Frey & Son, Inc. v. Cudahy Packing Co.

• Decision Date: 09 December 1915
• Citation: 228 F. 209
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: FREY & SON, Inc., v. CUDAHY PACKING CO.

228 F. 209

FREY & SON, Inc., v. CUDAHY PACKING CO.

United States District Court, D. Maryland.

December 9, 1915

Horace T. Smith, of Baltimore, Md., and Daniel W. Baker, of Washington, D.C., for plaintiff.

Washington Bowie, Jr., of Baltimore, Md., and Gilbert H. Montague, of New York City, for defendant.

ROSE District Judge.

The plaintiff is a Maryland corporation, carrying on business in the city of Baltimore. It claims that the defendant has, by doing a thing forbidden by the anti-trust laws of the United States, injured it in its business. To recover for the damage so brought about this suit was instituted.

The defendant is an Illinois corporation. It appears specially for the sole purpose of moving to quash the marshal's return of service. It says that (1) it is not liable to suit in this district, because it neither resides, is found transacts business, or has an agent herein; and (2) if liable herein, it cannot be brought into court by service upon the individuals actually served by the marshal.

The first contention alone raises any vital issue. It is true that there are high authorities for the rule that a nonresident corporation can ordinarily be sued only (1) in the district in which it is carrying on business; (2) by service upon some agent or officer appointed by and representing it; and (3) in which some state law makes it amenable to suit as a condition of doing business therein. United States v. American Bell Telephone Co. (C.C.) 29 F. 17.

The third of these requirements is obviously inapplicable here. This is a suit brought in a federal court, to recover for a wrong done in contravention of a federal law, which law specifies the district in which such suit may be prosecuted.

Nor in this case is the second of much greater real importance. Ordinarily, process either of a state court or of a District Court of the United States cannot be served beyond the territorial limits of the state or of the district, as the case may be. A nonresident corporation may be doing business in a district, and therefore theoretically be liable to suit therein; but if it is not represented therein by an agent upon whom process against it may be legally served, it cannot, against its will, be brought into court. The framers of the Clayton Act, however, have taken care that suits authorized by it shall not be so obstructed. The twelfth section of that statute provides for the bringing of a corporation into the court of any district in which, under that act, it may be sued, by service of process upon it in any district of which it is an inhabitant, or wherein it may be found. If the defendant is properly suable in this district, the objection to the representative character of the so-called agent, upon whom the process herein was served would not end the suit here. It could have no other effect than to delay the progress of the case until process could be served upon the defendant in the district of which it is an inhabitant.

The first requirement remains of binding force, except in so far as, if at all, it has been modified by the provisions of the Clayton Act. The fourth section of that act provides that such suit as this may be brought in the district in which the defendant resides, or is found, or has an agent, and section 12, that such suit, when against a corporation, may be brought, not only in the judicial district in which it is an inhabitant, but also in any district wherein it may be found or transacts business.

Plaintiff contends that both these sections are applicable to corporate defendants, although section 12 obviously has nothing to do with noncorporate. Assuming, without deciding, that defendant's contention in this respect is sound, there is nothing in the history of this legislation, or of the needs, or supposed needs, which gave rise to it, to suggest that Congress intended to say that a defendant corporation could be sued in any district in which an agent of it happened to be on business other than its own. Clearer language than that used would be required to show that Congress intended to change the rule that an officer, agent, or employe of a corporation cannot carry it into any jurisdiction in which he is not acting for it. But, when he is so acting, the corporation is, through him, doing something there, and, if it is through him regularly doing something, it is in the broadest sense, at least, doing business.

The language used, viz. 'has an agent residing,' does not suggest that the mere casual presence of an agent would be sufficient. It seems as if Congress, in using it, had in mind those cases which have held that a corporation is not doing business generally in a district, unless it is there carrying on a fairly continuous series of transactions.

Congress doubtless meant to facilitate the redress of wrongs done in violation of the anti-trust acts. It wanted to let a plaintiff sue wherever it was most convenient to him, provided injustice was not thereby done a defendant. The provision in section 12, for serving process in another district from that in which the suit was instituted, itself took out of a plaintiff's way most, if not all, the purely technical obstacles which had formerly obstructed it. Congress, in designating the district in which the suit against a corporation might be brought, did not materially, if at all, change the rule which had been laid down in a long line of well-considered cases. Probably in the nature of things it could not. The intangible thing, a corporate aggregate, can fairly be supposed to be always found in the state which gave it being. It may, without obvious unfairness, be made suable wherever it chooses to carry on some part of its business. But it cannot be said to be anywhere else. Persons connected with it may be; but, if it is not acting through them at the time, they cannot carry it with them. But, so far as corporate defendants are concerned, does not the act go as far as there is any reason any one should want it to go? A corporation may be sued under this statute where it transacts business. It cannot escape the obligation to respond because no agent of it, of the rank and character qualified to be served for it, can be there found. Suit may be there brought and process may issue to a district in which it cannot deny its liability to service.

The act so construed will for practical purposes usually make it unimportant to consider, in connection with liability to suit and to service, any question except whether the defendant is doing or transacting business in a particular district, for, unless it is, it cannot possibly have any agent who, as agent, is therein.

Last May, when this suit was brought, was the defendant doing business in this district? The relevant facts are not in...