Brandt v. Renfield Importers, Ltd.

• Decision Date: 25 July 1960
• Docket Number: No. 16359.,16359.
• Citation: 278 F.2d 904
• Parties: Harry BRANDT, d/b/a University City House of Liquors, et al., Appellants, v. RENFIELD IMPORTERS, LTD., a Corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

278 F.2d 904 (1960)

Harry BRANDT, d/b/a University City House of Liquors, et al., Appellants, v. RENFIELD IMPORTERS, LTD., a Corporation, et al., Appellees.

No. 16359.

United States Court of Appeals Eighth Circuit.

April 27, 1960.

Rehearing Denied July 25, 1960.

J. L. London, St. Louis, Mo., for appellants.

Richmond C. Coburn, St. Louis, Mo., for appellee, Renfield Importers, Ltd.

Donald J. Meyer and Lewis C. Green, St. Louis, Mo., for appellee Julius Wile Sons & Co., Inc.

R. Walston Chubb, St. Louis, Mo., and Earl E. Pollock, Chicago, Ill., for appellee James B. Beam Distilling Co.

Before GARDNER, WOODROUGH, and BLACKMUN, Circuit Judges.

WOODROUGH, Circuit Judge.

This action was brought by eighteen retail liquor dealers doing business in St. Louis, Missouri, and vicinity, against fourteen distillers, distributors, wholesalers, and retailers of liquor for injunction and treble damages for alleged violations of the Sherman Act, 15 U.S.C.A. § 1 et seq., the Clayton Act, 15 U.S.C.A. § 12 et seq., and the Robinson-Patman Act, 15 U.S.C.A. §§ 13, 13a, 13b, 21a.

The complaint alleged that the defendants created a monopoly in the retail liquor business in violation of the antitrust laws; that they had conspired to monopolize and have monopolized the trade and commerce in said liquor and the retail distribution thereof in St. Louis, Missouri, and vicinity.

The case was heretofore before this Court on an appeal by the plaintiffs from three orders entered by the District Court on November 20, 1958, which severally dismissed the case as to three defendant corporations, Renfield Importers, Ltd. (referred to as Renfield), James B. Beam Distilling Company (referred to as Beam), and Julius Wile Sons and Company (referred to as Wile), for improper venue and lack of jurisdiction over the person.

The plaintiffs contended on that appeal that the three defendants were "transacting business" in the Missouri judicial district where the suit was brought so that the venue was proper and as they were properly served at their principal places of business, the jurisdiction of the persons was complete. The three orders then appealed from each contained a provision and direction for the entry of a final judgment of dismissal of one of the three defendants in accordance with Rule 54(b) of the Federal Rules of Civil Procedure 28 U.S.C.A. This Court was of the view that the action as disclosed by the complaint did not involve multiple claims within the purview of the Rule but rather a single claim of conspiracy joined in by all defendants and that the orders dismissing the three defendants were not final orders and therefore not appealable. It accordingly dismissed the appeal without consideration of the merits of appellants' contentions and remanded the case for further proceedings, 8 Cir., 269 F.2d 14.

After the mandate of this court was entered in the District Court and on August 6, 1959, the plaintiffs entered voluntary nonsuit as to all the defendants in the case excepting Renfield, Beam, and Wile, and with approval of the Court, dismissals without prejudice were entered as to all defendants except the three. On the same day the Court in finally disposing of the action as to the remaining three defendants entered an order in which it referred to the mandate of this Court and to the three orders of dismissal which it had entered on November 20, 1958 in favor of the three defendants and after ordering that those former orders be amended so that the provision and direction based on Rule 54(b) which it had included in those orders be stricken from them, ordered "the aforesaid orders and each of them in all other respects to remain in full force and effect as heretofore entered."

The plaintiffs have taken this appeal from that order of August 6 to obtain reversal of the dismissals of the case as to the three defendants and they contend that the Court erred in sustaining said defendants' respective motions to quash service of process and to dismiss the three defendants for improper venue and lack of jurisdiction of the person. They insist that each of the three defendants is transacting business in the Eastern Judicial District of Missouri within the meaning of 15 U.S.C.A. § 22 (§ 12 of the Clayton Act) and that venue is proper as to each and service at their respective places of business outside of Missouri where they were "found" was sufficient.

