Beech-Nut Packing Co. v. P. Lorillard Co.
| Decision Date | 09 June 1921 |
| Citation | 287 F. 271 |
| Parties | BEECH-NUT PACKING CO. v. P. LORILLARD CO. |
| Court | U.S. District Court — Southern District of New York |
Philip B. Adams, of New York City, for complainant.
Meyers Cavanagh, Whitehead & Hyde, of New York City, for defendant.
AUGUSTUS N. HAND, District Judge. The bill of complaint alleges (a) infringement of a registered trade-mark, (b) unfair competition.
The complainant is a corporation of the state of New York, and its principal office and place of business is at Canajoharie in the Northern district. The defendant is a New Jersey corporation, which has obtained a certificate to do business in the state of New York, and has designated a person on whom process may be served for the corporation within said state. The place within the state which was designated as the principal place of business was No. 119 West Fortieth street and the person designated to receive process was G. T Minnigerode, who filed his consent to the designation pursuant to the New York statute. Section 51 of the Judicial Code (Comp. St. Sec. 1033) provides:
' * * * No civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'
It is true that where a federal question exists, or diverse citizenship exists, the venue of the action may be waived but I find no case in the federal court which holds that such a waiver is effectuated by a consent executed under a state statute that process may be served upon a designated person. It was made clear in Chipman, Ltd., v. Jeffrey, 251 U.S. 373, 40 Sup.Ct. 172, 64 L.Ed. 314, that if a defendant was doing business in the state this court could obtain jurisdiction over its person by serving a designated agent, but that was quite different from holding that doing business, or appointing an agent, was a waiver of the right to insist upon being sued in the proper district. The only question which really arose in the case of Chipman, Ltd., v. Jeffrey, supra, was whether the presence of a designated agent would justify service of process upon a defendant corporation which had ceased to do business here. It was not a case like the present where neither the complainant ...
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