251 F. 631 | N.D. Ohio | 1918
Defendants, D. Sendaud De Favaud and Fernando Arens, Jr., move to dismiss complainant's bill for want of jurisdiction, on the ground that they are not inhabitants of this district, that they did not infringe, and have no established place of business therein.
Complainant’s bill was filed September 13, 1916. It alleges that the defendant corporation is organized and existing under and by virtue of the laws of the republic of Brazil, and that the two individual defendants are citizens and residents of that republic. All three defendants are jointly charged with infringing complainant’s patents within the Eastern division of the IKForthern district of Ohio, and elsewhere in the United States. Process was returned served on the individual defendant D. Sendaud De Favaud only.
The two individual defendants on November 10, 1917, filed the present motion. In support of this motion it is urged that neither of the defendants is an inhabitant of this district, but that both are alien citizens of the republic of Brazil; that none of the defendants has a place of business within this district, and that the tender of proof of infringement does not show that the defendants, or any of them, have committed acts of infringement within this district; or, if the exhibition of the infringing machine within the district is to be considered in law an act of infringement, it is so trivial as to be beneath the cognizance of a court of equity. I am of opinion that this motion should be overruled on two grounds:
The question involved is common to all causes of action cognizable in a federal court, and this holding has been made in actions other than those arising under the patent laws in the following cases: First National Bank v. Morgan, 132 U. S. 141, 10 Sup. Ct. 37, 33 L. Ed. 282; Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286, 38 L. Ed. 98; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401; In re Moore, 209 U. S. 491, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Western Loan Co. v. Butte Mining Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101; Kreigh v. Westinghouse Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984.
In this case, as appears from the facts above stated, the two individual defendants appeared generally to the action and answered to the merits before the motion to dismiss was made. From this it follows that the objection that the defendants are sued in a district in which they are not inhabitants, or in a district in which they did not infringe and did not have an established place of business, is waived. It is open
Defendants’ motion to dismiss will be overruled.