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AIR-FLO M.G. CO. v. LOUIS BERKMAN CO.

July 18, 1996

AIR-FLO M.G. CO., INC., Plaintiff,
v.
THE LOUIS BERKMAN COMPANY, dba SWENSON SPREADER COMPANY, Defendant.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Air-Flo Mfg. Co., Inc. ("Air-Flo"), commenced this patent infringement action against The Louis Berkman Company ("Berkman"), dba Swenson Spreader Company ("Swenson"). Air-Flo alleges that Swenson has been and is infringing a patent ("the patent") issued to Air-Flo for a conveyor system designed for use with dump trucks. Defendant has moved to dismiss the complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a), or in the alternative to transfer venue to the District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a).

 BACKGROUND

 Both parties agree that Air-Flo is a corporation organized and existing under the laws of New York State, with its principal place of business in Prattsburg, New York, which is within the Western District of New York. Berkman is an Ohio corporation with its principal place of business in Ohio. Swenson is a division of Berkman with its principal place of business in Illinois.

 Both Air-Flo and Swenson are manufacturers and sellers of sand- and salt-spreading equipment. Swenson's products are manufactured in Illinois.

 The complaint alleges that Walter M. Roberts Enterprises, Inc. ("Roberts") is a New York corporation with places of business within this district in Victor, New York and Tonawanda, New York. Air-Flo alleges that Roberts is in the business of selling sand- and salt-spreading equipment manufactured by Swenson, and that defendant, through Roberts, has sold equipment within this district that infringes the patent. Air-Flo seeks injunctive relief and damages for the alleged infringement.

 Defendant alleges that venue within this district is improper because it is not subject to personal jurisdiction here. Defendant also requests that, if its motion to dismiss is denied, the court change venue to the Northern District of Illinois for the convenience of the parties and witnesses and in the interest of justice under 28 U.S.C. § 1404(a).

 DISCUSSION

 I. Motion to Dismiss

 As stated, defendant's contention that venue is improper in this district is based on its assertion that this court lacks personal jurisdiction over defendant. To defeat a motion to dismiss based on lack of personal jurisdiction, a plaintiff need only make a prima facie showing that jurisdiction exists. Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). The pleadings are to be construed, and any doubts resolved, in favor of the plaintiff. Hubbell, Inc. v. Pass & Seymour, Inc., 883 F. Supp. 955, 961 (S.D.N.Y. 1995); Editorial Musical Latino Americana, S.A. v. Mar Int'l Records, Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993).

 Under 28 U.S.C. § 1400(b), a patent infringement action "may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."

 Air-Flo does not contend that defendant has a regular and established place of business in the Western District of New York, but contends that defendant "resides" here for purposes of § 1400(b). Under 28 U.S.C. § 1391(c), "a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." In addition, in a state containing more than one judicial district, a corporate defendant that is subject to jurisdiction within the state is "deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State ..." Id.

 In its initial motion papers, defendant contends that plaintiff has offered no proof that Swenson has sold or contracted to sell any goods in this district. Defendant argues that Swenson's contacts with Roberts are not sufficient to establish personal jurisdiction over defendant in this district because Swenson has dealt with Roberts only through Roberts' place of business in Cazenovia, New York, which is in the Northern District of New York, and that what ...


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