The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge:
Defendant Milton Siegel moves to dismiss this action as against him for lack of venue.
The action seeks treble damages under the antitrust laws.
It appears from the complaint that plaintiff and at least one defendant (Miller Advertising, Inc.) are both New York corporations. Thus, all defendants do not reside in New York. Venue, therefore, does not lie in this district under the general venue statute.
Jurisdiction and venue, according to the complaint, are predicated on 28 U.S.C. § 1337
and 15 U.S.C. §§ 15 and 22 (Sherman Act § 7 and Clayton Act § 12).
In accordance with Rule 4(e), Fed. R. Civ. P.,
and New York's long-arm statute, § 302 CPLR,
Siegel was served with a copy of the summons and complaint in Miami, Florida, where he was then located and where he has resided, owned a home and been employed since June 1, 1968. He had no agent, owned no property and transacted no business within the State of New York at the time of service or suit.
Since plaintiff is an individual, the controlling venue statute is not § 12 of the Clayton Act, 15 U.S.C. § 22, but § 7 of the Sherman Act, 15 U.S.C. § 15, which contains a special venue provision for private antitrust actions allowing them to be brought only in a district court in the district "in which the defendant resides or is found or has an agent."
Siegel neither resided nor had an agent in this district at the time of suit or service. Our search is thus directed to whether he was found within this district. We think not.
The burden of proof on this disputed issue is on the plaintiff.
Plaintiff offers nothing to refute the facts outlined above.
According to Judge Learned Hand, the " found " criterion was designed "to permit the plaintiff to sue the defendant wherever he could catch him."
Siegel was caught by the plaintiff not in New York but in Florida, albeit by reach of New York's long-arm statute. He was found, therefore, not within this district but in Florida. Venue, thus, does not lie in this district, and absent waiver of the territorial immunity granted by Congress,
he may not be sued here for venue is improper as to him.
Opposing the motion, plaintiff asserts facts to the effect that at the time of the alleged conspiracy, but not at the time of suit or service, Siegel was engaged in various activities within the State of New York. It is asserted, for example, that he participated in the alleged tortious conspiracy to drive plaintiff out of business, transacted business within the State, acted as agent and manager for co-defendant Aamco Automatic Transmissions, Inc., directed the actions of others within the State to the injury of plaintiff, derived substantial revenue from sales and had substantial and continuous business with and in New York. All this past conduct, plaintiff urges, combined with the changes wrought by the incorporative provision of Rule 4(e), Fed. R. Civ. P., New York's long-arm statute and the broadened approach of modern jurisdictional concepts
operate to expand the special venue provision of the antitrust laws. We disagree.
Plaintiff would lead us to the error of blurring venue with jurisdiction. It should be noted that this is not a motion to quash service. Venue, not jurisdiction, is challenged by the motion.
Jurisdiction over the subject matter relates to the power of the court to hear and determine the action, and jurisdiction in personam relates to the court's power over the defendant. There can be no question that we have subject matter jurisdiction of this action since the complaint is based on an alleged conspiracy in restraint of trade, in violation of § 1 of the Sherman Act.
Moreover, assuming the truth of plaintiff's assertions, we also have jurisdiction over the person of Siegel by operation of Rule 4(e), Fed. R. Civ. P., and § 302 CPLR.
Venue, however, is a wholly different matter, and the distinction is vital to decision of this motion. Venue relates not at all to jurisdiction but to the place or forum where the action may be brought.
Venue, having been fixed by federal law, must be determined by federal law.
The statute contains no provision expanding venue to every place defendant may be amenable to process. Nor does it contain a provision making "found" synonymous with jurisdiction over the person.
There is certainly no requirement that venue and jurisdiction over the person be coextensive.
It would be anomalous, indeed, to say that this defendant was "found" within this district when in fact defendant was served with process extraterritorially in Florida under a rule and State long-arm statute which operate only when he cannot be found here. More significantly, however, Rule 82, Fed. R. Civ. P., expressly provides that the Federal Rules of Civil Procedure "shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." Rule 4(e), Fed. R. Civ. P., and § 302 CPLR, however far-reaching in extraterritorial service of process, ...