564 F.2d 681 (5th Cir. 1977), 76-3040, Black v. Acme Markets, Inc.

Docket Nº:76-3040
Citation:564 F.2d 681
Party Name:A. L. BLACK et al., Plaintiffs-Appellants, v. ACME MARKETS, INC., et al., Defendants, First National Stores, Inc., Defendant-Appellee.
Case Date:December 09, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 681

564 F.2d 681 (5th Cir. 1977)

A. L. BLACK et al., Plaintiffs-Appellants,


ACME MARKETS, INC., et al., Defendants,

First National Stores, Inc., Defendant-Appellee.

No. 76-3040

United States Court of Appeals, Fifth Circuit

December 9, 1977

Page 682

Richard E. Green, Hereford, Tex., Joseph M. Alioto, San Francisco, Cal., for plaintiffs-appellants.

Charles I. Thompson, Jr., James D. Coleman, Philadelphia, Pa., A. W. Sorelle, III, Harlow Sprouse, Amarillo, Tex., for First Nat. Stores.

Chester Bedell, John A. DeVault, III, Charles P. Pillans, III, Jacksonville, Fla., for Winn-Dixie Stores, Inc.

Robert H. Smith, Amarillo, Tex., Morgan, Lewis & Bockius, Philadelphia, Pa., for Acme Markets, Inc.

Fred H. Bartlit, Jr., Chicago, Ill., for National Provisioner, Inc.

Jess B. Hawley, Boise, Idaho, for Albertson's Inc.

Gerald S. Cook, Detroit, Mich., for Allied Super Markets, Inc.

Alf R. Brandin, San Francisco, Cal., for Arden Mayfair.

William D. Baker, Phoenix, Ariz., for Circle K Corp.

George B. Haley, Atlanta, Ga., for Colonial Stores.

Appeal from the United States District Court for the Northern District of Texas.

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal from an order granting defendant's motion to dismiss for lack of personal jurisdiction and improper venue. The defendant, First National Stores, is one of a large group of supermarket chains whom the plaintiffs, Texas producers and feeders of cattle, accuse of conspiring together to depress the price of beef in violation of the anti-trust laws. 1 The defendant is a Massachusetts corporation with its headquarters in Somerville. Process was served by substituted service upon the Secretary of State of the State of Texas pursuant to the Texas long-arm statute. Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon) (1964).

The Secretary of State sent the complaint and summons by certified mail to the defendant in Massachusetts. First National moved to dismiss the complaint for improper venue and lack of personal jurisdiction and to quash service of process. An affidavit, the factual averments of which were not controverted, was submitted in support of the motion to dismiss. Based upon the affidavit and the complaint, the district court ruled that venue in the Northern District of Texas was improper either under the special venue provisions of the antitrust laws, 15 U.S.C. § 15; 15 U.S.C. § 22, or the general venue statute, 28 U.S.C. § 1391(b).

Page 683

The court also concluded that service pursuant to the Texas long-arm statute was insufficient and did not confer personal jurisdiction over the defendant because First National did not have the requisite minimum contacts with Texas.


The affidavit showed that First National does not maintain an office, warehouse or place of business in Texas; that none of its sixteen thousand employees reside in Texas; that it has not appointed an agent for receipt of process in Texas; that it solicits no business and makes no sales in Texas; that it purchases no beef products of any kind from any person in Texas; and that it does not contract with any person located in Texas. In 1975, however, First National purchased aluminum foil from Arrow Industries, Carrollton, Texas, in an amount valued at.$374,698 and salad oil, salad dressing and shortening in an amount valued at $1,069,444 from Anderson Clayton Foods, Inc., headquartered in Dallas, Texas. The salad dressing was purchased through an independent broker located in Massachusetts; the salad oil and shortening were ordered directly. The foil purchases were made by telephone or mail contact with the Texas producer. Additionally, First National purchased $64,529 worth of turkeys from Armour Food Co., Lampassas, Texas. As a result of this purchase and temporary storage of the turkeys in a Dallas warehouse, First National paid $364.55 and $1,929.41 taxes to the county and city of Dallas, respectively. 2 The complaint alleged that the defendants had conspired together to depress beef prices and that this conspiracy had injured the plaintiffs' businesses in Texas. 3


The parties have framed the issue of personal jurisdiction in terms of the prerequisites to jurisdiction over an out-of-state corporation under the Texas long-arm statute. Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964). 4 Both sides, however, partially

Page 684

misconceive the question of personal jurisdiction in this case. When a federal statute provides for nationwide service of process, the court has jurisdiction over the person so long as the manner of service is proper and constitutional limits on extra-territorial service are respected. See, e. g., Hilgeman v. Nat'l Ins. Co. of America, 547 F.2d 298 (5th Cir. 1977); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1339-44 (2d Cir. 1972).

Section 12 of the Clayton Act, 15 U.S.C. § 22, permits service of process in anti-trust actions in any district of which the defendant corporation is an inhabitant, or wherever it may be found. In the typical case, the defendant might be served with process by a U.S. Marshal or by registered mail at its corporate headquarters, see Fed.R.Civ.P. 4(c), 4(e), 4(f); see also Hilgeman v. Nat'l Ins. Co. of America, 547 F.2d 298, 301 (5th Cir. 1977); Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191, 192 (E.D.Pa.1974); Kramer v. Scientific Control Corp., 365 F.Supp. 780, 787 (E.D.Pa.1973); Emerson v. Falcon Mfg. Co., 333 F.Supp. 888 (S.D.Tex.1971); cf. Chemical Specialties Sales Corp.-Indus. Div. v. Basic Inc., 296 F.Supp. 1106, 1109 (D.Conn.1968); Raul Int'l Corp. v. Nu-Era Gear Corp., 28 F.R.D. 368, 371 (S.D.N.Y.1961). In such cases, the requirements of state long-arm statutes are simply irrelevant to the in personam jurisdiction of a federal court.

In this case, brought in the Northern District of Texas, service of process was made in the manner prescribed by the Texas long-arm statute. Service pursuant to a state long-arm statute is clearly permissible, even when the cause of action is one under the federal anti-trust laws; purely federal procedures for service have no monopoly in anti-trust actions. Bd. of City Comm'rs v. Wilshire Oil Co. of Texas, 523 F.2d 125 (10th Cir. 1975); Lone Star Package Car Co. v. Baltimore and Ohio Ry. Co., 212 F.2d 147, 152 (5th Cir. 1954); Hitt v. Nissan Motor Co., 399 F.Supp. 838, 846-54 (S.D.Fla.1975); Chemical Specialties Sales Corp.-Indus. Div. v. Basic Inc., 296 F.Supp. 1106, 1109 (D.Conn.1968). Just as there are many roads to Rome, there is more than one avenue to personal jurisdiction in anti-trust cases. The route travelled here, from Section 12 of the Clayton Act to the provisions of the state long-arm, is, however, a tortuous one through Rule 4 of the Federal Rules of Civil Procedure.

The first signpost along the road is Rule 4(e). Rule 4(e) provides:

(e) Same: Service Upon Party Not Inhabitant of or Found Within State. Whenever a statute of the United States or an order of court thereunder provides for service of a summons . . . upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or...

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