Gauvreau v. Warner Bros. Pictures, Inc.

• Decision Date: 23 September 1958
• Citation: 178 F. Supp. 510
• Parties: Winifred C. Rollins GAUVREAU and Lester Cohen, Plaintiffs, v. WARNER BROS. PICTURES, INC., United States Pictures, Inc., and Milton Sperling, Defendants.
• Court: U.S. District Court — Southern District of New York

178 F. Supp. 510

Winifred C. Rollins GAUVREAU and Lester Cohen, Plaintiffs, v. WARNER BROS. PICTURES, INC., United States Pictures, Inc., and Milton Sperling, Defendants.

United States District Court S. D. New York.

May 21, 1958.

Supplemental Opinion September 23, 1958.

Gustave B. Garfield, New York City, for plaintiffs.

Mendes & Mount, New York City, for defendants.

DIMOCK, District Judge.

This is a motion by defendant, United States Pictures, Inc., to set aside the service of process upon it in this action. The action is one for infringement of the statutory copyright of a book entitled, "Billy Mitchell, Founder of Our Air Force and Prophet Without Honor", by a motion picture entitled "The Court Martial of Billy Mitchell", produced by United States Pictures, Inc., hereinafter defendant, and distributed by Warner Bros. Pictures, Inc. The summons was delivered to Milton Sperling, an officer of defendant, United States Pictures, Inc., in New York City on February 7, 1958.

The validity of the service depends upon section 1400(a) of Title 28 U.S.C., which provides:

"(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights may be instituted in the district in which the defendant or his agent resides or may be found."

In order for a corporation to be "found" within the jurisdiction, it must engage in the same systematic and continuous activity necessary to make it "present" under the rule in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Backer v. Gonder Ceramic Arts, D.C.S.D.N.Y., 90 F.Supp. 737, 738.

Defendant asserts in an affidavit of its secretary that it is a Delaware corporation with its principal offices in Los Angeles, California. It states that it does not maintain an office in New York, it does not have any employee, agent or representative within the state nor does it pay any local taxes. Its business of producing motion pictures is allegedly carried on outside of New York State except for infrequent photographing of scenes here.

Plaintiff relies on an affidavit of its counsel who states that at the time when Milton Sperling was served he was in New York City to arrange for the release of a motion picture entitled "Marjorie Morningstar" and that he had before him at that time a publicity display for that motion picture. Infrequent visits to the jurisdiction by an officer of a foreign corporation do not of course constitute such systematic and continuous activity as will subject it to local jurisdiction. Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 142.

Plaintiff's counsel states also that Mr. Sperling makes frequent trips to New York City in connection with the purchase of material for motion pictures, their production, release, and distribution and came to New York City to arrange for the release and distribution of the alleged infringing film in this case. Defendant is also alleged to have produced at least one motion picture in New York State. These allegations, however, are all on information and belief.

Plaintiff's counsel contends also that defendant Warner Bros. Inc. is the agent of defendant United States Pictures, Inc. The contract on which plaintiff bases his assertion is not, however, before the court although defendant's counsel says that a copy is in the possession of plaintiff's counsel. In an affidavit of its controller Warner Bros. Inc. states that it has no relationship with United States Pictures, Inc., except by this contract which it contends does not establish an agency relationship.

I do not believe that plaintiff's statements on information and belief constitute competent evidence upon which I can hold that defendant is "found" within this district. Affidavits on information and belief cannot be considered in summary judgment proceedings, Rule 56(e), F.R.Civ.P., Jameson v. Jameson, 85 U.S.App.D.C. 176, 176 F. 2d 58, 60, and subjecting a foreign corporation to local jurisdiction is hardly less serious.

On the other hand, defendant in its reply affidavit leaves many of plaintiff's allegations undenied and merely questions their source. It also states through its counsel:

"Certainly further facts should be elicited before a finding should be made that United States Pictures, Inc., a foreign corporation is doing business in the State of New York and is subject to the jurisdiction of this court."

Plaintiff will therefore be given the opportunity to elicit further facts by examination of defendant United States Pictures, Inc., pursuant to the usual notice of examination of a party, through an officer having knowledge of its local activities, at Los Angeles, California, unless such officer is present in New York. Rule 30, F.R.Civ.P.

On the record before me plaintiff has not shown that defendant engages in systematic and continuous activity upon which a court could base a finding that it is "present". The motion to set aside service is therefore granted unless plaintiff, within 45 days after the publication of a notice of this decision in the New York Law Journal, submits to the court additional facts supplying the elements of doing...