Guy F. Atkinson Company v. City of Seattle
| Decision Date | 15 January 1958 |
| Docket Number | No. 2233.,2233. |
| Citation | 159 F. Supp. 722 |
| Parties | GUY F. ATKINSON COMPANY, a corporation, et al., Plaintiffs, v. CITY OF SEATTLE, a municipal corporation, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Bogle, Bogle & Gates, Robert W. Graham and C. Calvert Knudsen, Seattle, Wash., Johnson & Stanton and Gardiner Johnson, San Francisco, Cal., for plaintiff.
A. C. VanSoelen, Corp. Counsel, for City of Seattle and A. L. Newbould, Asst. Corp. Counsel, Helsell, Paul, Fetterman, Todd & Hokanson, William A. Helsell and Richard S. White, Seattle, Wash., for defendant.
This action was commenced in the Southern Division of this court by the filing of a complaint alleging breach of contract and asserting jurisdiction solely by diversity of citizenship under 28 U.S.C. § 1332. Defendant City of Seattle is a municipal corporation located wholly within the Northern Division of this district.
Pursuant to 28 U.S.C. § 1406(a) defendant moves to dismiss the action, or, in the alternative, for its transfer to the Northern Division of this district on the ground that venue was improperly laid in the Southern Division by reason of 28 U.S.C. § 1393(a).1 Plaintiffs move for continuance of hearing on the dismissal motion to permit completion of discovery concerning whether defendant in fact does business in the Southern Division. Defendant contends that continuance for such purpose must be denied because even if defendant does business in the Southern Division, it does not "reside" therein and therefore cannot be sued in that division under 1393(a).
The question of law thus presented is whether the principle of 1391(c)2 that every place where a corporation does business shall be regarded as its residence for venue purposes is applicable to and in effect a part of 1393(a). If so, and it appears defendant is actually doing business in the Southern Division, venue of the action was properly laid in that division. If otherwise, the corporate defendant, although suable in any district in which it "does business" regardless of domicile, may be sued only in the division in which it "resides" in the domiciliary sense. Logically, the latter construction of the statutes would require suit against a corporation to be commenced only in the state of its incorporation3 and, presumably, only in the judicial district and divisions of such state wherein the corporation might have its "principal place of business" although that term is unknown to the venue statutes. Fairbanks Steam Shovel Co. v. Wills, 240 U.S. 642, 36 S.Ct. 466, 467, 60 L.Ed. 841.
A literal reading of the venue statutes in consecutive order as last enacted (62 Stat. 935) would indicate that 1391(c) and 1393(a) are related and complementary parts of general statutes controlling the venue of actions against corporations, whether private or municipal. If this be true, it would be irrational and incongruous to interpret "resides" in 1393(a) as having a meaning different from that of the noun of the same word in 1391(c).
It may be that 1393(a) is not applicable to corporate defendants at all in view of the original (and revision) use of the pronoun "he" in referring to where a "defendant" resides and considering the reasonable basis for distinguishing between natural persons and corporations with respect of being sued in a division of residence. If so, suit against a corporation in any division of a district in which it does business impliedly would be authorized by 1391(c).
Assuming 1393(a) applies to corporations, if the word "resides" therein refers to domicile and the word "residence" in 1391(c) may mean, as it says, merely doing business, an irreconcilable conflict concerning venue will arise in every diversity case brought against a corporate defendant in a district where it does business but does not have domicile in any division of the district. Legislative intent to such effect cannot be presumed, particularly in view of how commonly and frequently the circumstances referred to can and do occur. The phrase "in the division where he resides" as used in 1393(a), if applicable to a corporate defendant, therefore must mean "in the division in which it is incorporated, or licensed to do business, or is doing business."4 In other words, the verb "resides" in 1393(a) must have the same meaning as the noun "residence" in 1391 (c).5
Several cited cases hold that the predecessor of the present 1393(a) (former section 114 of 28 U.S.C.) applied only to corporations actually domiciled within the district of the forum.6 Necessarily those decisions antedate the 1948 revision of the judicial code and now are inapplicable because that revision for the first time made a corporate defendant, for venue purposes, a resident of the judicial district in which "* * * it is incorporated or licensed to do business or is doing business * * *"7 Defendant argues that since the 1948 reviser's notes do not mention the express and significant change in the law relating to venue of actions against corporate defendants it is to be assumed that no change was intended. That argument might apply to change by implication but not to statutory changes expressly and directly stated in a revision which must be given effect whether or not the subject of a reviser's note.
Freund v. Aiken Petroleum Co., D.C., 150 F.Supp. 575; Reeder v. Corpus Christie Refining Co., D.C., 111 F.Supp. 756, the only cited cases precisely in point decided since the 1948 revision of the judicial code, hold that an action against a corporate defendant based solely on diversity jurisdiction may be brought in any division where such defendant is doing business. McNeil Construction Co. v. Livingston State Bank, D.C., 155 F.Supp. 658, is not authority to the contrary because the transfer there ordered was predicated on a particular local court rule and between divisions created only by local rule.
Defendant's contention that Fourco Glass Co. v. Transmirra Products Corp., supra, has overruled the cited district court cases and requires a holding that 1393(a) is wholly unrelated to 1391(c) is not sustained by the Fourco opinion. In that case it was held "that 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c)." In so holding the...
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Technograph Printed Cir. v. Packard Bell Electronics Corp.
...footnote 8 of the Fourco Glass case. Sharp v. Commercial Solvents Corp. (D.C.Tex.1964), 232 F.Supp. 323, and Guy F. Atkinson Co. v. City of Seattle (D.C.Wash.1958), 159 F.Supp. 722, are respectable authority in support of the proposition that § 1393(a) does not include corporations, even in......
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Robert E. Lee & Co. v. Veatch
...(rev. ed. 1960). Compare Keller-Dorian Colorfilm Corp. v. Eastman Kodak Co., 88 F.Supp. 863 (S. D.N.Y.1949); Guy F. Atkinson Co. v. City of Seattle, 159 F.Supp. 722 (W.D. Wash.1958). Finally, while we are mindful of the desirability of corporations being suable where they are doing business......
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Sharp v. Commercial Solvents Corporation, Civ. A. No. 2-63-68.
...was the first to make written comment on the "he" quirk in § 1393(a), and his work has been quite helpful herein. Guy F. Atkinson Co. v. City of Seattle, D.C., 159 F.Supp. 722. In the second place, the Neirbo doctrine is deemed dispositive of the pending motion. The background requisite to ......
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...263 F.Supp. 278 (W.D.Mo. 1966); Torres v. Continental Bus System, Inc., 204 F.Supp. 347 (S.D.Tex. 1962); Guy F. Atkinson Co. v. City of Seattle, 159 F.Supp. 722 (W.D.Wash. 1958); Freund v. Aiken Petroleum Co., 150 F.Supp. 575 (E.D.S.C.1957); Reeder et al. v. Corpus Christi Refining Co., 111......