The appellee Beam has filed a motion to dismiss this appeal on the ground that the order appealed from is not a final order but we do not find the motion to be meritorious. Although the order of the District Court of August 6, 1959 does not repeat the express words of dismissal that were contained in its previous three orders of November 20, the reference the Court made to those orders and the declaration that the orders and each of them (as amended) were "to remain in full force and effect as heretofore entered" left no ambiguity or uncertainty about the Court's final decision and judgment that the three defendants were not transacting business in the Missouri judicial district and that the case against them was dismissed for that reason. The entry of the order of August 6th afforded the plaintiffs their first opportunity to take a valid appeal from the ruling and order of the District Court dismissing the three defendants and they promptly filed Notice of Appeal. The Notice describes the orders referred to therein which are continued in effect thereby and clearly identifies the proceedings and judgment which the appellants claim to be erroneous. It establishes this Court's jurisdiction to review the dismissals.

The only question of merit in this appeal is whether the District Court erred in holding that the Renfield, Beam, and Wile corporations were not "transacting business" in the Missouri judicial district within the intendment of § 12 of the Clayton Act, 15 U.S.C.A. § 22. That section provides:

"Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found."

The District Court in its opinion (unreported) briefly related the facts relative to the issue as they had been proved without dispute by affidavits of the officers and employees of the three defendants and counsel for appellants have not departed from but have somewhat amplified the Court's statement of facts in accord with the evidence and without dispute.

All three of the appellees are "foreign corporations" as to Missouri, the principal offices of Renfield and Wile being in New York, N. Y. and that of Beam being in Chicago, Ill. Each of them was served with process at its principal office. Each of them had an outstate liquor license for and issued to it by the Supervisor of Liquor Control of Missouri pursuant to § 311.060, subd. 5. The cost of the licenses is $250.00 annually. § 311.180, subd. 1(6).

As to the Beam Company. Its selling operations are centered at its main office in Chicago and it has no branch office of any kind in Missouri. It has selected and sells and ships its products to only two licensed distributors in the Missouri district, namely Conrad, Inc., and Manhattan Distributing Co., both of St. Louis, in neither of which does it have any financial interest. It receives its orders for Beam liquors from those distributors at its Chicago office and rejects them or accepts them and makes all deliveries against those accepted by delivering to carriers at its distillery or rectifying plant at Clarmont, Kentucky, f. o. b. that plant, thereby passing title to the goods in Kentucky. It has no stock of merchandise in warehouses or otherwise in Missouri, and no real or personal property there. It maintains a checking account in a St. Louis bank and has there pledged collateral for a loan. Deposits and checks to and from the account are sent from Chicago, where all advertising also is planned and prepared. Beam employs a detail man on a straight salary who resides in the district but has no office or company automobile or Beam stationery with his name on it, but visits retailer-customers of the distributors not on any regular schedule and without any incentive compensation based on sales. He carries no order blanks, has no authority to make sales, or to make adjustments, collections, or credits, and his sole function is promotional in nature, namely, to stimulate interest in Beam's products and to persuade retailers handling Beam's products to give them proper shelf space and display. He has no stock of samples or inventory. He is occasionally requested to make notations of retailer's requisitions for Beam products and relays such requests to Beam's two distributors. Beam's vice president, Mr. Gertz, supervises the sale of Beam's products to distributors in thirteen states — calling on the distributors at irregular intervals — averaging once every other month on those in Missouri — not for the purpose of taking orders but if given an order by a distributor he transmits it to Beam's office at Chicago for acceptance and processing. Beam is not qualified under the general corporation statute to do business in Missouri as a foreign corporation and has not designated an agent for service of process there. No officer, agent, employee, or director of Beam maintains an office in the district and no officer or director resides therein and no stockholders' or directors' meeting has ever been held there. In 1957 Beam sold $446,000.00 worth of its products to its distributors in the Missouri district of suit, which was 0.7% of all Beam's sales in that year.

As to Renfield. In 1956 Renfield Importers, Ltd., sold $1,580,818.60 worth of goods to its distributors in the district of suit. In 1957, it sold $1,313,947.98 worth of its products in...