The opinion of the court was delivered by: Edelstein, District Judge:
Defendants Wesleyan University ("Wesleyan"), The President
and Trustees of Williams College ("Williams"), and the
Trustees of Dartmouth College ("Dartmouth") have moved
pursuant to Federal Rule of Civil Procedure 12(b)(2) and
12(b)(3) to dismiss this putative class action antitrust case
against them on the grounds that this Court lacks personal
jurisdiction and that venue is improper, and, in the
alternative, pursuant to 28 U.S.C. § 1406 to transfer this
action to a district in which it could have been brought. For
the following reasons, defendants motions are denied.
Plaintiff Roger Kingsepp, a student at Wesleyan, commenced
this action on September 15, 1989. In his complaint, plaintiff
alleges that defendants "have engaged in a conspiracy to fix
or artificially inflate the price of tuition and financial
aid." (Complaint, ¶ 6). As a result of the alleged conspiracy,
plaintiff claims that "tuition and financial aid have been
fixed, stabilized and inflated in violation of Section One of
the Sherman Act" and that the class has therefore been damaged
by "having to pay higher tuition than in a free competitive
market." Id. at ¶ 13.
Wesleyan, Williams, and Dartmouth (the "moving defendants")
have moved to dismiss the complaint against them for lack of
personal jurisdiction and improper venue, and, in the
alternative, to transfer this action to a district in which it
could have been brought. The moving defendants contend
that they are not subject to jurisdiction under the nationwide
service of process provisions of the antitrust laws or under
the New York long-arm statute, and that venue is improper
under any of the applicable venue statutes. The remaining
defendants do not contest jurisdiction and venue. Plaintiff
has asserted personal jurisdiction over the moving defendants
under section 12 of the Clayton Act, 15 U.S.C. § 22, and New
York Civil Practice Law §§ 301, 302(a)(1), and 302(a)(3).
Plaintiff also claims that venue is appropriate under section
12 of the Clayton Act and under the general federal venue
provision, 28 U.S.C. § 1391(b).
The moving defendants argue that plaintiff's claim "that
jurisdiction is available under Section 12 of the Clayton Act
even if defendants have no contacts with New York, or this
district, so long as they have contacts with the United
States. . . . is plainly wrong." (Reply Memorandum of Moving
Defendants, p. 14). In support of this argument, they assert
that "this basis of jurisdiction applies only to aliens, and
not to domestic entities such as the moving defendants." Id.
(emphasis in original). Plaintiff's assertion of jurisdiction
under section 12, at least as to Wesleyan and Williams, is well
founded; it is the moving defendants' argument that is plainly
Rule 4(e) of the Federal Rules of Civil Procedure authorizes
service of process on an out of state party when authorized by
a federal statute. Personal jurisdiction in an antitrust
action is governed by 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;
and all process in such cases may be served in
the district of which it is an inhabitant, or
wherever it may be found.
Section 12 authorizes out of state service on a corporate
defendant in an antitrust action, but does not specifically
mention the exercise of personal jurisdiction. However, the
statute's authorization of service outside the state has been
interpreted as authorizing federal courts to exercise
nationwide personal jurisdiction over corporate antitrust
defendants. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine
Distributors Pty. Ltd., 647 F.2d 200, 204 n. 6 (D.C. Cir.
1981); The National Association of Pharmaceutical
Manufacturers, Inc. v. Ayerst Laboratories, No. 86 Civ. 5047,
slip op. at 10 (S.D.N.Y. September 5, 1989); Grosser v.
Commodity Exchange, Inc., 639 F. Supp. 1293, 1312 (S.D.N.Y.
1986); Dunham's, Inc. v. Nat'l Buying Syndicate of Texas,
614 F. Supp. 616, 623 (D.C.Mich. 1985); General Electric v.
Bucyrus-Erie Co., 550 F. Supp. 1037, 1038 (S.D.N.Y. 1982).
In cases where Congress authorizes nationwide federal
jurisdiction, as in section 12 of the Clayton Act, the
district court's jurisdiction is co-extensive with the
boundaries of the United States. Mariash v. Morrill,
496 F.2d 1138, 1143 (2d Cir. 1974); see Go-Video, Inc. v. Akai Electric
Co., Ltd., 885 F.2d 1406, 1414 (9th Cir. 1989). Thus, a
defendant who resides within the territorial boundaries of the
United States is subject to personal jurisdiction under
nationwide service of process without regard to state
jurisdictional statutes. Greene v. Emersons Ltd., 86 F.R.D. 47,
65 (S.D.N.Y. 1980). Further, it is not necessary that the
resident defendant have the requisite minimum contacts with the
state that would exercise jurisdiction. Mariash, 496 F.2d at
1143; see, e.g., F.T.C. v. Jim Walter Corp., 651 F.2d 251, 256
(5th Cir. 1981) ("a resident corporation necessarily has
sufficient contacts with the United States to satisfy the
requirements of due process").
It is not the state of New York but the United
States "which would exercise its jurisdiction
over them [the defendants]." And plainly, where,
as here, the defendants reside within the
territorial boundaries of the United States, the
"minimal contacts," required to justify ...