The opinion of the court was delivered by: DAWSON
This is a motion made by defendant, appearing specially and pursuant to Rule 12(b) Fed.R.Civ.Proc., 28 U.S.C.A., to quash service of process and dismiss a complaint for lack of jurisdiction over the person of such defendant.
The following facts appear to be without controversy:
1. Plaintiff is a resident of the State of New York.
2. Defendant, a corporation organized and existing under the laws of the State of California, is neither qualified to do business in the State of New York, nor does it maintain offices, listings, bank accounts or have employees in this State.
3. The amount in controversy herein is over $ 3,000, arising from a contract for the sale of literary rights and ideas, originally entered into between one Arthur Kurlan and defendant corporation and subsequently assigned to this plaintiff.
4. The purported service on Lewislor Enterprises, Inc. was made April 14, 1958, by leaving a copy of the summons and complaint with Sid Feinberg, Controller of the William Morris Agency, Inc. (in Morris's New York offices). The William Morris Agency, Inc., is alleged to be the managing agent of Lewislor.
Rule 4(d)(3) of the Federal Rules of Civil Procedure is applicable here. It says, in part, that personal service may be made:
'Upon a * * * foreign corporation * * * by delivering a copy of the summons and of the complaint to * * * a managing or general agent * * *.'
While one issue is whether or not the William Morris Agency, Inc., is in fact the managing agent of defendant Lewislor, the immediate issue is whether or not Lewislor is present within the State of New York.
In order to determine that a corporation is present within this jurisdiction for purposes of suit, the corporation must have certain contacts with the jurisdiction, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Milliken v. Meyer, 1940, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278. These contacts constitute the 'presence' of the corporation within the jurisdiction. International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S. Ct. 154, 91 L. Ed. 95. In this latter decision, Chief Justice Stone, speaking for the Court, pointed out that
"Presence' in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. * * * Conversely it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation's behalf are not enough to subject it to suit on causes of action unconnected with the activities there. * * * To require the corporation in such circumstances to defend the suit away from its home or other jurisdiction where it carries on more substantial activities has been thought to lay too great and unreasonable a burden on the corporation to comport with due process.' 326 U.S. at page 317, 66 S. Ct. at page 159.
To apply these criteria to the present situation we must review the facts as shown by the papers submitted on this motion.
Lewislor Enterprises, Inc., is a California corporation organized for the sole purpose of producing a regular, weekly television show well known to the television audiences as 'The Loretta Young Show.' Its three officers and stockholders are Loretta Young, her husband Thomas H. Lewis, and Robert Shewalter, their accountant. It was organized in California; it has an office in California; the corporate records and employees are solely in California. The television show was not produced 'live' but was first recorded on film in each instance. The recording of the show on film was done in California and for that purpose a studio was rented in California; except for several relatively unimportant instances all casting for the show and the purchase of scripts has been done in California. The show, so far as the record shows, has never been recorded on film in New York.
However, in connection with the sale of this television show and matters incidental thereto, Lewislor Enterprises, Inc., hired as its theatrical booking agent the well-known firm of William Morris Agency, Inc. This agency has offices both in California and New York and probably in other places throughout the country. The agency was successful in selling the proposed show to the National Broadcasting Company for exhibition on the television channels of that company. Certain negotiations for the sale of that show were carried on by William Morris Agency, Inc., as the booking agent, and some of the negotiations were carried on in New York, but the final contract between the National Broadcasting Company and Lewislor Enterprises, Inc., was entered into in California. Most of the day-to-day contacts between Lewislor Enterprises, Inc., and the National Broadcasting Company are handled through the California offices of William Morris Agency. The William Morris Agency, Inc., was able successfully to secure as a sponsor for the show the Procter & Gamble Company. Some of the ...