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ALBERT LEVINE ASSOCS. v. BERTONI & COTTI

January 21, 1970

Albert Levine Associates, a copartnership consisting of Albert Levine and Arnold H. Levine, doing business under the said assumed name, Plaintiffs,
v.
Bertoni & Cotti, S. p. A. Officine Meccaniche, Gianni Bertoni, Jackson Tractor Parts Co. Inc., John B. Guenther, Emanuel Crystal, Tupes of Saginaw, Inc., Robert Tupes, Wilson Welding Service also known as Wilson Parts & Equipment Co., George W. Wilson, Shaul Equipment & Supply Co., George Holder, Lester W. Ginanni, International Steel Products, Inc., Paul Leroy, Gus Surley, Burgman Supply Co., Leo C. Burgman, Russell Belcher, Barber Tractor & Parts Ltd., Floyd Barber, Seaboard Equipment Co. Inc., David M. Levin, F.W. Porter also known as Bill Porter, Trans Continent Tractor Parts, Inc. and Thomas E. Goddard


Cooper, D. J.


The opinion of the court was delivered by: COOPER

COOPER, D. J..

Defendants, Shaul Equipment and Supply Co., Inc. (hereinafter "Shaul"), George Holder (President of Shaul), and Lester W. Ginanni (General Manager and Ass't. Treasurer of Shaul) move pursuant to Rule 12(b) F.R. Civ. P. to quash service of process and dismiss the pending action brought under the Clayton Act, 15 U.S.C. §§ 15, 26.

 Plaintiff, "a co-partnership doing business in New York" claims that it was engaged in the business of importing and selling of replacement parts for crawler tractors to various distributors throughout the United States. It alleges *fn1" that Bertoni & Cotti, S.p.A., a foreign corporation located in Italy, the manufacturers of "Berco" tractor replacement parts, entered into a combination conspiracy and agreement with plaintiff's competitors, thirteen other corporations and individuals, all foreign corporations or residents of foreign states except one corporate defendant and one individual defendant who allegedly reside in New York, to refuse to sell its products to plaintiff. To effectuate this conspiracy, plaintiff alleges that all of the defendants met in New York City for three days, on or about October 30, 31, and November 1, 1965; and that as a result of this meeting the illegal agreement was entered into, and such agreement has interfered with and injured plaintiff's business.

 Plaintiff sought to obtain service of process of the moving defendants by serving the individual defendants personally in Pennsylvania, and by personally serving defendant Holder in his corporate capacity as President of Shaul, effect service on the corporation.

 The defendants now move to quash this service of process and dismiss the action on the grounds that plaintiff failed to obtain in personam jurisdiction and that venue has been improperly laid in the Southern District.

 Venue under the Clayton Act

 The Clayton Act specifically provides venue requirements for both individual and corporate defendants:

 
Section 4 of the Clayton Act (15 U.S.C. § 15)
 
Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy. . . .
 
Section 12 of the Clayton Act (15 U.S.C. § 22)
 
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 . . .

 From the papers before us we find neither Holder nor Ginanni resides, is found, or has an agent in the Southern District, *fn2" and Shaul neither an inhabitant nor found here. However, as to the corporate defendant Shaul, the question remains whether the venue requirement of § 12 is satisfied by Shaul's "transacting of business" within this district.

 While the term "transacts business" was intentionally added by Congress to broaden venue in antitrust cases and allow an aggrieved party a larger number of available forums, the term has not been considered as providing plaintiff with an unlimited choice. Stern Fish Co. v. Century Seafoods, Inc., 254 F. Supp. 151 (E.D. Pa. 1966); Commonwealth Edison Co. v. Federal Pacific Elec. Co., 208 F. Supp. 936 (N.D. Ill. 1962). Soon after § 12's enactment, the Supreme Court defined the standard to be applied when determining whether a corporation transacted business within a jurisdiction: " . . . if in fact, in the ordinary and usual sense, it transacts business therein of any substantial character." Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 373, 71 L. Ed. 684, 47 S. Ct. 400 (1927); United States v. Scophony Corp. of America, 333 U.S. 795, 92 L. Ed. 1091, 68 S. Ct. 855 (1948); Rhode Island Fittings Co. v. Grinnell Corp., J.D., 215 F. Supp. 198 (D.R.I. 1963). Each case of this kind is governed by its individual facts as applied to this "practical, nontechnical, business standard." United States v. Burlington Industries, Inc., 247 F. Supp. 185, 188 (S.D.N.Y. 1965); Abrams v. Bendix Home Appliances, Inc., 96 F. Supp. 3 (S. D.N.Y. 1951).

 The affidavit of George Holder, filed in support of the motion, states that Shaul is "in the business of selling and servicing heavy construction equipment and replacement parts;" is a Pennsylvania Corporation with its principal office there; all Shaul stockholders and officers are Pennsylvania residents; Shaul is neither licensed to do business in New York, nor does any business in New York; owns no property in New York; has no agents, resident representative, or "any other type of representative" in New York; has no dealer jobbers or independent contractors located in New York or representing it in the sale of merchandise in New York; sends no salesman or other representative into New York, or in any way solicits sales in New York; and maintains no branch plant, office, showroom or salesroom in New York. Holder further states that Shaul has "primarily a local intrastate business, sales for the most part being concentrated within the area of the company's main office;" that "on occasion" Shaul receives out of state orders for replacement parts which it fills by shipment from its Pennsylvania plants; that from 1965, the date the ...


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