The opinion of the court was delivered by: PALMIERI
This is an antitrust action originally instituted on October 17, 1956 by plaintiff against various persons and corporations in the Federal District Court for the Eastern District of Pennsylvania. That Court retained the action as to defendants found to be properly before it and, on March 3, 1959, ordered the action transferred to this Court as to the above-named defendants, for lack of proper venue in Pennsylvania. Motions filed here by defendants subsequent to transfer will be discussed seriatim.
Motion of Defendants Select Operating Corporation and United Booking Office, Inc. to Dismiss for Lack of Jurisdiction
Select Operating Corporation and United Booking Office, Inc. are incorporated and have their offices in New York. Plaintiff, claiming the right to extraterritorial process under Section 12 of the Clayton Act, 38 Stat. 736 (1914), 15 U.S.C.A. § 22, served these defendants in New York, by alias summons, in February and March of 1957. Defendants immediately moved to quash the returns of service of the summons and to dismiss for lack of jurisdiction and improper venue. In an opinion dated December 22, 1958, D.C., 169 F.Supp. 677, the Court in Pennsylvania held that venue was improper, finding that defendants were not inhabitants of or found in Pennsylvania, and did not transact business there as required by Section 12 of the Clayton Act. Transfer was ordered without ruling upon the motions to dismiss for lack of personal jurisdiction.
Service of the alias summons was the only service of process ever received by either defendant in this District. Therefore, the first question presented is whether, under Section 12 of the Clayton Act, the extraterritorial service of process while the action was pending in Pennsylvania had the effect of giving this Court, on transfer, personal Jurisdiction over the defendants.
'Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.'
If the service purported to be made under this section was effective to give the Court in Pennsylvania personal jurisdiction, such jurisdiction would continue after transfer. See Sen.Rep. No. 303, 81st Cong., ,1st Sess., U.S.Code Cong. Serv. 1253 (1949). In order to sustain jurisdiction in Pennsylvania, however, the clause of Section 12 dealing with process would have to be read as wholly independent of the clause dealing with venue. If so read, the extraterritorial service would give the Court in Pennsylvania jurisdiction; the only defect would be improper venue. Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426, 428 (dictum), Note, 38 Minn.L.Rev. 874 (1954).
The language of the section itself precludes the interpretation set forth above. By the phrase 'all process in such cases' (Emphasis supplied), the privilege of extraterritorial service is expressly confined to actions brought in a district in which the corporation is an inhabitant, found, or transacting business. Dazian's, Inc. v. Switzer Bros., D.C.N.D.Ohio 1951, 111 F.Supp. 648; Midwest Fur Producers Ass'n v. Mutation Mink Breeders Ass'n, D.C.Minn,s951 102 F.Supp. 649; Reid v. University of Minnesota, D.C.N.D.Ohio 1952, 107 F.Supp. 439; cf. Greenberg v. Giannini, 2 Cir., 1944, 140 F.2d 550, 152 A.L.R. 966; Lavin v. Lavin, 2 Cir., 1950, 182 F.2d 870, 873, 18 A.L.R.2d 1017 (dictum). That the Pennsylvania forum is not such a District is no longer in dispute. Therefore plaintiff cannot invoke Section 12 of the Clayton Act to legitimatize the extraterritorial service. The Court in Pennsylvania never acquired personal jurisdiction over the defendants, and this Court did not acquire personal jurisdiction as a result of the transfer.
Nor was personal jurisdiction obtained in this District by virtue of the fact that the alias summons was delivered in New York, Service made without statutory authority is of no effect regardless of actual notice to defendants. Cf. Wuchter v. Pizzutti, 1928, 276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 446.
This Court now lacks personal jurisdiction over the defendants since effective service of process has never been accomplished. However, if the transfer to this District were authorized, plaintiff might still be in a position to avoid dismissal by making proper service upon defendants without further delay. See United Nations Relief & Rehabilitation Administration v. The Mormacpine, D.C.S.D.N.Y.1951, 99 F.Supp. 552; 5 Moore, Federal Practice § 41.11 at p. 1039 (2d ed. 1951). Therefore, the second question to be determined on this motion is whether a Court, lacking jurisdiction over defendants, may nonetheless transfer the action to a District where service can be effected.
This issue, requiring interpretation of the transfer provisions of the Judicial Code, 28 U.S.C. §§ 1404(a), 1406(a) (1952), is one on which the Courts are in disagreement. Independent Productions Corp. v. Loew's, Inc., D.C.S.D.N.Y.1957, 148 F.Supp. 460; McDaniel v. Drotman, D.C.W.D.Ky.1952, 103 F.Supp. 643; Wilson v. Kansas City So. Ry., D.C.W.D.Mo.1951, 101 F.Supp. 56; Fistel v. Beaver Trust Co., D.C.S.D.N.Y.1950, 94 F.Supp. 974 (transfer may be made only by a court which has personal jurisdiction). Internatio-Rotterdam, Inc. v. Thomsen, 4 Cir., 218 F.2d 514, 68 Harv.L.Rev. 1069 (1955) (admiralty); Orzulak v. Federal Commerce & Navigation Co., D.C.E.D.Pa.1958, 168 F.Supp. 15 (admiralty); United States v. Welch, D.C.S.D.N.Y.1957, 151 F.Supp. 899; Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426; Lumbermens Mut. Cas. Co. v. Mohr, D.C.S.D.Texas 1949, 87 F.Supp. 727 (transfer may be made by a court which lacks personal jurisdiction). Section 1406(a), authorizing transfer when venue is improperly laid, provides:
'The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.'
Section 1404(a), since it applies when venue is proper but the forum in which the action is brought is inconvenient, is not directly involved in this action. It is appropriate to note, however, that the Courts have not drawn a distinction between the two sections in regard to the propriety of transfer by a Court which lacks ...