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August 4, 1960

FORESTAL LAND, TIMBER AND RAILWAY CO., LTD.; La Forestal S.A. deTierras, Maderas y Explotaciones Commerciales e Industriales; the Olson Importing Company, Inc.; Barkey Importing Co., Inc.; Michael Lees; James M. Cavanaugh; Protan S.R.L.; Herman J. Landauer; Carl O. Olson, Richard Olson and Richard S. Turner, Individually and doing business as Olson Importing Company, a partnership; Jacob A. Barkey and George F. Taylor, Defendants

The opinion of the court was delivered by: BRYAN

This is a private anti-trust suit alleging a conspiracy to monopolize trade and commerce in quebracho and wattle extracts used in the tanning of leather, in violation of the Sherman, Clayton, and Wilson Tariff Acts, 15 U.S.C.A. §§ 1, 27, 44. Broad injunctive relief and damages in the sum of $ 3,600,000 are sought.

Plaintiff River Plate Corporation is a Delaware corporation. The fourteen defendants named include eight which appear to be residents of foreign countries. Service of process has been made on most of the domestic defendants. Plaintiff also claims to have effected service on The Forestal Land, Timber and Railway Co. Ltd., a United Kingdom corporation, (Forestal London) and La Forestal S.A. de Tierras Maderas y Explotaciones Commerciales e Industriales, an Argentine corporation, (Forestal Argentina) by serving defendants, Barkey Importing Co. Inc. (Barkey), The Olson Importing Company, Inc. (Olson) in this district, and James M. Cavanaugh in New Jersey, as agents of these defendants. Defendant Protan S.R.L. (Protan), an Argentine entity claiming to be a limited partnership, is also claimed to have been served by service on defendants Barkey and Olson as its agents.

 Defendants Forestal London, Forestal Argentina and Protan have moved, pursuant to Rule 12(b), F.R.Civ.P., 28 U.S.C.A., to quash service of process and to dismiss the complaint as to each of them on the grounds that they are not amenable to service of process here and that service was not effected on persons on whom service could be made on their behalf under Rule 4(d), F.R.Civ.P., or authorized to receive service for them.

 Plaintiff opposes these motions and had cross-moved to hold the motions in abeyance until it has had the benefit of discovery and has taken depositions here and abroad. Motions previously made by plaintiff for the issuance of letters rogatory to take depositions in England and Argentina are also now before me. In addition, plaintiff has served notices to take various depositions in this country which have not yet proceeded pending decision of the motions before me.

 The first question is whether the motions to dismiss for lack of in personam jurisdiction over the two Forestal defendants and Protan should be determined on the merits at this time, or whether such motions should be held in abeyance pending the taking of depositions by plaintiff in an attempt to elicit facts to sustain jurisdiction. There is a subsidiary dispute as to whether such depositions, if allowed, should be confined to jurisdictional facts only or should also cover the merits. Defendants Olson and Barkey, concerning whom there is no jurisdictional question, contend that depositions of plaintiff on the merits which they have already noticed have priority and should be permitted to proceed without delay before plaintiff examines them.

 The three defendants contesting jurisdiction contend that the affidavits and documents which they have submitted clearly establish that they are not inhabitants of nor may they be found in this district or in any district in the United States within the meaning of Section 12 of the Clayton Act, 15 U.S.C.A. § 22. They say that plaintiff has wholly failed to meet its burden of sustaining jurisdiction and that they have demonstrated that depositions would be fruitless on that subject. They urge that they have so conclusively established that they cannot be 'found' within the districts in which service was made that plaintiff should not be permitted to take any depositions at all and that they are entitled to a dismissal of the complaint as to them without further ado, relying on such cases as Jones v. Davega Stores Corp., D.C.S.D.N.Y., 10 F.R.D. 434, affirmed sub nom. Jones v. Motorola, Inc., 2 Cir., 186 F.2d 707; Kilpatrick v. Texas & Pac. Ry., D.C.S.D.N.Y., 72 F.Supp. 635, 638, reversed 2 Cir., 166 F.2d 788, certiorari denied 335 U.S. 814, 69 S. Ct. 32, 93 L. Ed. 369; and Newmark v. Abeel, D.C.S.D.N.Y., 102 F.Supp. 993.

 But in the area of jurisdiction in personam generalizations are not particularly helpful and each case must be judged on its own facts. Lightner v. Pilgrim Paper Corp., D.C.S.D.N.Y., 152 F.Supp. 504; Pickthall v. Anaconda Copper Mine Co., D.C.S.D.N.Y., 73 F.Supp. 694.

 I will not attempt to discuss in detail the voluminous affidavits before me, nor the checklist of facts which defendants say should be determinative of whether they can be found here. It may be noted, however, that the affidavit submitted by the plaintiff, liberally viewed, presents at least some facts which call into question what the defendants claim the facts to be with respect to their activities here within the last few years.

 In any event, as helpful as a checklist of activities which are customarily viewed as bearing on the question of corporate presence within the jurisdiction may be in the usual case, it is not of controlling significance here. Even in the run-of-the-mill case the checklist approach is not necessarily determinative of the jurisdictional question. For example, as I have noted, such matters as bank accounts, listing in telephone directories and office space 'are merely additional factors to be taken into account and are in no way controlling.' Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., D.C.S.D.N.Y., 178 F.Supp. 150, 154.

 The case at bar is not the usual case.

 Here, the Forestal defendants candidly state that they have arranged their affairs so that they will not be 'found' in the United States for purposes of suit. Changes in such arrangements were made after a prior anti-trust suit had been brought against them which was settled. The Forestal defendants carefully reworked their agreement with their distributors Barkey and Olson and with defendant, Cavanaugh with the object of withdrawing from the jurisdiction, if, in fact, they were ever here. The agreements with Barkey and Olson now in force on their face indicate that these distributors are independent contractors who have no agency relationship with the Forestal companies or Protan, and that Cavanaugh has presently no direct relationship at all with the Forestal corporations. How different the relationships were prior to these changes in arrangements is by no means clear.

 Plaintiff contends that depositions will establish that the formal arrangements do not show the present true relationship between Barkey, Olson and Cavanaugh and the Forestal defendants, and that a prior relationship subjecting defendant to jurisdiction persists. They contend further that concealment of such relationship is a port of the conspiracy to restrain commerce which is the gravamen of the complaint.

 The Forestal defendants urge on the other hand that the best plaintiff has done up to now is to suggest that they may have been present here a year or two before service was attempted in this case. They point out that prior presence in the jurisdiction, standing by itself, will not ordinarily serve to sustain service of process and that corporate defendants are at liberty to withdraw from a jurisdiction if they so desire.

 However, the fact that there may have been prior activities sufficient to constitute presence in the jurisdiction is at least an indication that a motion to dismiss for lack of jurisdiction should not be determined on affidavits alone, but that plaintiff should be afforded an opportunity to explore the question of whether such activities have in fact continued and whether the service is valid. It has been held error under such circumstances to grant a motion to dismiss for want of jurisdiction ...

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