Riverbank Laboratories v. Hardwood Products Corp.

• Decision Date: 12 April 1955
• Docket Number: No. 11213.,11213.
• Citation: 220 F.2d 465
• Parties: RIVERBANK LABORATORIES, a corporation, Plaintiff-Appellee, v. HARDWOOD PRODUCTS CORPORATION, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F.2d 465 (1955)

RIVERBANK LABORATORIES, a corporation, Plaintiff-Appellee, v. HARDWOOD PRODUCTS CORPORATION, a corporation, Defendant-Appellant.

No. 11213.

United States Court of Appeals, Seventh Circuit.

March 18, 1955.

Rehearing Denied April 12, 1955.

David A. Fox, Milwaukee, Wis., Gerrit P. Groen, Chicago, Ill., Wilkinson, Huxley, Byron, Hume, Chicago, Ill., for defendant-appellant.

Jack H. Oppenheim, Chicago, Ill., William J. Friedman, Maurice Rosenfield, Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

In this action plaintiff seeks an injunction restraining defendant from using the word "Riverbank". At the oral argument before this Court, plaintiff's counsel designated the action as one for unfair competition although such terminology does not appear anywhere in the complaint. Jurisdiction is based upon diversity of citizenship. Defendant moved to dismiss the action because of lack of proper venue; plaintiff moved for a temporary injunction. The District Court denied the motion to dismiss but granted the motion for a temporary injunction. Defendant appeals from the interlocutory order granting the temporary injunction.

The order denying the motion to dismiss the action because of improper venue is interlocutory and would not be appealable if considered alone. Bowles v. Culhane, 7 Cir., 151 F.2d 504, 505. However, this court has jurisdiction of the appeal from the preliminary injunction, Title 28 U.S.C. § 1292. In reviewing the issues raised on that appeal we may inquire both as to the jurisdiction of the District Court and the adequacy of the complaint, for no preliminary injunction may stand if the complaint itself cannot stand. Deckert v. Independence Shares Corporation, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189; Pang-Tsu Mow v. Republic of China, 91 U.S.App. D.C. 324, 201 F.2d 195, 198; American Chemical Paint Co. v. Dow Chemical Co., 6 Cir., 161 F.2d 956, 958; In re Chicago Rapid Transit Co., 7 Cir., 200 F.2d 341, 343, 33 A.L.R.2d 1360.

Defendant's motion to dismiss because of improper venue was based upon its claim that it is a Wisconsin corporation not licensed to do business in Illinois, and that it did no business in Illinois other than the solicitation of interstate business. Defendant relies principally upon the decision of this Court in Canvas Fabricators, Inc., v. William E. Hooper & Sons Co., 7 Cir., 199 F.2d 485. We approved and followed the Canvas Fabricators case in Roberts v. Evans Case Co., 7 Cir., 218 F.2d 893.

The relevant facts on the question of venue are as follows: Defendant, a Wisconsin corporation, has its main office and principal place of business at Neenah, Wisconsin, and is not licensed to do business in Illinois, and has not authorized any agent to accept service of process there. For many years defendant has maintained an office in Chicago which, it claims, is merely a sales office. Charles D. Heidemann has been in charge of the Chicago office for many years and service of process in this suit was made upon him. At least the principal part of his duties was soliciting orders for goods manufactured by defendant in Wisconsin. Such orders were transmitted to Neenah, Wisconsin, for acceptance or rejection. Defendant's corporate name was painted on the door of its Chicago office, and its name also appeared in the directory in the lobby of the building. Its name was listed in the Chicago directory. Defendant did not maintain a stock of goods in Illinois, nor did it have a bank account in that state.

Many of the facts in the case at bar, bearing on the question of venue, are similar to the facts in Canvas Fabricators, Inc., v. William E. Hooper & Sons Co., supra, hereinafter referred to as Canvas Fabricators, and Roberts v. Evans Case Co., supra, hereinafter called Roberts. In each of these cases the defendant was a nonresident corporation which had maintained an office in Chicago for many years. In each case defendant's name appeared upon the office door and was listed in the Chicago directory. In those cases, as in the case at bar, no contracts were entered into in Illinois, but all orders were sent to the home office of defendant for acceptance or rejection. In Canvas Fabricators, as in the case at bar, the defendant's sales representative used stationery bearing the Company's name and the address of the Chicago office. In Roberts the Chicago office had been maintained for twenty years in charge of the same agent whose territory covered Illinois and four nearby states. In Canvas Fabricators we said, 199 F.2d at page 487: "It is true that in the instant case defendant maintained rather elaborate facilities in connection with its activity in Illinois, but, after all, the instrumentalities provided were only in aid of its objective, that is, the solicitation of business within the State, * * *."

Additional factors in those cases not present in the case at bar might be noted. In Canvas Fabricators the defendant maintained a bank account in Chicago in...