In re Chicken Antitrust Litigation

• Citation: 407 F. Supp. 1285
• Decision Date: 24 December 1975
• Docket Number: Civ. A. No. C74-2454A.
• Parties: In re CHICKEN ANTITRUST LITIGATION.
• Court: U.S. District Court — Northern District of Georgia

407 F. Supp. 1285

In re CHICKEN ANTITRUST LITIGATION.

Civ. A. No. C74-2454A.

United States District Court, N. D. Georgia, Atlanta Division.

December 24, 1975.

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Emmet J. Bondurant, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., Edward L. Savell, Savell, Williams, Cox & Angel, Atlanta, Ga., for plaintiffs.

Sidney O. Smith, Jr., Michael A. Doyle, Alston, Miller & Gaines, Atlanta, Ga., for National Broiler Marketing Association, A. C. Smith Milling, B & P Poultry Co., Inc., Burnett Produce Co., Cagle's, Inc., Claxton Poultry Co., Inc., Dent Poultry Co., Fieldale Corp., Gold Kist Inc., MarJac, Inc., MFC Services (AAL), O. K. Processors, Inc., Pilgrim Industries, Inc., and Poultry Products Co., Inc. and Purnell's Pride, Inc. and DeWitt Farms Corp.

Charles L. Gowen, Jack H. Watson, Jr., Atlanta, Ga., for H & H Poultry Co., Hudson Foods, Inc., Marell Poultry Co., Marshall Durbin Food Corp., Marshall Durbin Farms, Inc., Peterson Farms, Inc., Ralston Purina Co., Inc., Southeastern Hatcheries, Stratford of Texas, Inc., Tyson Foods, Inc., Valmac Industries, Inc., Heublein, Inc.

Harold L. Russell, Gambrell, Russell, Killorin, Wade & Forbes, Atlanta, Ga., for Cargill, Inc., Central Soya Co., Inc., ConAgra, Inc., Federal Company, The Pillsbury Co., and Townsend's, Inc.

Joseph Lefkoff, Lefkoff & Hanes, Atlanta, Ga., for Allied Mills, Inc.

Edward E. Dorsey, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for Wilson & Co.

William Hames, Sutherland, Asbill & Brennan, Atlanta, Ga., for Perdue Farms, Inc.

Allen I. Hirsch, Arnall, Golden & Gregory, Atlanta, Ga., for Kane-Miller Corp.

ORDER

O'KELLEY, District Judge.

These consolidated antitrust actions are before the court for ruling on numerous motions. Some of these motions relate to all of the actions (these will be dealt with collectively under the subhead "C 74-2454 A") and some of the motions relate to one or more of the actions separately (these will be dealt with under the appropriate docket control number).

C 74-2454 A

Motion to Compel

Plaintiffs move for an order compelling defendants Dent Poultry Co., Inc., Claxton Poultry Co., Inc., Purnell's Pride, Inc., A. C. Milling Company, Southeastern Hatcheries and Heublein, Inc. to answer interrogatories 6, 7, 14(c), 14(d), 15, 17, 18, 21, 23 and 24 of plaintiff's class action interrogatories. This motion deals with identical issues dealt with in this court's order of September 29, 1975. For the same reasons as appear in that order, the motion to compel is GRANTED as to interrogatories 6 and 7 and is DENIED as to interrogatories 14(c), 14(d), 15, 17, 18, 21, 23 and 24, except for that part of interrogatory 24 which seeks the identity of documents describing the manner in which purchases of broilers are made and the marketing of broilers. Defendants are directed to answer so much of interrogatory 24 that does not deal with pricing. These answers are to be filed within 20 days of the date of this order.

Plaintiffs move to compel the defendant Townsends, Inc. to answer venue interrogatories 6 and 7. These interrogatories seek information regarding instances in which Townsends "either sold, shipped or provided products, equipment, or services or in which Townsends purchased or received products, equipment, or services from persons outside the Northern District of Georgia, but in which products, equipment, or services were shipped to or from, delivered to or from, or provided in or from the Northern District of Georgia . . .." Townsends contends that the mere receipt of goods which may at one time have been shipped from the forum state cannot constitute transacting business. Townsends misunderstands the import of the interrogatories. This court understands the interrogatories to seek information about instances not where goods were shipped from Georgia to some person or concern, who, in turn, sold the goods to Townsends as Townsends contends but, rather, where Townsends orders goods from a company or a salesman outside the district but the goods ordered are shipped to Townsends from the selling company's facilities within this district. The same interpretation would also apply to purchases.

