EDUCATIONAL DEVELOPMENT CORPORATION v. Economy Co.
| Decision Date | 05 December 1973 |
| Docket Number | No. 73-C-256.,73-C-256. |
| Citation | 376 F. Supp. 287 |
| Parties | EDUCATIONAL DEVELOPMENT CORPORATION, Plaintiff, v. The ECONOMY COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
Barry J. Galt, James L. Kincaid, Tulsa., Okl., Ford F. Farabow, Jr., Washington, D. C., for plaintiff.
Jerry J. Dunlap, Oklahoma City, Okl., Royce H. Savage, Tulsa, Okl., for defendant.
This is an action for infringement of a trademark arising under the Trademark Laws of the United States. Plaintiff, Educational Development Corporation is a Delaware corporation with an office in Tulsa, Oklahoma, within the Northern District of Oklahoma, where this action has been brought. The Defendant, The Economy Company, is an Oklahoma corporation with its offices in Oklahoma City, Oklahoma, which lies within the Western District of Oklahoma.
In its Complaint, Plaintiff alleges venue lies in the Northern District of Oklahoma for the reason that Defendant is doing business within said district. 28 U.S.C. § 1391(c).
Defendant has filed its Motion to Dismiss, Or In The Alternative To Transfer This Case To the Western District of Oklahoma and a Memorandum in Support of its Motion. Defendant's contention is that it can only be sued in the judicial district in which it maintains its principal place of business or in which it does business. Defendant asserts that its principal place of business is in Oklahoma City, Oklahoma and denies it does business in the Northern District of Oklahoma as such terms are used for purposes of establishing venue.
Plaintiff has responded to said motion contending that the allegations in its Complaint that the Defendant is doing business in the Northern District of Oklahoma are sufficient to establish venue. In the alternative, it contends that the Defendant may be sued in any judicial district in Oklahoma, the state in which it is incorporated.
This Court will consider first whether a domestic corporation is a resident of all judicial districts of the state in which incorporated. If the answer is in the affirmative, then it will be unnecessary to determine the mixed question of law and fact as to whether the Defendant is "doing business" within the Northern District in such manner as to subject it to venue in said district.
Venue in this action is governed by 28 U.S.C.A. § 1391(c) which provides:
"A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."
The question is simply whether Defendant, an Oklahoma corporation, is subject to be sued in any of the three judicial districts in Oklahoma without regard to whether it conducts business in said district. The answer is not simple. In 14 A.L.R.Fed. 934 § 2 the annotator states:
"There is a conflict among the authorities as to whether a corporation which has been incorporated or licensed to do business in a multidistrict state is subject, under the venue provisions of 28 U.S.C.A. § 1391(c), which provides that a corporation may be sued `in any judicial district in which it is incorporated or licensed to do business or is doing business,' to suit in any judicial district within that state or only in those districts (within that state) where it conducts its business."
A review of the cases reveals that there are excellent and well reasoned opinions supporting the view that a corporation which is incorporated in a multi-district state is subject to suit within any district in the state. Included are the cases of Johnstone v. York County Gas Company, 193 F.Supp. 709 (E.D.Pa. 1961); Carson v. Vance Trucking Lines, Inc., 245 F.Supp. 13 (W.D.S.Car.1965); and others listed in 14 A.L.R.Fed. 938 § 3 b. The rationale upon which these holdings are based is that the statute is unambiguous and that a domestic corporation is authorized under its charter to engage in business generally within the state of incorporation and therefore such a corporation is subject to suit in any judicial district of such state.
Likewise, there are a number of well reasoned cases holding to the contrary. Jacobson v. Indianapolis Power & Light Company, 163 F.Supp. 218 (N.D.Ind. 1958); Westerman v. Grow, 198 F.Supp. 307 (S.D.N.Y.1961); Energy Resources Group, Inc....
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Davis v. Hill Engineering, Inc.
...E.D.Pa.1972, 339 F.Supp. 1189; Vance Trucking Co. v. Canal Insurance Co., 4 Cir. 1964, 338 F.2d 943.6 Educational Development Corp. v. Economy Co., N.D.Okl.1973, 376 F.Supp. 287; Fuller & Dees Marketing Group, Inc. v. Outstanding American High School Students, M.D.Ala.1972, 335 F.Supp. 913;......
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Richards v. Upjohn Co., Civ. A. No. 5-72144.
...for purposes of venue, in only those districts in which it is actually doing business. See, e. g., Educational Development Corp. v. Economy Co., 376 F.Supp. 287 (N.D.Okla.1973). This court believes that the language of section 1391(c) clearly and unambiguously authorizes suit in any distric......