Harry Rich Corporation v. Curtiss-Wright Corporation

• Decision Date: 25 September 1969
• Docket Number: No. 64 Civ. 819.,64 Civ. 819.
• Citation: 308 F. Supp. 1114
• Parties: HARRY RICH CORPORATION, Florida Carpet Corporation, Carpet Service Corporation, Plaintiffs, v. CURTISS-WRIGHT CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

308 F. Supp. 1114

HARRY RICH CORPORATION, Florida Carpet Corporation, Carpet Service Corporation, Plaintiffs, v. CURTISS-WRIGHT CORPORATION, Defendant.

No. 64 Civ. 819.

United States District Court S. D. New York.

September 25, 1969.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for plaintiffs, Theodore H. Friedman, New York City, of counsel.

Kirlin, Campbell & Keating, New York City, for defendant, James B. Magnor, New York City, of counsel.

OPINION

LASKER, District Judge.

This is a motion under Section 1404(a) of Title 28, U.S.C., for a transfer to the Southern District of Florida. Jurisdiction of this court is predicated on diversity of citizenship. In a complaint filed on March 13, 1964, plaintiffs allege that defendant breached express and implied warranties resulting in alleged damage to the plaintiffs in the sum of $10,300,000.

The three corporate plaintiffs are Florida corporations and are primarily owned and directed by one Harry Rich. Plaintiff Harry Rich Corporation (hereinafter the "Corporation") is a large retail carpet store located in Miami, selling primarily to residents of Dade County. Plaintiff Florida Carpet Corporation was organized in 1956 to act as a wholesaler of carpets and related products. Plaintiff Carpet Service Corporation is a corporation primarily engaged in the installation of carpeting sold by the other two plaintiffs.

The three corporations purchased $376,516.04 of Curon from defendant in the period from February 28, 1956 to November 9, 1960. The Curon, a synthetic plastic substance used as carpet underlay or padding, was shipped by Curtiss-Wright to Miami from its plant in Quehanna, Pennsylvania, F.O.B. Quehanna. Plaintiffs allege that the Curon manufactured by Curtiss-Wright was defective, and that in the years after its installation it turned "gummy and crumbly" and damaged both the underside of carpets and the floors to which it was applied. Plaintiffs seek compensation for damages to their business reputations and decreased sales allegedly stemming from their active association with Curon.

28 U.S.C. § 1404(a), provides:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

This section thus raises two basic issues for consideration: first, whether the Southern District of Florida is a district where the action "might have been brought"; and second, whether the convenience of parties and witnesses and the interest of justice would best be served by a transfer.

I. WHERE THE ACTION MIGHT HAVE BEEN BROUGHT

The phrase "where it might have been brought" refers to the situation at the time that the suit is brought — in the instant case March 1964. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Twentieth Century-Fox Film Corp. v. Taylor, 239 F.Supp. 913 (S.D.N.Y., 1965). The plaintiff must have had an unqualified right to bring the action in the proposed transferee district independent of the consent of the defendant, and accordingly the court should make an independent appraisal of the issue. Rosen v. Savant Instruments, Inc., 264 F.Supp. 232 (E.D. N.Y., 1967).

An action "might have been brought" within the meaning of the statute only in a district where (1) venue would have been proper and (2) the defendant would have been amenable to process. Foster-Milburn Co. v. Knight, 181 F.2d 949 (2 Cir., 1950); Jordan v. U. S. Lines, Inc., 291 F.Supp. 600, 601 (S.D.N.Y., 1968). As to the latter criteria, the court in Jaffe v. Dolan, 264 F.Supp. 845, 847 (E.D.N.Y.1967), stated:

"In diversity actions, a federal district court can assert personal jurisdiction over a defendant only if the state court, under constitutionally valid state legislation in the state where the federal court sits, could have exercised such jurisdiction. Arrowsmith v. United Press Int'l, 320 F.2d 219, 6 A.L.R.3d 1072 (2d Cir. 1963)."

Accordingly, we must examine Florida law to determine whether at the time the suit was commenced (March 1964) the defendant would have been amenable to Florida process.

The relevant Florida statutes are Sections 47.16 and 47.17, Florida Statutes Annotated. Section 47.16 states:

"(1) The acceptance by any * * * foreign corporations * * * of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, shall be deemed equivalent to an appointment by such * * * foreign corporations of the secretary of state of the state as the agent of such * * foreign corporation upon whom may be served all lawful process in any action, suit or proceeding against them, or either of them, arising out of any transaction or operation connected with or incidental to such business or business venture * * *."

