Cohen v. Newsweek, Inc.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: VOGEL, BLACKMUN and RIDGE, Circuit
• Citation: Cohen v. Newsweek, Inc., 312 F.2d 76 (8th Cir. 1963)
• Decision Date: 11 January 1963
• Docket Number: No. 17006.,17006.
• Parties: L. Gilbert COHEN, Appellant, v. NEWSWEEK, INC., Appellee.

312 F.2d 76 (1963)

L. Gilbert COHEN, Appellant, v. NEWSWEEK, INC., Appellee.

No. 17006.

United States Court of Appeals Eighth Circuit.

January 11, 1963.

L. Gilbert Cohen, Minneapolis, Minn., made argument pro se and filed brief.

Armin M. Johnson, Minneapolis, Minn., made argument for appellee and Royall, Koegel & Rogers, New York City, and Faegre & Benson, Minneapolis, Minn., were with him on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

This is an appeal from an order of the District Court granting appellee's motion to dismiss. The case is one for treble damages based upon the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 et seq., and the Clayton Act, 15 U.S.C.A. §§ 12 et seq. It was brought by appellant against Newsweek, Inc., and six other defendants.

Newsweek is a New York corporation, as were some of the other defendants. Venue was laid in the United States District Court for the District of Minnesota. Newsweek was named as a party defendant in an amended complaint filed subsequent to the commencement of the original action. Purported service of process upon Newsweek was made by serving William H. Hennessy at Newsweek's office in New York, New York. Newsweek moved for a dismissal pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.,

"* * * for the reasons that the Court lacks jurisdiction over the person of said defendant since said defendant is not an inhabitant of this judicial district, nor is it found therein nor does it transact business therein and that the service of process upon said defendant was insufficient."

The motion was based upon the files and records in the case and upon the affidavit of F. E. Davis, vice president and general manager of Newsweek, Inc. Supportive of the insufficiency of service of process contention, Davis' affidavit set forth, inter alia:

"2. The only service of process in the above entitled action on defendant Newsweek, Inc. occurred on February 28, 1961, when a copy of the amended complaint in said action was given by someone, presumably a representative of the United States Marshal in New York to Mr. William H. Hennessy, who is an employee of Newsweek, Inc., at its office at 444 Madison Avenue, City, County and State of New York. Mr. Hennessy is not an executive officer or director of Newsweek, Inc., he has not been designated by Newsweek, Inc. as the person upon whom process directed to the corporation should be served, and he was not on February 28, 1961 in charge of the said office of Newsweek, Inc."

The balance of Davis' affidavit had to do with Newsweek's contention that it was not present in nor transacting business within the District of Minnesota so as to be subject to suit therein.

On November 3, 1961, after hearing, the District Court concluded that the appellant had failed to sustain the burden of establishing that Newsweek was transacting business within the District of Minnesota so as to support appellant's claim to venue therein and accordingly entered an order granting appellee's motion. Petition for rehearing was filed by the appellant on November 13, 1961. Hearing on the petition was had on January 8, 1962, at which time the motion for rehearing was denied.

Newsweek has persisted in the court below and here that service on Hennessy was insufficient. Such service goes directly to the question of jurisdiction of the court. We believe, therefore, that such claim of insufficiency of service of process should receive first consideration.

Under Rule 4(d) (3), Federal Rules of Civil Procedure, 28 U.S.C.A., service may be made as follows:

"Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant."

In accordance with the provisions of Rule 4(d) (7), F.R.C.P., 28 U.S.C.A., service may also be made in accordance with the law of the state wherein service is made. In the State of New York, service is governed by N. Y. Civil Practice Act, § 228. Insofar as it may be...