Potter v. Hook Scraper Co.
| Decision Date | 31 August 1934 |
| Citation | 8 F. Supp. 66 |
| Parties | POTTER et al. v. HOOK SCRAPER CO., Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Leonard B. Zeisler, of New York City, for complainants.
C. A. Weed, of New York City, for Hook Scraper Co.
In order for this court, over objection, to retain the suit, it is certain that at least one defendant either (1) must be an inhabitant of this district, or (2) must have committed an act of infringement, as well as have a regular and established place of business, in this district. Judicial Code, § 48 (28 USCA § 109). I am uncertain whether the plaintiff rests its position, that there is venue in this district, on the first or on the second ground.
Paragraph 9 of the bill alleges that all the defendants have committed acts of infringement in the Southern District of New York. It does not, however, in terms allege, nor is it elsewhere alleged, that any defendant is an inhabitant or has a regular and established place of business here. Manifestly, such inhabitancy or such a place of business is essential to support venue. Acts of infringement alone are not enough.
Paragraph 2 of the bill alleges that the defendants are domestic or foreign corporations authorized to do business or individuals doing business in the Southern District of New York. It seems to me that, before decision of the motion on its merits, the court should feel sure of the claim—outside of what is contained in paragraph 9, whether of inhabitancy or of maintenance of a regular and established place of business—on which the plaintiff bases the contention that the case is properly in this court.
The Hook Scraper Company is neither an inhabitant of nor has it an established place of business in the Southern District of New York. It is indisputable, therefore—and indeed it is undisputed—that, without its consent or waiver, the suit cannot be maintained against it alone. The plaintiff says, however, that, by force of section 52 of the Judicial Code (28 USCA § 113), the Hook Scraper Company may be brought in—and this regardless of the absence from the bill of any allegation that this company has joined in or has contributed to infringement in this district by any other defendant or even that it has been in any way associated with any other defendant. Nevertheless, it would seem obvious that before venue can be sustained here, there must at least be a showing that one of the other defendants can be kept before the court. This brings us to the inquiry as to whether any of the seven other defendants is suable in this district under the provisions of section 48 of the Judicial Code.
Of the remaining defendants, two are foreign corporations, three are domestic corporations, and (apparently) one is a partnership. The foreign corporations are not inhabitants of the state of New York at all. Ex parte Shaw, 145 U. S. 444, 12 S. Ct. 935, 36 L. Ed. 768. With respect to the corporations organized under the laws of New York, all that the bill, or the bill as supplemented by the plaintiff's affidavit, discloses is that they are authorized to do and are doing business in this district. As to the members of the firm, the only thing affecting the subject which is asserted by the plaintiff is that they...
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...Shaver, Inc., supra; see, also, Cheatham Electric Switching Device Co. v. Transit Development Co., C.C., 191 F. 727; Potter et al. v. Hook Scraper Co., D.C., 8 F.Supp. 66; Salvatori v. Miller Music Co., Inc., D.C., 35 F.Supp. 845. A review of the authorities both before and after the adopti......
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Schick Dry Shaver v. Motoshaver, Inc.
...in this district, is nevertheless amenable to the process of this District Court and subject to its jurisdiction. Potter v. Hook Scraper Co. (D.C.N.Y.) 8 F.Supp. 66. Section 52 of the Judicial Code, title 28 U.S.C.A. § 113, provides: "Suits in States containing more than one district. When ......