The facts of record clearly demonstrate that Curtiss-Wright was transacting business, or at least carrying on a "business venture" within the meaning of the Florida statute, in connection with its sale of Curon to the three plaintiffs before the court. Curtiss-Wright did more than merely ship Curon to the three plaintiffs. It supplemented these shipments by sending various employees to Florida to conduct promotional activities, including a series of "safaris," i. e., cocktail parties for retail carpet dealers to introduce their new product to them. Curtiss-Wright sent out the invitations to these parties, and their staff members attended them regularly. Defendant further took an active part in the conduct of a newspaper advertisement campaign pushing its product and provided a large quantity of brochures and other promotional material. Apparently much of this was distributed by plaintiff Florida Carpet Corporation, the latter being the exclusive distributor of Curon in the southeastern part of the United States. These activities without question measured up to the "minimum contacts" which the Florida courts have held necessary to subject an out-of-state defendant to the jurisdiction of the Florida courts. See Phillips v. Hooker Chemical Corp., 375 F.2d 189, 192 (5th Cir., 1967). The Florida rule is that the statutory standards for "carrying on a business venture" require a lesser degree of activity than is required for "doing business." State ex rel. Weber v. Register, Fla., 67 So.2d 619 (1963); Lake v. Lucayan Beach Hotel Co., Fla.App., 172 So.2d 260 (1965); Lomas & Nettleton Financial Corp. v. All Coverage Underwriters, Inc., Fla.App., 200 So.2d 564, 565 (1967); Continental Copper & Steel Indus. v. E. C. "Red" Cornelius, Inc., Fla.App., 104 So.2d 40 (1958).

The court in State ex rel. Weber v. Register, supra, stated 67 So.2d at 620:

"There is a vast difference between the words `a business' and the words `business venture' as used in Section 47.16, supra. One may engage in a `business venture' without operating, conducting, engaging in or carrying on `a business.'"

While we believe that the promotional activities of defendant constituted "doing business" within the State of Florida, they unquestionably constituted a "business venture" within the state. It goes without saying that the cause of action presently before the court arose out of the transactions of which defendant's activities in Florida were an integral part. See H. Bell & Assoc. Inc. v. Keasbey & Mattison Co., Fla.App., 140 So.2d 125 (1962). The fact that defendant's activities in Florida ceased prior to March of 1964 should not alter its amenability to suit. As the court stated in Steel Joist Institute, Inc. v. J. H. Mann, III, Inc., Fla.App., 171 So.2d 625 (1965), at 627:

"The determination, however, of whether appellant was `present' in this State, for purposes of service of process, is not influenced by the discontinuance of the program for a period of months before the complaint was filed. The inquiry is directed to whether appellant was `engaged in business' or a `business venture' before and at the time the joists were sold and placed in the building that collapsed."

Furthermore, Curtiss-Wright could have been served in the State of Florida pursuant to Section 47.17(4) and (5), Florida Statutes Annotated, which sections provide:

"Process against any corporation, domestic or foreign, may be served:

* * * * * *

"(4) Upon any officer or business agent, resident in the state of Florida.

"(5) If a foreign corporation shall have none of the foregoing officers or agents in this state, service may be made upon any agent transacting business for it in this state."

It is undisputed that Curtiss-Wright employed at least one agent, residing in the State of Florida, in 1964. The agent, Villacorte, although directly involved with Curtiss-Wright's aeronautical division, nevertheless could have been served in this action under Section 47.17(4) and (5). The court in Woodham v. Northwestern Steel & Wire Co., 390 F.2d 27, 30 (5th Cir., 1968), stated that:

"* * * where a business agent of a foreign corporation actually resides in Florida and engages in sustained, continuous business for his employer, the corporation may be sued by service on the resident agent under Section 47.17(4), F.S.A., regardless of where the cause of action arose because it can be reasonably expected that the corporation will receive notice of the suit."

If a business agent can be served under these conditions, it is clear that he likewise could be served "where the cause of action arose" in fact, in Florida, but merely through the activities of another division of the same corporation. Therefore, the Southern District of Florida is a district in which suit "might have been brought."

II. THE CONVENIENCE OF PARTIES AND WITNESSES AND THE INTEREST OF JUSTICE

A. Right of a Plaintiff to Move for Change of Venue

This motion presents the situation of a plaintiff seeking to transfer a suit from the forum that he himself initially selected. While unusual, it is not...