967 F.Supp. 364 (E.D.Wis. 1997), C. A. 96-C-0959, Paper Systems Inc. v. Mitsubishi Corp.

Docket Nº:C. A. 96-C-0959
Citation:967 F.Supp. 364
Party Name:Paper Systems Inc. v. Mitsubishi Corp.
Case Date:June 19, 1997
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin

Page 364

967 F.Supp. 364 (E.D.Wis. 1997)

PAPER SYSTEMS INCORPORATED, Plaintiff,

v.

MITSUBISHI CORPORATION; Mitsubishi International Corporation; Mitsubishi Paper Mills Ltd.; Elof Hansson Paper & Board, Inc.; Kanzaki Specialty Papers; New Oji Paper Co., Ltd.; and Nippon Paper Industries, Co., Ltd.; Defendants.

Civil Action No. 96-C-0959.

United States District Court, E.D. Wisconsin.

June 19, 1997

Page 365

Beth J. Kushner, Von Briesen, Purtell & Roper S.C., Milwaukee, WI, Michael D. Hausfeld, Daniel A. Small, Sharon A. Snyder, Victoria C. Arthaud, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, Howard J. Sedran, Donald E. Haviland, Jr., Levin Fishbein Sedran & Berman, Philadelphia, PA, for Plaintiff.

Howard Pollack, James G. Schweitzer, Godfrey & Kahn, Milwaukee, WI, Richard E. Donovan, Mark S. Gregory, Kelley Drye & Warren L.L.P., New York City, for Defendants Kanzaki & Oji Paper.

Frank W. Doster, Arnstein & Lehr, Milwaukee, WI, Stanley M. Lipnick, David B. Goodman, George P. Apostolides, Arnstein & Lehr, Chicago, IL, for Defendant Elof Hansson.

Robert H. Friebert, Brian R. Smigelski, Friebert, Finerty & St. John, Milwaukee, WI, Jerold S. Solovy, Jenner & Block, Chicago, IL, for Defendant Mitsubishi Paper Mills.

Thomas M. Pyper, Whyte Hirschboeck Dudek, S.C., Madison, WI, for Defendants Mitsubishi Corp. and Int'l Corp.

David J. Cannon, Michael Best & Friedrich, Milwaukee, WI, Richard G. Parker, O'Melveny & Myers L.L.P., Washington, DC, for Defendant Nippon Cannon.

DECISION AND ORDER DENYING MOTIONS TO DISMISS

REYNOLDS, District Judge.

Paper Systems Incorporated ("Paper Systems") is suing the defendants for violations of section one of the Sherman Act, 15 U.S.C. § 1. Allegedly, the defendants conspired to fix the price of thermal fax paper. Two of the defendants Nippon Paper Industries, Co., Ltd. ("Nippon"), and New Oji Paper Company Ltd., ("Oji"), have moved to dismiss the complaint for lack of personal jurisdiction; both are alien corporations. See Fed.R.Civ.P. 12(b)(1). In the alternative, Oji asks the court to transfer the case to the Western District of Washington. The court denies the motions to dismiss and the motion to transfer. This court has jurisdiction over Nippon and Oji because Paper Systems can rely on 15 U.S.C. § 22 for service of process

Page 366

and because Nippon and Oji have substantial contacts with the United States. Transferring the case is inappropriate because Oji has not shown that the Western District of Washington is a more convenient forum than the Eastern District of Wisconsin.

As a preliminary matter, Paper Systems moved to file a sur-reply brief. Antitrust actions are often complicated with all parties wishing to have the last word. A sur-reply leads to a sur-sur-reply. The amount of paper filed in an antitrust action is large enough without extra briefs. The court denies the motion to file a sur-reply brief.

The facts for the dismissal motion are simple. Paper Systems admits that it cannot satisfy any of the Wisconsin Long Arm Statutes and that neither of the defendants have substantial contacts with the State of Wisconsin.1 In the District Court of Massachusetts, Nippon was a defendant in a criminal antitrust action involving a thermal fax price-fixing scheme. After Nippon moved to dismiss for lack of personal jurisdiction, the District Court of Massachusetts denied the motion, finding that service was proper under Fed.R.Crim.P. 4 and that Nippon has sufficient contacts with the United States of America to satisfy any due process concerns. Oji has not argued that it lacks substantial contacts with the United States of America.

As a preliminary to any action, a court must have subject matter jurisdiction (which no one disputes) and personal jurisdiction over the parties. In addition, the district in which the case is filed must be the proper venue for the action. A court has personal jurisdiction over a defendant if the plaintiff has properly served the defendant and if the defendant has sufficient contacts with the forum to satisfy procedural due process protections. Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 279, 283 (7th Cir. 1990). Rule 4 of the Federal Rules of Civil Procedure defines when service of process establishes personal jurisdiction over a defendant. If the plaintiff relies on a federal service of process statute, service establishes jurisdiction. Fed.R.Civ.P. 4(k)(1)(D). Many federal statutes, however, lack a service of process provision; in those cases, service establishes jurisdiction over the defendant if the defendant "could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located." Fed.R.Civ.P. 4(k)(1)(A).

I. Service of Process

Under 15 U.S.C. § 22:

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.

(emphasis added). Although Paper Systems relies on 15 U.S.C. § 22 for establishing jurisdiction over the defendants, Nippon and Oji argue that Paper Systems can use 15...

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