124 F. 234 | U.S. Circuit Court for the District of Northern California | 1903
While this is an action for the infringement of letters patent, the question of infringement is eliminated from discussion because of a ruling by the Circuit Court of Appeals of this circuit concerning the same patent in another case.
This action turns upon a question of jurisdiction, resulting from the act of Congress approved March 3, 1897 (29 Stat. 695, c. 395 [U. S. Comp. St. 1901, pp. 588, 589]), entitled “An act defining the jurisdiction of United States Circuit Courts in cases brought for the infringement of letters patent,” which contains the following, among other provisions:
“That in suits brought for the infringement of letters patent the Circuit Courts * * * shall have jurisdiction * * * in the district of which the defendant is an inhabitant, or in any district in which the defendant * * * shall have committed acts of infringement and have a regular and established place of business.”
The design in the passage of this act, as well as its import, as worded, is so clear as to be without the range of doubt or discussion. It is simply that in patent cases the defendant must be sued in the district of his inhabitancy, or in that where he has infringed the patent and has a place of business. If he is sued in any other place, he may, by the proper procedure, have the action dismissed. But the turning question is whether he may waive his right of dismissal when sued in the wrong district, and permit the action to proceed to final judgment, or does this statute establish such an imperative rule of jurisdiction that no waiver can prevent the dismissal of the action, whenever it appears to the court that it was not commenced in the proper district ? The complainant’s contention is that a defendant may waive his right of forum, and that he does so when he fails, on his first appearance in the action, to make objection to the court’s jurisdiction. It appears that the defendant herein not only entered a general appearance in the action, but filed several pleadings before raising the question of jurisdiction, which was first done in the answer.
We are all familiar with the act of 1887 (Act March 3, 1887, c. 373, § 1, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508]) providing for the jurisdiction of Circuit Courts, and with the provision thereof which directs that “no civil action shall be brought before either of said courts against any person * * * in any other district than that whereof he is an inhabitant.” This statute is as imperative and as clear as that first above referred to. Its most apparent construction is that jurisdiction is limited to the district of defendant’s residence. Considering
Several rulings were referred to by counsel which were oral, and therefore not before me. As counsel differed concerning their effect, they are passed.
After careful consideration, I do not think I would be justified in entertaining the views urged by defendants, but must hold that the ruling applied in 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401, to the statute of 1887, must be followed in the construction of the statute under consideration. It is therefore held that, as to defendant Phoenix Raisin Seeding & Packing Company, this action cannot be dismissed, but it is dismissed as to defendant Gartenlaub, for the reason that it appears that in what he did he acted only as an officer of the defendant company.
The complainant is entitled to its judgment and decree against the defendant company.