Stirling Homex Corporation v. Homasote Company
| Citation | 437 F.2d 87 |
| Decision Date | 25 January 1971 |
| Docket Number | No. 384,Docket 35428.,384 |
| Parties | STIRLING HOMEX CORPORATION, Plaintiff-Appellant, v. HOMASOTE COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
William D. Hall, Washington, D. C. (John R. Garrity, Rochester, N. Y., on the brief), for plaintiff-appellant.
Frederick A. Zoda, Trenton, N. J. (Charles Shepard, Rochester, N. Y., on the brief), for defendant-appellee.
Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.
Stirling Homex Corp. sought a declaratory judgment in the District Court for the Western District of New York decreeing that its use of the word "Homex" in connection with prefabricated housing modules did not infringe the Homasote Company's trademark for masonry expansion joint fillers. The district court dismissed Stirling's complaint because it failed to allege that the district court had personal jurisdiction over the defendant.1 Leave to file an amended complaint was denied, on the ground that Stirling could not "cure retroactively service that was defective when made." We reverse.
Rule 8(a) of the Federal Rules of Civil Procedure prescribes the rather simple requirements of a sufficient complaint. Besides a straightforward statement of the claim and a demand for judgment, the complaint need contain only "a short and plain statement of the grounds upon which the court's jurisdiction depends, * * *" Any doubt that the term "jurisdiction" in this context refers to subject matter rather than personal jurisdiction can be resolved by reference to Form 2 of the Rules, which speaks only of subject matter jurisdiction. See Rule 84. Cf. Chambers v. Blickle, 312 F.2d 251 (2d Cir. 1963).2
Because the district court may also have dismissed the complaint on the mistaken belief that personal jurisdiction did not lie, we note that we are of the view that Homasote was "doing business" in New York and that effective service of original process was made, thereby vesting the court with jurisdiction of the defendant. A Homasote salesman operating exclusively in the Western District of New York regularly solicited orders from the company's seven distributors in the area, and inspected "hundreds" of construction sites where Homasote products were in use. Moreover, Homasote drivers made deliveries in the district twice weekly using trucks leased by the company and the total value of these deliveries in 1969 exceeded $750,000. It is clear that Homasote had subjected itself to the jurisdiction of the New York courts pursuant to § 301 of the New York Civil Practice Law and Rules. CPLR §§ 311, 313 authorize out-of-state service on an officer of such corporations. Here, Homasote's president was personally served...
To continue reading
Request your trial
-
In re Nat. Century Fin. Enterpr., Inc., Inv. Lit., No. 2:03md-1565.
....... Crown Cork & Seal Company, Inc., et al., Plaintiffs, . v. . Credit Suisse First ...Lauderdale, FL, for Biosource Corporation. . Bobby R. Burchfield, Covington & ... Page 880 . only); Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir.1971) ......
-
Lincoln Benefit Life Co. v. AEI Life, LLC
...Form 7 ; Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1090 (D.C.Cir.1998) ; Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir.1971), our decisions in the personal-jurisdiction context also support the notion that jurisdictional discovery is not availabl......
-
Hagen v. U-Haul Co. of Tennessee
...jurisdiction. See Milwee v. Peachtree Cypress Inv. Co., 510 F.Supp. 279, 283-84 (E.D.Tenn.1977); (citing Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir.1971)). Even if there were such a pleading requirement,11 the Plaintiffs in this case would have satisfied it. The Hagens' c......
-
Joint Stock Soc. v. Heublein, Inc., Civil Action No. 95-749-RRM.
...... IMPERIAL COURT" and The Russian American Spirits Company, Plaintiffs, . v. . HEUBLEIN, INC. and International ... Spirits Company ("RASCO") is a Delaware corporation with its principal place of business in Connecticut. ... Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir.1971) ......