Anniston Soil Pipe Co. v. Central Foundry Co., Civ. A. No. 1081.

• Citation: 216 F. Supp. 473
• Decision Date: 30 April 1963
• Docket Number: Civ. A. No. 1081.
• Parties: ANNISTON SOIL PIPE COMPANY, a corporation, Plaintiff, v. CENTRAL FOUNDRY COMPANY, a corporation, and Sidney Gondelman, Defendants.
• Court: U.S. District Court — Northern District of Alabama

216 F. Supp. 473

ANNISTON SOIL PIPE COMPANY, a corporation, Plaintiff, v. CENTRAL FOUNDRY COMPANY, a corporation, and Sidney Gondelman, Defendants.

Civ. A. No. 1081.

United States District Court N. D. Alabama, W. D.

April 30, 1963.

Berkowitz & Lefkovits, and Don M. Jones, Birmingham, Ala., for plaintiff.

Royall, Koegel & Rogers, New York City, and Clement, Rosen, Hubbard & Waldrop, Tuscaloosa, Ala., for defendants.

LYNNE, Chief Judge.

By motion to dismiss, defendant, The Central Foundry Company, a corporation, advances the contention that its principal place of business, 28 U.S.C.A. § 1332(c), is Holt, Alabama, and that there is therefore lacking diversity of citizenship between it and plaintiff, an Alabama corporation.

Proceeding to a determination of the threshold jurisdictional issue in limine on a special hearing, Birmingham Post Company v. Brown, 217 F.2d 127 (5th Cir.1954) the court has heard and considered all relevant evidence adduced by the parties.

The Central Foundry Company is a corporation organized and existing under the laws of the State of Maine. It is engaged in the manufacture and sale of soil pipe and fittings, selling its product throughout the United States and abroad.

At one time, it had production facilities in New Jersey and Alabama. In recent years, all of its production facilities and plant have been located at Holt, Alabama. For several years prior to 1960 its executive offices were located in Newark, New Jersey; in 1960 they were moved to New York City. Presently such offices are located at 932 Broadway, New York City, New York. Its president and chairman of its board, Mr. Sidney Gondelman; its executive vice president, Mr. William Maidman; its secretary, Mr. H. L. Grayson; its treasurer, Mr. R. J. Hanwell; its assistant treasurer, a Mr. Kyle; and its director in charge of its operations at Holt, Alabama, Mr. R. R. Fisher, neither of whom, except for Mr. Fisher, has had any experience in foundry operations or heavy manufacturing, are all residents of New York and maintain their offices at 932 Broadway, New York City, New York.

The only officer of the company who is not resident of and whose office is not located in New York is Mr. John J. Bowers whose office is that of vice president, whose title is also plant manager, and who manages the company's operations at Holt, Alabama, working directly under the supervision and control of Mr. R. R. Fisher, the director of Holt operations, who spends approximately eighty-five per cent of his time in New York and fifteen per cent at Holt, Alabama.

Mr. J. J. Flynn is the vice president of the company in charge of sales. His staff and office are located in New York. He makes all determinations as to whom the company shall sell, the price at which the company's products will be sold and, in collaboration with the company's assistant treasurer, whether or not a customer of the company will be extended credit and the terms of such credit so extended.

Sales of the company's products are made to its patrons and customers through manufacturers' representatives, who are residents of various states. All payments for the products of the company purchased by its patrons and customers are directed to be made and, in fact, are made at the company's offices in New York and the invoices received by customers so instruct. When funds are received in payment of accounts receivable, they are deposited in the company's New Jersey and New York bank accounts.

The total sales of the company for the year 1962 were approximately $25,000,000.00. The orders for eighty per cent or more of such sales were forwarded to, shipped and billed from the company's plant at Holt, Alabama.

The company employs 55 persons in the State of New York, 22 of whom are classified as exempt under the Fair Labor Standards Act, and employs 1,890 at Holt, Alabama, 49 of whom are classified as exempt under the Fair Labor Standards Act.

In addition to its executive offices at New York and its production facilities at Holt, Alabama, the company maintains a warehouse at Forest Hills, New York, and a warehouse and depot at Newark, New Jersey, from which the company ships to its customers in those areas approximately $3,000,000.00 in annual sales of its products.

The total annual payroll of officers and employees of the company at its offices in New York is approximately $500,000.00, the average per employee being approximately $9,000.00 annually. The total annual payroll at Holt, Alabama is approximately $9,200,000.00, the average per employee being approximately $4,800.00.

The physical assets of the company in the State of New York, excluding its bank funds and receivables, have a book value of approximately $60,000.00. The company's physical assets located at Holt, Alabama have a book value of approximately $5,695,000.00.

The production and manufacturing facilities of the company are located on a one hundred ten acre tract owned by the company at Holt, Alabama. The engineering functions of the company are located at Holt, Alabama and all production, based upon orders approved in New York, are scheduled there. The company...