Van Hoven Company v. Stans

• Citation: 319 F. Supp. 180
• Decision Date: 09 November 1970
• Docket Number: No. 3-70 Civ. 261.,3-70 Civ. 261.
• Parties: VAN HOVEN COMPANY, Inc., Morris Rifkin & Sons, Inc., St. Paul Dressed Beef, Inc., G. Bartusch Packing Company, and Landy Packing Company, Plaintiffs, v. Maurice STANS, Secretary of Commerce of the United States and Packerland Packing Company, Defendants.
• Court: U.S. District Court — District of Minnesota

319 F. Supp. 180

VAN HOVEN COMPANY, Inc., Morris Rifkin & Sons, Inc., St. Paul Dressed Beef, Inc., G. Bartusch Packing Company, and Landy Packing Company, Plaintiffs, v. Maurice STANS, Secretary of Commerce of the United States and Packerland Packing Company, Defendants.

No. 3-70 Civ. 261.

United States District Court, D. Minnesota, Third Division.

November 9, 1970.

David W. Nord and Carl Cummins, Jr., St. Paul, Minn., for plaintiffs.

Stephen Palmer, Asst. U. S. Atty., Minneapolis, Minn., for Secretary of Commerce.

David L. Grannis, Jr. and Patrick A. Farrell, South St. Paul, Minn., for Packerland Packing Co.

DEVITT, Chief Judge.

Three issues are presented by defendant Packerland Packing Company's motions to set aside the service of process and for a change of venue, and by plaintiffs' motion for a preliminary injunction.

Plaintiff corporations are engaged in the business of meat packing in South St. Paul, Minnesota. They have commenced this action for declaratory judgment and injunction against Maurice Stans, Secretary of Commerce of the United States and Packerland Packing Company, a Wisconsin corporation engaged in meat packing.

The complaint alleges that Stans, acting in his capacity as administrator of the Public Works and Economic Development Act of 1965¹ has exceeded the statutory limitations of his authority by granting to Packerland a loan so that it might construct a new meat packing plant in South St. Paul, Minnesota.²

Federal Rules of Civil Procedure provides as follows:

"(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

"(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. (Emphasis added.)"

Although service of process was made by delivering a copy of the summons and complaint to Michael Wisneiski a bookkeeper employee of Packerland at Green Bay, Wisconsin, who was neither an officer of the corporation nor authorized to accept service, the pleadings, records and affidavits reflect that Wisneiski advised the United States Deputy Marshal responsible for making service that he was the office manager and he in fact appeared to be the agent in charge of Packerland's Green Bay headquarters in the absence of company officers.³ It is also significant that the Deputy Marshal diligently sought, without success, to locate an officer of the company upon whom to make service before electing to make service upon Wisneiski. See Merchants Transfer & Warehouse Co. v. Ragan, 170 F.2d 987 (10th Cir. 1948).

Service of process upon Wisneiski was proper to establish personal jurisdiction over Packerland. It is sufficient to satisfy the requirements of Rule 4(d) (3) that a responsible person who declared himself to be in charge of the office was served, particularly where there is no showing that any technical errors allegedly committed in serving the summons and complaint were prejudicial to the defendant. Giordani v. Hoffman, 295 F.Supp. 463 (E.D.Pa.1969); Noerr Motor Freight, Inc. v. Eastern R. R. Presidents Conference, 113 F.Supp. 737 (E.D.Pa.1953). Notice is the keystone to proper service under Rule 4(d) (3) and there is no doubt that Packerland was adequately informed of the commencement of this action. See Jennings v. McCall Corp., 320 F.2d 64 (8th Cir. 1963); Wright & Miller, 4 Federal Practice and Procedure § 1101, 382-387 (1969).

The second issue relates to the properness of this District as the venue for the action. Subsection (c) of 28 U.S.C. § 1391, a venue statute of general applicability, provides as follows:

"(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."

Packerland is "doing business" in this District as evidenced by the fact that the corporation has two resident agents in Minnesota who purchase from one thousand (1,000) to four thousand (4,000) head of cattle every week for Packerland on the South St. Paul market. The statutory requirement for venue is satisfied. See, e. g., McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Jennings v. McCall Corp., supra; Houston Fearless Corp. v. Teter, 318 F.2d 822 (10th Cir. 1963).

Furthermore we are not impressed with Packerland's contention that there should be a change of venue and the case transferred to the Eastern District of Wisconsin for the convenience of the parties and witnesses. Packerland has not adequately supported its request for a change of venue and an examination of the factual and substantive issues set forth in the pleadings indicates that the balance of convenience and the interest of justice favor retention of this case for trial in this District. See Wyndham Associates v. Bintiff, 398 F.2d 614 (2nd Cir. 1968), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Quality Beverage Co. v. Sun-Drop Sales Corp. of America, 291 F.Supp. 92 (D.C.Wis. 1968); Savage v. Kaiser Motors Corp., 116 F.Supp. 433 (D.C.Minn. 1953).

The third issue concerns plaintiffs' motion for a preliminary injunction to enjoin Packerland from accepting or using the proceeds of the government loan to construct a new meat packing facility in South St. Paul. It is well settled that a motion for a preliminary injunction is addressed to the discretion of the court and that the remedy itself is an extraordinary one that is not to be granted absent a strong showing of need by the plaintiff. E. W. Bliss Co. v. Struthers-Dunn, Inc., 408 F.2d 1108 (8th Cir. 1969); American Metropolitan Enterprises of New York, Inc. v. Warner Bros. Records, Inc., 389 F.2d 903 (2nd Cir. 1968). In this regard, there are four factors which a court should take into consideration and balance before granting this relief: (1) the probability that the plaintiff will eventually succeed on the merits; (2) the presence of immediate and irreparable injury to the plaintiff; (3) the possibility of injury to the defendant; and (4) the public interest in the granting of the preliminary injunction. See Industrial Bank of Washington v. Tobriner, 405 F.2d 1321 (D.C. Cir. 1968); Benson Hotel Corp. v. Woods, 168 F.2d 694 (8th Cir. 1948); Citizens Committee for Hudson Valley v. Volpe, 297 F.Supp. 804 (S.D.N.Y. 1969); Exchange National Bank of Chicago v. Abramson, 278 F.Supp. 849 (D. Minn....