons
“obviously
such
“transacting
business”
California
J.,
(Frankfurter,
388, 74
145
at
S.Ct.
U.S.
meaning
within the
of the
stat-
California
dissenting).)3
(156
governing
process.
F.2d
ute
service of
Life,
Bankers
district
In the wake of
353-54.) Any suggestion
ap-
that we
“with the
were faced
courts
this Circuit
proved
co-conspirator theory
of venue
ap
balancing court
metaphysical task of
was dictum. We would nevertheless hesi-
Supreme Court dictum.”
peals
with
dictum
tate
by panel
to overrule it
a
decision if the
v.
(California Clippers, Inc.
United States
Supreme Court had not intervened.
(N.D.Cal.1970) 314
Ass’n
Football
Soccer
years
1057, 1066.)
this Circuit
Séven
after our decision
Courts in
F.Supp.
co-conspir-
supposed
Court undercut
to follow Giusti’s
initially elected
theory of
theory
co-conspirator
ator
Bankers Life & approval
of venue in
for the
Century-Fox
(1953)
(DeGolia
v.
346
v. Twentieth
Co. Holland
venue.
316;
F.Supp.
(N.D.Cal.1953)140
Corp.
74
Bankers Life Film
495 Ass’n, 1065-67; F.Supp. at 314 Hale- co-conspirator theory usti of venue and the (D.Haw.1965) iwa v. Forman 37 nearly has universal. The Theatre Co. been Second Cir 62, 65). judg- expressly F.R.D. We reserved Building Corp. cuit in Bertha v. National vitality of the co- 1957) ment the continuеd Corp. (2d Theatres Cir. 248 F.2d after conspirator theory of venue Bankers and the declared Giusti (9th Peat (Hayashi Wing Corp. Life v. Red theory “inherently unsound and in conflict 15; 1968) American Con- Cir. 396 F.2d pronouncement with later in Bankers Agricultural Pipe crete Ass’n No-Joint Life." has The Second Circuit reaffirmed 1964) (9th Pipe Cir. Concrete Co. rejеction co-conspirator theory its viewed courts the deci- and other (H. Drug Exchange, venue Inc. v. L. Moore Giusti a “crit- giving Smith, sions our Circuit (2d French Cir. Kline & Laboratories (Weinstein v. Norman M. reading.” ical 1967) 97, 98), and the Fifth 384 F.2d Morris, (E.D.Mich.1977) F.Supp. Corp. (San rejected also the Giusti view Anto 337, 343.) recently, a district Most nio Telephone Teleрhone Co. v. American our held that 1974) Circuit has (5th Telegraph Cir. 499 F.2d Co. theory permanently “was laid to 3). 351 n. courts District outside Cir Canon, (Williams rest Bankers Life" reject cuit have been almost unanimous in (C.D.Cal.1977) F.Supp. 376, 382), Inc. (Outboard ing Ma to a approval and we lent (D.Del.1978) rine Corp. v. Pezetel court’s that Giusti “has been 392; observation F.Suрp. Hitt v. Nissan Motor Co. largely (Anrig Ringsby 848; discredited.” (S.D.Fla.1975) F.Supp. Call 485, 488-89.) 591 F.2d Carl, Corp. (D.Md.1975) Inc. v. BP Oil *5 7; F.Supp. 374 n. Albert Levine Associ confusion is now ended. legacy Giusti’s of (S.D.N.Y.1970) ates v. Bertoni & Cotti 309 rejection of the theo- The Court’s 461; F.Supp. Philadelphia Housing Au effectively toppled the ry in Life Bankers thority Radiator v. American & Standard Clayton Although the Act Giusti diсtum. (E.D.Pa.1968) Sanitary Corp. F.Supp. 291 forums which anti- possible increased the 252, 261; Virginia v. West Morton Interna against corporations could be trust suits tional, (D.Minn.1967) F.Supp. Inc. 264 heard, “give not intend to Congress did 692; Intermountain Ford Tractor Co. Sales subject to plaintiffs freedom to defendants (D.Utah 1962) v. Massey-Ferguson, Ltd. 210 (Phila- choice.” venue the fоrum of their 930, 933, (10th 1963) F.Supp. aff’d Cir. 325 Authority v. delphia Housing American Ra- 713; F.2d Commonwealth Edison Co. v. Sanitary Corp., supra, diator & Standard (N.D.Ill.1962) Federal Pacific Electric Co. Congress 291 Nor did in- F.Supp. at 941; F.Supp. 208 Bruner Republic v. give plaintiffs right to “to private tend Acceptance Corp. (E.D.Ark.1961) 191 bring all into the same conspirators forum 200, 205; Goldlawr, F.Supp. Inc. v. Shubert venue,” Congress regardless “estab- of (E.D.Pa.1958) 677, 684, F.Supp. 169 aff’d provisions separately lished detailed venue (3rd 614; 1960) 276 F.2d Independent Cir. (Id.) applicable The to each defendant.” Loew’s, Corp. (S.D.N.Y. Productions v. Inc. would defeat the con- 1957) 460, 463.) F.Supp. 148 making propriety gressional purpose by of venue turn on the decision on final growing this rejection the face of conspiracy merits in We therefore cases. the co-conspirator theory of courts private action hold venue in a attempted to construe Giusti allegations that a cannot be solely based (Occidental narrowly Corp. Petrolеum v. conspiracy of a defendant a member was (C.D.Cal.1971) Buttes Gas & Oil Co. 331 performed and that a 92, 96-98; F.Supp. Zeigler Min- Chemical & the forum district. eral Corp. v. Oil Standard of California (N.D.Cal.1962) 32 F.R.D. or to Ill distinguish it from the cases them before (Javelin if Corp. Uniroyal, (N.D.Cal. argues that even Inc. 252; 1973) theory of venue is no Clip- F.Supp. 360 Circuit, we should pеrs, longer accepted in this Inc. v. United States Soccer Football 496 Industries, 156 F.2d of Giusti to case to the district
