Kogan v. Longstreet
Citation | 374 F. Supp. 47 |
Decision Date | 29 March 1974 |
Docket Number | No. 73 C 2582.,73 C 2582. |
Parties | Herman KOGAN and Lloyd Wendt, Plaintiffs, v. Stephen LONGSTREET and David McKay Company, Inc., Defendants. |
Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
Dennis D. Dicks, Chicago, Ill., for plaintiffs.
Patrick W. O'Brien and William Thomas Braithwaite, of Mayer, Brown & Platt, Chicago, Ill., for defendants.
This cause comes on the defendants' motion to dismiss the complaint because of improper venue.
This action seeks to redress the alleged violation of the copyright laws of the United States. The plaintiffs Herman Kogan and Lloyd Wendt are authors and residents of the State of Illinois. The defendant Stephen Longstreet is allegedly a citizen and resident of the State of California. The defendant David McKay Company, Inc. ("McKay") is a New York corporation engaged in the business of publishing books and other literary works. The defendant McKay is licensed to do business in the State of New York and has acted as agent for the defendant Longstreet in connection with all matters pertaining to the publishing, selling and distribution of a certain book written by defendant Stephen Longstreet.
This Court's jurisdiction is allegedly based on 28 U.S.C. § 1338. The amount in controversy allegedly exceeds the sum of $10,000 exclusive of interest and costs.
The plaintiffs in the complaint allege inter alia the following facts:
The Defendants in support of the instant motion contend:
The Plaintiffs in opposition to the instant motion contend that:
It is the opinion of this Court that the motion to dismiss should be denied because this Court appears to have proper venue over the instant controversy.
The basis for jurisdiction alleged in plaintiffs' complaint is 28 U.S.C. § 1338(a) which provides:
The federal statutory copyright provision, 28 U.S.C. § 1400(a) states:
"(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights may be instituted in the district in which the defendant or his agent resides or may be found."
Defendant Longstreet resides in California and Defendant McKay in New York. Venue in the Northern District of Illinois is proper only if the defendants, or one of them, is "found" here. The parties have agreed that if the defendant McKay, the agent of Longstreet, is "found" in the Northern District, so too will Mr. Longstreet be "found" here.
As a practical matter, the test for determining whether a non-resident corporation or its agent is "found" within a district, pursuant to 28 U.S.C. § 1400(a), is the same as that for determining whether a corporation is amenable to suit in a jurisdiction other than that in which it is incorporated. See: Backer v. Gonder Ceramic Arts, 90 F. Supp. 737 (S.D.N.Y., 1950); Geo-Physical Maps v. Toycraft Corporation, 162 F.Supp. 141 (S.D.N.Y., 1958); Gauvreau v. Warner Bros. Pictures, Inc., 178 F.Supp. 510 (S.D.N.Y., 1958). In so far as the defendant McKay is concerned, the questions of personal jurisdiction and of venue are one and the same. See Geo-Physical Maps v. Toycraft Corporation, supra.
In order for a non-resident corporate defendant to be amenable to suit in this district under the standards enunciated in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), it must affirmatively appear that the defendant's activities in the Northern District of Illinois were so systematic and continuous as to make it present in this jurisdiction for the purposes of service of process.
It has also been recognized that the copyright statute does not require a stronger finding of presence with its reference to "may be found" than is usually required in order to obtain jurisdiction over a corporate defendant. Boltons Trading Corporation v. Killiam, 320 F.Supp. 1182 (S.D.N.Y., 1970). In other words, the standard is the same whether jurisdiction is determined with reference to the relevant state long-arm statute or with reference to the copyright statute.
The legislative intent of the Illinois long arm statute (Chapter 110, §§ 16 and 17 of the Illinois Revised Statutes) is to exert jurisdiction over nonresidents to the extent permitted under the due process clause. O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir., 1971); Hutter Northern Trust v. Door County Chamber of Commerce, 403 F.2d 431 (7th Cir., 1968); Nelson v. Miller, 11 Ill.2d 378, 143 N.E. 2d 673 (1957); Ziegler v. Houghton-Mifflin Co., 80 Ill.App.2d 210, 224 N.E. 2d 12 (1967). The due process implications of the extension of personal jurisdiction over nonresident defendants were settled in International Shoe Co. v. State of Washington, supra; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L.Ed.2d 1283 (1958). The thrust of these decisions is that sufficient "minimum contacts" must exist in the forum state so that jurisdiction over nonresident defendants is reasonable and just according to traditional concepts of fair play and substantial justice. There is no set formula or rule of thumb for determining whether there are sufficient minimum contacts short of...
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