The opinion of the court was delivered by: STEWART
Plaintiffs are corporations organized under the laws of the United Kingdom and are minority shareholders of defendant Ruston-Bucyrus, likewise a British corporation. They bring this action both individually and derivatively for alleged wrongs which they contend violate both the antitrust laws of the United States and also certain fiduciary duties owed them by defendant Bucyrus-Erie, the majority shareholder in Ruston-Bucyrus. Bucyrus-Erie is a United States corporation. Before us is a motion by Ruston-Bucyrus ("Ruston") to dismiss for lack of personal jurisdiction, improper venue, and improper service.
In Personam Jurisdiction Over Ruston
The personal jurisdiction issues raised by defendant Ruston reduce to a two part question of statutory interpretation: does the general venue statute found at 28 U.S.C. § 1391(d) (1976) supplement the special venue provision of § 12 of the Clayton Act, 15 U.S.C. § 22 (1976) in antitrust cases, and if so, does reliance on section 1391(d) for venue render unavailable extraterritorial service of process and in personam jurisdiction otherwise obtainable when venue is met under section 12? Because we resolve these issues in the plaintiffs' favor, we do not consider other possible grounds for jurisdiction raised by the parties.
Rule 4(e) of the Federal Rules of Civil Procedure allows service of process on an out of state party when a statute of the United States so authorizes. Section 12 of the Clayton Act authorizes out of state or "extraterritorial" service on a corporate defendant in antitrust actions by stating "all process in such cases may be served . . . wherever it [the corporation] may be found." 15 U.S.C. § 22 (1976). By its authorization of service outside the state, this section is construed as conferring in personam jurisdiction over the corporation served. See Goldlawr, Inc. v. Heiman, 288 F.2d 579 (2d Cir. 1961), reversed on other grounds, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962); cf. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) (construing nearly identical language in section 27 of the Securities Exchange Act of 1934). The threshold issue here is under what circumstances may a plaintiff rely on section 12's extraterritorial service provision to thereby obtain personal jurisdiction over a corporate defendant.
Section 12 states in its entirety:
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; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
The long sentence of which section 12 consists has two clauses, separated by a semicolon. One relates to venue, the other to service and, as noted, personal jurisdiction. Ruston argues that personal jurisdiction via the extraterritorial service clause of section 12 is available only when the special venue requirements found in the first clause of section 12 are met. The plaintiffs assert in essence that the extraterritorial service provision of section 12 is independent of section 12's venue clause and is always available in antitrust cases, that personal jurisdiction in such cases requires only that the parameters of the due process clause not be exceeded, and that venue may be satisfied by reference to either section 12 of the Clayton Act, or 28 U.S.C. § 1391(d) (1976), one of the general venue provisions. Since there is some doubt as to whether section 12 venue can be satisfied in this case, the possible application of section 1391(d) could be crucial. Section 1391(d), if it applies, clearly can be satisfied since Ruston is unquestionably an alien corporation and that section provides simply: An alien may be sued in any district.
We find that the availability of Section 12 service and personal jurisdiction do not depend upon the venue requirements of section 12 being met and that satisfaction of venue under section 1391(d) is sufficient. Reaching this conclusion requires a two step analysis. First, it must be inquired whether Congress intended that section 1391(d) venue be available to litigants in antitrust actions simply for venue purposes, ignoring for the moment the question of personal jurisdiction. Then it must be considered whether reliance on section 1391(d) for venue means that section 12's extraterritorial service and personal jurisdiction provision is no longer applicable, so that in personam jurisdiction must be satisfied some other way.
Although the Supreme Court has not spoken directly on the issue of whether section 1391(d) supplements the special venue provision of section 12, it has passed on the relationship of general and special venue provisions in at least three other contexts, and in so doing has provided a framework for the analysis here. See Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 32 L. Ed. 2d 428, 92 S. Ct. 1936 (1972); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 1 L. Ed. 2d 786, 77 S. Ct. 787 (1957); Pure Oil Co. v. Suarez, 384 U.S. 202, 16 L. Ed. 2d 474, 86 S. Ct. 1394 (1966).
In Pure Oil the Court distinguished Fourco, where the special venue provision governing patent infringement suits, 28 U.S.C. § 1400(b), was found to exclusively control in such cases, and held instead that the special venue provision of the Jones Act, 46 U.S.C. § 688 (1964), is not exclusive but rather is supplemented by the general venue provisions of 28 U.S.C. Id. The Court further indicated that the Fourco situation of exclusivity is the exception, not the rule, and it identified two factors which were determinative in Fourco in finding exclusivity. The first was evidence of concurrent congressional action on both the special venue provision and the general venue provision from which it could be inferred Congress meant the two statutes to stand separately. In Fourco, the special venue provision had been repassed unchanged as part of the same Act which created the general venue statute with which it conflicted. From this concurrent action the Court reasonably deduced an intent by Congress that the otherwise inconsistent provisions be deemed to govern different causes of action. Id. at 206-207.
The second factor relevant in finding exclusivity in Fourco was evidence of an original congressional intent behind the enactment of the special venue provision that venue in patent infringement cases be restrictive. At the time the Fourco venue provision was passed a more liberal interpretation of venue law in patent cases prevailed and the new law was enacted specifically to limit this interpretation. Id. at 207.
As was true in Pure Oil, these exclusivity factors are not implicated here. Not only was there no concurrent action taken on section 12 when section 1391(d) was enacted in 1948, but Congress has taken no action on section 12 since the enactment of section 1391(d). Under the Pure Oil analysis, this lack of congressional action means there is nothing from which to infer that Congress intended to affirm (or reaffirm) section 12's exclusivity in the light of section 1391(d)'s subsequent passage.
Nor is exclusivity bolstered by the second factor identified in Pure Oil, an original congressional desire to restrict venue by passing the special venue statute. As was true with the special venue provision in Pure Oil, section 12 of the Clayton Act was passed not to restrict venue, but rather to expand it. Its "plain remedial purpose . . . was . . . to enlarge the jurisdiction given by section 7 of the Sherman Act over corporations." United States v. Scophony Corp., 333 ...