159 F.Supp. 706 (S.D.N.Y. 1958), Kamen Soap Products Co. v. Struthers Wells Corp.

Citation159 F.Supp. 706
Party NameKAMEN SOAP PRODUCTS CO., Inc., Plaintiff, v. STRUTHERS WELLS CORPORATION and The Titusville Iron Works Company, Defendants.
Case DateMarch 04, 1958
CourtUnited States District Courts, 2nd Circuit, Southern District of New York

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159 F.Supp. 706 (S.D.N.Y. 1958)



STRUTHERS WELLS CORPORATION and The Titusville Iron Works Company, Defendants.

United States District Court, S.D. New York

March 4, 1958

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David Ray Bernstein, New York City, for plaintiff.

Richard W. Smith, New York City, Isaac J. Silin, V. H. Elderkin, Jr., Erie, Pa., for defendants. Donovan, Leisure, Newton & Irvine, Robert M. Loeffler, New York City, Warren Bentz, Erie, Pa., of counsel.

FREDERICK van PELT BRYAN, District Judge.

This is an action for breach of a written agreement for the sale and delivery of two boiler burner units by the defendants to plaintiff, and for breach of warranties in such agreement. Plaintiff alleges that only one unit has been delivered instead of two, as the agreement calls for, and that the unit so delivered did not conform to specifications and warranties. It claims damages in the sum of $40,000.

Plaintiff is a New York corporation with offices in this district, defendant Struthers Wells Corporation a Maryland corporation, and defendant Titusville Iron Works Company a Delaware corporation. Jurisdiction is based on diversity of citizenship.

Defendant Titusville has moved to quash service of process and dismiss as to it on the grounds that it was not present in or amenable to service of process in this district, and was not properly served, and that the court has no jurisdiction over it. It also moves to dismiss upon the ground that there is another action pending involving the same subject matter in the Court of Common Pleas of Summit County, Ohio, and upon the ground that the complaint in the action does not conform to the requirements of the Federal Rules of Civil Procedure, 28 U.S.C.A., and, in the alternative, moves to strike various paragraphs of the complaint as redundant and immaterial.

Defendant Struthers Wells has now withdrawn a motion to quash service and dismiss on the grounds that process was not properly served upon it, and that this court has no jurisdiction over it. However, it presses motions to dismiss upon the grounds of the pendency of the Ohio action and alleged failure of the complaint to conform to the requirements of the Federal Rules and to strike various paragraphs of the complaint as redundant and immaterial.

Motion of Defendant Titusville to Quash Service and Dismiss for Want of Jurisdiction.

Plaintiff's contention that the objections of defendant Titusville to the jurisdiction have been waived because other motions directed to the complaint have been joined with them, has no merit. Under Rule 12(b), Federal Rules of Civil Procedure, jurisdiction over the person may be attacked either by motion or by answer. Even a voluntary general appearance does not constitute a waiver of this defense if it is properly raised in the answer. Kerr v. Compagnie de Ultramar & Transmar Corp., 2 Cir., 250 F.2d 860; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, certiorari denied Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573; Bank v. Bitker, 7 Cir., 135 F.2d 962;

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Emerson v. National Cylinder Gas Co., D.C.Mass., 131 F.Supp. 299.

The Titusville Iron Works Company is a Delaware corporation organized in 1928. It asserts that it was organized by defendant Struthers Wells Corporation solely for the purpose of perpetuating the name 'The Titusville Iron Company' which Struthers had acquired; that it has no assets and performs no functions other than filing annual reports as required by Delaware and Pennsylvania law, and that it does no business in New York or anywhere else and has no offices or employees in New York. It denies that it is a party to the agreement in suit or had anything to do with such agreement.

Defendant Titusville takes the position that plaintiff has confused it with a division of defendant Struthers Wells Corporation located in Titusville, Pennsylvania, which uses the name 'The Titusville Iron Works Company-- Division of Struthers Wells Corporation' and is an integral part of Struthers Wells having no separate entity. Defendant Titusville therefore contends that it was never present in New York, that it had no agent there on whom service of process could be made, and that this court has acquired no jurisdiction over it.

Plaintiff, on the other hand, asserts that The Titusville Iron Works Company--Division of Struthers Wells Corporation, is, in fact, the Delaware corporation of that name which was a party to the contract in suit, which does business and maintains offices in New York and which is represented by an agent there who was properly served with process on its behalf.

The facts, in so far as they are disclosed by the papers now before me, appear to be as follows:

The agreement in suit consists of a written offer by the seller, and an acceptance signed by the plaintiff and approved by the seller. The offer is headed 'The Titusville Iron Works Company' in large letters. On a separate line underneath this heading in very much smaller letters is the phrase 'Division of Struthers Wells Corporation'. The address is given as 30 Rockefeller Plaza, New York, with a Plaza telephone number. The offer is addressed to the plaintiff and relates to 'Titusville boiler burner units'. The printed signature at the end of the offer form is 'Yours very truly, The Titusville Iron Works Company' with no qualifying words. Plaintiff's acceptance is approved by 'J. L. Dowed, Sales Manager, The Titusville Iron Works Company', and followed by the words in smaller letters 'Division of Struthers Wells Corporation'.

During the contract negotiations several letters were received by plaintiff on stationery headed in the same manner as the offer. These letterheads list under the word 'Plants', 'Titusville Iron Works Company, Titusville Forge Company, Titusville, Pa.', as well as 'Struthers Wells Co., Warren, Pa.' These letters closed 'Yours very truly, The Titusville Iron Works Company', and were signed by J. C. Cordner and J. L. Dowd, respectively, purportedly on its behalf.

The Manufacturer's Data Report concerning the one boiler which was delivered to plaintiff's plant lists the manufacturer as 'The Titusville Iron Works Company, Titusville, Pa.' It is signed by 'The Titusville Iron Works Company, by A. W. Burnite, Representative '. The certificate of boiler shop inspection states that the boiler was inspected at the 'Boiler works of the Titusville Iron Works Co. at Titusville, Penna.'

Titusville Iron Works Company is separately listed in the New York telephone directory with an address at 30 Rockefeller Plaza, the same address and telephone number as Struthers Wells Corporation, without any language designating it as a division of Struthers, and is also listed in the Dun & Bradstreet reports of this year.

Thus, it appears that there is a Delaware corporation called 'The Titusville Iron Works Company'; that it has a corporate existence not only in Delaware but in Titusville, Pennsylvania, where the

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plant of 'The Titusville Iron Works Company' is located; that the company has a New York office which is listed in the New York telephone directory and that it enters into contracts in its own name, and, indeed, seems to have done so in the case at bar; and that it has representatives in New York who act for it here, whether they be on its payroll or not. It uses or permits the use of its precise corporate name in regular business transactions, not even accompanied in many instances by the allegedly limiting words 'Division of Struthers Wells Corporation'.

It is true that Struthers Wells Corporation is apparently the parent of Titusville Iron Works Company and controls it and that the secretary and treasurer of Struthers is also the treasurer of Titusville.

But this does not demonstrate that...

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