Schiller v. Mit-Clip Co., 116
| Decision Date | 17 March 1950 |
| Docket Number | Docket 21428.,No. 116,116 |
| Parties | SCHILLER v. MIT-CLIP CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Harry Price, New York City, for appellant.
Irving Fox, New York City, for appellee.
Before L. HAND, Chief Judge, and GOODRICH and FRANK, Circuit Judges.
The plaintiff sues under the Anti-Trust Acts to recover damages, caused by a conspiracy between the corporate defendant and its treasurer, by which they are seeking to acquire a monopoly in the sale of "elastic glove attachments," by fraudulently threatening the plaintiff's customers with litigation upon "alleged patent rights." The treasurer (who has never been served) is a resident of Minnesota; the corporate defendant was organized under the law of that state; the plaintiff is a resident of New York. The defendants moved1 to dismiss the action because the corporation had never done enough business in the Southern District of New York to become "present" there for purposes of a suit in personam, and because the treasurer was not a resident. In support of this motion the defendants showed that the only business, ever done in New York by either defendant, was one trip of the treasurer to that city for a day and a half, during which he had called upon four prospective customers and showed them the little gadget, which the corporation makes and sells. He made no contracts and secured no more from those whom he interviewed than a promise to "discuss" the matter "with their buying departments." The judge did not dismiss the action, but, sua sponte, transferred it to the District of Minnesota, Fourth Division, by virtue of the power conferred under § 1406(a) of the Judicial Code.2 The plaintiff has appealed, and has filed a petition for a mandamus to compel the judge to revoke this transfer.
The infirmities of the appeal are exceeded only by the hardihood of the plaintiff in taking it. It has never been suggested in any court at any place or at any time, so far as we are aware, that a corporation becomes "present" so as to be subject to suit in personam, unless it has pursued some more or less "continuous" activity within the jurisdiction. The single excursion of the treasurer was utterly insufficient to give the district court any power to proceed against it; and the action has abated against the treasurer personally, because of failure to serve him within three months.3 True, the defendants did not ask for a transfer under § 1406(a); but for a dismissal. However, the plaintiff cannot complain because he has not suffered the dismissal which he so richly...
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Goldlawr, Inc. v. Heiman
...absence of personal jurisdiction over the defendant had its genesis in a misconception of the holding of this Court in Schiller v. Mit-Clip Co., 2 Cir., 1950, 180 F.2d 654. For example, in Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426, the court expressed serious dou......
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Brandt v. Renfield Importers, Ltd.
...Co. v. Universal Oil Products Co., D.C. 70 F.Supp. 77; Lechler Laboratories v. Duart Mfg. Co., D.C., 35 F.Supp. 839; Schiller v. MitClip Co., Inc., 2 Cir., 180 F.2d 654; Midwest Fur Producers Ass'n v. Mutation Mink Breeders Ass'n, D.C., 102 F.Supp. 649; Seaboard Terminals Corp. v. Standard ......
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Hohensee v. News Syndicate, Inc.
...larger number are clearly inapposite or can be readily distinguished on their facts.6 Others deserve discussion. In Schiller v. Mit-Clip Co., 2 Cir., 1954, 180 F.2d 654, the action was transferred sua sponte by the district court under Section 1406(a) because the defendant had never done en......
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GOLDLAWR, INCORPORATED v. Shubert
...U.S.Code Cong.Serv. 1253 (1949); Notes 38 Minn.L.Rev. 874, 23 U.Cinn.L.Rev. 357, 359 (1954). It should be noted that Schiller v. Mit-Clip Co., 2 Cir., 1950, 180 F.2d 654, which has been cited as authority for the propriety of transfer when jurisdiction in personam could not be had in the tr......