*2 on, 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 ever 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 of 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 New 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 can 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 argued 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 California, 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 decades 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 venue (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 an 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-Conspirator 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, unanimously 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 any 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 California 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 the 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 theory 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 severance 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 98 L.Ed. 106. In (N.D.Cal.1961) co-conspira- v. Brunswick Co. rejected a district court had Elsewhere, Gi- rejection of theory 32 F.R.D. tor of venue and entered a severance have to conclude “If we would in dissent: Justice Frankfurter observed co-conspira- right [holding judge co-conspirator was we now had decide whether (346 agent].” 74 S.Ct. purposes U.S. at ‘agent’ is not an of venue tor as such is an J., dissenting).) (Frankfurter, at 150 under 15 U.S.C. it cannot be doubted

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 continued 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. rejection 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 Telephone 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.Supp. 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 dictum. (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 forum 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. Petroleum 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 pers, 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-conspirator 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.) ordered 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