Bulldog Electric Prod. Co. v. Cole Electric Prod. Co.
| Decision Date | 30 March 1943 |
| Docket Number | No. 91.,91. |
| Citation | 134 F.2d 545 |
| Parties | BULLDOG ELECTRIC PRODUCTS CO. v. COLE ELECTRIC PRODUCTS CO., Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Parker & Duryee, of New York City (Robert M. Benjamin, of New York City, and Barent Ten Eyck, of New York City, of counsel), for appellant.
Drury W. Cooper and Thomas J. Byrne, both of New York City, for appellee.
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff, a Michigan corporation, sued the defendants in the District Court for the Eastern District of New York for the infringement of nine patents it owned. The complaint was duly served upon the defendant, Cole Electric Products Co., Inc., a New York corporation whose principal place of business was in the Eastern District. That service was admittedly sufficient and that defendant is not a party to this appeal. The plaintiff served its complaint upon the defendant Westinghouse Electric & Manufacturing Company, a Pennsylvania corporation, by service upon the Secretary of the State of New York, that officer having previously been designated by that defendant in compliance with New York law as its agent upon whom all process might be served within the State of New York in any action or proceeding against the corporation. On motion of Westinghouse Electric & Manufacturing Company, appearing specially for that purpose, the court entered an order quashing the service of summons upon that defendant. This appeal is by the plaintiff from that order.
The following material facts appear by affidavits or otherwise and are not in dispute:
The Westinghouse Electric & Manufacturing Company, which will now be called Westinghouse for convenience, has its principal office in the State of New York in the Southern District of New York. It was alleged in the complaint that it had a regular and established place of business in the Southern District and there was no allegation that it had one in the Eastern District where this suit was brought. Westinghouse does maintain what is called its X-Ray Division in Long Island City, in the Eastern District where that kind of equipment is assembled, and it does not contend "on this appeal that defendant Westinghouse Company does not have a regular and established place of business in the Eastern District of New York."
The alleged infringement of the patents in suit was not connected with the business done by the X-Ray Division of Westinghouse. This is what happened: A salesman of Westinghouse attached to its Boston office sold some bus duct fittings to Defense Plant Corporation through Stone & Webster Corporation of Boston. They were for delivery to the Sperry Gyroscope Company of Brooklyn, N. Y. As was customary in handling such orders, this order was sent to the home office of Westinghouse at East Pittsburgh, Penn., for "acknowledgement and acceptance." That action was there taken and as Westinghouse did not manufacture such fittings it ordered them from defendant Cole Electric Products Co., Inc., of Brooklyn to be delivered by the latter to the Sperry Gyroscope Company in Brooklyn and billed to Westinghouse. The Cole Electric Products Co., Inc. accepted the order and delivered the accused fittings to the Sperry Gyroscope Company in Brooklyn. It billed Westinghouse for them at East Pittsburgh, Penn., and Westinghouse charged them to its customer.
As this suit is for patent infringement its venue, in the absence of a waiver and there has been none, is controlled by § 48 of the Judicial Code, 28 U.S.C.A. § 109. Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026. That confines jurisdiction in such actions to the district court in the district of which the defendant is an inhabitant or to that in any district in which it has a regular and established place of business and has committed acts of infringement. The appellant is quite right, of course, in saying that Westinghouse, having designated an agent for the service of process upon it in New York, may be sued in the federal courts sitting in New York, at least where diversity is the ground of...
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