Ferrante v. Trojan Powder Co., Civ. A. No. 6785.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtGANEY
Citation79 F. Supp. 502
Docket NumberCiv. A. No. 6785.
Decision Date30 July 1947
PartiesFERRANTE et al. v. TROJAN POWDER CO.

79 F. Supp. 502

FERRANTE et al.
v.
TROJAN POWDER CO.

Civ. A. No. 6785.

District Court, E. D. Pennsylvania.

July 30, 1947.


79 F. Supp. 503

Louis F. McCabe, of Philadelphia, Pa., for plaintiffs.

Ronald Souser, of Souser, Schumacker & Taylor, all of Philadelphia, Pa., and James Herbert, of Kirlin, Campbell, Hickox & Keating, all of New York City, for defendant.

GANEY, District Judge.

This is a motion under Rule 12(b) of the Federal Rules of Civil Procedure, as amended, 28 U.S.C.A. following Sec. 723c, to dismiss the complaint for (1) improper venue and (2) insufficient service of process on the defendant.

The plaintiffs, residents of the State of Ohio, and former employees of the defendant, brought this action on behalf of themselves and other similarly situated employees and former employees of the defendant to recover from it alleged unpaid minimum wages and overtime compensation in the amount of Fifteen Million Dollars ($15,000,000.00) and an additional equal amount as liquidated damages under Section 16(b) of the Fair Labor Standards Act1 of 1938. This court has jurisdiction over the subject matter by virtue of Section 24(8) of the Judicial Code, 28 U.S. C.A. § 41(8). Williams v. Jacksonville Terminal Co., 315 U.S. 386, 390, 62 S.Ct. 659, 86 L.Ed. 914.

The complaint alleges that the place where the breach of the Act by the defendant occurred was at the Plum Brook Ordinance Works in Sandusky, Ohio, which until the early part of 1946 was operated by the defendant for the production of explosives to be shipped out of the State of Ohio. From affidavits submitted by the defendant in connection with its motion, it is learned that the defendant is a corporation organized and existing under the laws of the

79 F. Supp. 504
State of New York; that it has its principal office and does business in the Eastern District of Pennsylvania, the district of this court; and that service on it was made by the United States Marshal who served the summons and complaint on the assistant general manager in charge, for the time being, of its office in Allentown, Pennsylvania. It does not appear in the complaint or the motion to dismiss and its supporting affidavits that the defendant has procured a certificate of authority2 to do local business in the State of Pennsylvania pursuant to Article 10 of the Pennsylvania Business Corporation Law3 of 1933, or that the acts which are the basis of the cause of action have arisen out of any business conducted by the defendant in Pennsylvania or to have had any relation to any corporate act performed in that state

The federal general venue act, Section 51 of the Judicial Code, 28 U.S.C.A. § 112, except in cases not relevant here, 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; * * *". Within the meaning of this section, a corporation can be an inhabitant only of the state in which it has been incorporated.4 The section affords the defendant a personal privilege, which it may assert or waive at its election, of being sued in the place provided therein. Ex parte Schollinberger, 1877, 96 U.S. 369, 378, 24 L.Ed. 853; Lee v. Chesapeake & Ohio R. Co., 260 U.S. 653, 655, 43 S.Ct. 230, 67 L.Ed. 443. A foreign corporation which complies with the laws of the state in which it desires to do local business by appointing an agent within that state on whom process may be served, relinquishes the privilege to raise the question of venue in the federal courts within that state when service is had on the designated agent. Neirbo v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437. But merely because a foreign corporation does local business within the State of Pennsylvania does not of itself constitute a waiver of its personal privilege to raise the question of venue; it must appoint an agent in Pennsylvania on whom process may be served in accordance with Pennsylvania law5. Robinson v. Coos Bay Pulp Corp., 3 Cir., 147 F.2d 512. As has been previously noted, neither the complaint nor the motion to dismiss and its accompanying affidavits indicate that the...

To continue reading

Request your trial
3 practice notes
  • Rhodes v. Social Security Administration, Civil Action No. 7509.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 11 Diciembre 1947
    ...202(g). Since we are of the opinion that the plaintiff is entitled to the lump-sum death payment based on her first reason, the second 79 F. Supp. 502 reason, which we think is meritless, advanced by her in support of her position in this case, need not be discussed by Accordingly, the moti......
  • Herpst v. SBI Liquidating Corporation, Civ. A. No. 41989.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 Febrero 1968
    ...Louisville & Nashville R. R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 U.Ed. 711 (1929); Ferrante v. Trojan Powder Co., 79 F. Supp. 502 (E.D.Pa.1947). Section 2015, subd. A(6) of the Pennsylvania Corporate Code, cited above, reveals the existence of such a condition: The corporati......
  • Sutton v. HILCO HOMES CORPORATION, Civ. A. No. 37857.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 19 Abril 1968
    ...Congress regulating commerce * * *" irrespective of diversity of citizenship or amount involved. See, Ferrante v. Trojan Powder Co., 79 F.Supp. 502, 503 (E.D.Pa., 1947); 283 F. Supp. 493 Berger v. Clouser, 36 F.Supp. 168, 170-171 (M.D.Pa., Plaintiffs have moved for summary judgment pur......
3 cases
  • Rhodes v. Social Security Administration, Civil Action No. 7509.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 11 Diciembre 1947
    ...202(g). Since we are of the opinion that the plaintiff is entitled to the lump-sum death payment based on her first reason, the second 79 F. Supp. 502 reason, which we think is meritless, advanced by her in support of her position in this case, need not be discussed by Accordingly, the moti......
  • Herpst v. SBI Liquidating Corporation, Civ. A. No. 41989.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 Febrero 1968
    ...fulfilled. Louisville & Nashville R. R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 U.Ed. 711 (1929); Ferrante v. Trojan Powder Co., 79 F. Supp. 502 (E.D.Pa.1947). Section 2015, subd. A(6) of the Pennsylvania Corporate Code, cited above, reveals the existence of such a condition: The co......
  • Sutton v. HILCO HOMES CORPORATION, Civ. A. No. 37857.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 19 Abril 1968
    ...of Congress regulating commerce * * *" irrespective of diversity of citizenship or amount involved. See, Ferrante v. Trojan Powder Co., 79 F.Supp. 502, 503 (E.D.Pa., 1947); 283 F. Supp. 493 Berger v. Clouser, 36 F.Supp. 168, 170-171 (M.D.Pa., Plaintiffs have moved for summary judgment pursu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT