The opinion of the court was delivered by: MISHLER
Motion by the defendant to dismiss the complaint and quash the service of the summons, pursuant to Rule 12(b)(1), (2), (3), (5), 28 U.S.C.A. Specifically, defendant claims that the defendant does not do business within the jurisdiction of this Court and is not subject to the process of this Court; that John J. Lorden, served with process as the Managing Agent of the defendant corporation, is not such Managing Agent; that the retention of jurisdiction would be a violation of the defendant's constitutional rights under Article I, Section 8, Clause 3, because it will impose an unreasonable and unnecessary burden upon and an obstruction to interstate commerce; that the personal injuries claimed by the plaintiff occurred in the State of Georgia, and that the employees and witnesses of the defendant are residents of the State of Georgia, and that this Court is a forum non conveniens.
It appears that the infant plaintiff is a citizen of the State of New York. It further appears that two eye witnesses to the occurrence made the basis of the claim are residents of the State of New York, and it is indicated that the plaintiff may be required to call two doctors residing and practicing in the City of New York. I find that, in weighing the inconveniences to litigants and witnesses and the expense involved to each side, the District Court of the State of Georgia would be equally inconvenient to the plaintiff.
The only substantial issue posed by this application is whether service of process upon John J. Lorden constituted service of process upon the defendant. Mr. Lorden is employed by the defendant as Eastern Sales Manager and his duties are to solicit freight for the defendant. (Affidavit of J. C. Nixon) An exhibit submitted by the plaintiff in her opposing affidavit, published by the defendant, describes Mr. Lorden as 'General Eastern Agent'. The office at 342 Madison Avenue designates two other persons as Commercial Agents for the defendant corporation. The listing in 'The Official Guide of Railways' lists the address at 342 Madison Avenue as the New York office of the defendant corporation; the defendant does not deny the plaintiff's statement that this office has been maintained by the defendant for over 20 years.
The corporation was here for the purpose of soliciting business. To be here for jurisdictional purposes or to subject the corporation to service of process of the Court, it is not necessary that the corporation perform every phase of its corporate activity within the jurisdiction. The entire corporate body was not here, but its hand extended into the jurisdiction of this Court to receive business. It can not close its fist to reject process.
The affidavits of the defendant are replete with statements showing the limitation of Mr. Lorden's authority. His position was one of authority in relation to the business which the defendant did in this State. The employee that is here in charge of the business conducted here by the corporation is the Managing Agent, and the service of process on John J. Lorden constituted service upon the corporation.
The view of the Courts in determining whether a foreign corporation is doing business within the State for the purpose of service of process is stated in Moore's Federal Practice, 2d Edition, Volume 2, at page 970, as follows:
'The Federal Courts have approached this question empirically. The facts of the case and an awareness of the realities of modern business have increasingly become deciding factors. In the great majority of cases no question arises whether foreign corporation or other business entity is doing business in the State. In close cases the Federal Courts have scrutinized the facts carefully and have made their decisions under the guidance of the broad, flexibel question-begging generality that the business must be of such a nature and character as to warrant the inference that the corporation or other business entity has subjected itself to the local jurisdiction and is by its duly authorized officers or agents present within the state in which service is attempted.'
See footnote #4 and authority and discussion thereunder.
Motion denied. Settle order on two days notice.
The Court rendered an opinion on June 29, 1961, filed June 30, 1961, denying defendant's application to dismiss the complaint and quash the service of process on the ground that the defendant was not within the jurisdiction of this Court and, further, that John J. Lorden was not such a 'managing agent' upon whom process of this Court could be served.
The Court directed a hearing on the issues and John J. Lorden testified concerning the same.
The defendant is a railroad company, operating a railroad wholly within the State of Georgia. For more than 20 years, it has maintained an office in New York City; first, at 342 Madison Avenue, and now at 220 East 42nd Street. An advertising circular of the defendant listed the New York office as follows:
'New York 17, N.Y. -- 342 Madison Ave. Room 826 'Phone Murray Hill 2-5123 'John J. Lorden, General Eastern Agent 'C. Dan Thompson, Commercial ...