As to the relevancy of these interrogatories, this court is of the opinion that while such transactions may not alone constitute transacting business, they are certainly relevant for this court to consider in viewing the defendants' overall contact with this district. Accordingly, plaintiff's motion to compel is granted; Townsends is directed to fully answer venue interrogatories 6 and 7 within 20 days of the date of this order.

Venue Motions

This court will now consider nine (9) presently pending motions¹ to dismiss the complaints pursuant to Fed.R.Civ.P. 12(b)(2), (3), and (5) for improper venue, lack of personal jurisdiction and insufficient service of process. These motions were earlier deferred pending discovery going to the venue issue; such discovery is now complete, and the motions are ripe for a decision.

The Clayton Act has special venue provisions for antitrust actions, 15 U.S.C. §§ 15 and 22, in addition to and supplemental to the general venue statutes, 28 U.S.C. §§ 1391 and 1392. Section 4 of the Clayton Act, 15 U.S.C. § 15, provides in relevant part:

Any person who shall be injured . . by reason of . . . the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent . . ..

Section 12 of the Clayton Act, 15 U.S.C. § 22 hereinafter sometimes referred to as "§ 22" deals with venue for corporate defendants; it provides in pertinent part:

Any suit . . . under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.

(emphasis supplied). The present motions are primarily concerned with that provision of § 22 which provides for venue in any district where the defendant transacts business. In several instances, plaintiffs also rely on that portion of the general venue statute, 28 U.S.C. § 1391, which provides for suit in the district "in which the claim arose." If the defendants are found to come within the "transacts business" provision in § 22, then the nationwide service of process provision in § 22 would allow service in the district where the defendant is either an inhabitant or where it can be found.

The term "transacts business" was added by Congress in 1914 with the clear intention to broaden venue in antitrust cases so as to enlarge the jurisdiction of the various federal district courts and to broaden the choices of forums available to plaintiffs in antitrust cases. United States v. National City Lines, 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584 (1948); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927). The "transacts business" test has been uniformly held to require less than the "doing of business," "carry on business," or "found" tests used in some venue statutes. Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Commonwealth Edison Co. v. Federal Pacific Electric Co., 208 F.Supp. 936 (N.D.Ill. 1962). The general test for transacting business is whether, viewed in the practical, everyday business concept of carrying on business, the defendant transacts business of a substantial character within the district in the ordinary and usual manner. United States v. Scophony Corp. of America, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 (1948); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927). The primary indicator in determining the substantiality of the business is to view the dollar amount of business transacted in the district objectively from the standpoint of the average businessman rather than from the standpoint of a large corporation and to view this volume without reference to or comparison with the total volume of business of the corporation. Green v. U. S. Chewing Gum Mfg. Co., 224 F.2d 369 (5th Cir. 1955); Fashion Two Twenty, Inc. v. Steinberg, 339 F.Supp. 836 (E.D.N.Y. 1971); National Auto Brokers Corp. v. General Motors Corp., 332 F.Supp. 280 (S.D.N.Y.1971). There is no singular definitive test for transacting business, but there must be "a qualitative and a quantitative analysis of the contacts between the district and the corporation over which venue is sought." Lippa & Co. v. Lenox, Inc., 305 F.Supp. 175 (D.Vt.1969). Venue under 15 U.S.C. § 22 is not controlled by hairsplitting technicalities; therefore, sales accepted outside a district and shipped f. o. b. a state outside the district but delivered within the district are considered for venue purposes. C.C.P. Corp. v. Wynn Oil Co., 354 F.Supp. 1275 (N.D.Ill.1973); Illinois v. Harper & Row Publishers Inc., 308 F.Supp. 1207 (N.D.Ill.1969); Commonwealth Edison Co. v. Federal Pacific Electric Co., 208 F.Supp. 936 (N.D.Ill. 1962). There must generally be substantial business activity of a continuous and regular basis, C.C.P. Corp. v. Wynn Oil Co., 354 F.Supp. 1275 (N.D.Ill.1973); however, it does not always have to be continuous; a single act can be enough to make venue proper although normally one act will not be enough unless such act is related to the cause of action. Courtesy Chevrolet, Inc. v. Tennessee Walking Horse Ass'n, 344 F.2d 860 (9th Cir. 1965); Pacific Tobacco Corp. v. American Tobacco Co., 338 F.Supp. 842 (D.Or.1972). It is difficult to pinpoint any single test as to the dollar amount or percentage of the transactions required within the district — an individual unsolicited sale by a small company amounting to a large percentage of its total sales...