remand this discovery complete to permit (9th Cir.) 329 787 351 cert. denied relationship with the fo- into Piedmont’s (1946).” agree Bankers Life & Casu I prevented had rum. If the district court Holland, (1953), 379 alty 346 U.S. Co. presenting evidence Sun Garden from undercut Giusti. independent relationship to Piedmont’s interpreted and Bankers Life Both Giusti forum, sympathetic to we would be provisions of applied and the venue indicates, argument. The record Garden’s Appellee 22. Clayton 15 U.S.C. §§ however, that Sun Garden chose special rely solely upon these co-сonspirator theory of venue has chosen to solely on the in the face of Piedmont’s evidence Clayton Act provisions venue had contact with the state of California.4 no and in upon in this court Giusti both showing that Plaintiff had the burden of court below. properly laid in Northern statute, 28 U.S.C. general venue (Hayashi v. District of California. Sun- to antitrust suits applicable is also Products, (W.D.Wash. shine Garden Inc. when the may provide a basis 1967) 632, 633, F.Supp. aff’d sub nom. Act special (9th Hayashi Wing Corp. v. Red Peat Cir. See, utterly g., 396 F.2d It to do v. Blue Shield failed do not. e. Ballard Thus, so. we need not remand this case to Inc., 543 F.2d Virginia, West Southern permit the district court further dis- (4th 1976); County Board of Com Cir. covery. (See Hayashi Wing v. Red Peat Oil, F.2d v. Wilshire missioners 14; Corp., supra, 396 at cf. H. L. 1975); Wright & Mil 129-30 Smith, Drug Exchange, Moore Inc. v. Kline ler, Civil & Procedure: Federal Practice Laboratories, supra.) French (1976); Federal at 1 Moore’s denying appel- The district court’s order ¶ Practice 0.144[14.-15] lant’s motion for based (b) 1391 was added Subsection of section we venue is reversed. Because well after Giusti statute in hold that venue with to Piedmont It were decided. Bankers Life & Casualty properly not Dis- was laid Northern *6 nondiversity action to be permits a civil California, trict of we need not reach Pied- subject mont’s contention that it was not to the claim brought “in which personal jurisdiction in the forum. “to provision This was intended arose.” least one venue assure that
REVERSED. . will be as to all defendants BROWNING, Judge, concurring: Western multi-party in a action.” Great 1256, Kidwell, Corp. v. United interlocutory The district court rested the 1978) quoting 1 Moore’s Federal “solely authority order under review on the Although not reveal the sub- the record does 4. The record indicates that Sun Garden elected orders, rely solely jects protective to on the of the motions for responding venue in denied all mo- to Piedmont’s motion for June the district court summary judgment. discovery. (R. 59.) stay On October Garden never tions to any independent 29, 1976, gave that basis for venue with re- of its motion for notice Moreover, spect to Piedmont was available. Garden, the record reveals that the district court did not in its memorandum venue. discovery jurisdictional summary bar with opposition motion for to Piedmont’s September (filed facts. On the district judgment conceded November judge parties diligent- (R. 101.) ordеred all “to forthwith “[djiscovery has commenced.” ly attempt complete any discovery summary judg- further When Piedmont’s motion for necessary.” (R. 42.) deemed On October ment was denied on December pretrial specified the second order judge parties were told discovery proceed “[a]ll in these matters is to discovery stay ef- while there would be no diligence, except with for those matters cover- certify court’s order forts were made to protective the motions for orders which interlocutory (R.T. 18.) appeal. (R. 45.) are to be heard on October 1975.” at 1434. See also Practice H0.142[5.-2] Works,
Brunette Machine Ltd. Kockum
Industries, Inc., 706, 710 n. 406 U.S. (1972); 32 L.Ed.2d Miller,
Wright 3807 at 39. rely solely appellee
Because has chosen to provisions, nei- Act venue
ther the court below nor this court has had application
occasion to consider the of 28 appellee’s claim.
U.S.C. America,
UNITED STATES
Plaintiff-Appellee, BECK, Defendant-Appellant. Eldon
John America,
UNITED STATES of
Plaintiff-Appellee, DICKERSON, W.
John
Defendant-Appellant. 77-2453,
Nos. 77-2533. Appeals, Court of States
Ninth Circuit. 6, 1979.
June