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CONTROL DATA CORP. v. CAROLINA POWER & LIGHT CO.

April 25, 1967

CONTROL DATA CORPORATION, Plaintiff,
v.
CAROLINA POWER & LIGHT COMPANY and Ebasco Services Incorporated, Defendants



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion Findings of Fact And Conclusions of Law

 MOTLEY, District Judge.

 Plaintiff, Control Data Corporation (Control), brought this action against Carolina Power and Light Company (Carolina) and Ebasco Services Incorporated (Ebasco). The action against Carolina is (a) for goods sold and delivered; to wit: certain automatic data processing equipment, and (b) for services rendered by Control at the special instance and request of defendant Carolina.

 In the alternative, if and to the extent that Carolina is found not to be liable for any portion of the sum claimed, plaintiff Control prays judgment against defendant Ebasco, by reason of Ebasco's having incurred obligation for the aforesaid goods and services while acting as agent for defendant Carolina.

 Although it has not been specifically alleged by the complaint, federal jurisdiction, if it exists at all, must rest on the grounds of diversity of citizenship.

 Carolina moves to dismiss the action or, in the alternative, to transfer it to the United States District Court for the Eastern District of North Carolina. The grounds for this motion are as follows:

 1) Pursuant to Federal Rules of Civil Procedure, Rule 12(b) (2), lacks in personam jurisdiction over defendant Procedure, Rule 12(b)(2), the Court lacks in personam jurisdiction over defendant Carolina;

 2) Pursuant to Federal Rules of Civil Procedure, Rule 12(b)(5), defendant Carolina was not served with valid process;

 3) Under 28 U.S.C. § 1391(c), venue is improper as to defendant Carolina; and

 4) (in the alternative) The action should be transferred for the convenience of parties and witnesses and in the interest of justice under 28 U.S.C. § 1404.

 After oral argument of the motion and review of the memoranda, affidavits and exhibits submitted, the Court finds that venue has been improperly laid in this district and accordingly finds it unnecessary to consider the other grounds raised by this motion.

 The relevant parts of 28 U.S.C. § 1391 read as follows:

 
"(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside. * * *
 
(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 ...

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