The opinion of the court was delivered by: CARTER
This action, involving claimed violations of §§ 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2) as well as two common law claims for relief, grows out of the termination by defendant Puerto Rico Maritime Shipping Authority ("PRMSA") of an agency agreement between it and plaintiff. Defendant PRMSA has moved for transfer to the District of Puerto Rico on the grounds that venue is lacking over it in this district (28 U.S.C. § 1406(a)), or alternatively, that the convenience of parties and witnesses, and the interest of justice, so require (28 U.S.C. § 1404(a)).
The motion is denied.
PRMSA is both a public agency and a non-stock, profit-making corporation created, owned and controlled by the Commonwealth of Puerto Rico.Its purpose and powers are "to own and regulate all aspects of commercial freight shipping in and out of the island from the Eastern and Gulf ports of the mainland as a public service." Affidavit of Roberto Lugo D'Acosta, Executive Director of PRMSA, I.A. In order to carry out its shipping business, PRMSA acquired control over privately owned marine transportation facilities in Puerto Rico and some twelve cargo ships.
PRMSA's only office, and all its employees, are in San Juan. It has chosen, apparently, to limit its involvement in the running of the business to control over "policy decisions" - i.e. long-term management decisions. D'Acosta Aff., I.C.4. All of the actual day-to-day management and operation of the shipping business has been contracted out to an ["independent mainland-based agent"] (D'Acosta Aff., I.C.4.), Puerto Rico Marine Management Inc. ("PRMMI").
PRMMI is a New Jersey corporation, with its principal offices in Elizabeth, New Jersey, and with other offices in many other cities, including New York.
One of the twelve ships in PRMSA's fleet is the S. S. Puerto Rico, a modern "roll-on roll-off" vessel in which the cargo is carried on trailers which are driven on and off the ship. The S. S. Puerto Rico was used exclusively to transport cargo between ports on the East Coast of the United States and the Persian Gulf. In May 1976, PRMSA entered into an agency contract regarding the S. S. Puerto Rico with plaintiff, a Liberian corporation. Under the terms of the contract, Star Lines was to be the agent of PRMSA for purposes of servicing and booking cargo for the S. S. Puerto Rico on its East Coast - Persian Gulf runs.
Early in 1977, the agency agreement broke down. On January 4, Star Lines apparently tried to assign its right under the agreement to Pacific Far East Lines ("PFEL"),
co-defendant in this action, subject to the approval of PRMSA; but PRMSA did not approve. Instead, on February 15, it gave notice of termination of the agreement to Star Lines and, two days later, gave Star Lines a first refusal offer to subcharter the S. S. Puerto Rico. The next day, Star Lines rejected the subcharter offer on the proffered terms, and also expressed its disagreement with PRMSA as to what date the termination would become effective. At about this time,
PRMSA chartered the S. S. Puerto Rico to PFEL, purportedly on the same terms it offered to Star Lines on February 17. Two months later, the instant suit was commenced.
The first two "counts" of Star Lines' complaint sound in antitrust law. They charge a conspiracy among PRMSA, PFEL and unnamed others to have PRMSA and PFEL enter into a contract which would eliminate Star Lines as a competitor of PFEL "in the service of 'roll-on roll-off' cargo vessels operating" on the East Coast-Persian Gulf run, and which was an attempt to establish a monopoly for PFEL in the same market, in violation of §§ 1 and 2 of the Sherman Act. The last two counts, grounded in common law, are directed only at PFEL. They charge tortious interference with Star Lines' contractual relations with PRMSA, and business defamation.
The motion to transfer for lack of venue
Pursuant to 28 U.S.C.§ 1406(a),
PRMSA moves for transfer on the grounds that venue over it does not lie in this district. Plaintiff asserts that venue may be properly laid here under 15 U.S.C. § 22, which provides:
"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...."
Section 22 ( § 12 of the Clayton Act) was enacted to enlarge the venue provisions of 15 U.S.C. § 15 ( § 7 of the Sherman Act) so that parties injured by violations of the antitrust laws could more easily seek redress in the courts. United States v. Scophony Corp., 333 U.S. 795, 808, 92 L. Ed. 1091, 68 S. Ct. 855 (1948). Specifically, the new venue statute made it possible to sue a corporation wherever it "transacted business" as well as in those districts where the corporation could be "found". Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 372, 71 L. Ed. 684, 47 S. Ct. 400 (1927).
In light of its remedial purpose, § 22 has been construed liberally. First, the activity complained of need not be related to the business transactions in this district upon which venue is predicated. National Auto Brokers Corp. v. General Motors Corp., 332 F. Supp. 280, 282(S.D.N.Y. 1971); United States v. Burlington Industries, Inc., 247 F. Supp. 185, 187 (S.D.N.Y. 1965).
Second, determining whether a corporation is transacting business within the meaning of § 22 requires a particularly pragmatic inquiry whose touchstone is the realities of commercial affairs. The question is whether the corporation "in fact, in the ordinary and usual sense... 'transacts business' [in the district] of any substantial volume." Eastman Kodak Co. v. Southern Photo Materials Co., supra, 273 U.S. at 373. So construed, § 22 is concerned with "practical, business conceptions" rather than the "hairsplitting legal technicalities" which had previously governed venue in antitrust cases. United States v. Scophony Corp., supra, 333 U.S. at 808. Whether business is transacted in a district is to be determined by "an appraisal of the unique circumstances of a particular situation." Id. at 819 (Frankfurter, J., concurring).
Applying § 22 so as to effectuate its remedial purpose, PRMSA is transacting business in this district, within the meaning of the statute, by virtue of the not insubstantial and continuous business ...