was served carries the title of a general manager of the defendant corporation in charge of the Philadelphia office. * * * The real position of the defendant in opposing the effort of the plaintiff is disclosed in a statement of how its business is conducted. It claims that it sells its manufactured product direct to the user by a sale made from its office and warehouse in Indianapolis. It employs a large number of so-called solicitors who go from door to door in Philadelphia and elsewhere soliciting orders for hosiery. All such orders are taken by the solicitors subject to confirmation of the solicited purchase by the home office in Indianapolis and its approval. The solicitors make no deliveries, although they do carry with them samples of what they have for sale, and the purchaser buys by these samples. The product which the solicitors use as samples is a part of their soliciting outfit and under their arrangement with the defendant paid for by the solicitors. These solicitors are under the general direction of what the defendant calls a branch sales manager. This manager conducts an independent business of his own, in that his compensation is on a commission basis, and he locates his office so as to suit his convenience and that of the solicitors under him. The solicitors when they secure an order collect from the proposed buyer a sum which is equal to the commission which is ultimately to be paid by the defendant. The order when obtained is reported to the branch sales manager and by him transmitted to the main office of the defendant in Indianapolis. If approved, the purchased goods are shipped C.O.D. to the buyer; credit on account being given him for what he has paid to the solicitor. The expense of furnishing the office, telephone, advertising, bills, and all others incurred by the office are paid by the branch sales manager."
The ruling of the District Court was sustained, refusing to set aside the service on the ground that the defendant was not doing business in Pennsylvania. The present case seems to be substantially in fact the same as the case just cited, the only difference worthy of mention being that in the case cited, the solicitors for orders collected from purchasers a sum equal to their commission.
See, also, International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, and the recent case of Neirbo Company et al. v. Bethlehem Shipbuilding Corporation, Ltd., 60 S. Ct. 153, 8 L. Ed. , opinion of Mr. Justice Frankfurter of November 22, 1939. Under the law as laid down in the above Rule of Court and the cases cited, the service made upon William C. Porter as a managing agent of the Anchor Hocking Glass Corporation was a valid service upon said corporation.
I am of the opinion that the motion to quash or set aside the service was made too late. The pluries summons was served September 23, 1939. The motion to quash said service was made November 17, 1939. The Rules of Civil Procedure require such a motion to be made within twenty days after the service of the summons and complaint. See Reference to Rules and cases infra under the discussion of Venue.
The Anchor Hocking Glass Corporation in its motion of November 17, 1939, also moved the Court to dismiss said corporation as a party defendant because it is a corporation incorporated under the laws of Delaware and hence under the Federal Venue Statute may not be sued in this Court by the plaintiff corporation incorporated under the laws of Indiana. This motion was made about five months after action was brought and the complaint and summons were served upon the Anchor Hocking Glass Corporation. It was also made after the motion to quash of July 11, 1939 and after depositions had been taken at Lancaster, Ohio, at a considerable expense to the parties, and after other stipulations had been made by the parties. The Federal Statute of Venue, Sec. 51 of the Judicial Code, 28 U.S.C.A. § 112, provides that "* * * where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."
In Neirbo Company et al. v. Bethlehem Shipbuilding Corporation, Ltd., supra, it is stated by the Supreme Court [60 S. Ct. 154]:
"The jurisdiction of the federal courts -- their power to adjudicate -- is a grant of authority to them by Congress and thus beyond the scope of litigants to confer. But the locality of a law suit -- the place where judicial authority may be exercised -- though defined by legislation relates to the convenience of litigants and as such is subject to their disposition. This basic difference between the court's power and the litigant's convenience is historic in the federal courts. After a period of confusing deviation it was firmly reestablished in General Inv. Co. v. Lake Shore & M.S.R. Co., 260 U.S. 261, 43 S. Ct. 106, 67 L. Ed. 244; and Lee v. Chesapeake & Ohio R. Co., 260 U.S. 653, 43 S. Ct. 230, 67 L. Ed. 443, over-ruling Ex parte Wisner, 203 U.S. 449, 27 S. Ct. 150, 51 L. Ed. 264, and qualifying In re Moore, 209 U.S. 490, 28 S. Ct. 585, 706, 52 L. Ed. 904, 14 Ann.Cas. 1164. All the parties may be non-residents of the district where suit is brought. Lee v. Chesapeake & Ohio R. Co., supra. Section 51 'merely accords to the defendant a personal privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.' Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 49 S. Ct. 98, 99, 73 L. Ed. 252.
"Being a privilege, it may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct. Commercial Casualty Ins. Co. v. Consolidated Stone Co., supra. Whether such surrender of a personal immunity be conceived negatively as a waiver or positively as a consent to be sued, is merely an expression of literary preference. The essence of the matter is that courts affix to conduct consequences as to place of suit consistent with the policy behind § 51 [ 28 U.S.C.A. § 112], which is 'to save defendants from inconveniences to which they might be subjected if they could be compelled to answer in any district, or wherever found.'"
In Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 180, 49 S. Ct. 98, 99, 73 L. Ed. 252, the Court in discussing jurisdiction and venue stated:
"The pertinent statutes are sections 41 and 112, title 28, United States Code (28 U.S.C.A. §§ 41, 112). One provides that district courts shall have 'original jurisdiction' of certain classes of civil suits, including suits 'between citizens of different states,' where the value of the matter in controversy, exclusive of interest and costs, exceeds $3,000. The other provides that 'where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'
"These provisions often have been examined and construed by this court. Summarized, the decisions are directly to the effect that the first provision invests each of the District Courts with general jurisdiction of all civil suits between citizens of different states, where the matter in controversy is of the requisite pecuniary value, and that the other provision does not detract from that general jurisdiction, but merely accords to the defendant a personal privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.
"The decisions also make it plain that the privilege must be 'seasonably' asserted; else it is waived. Whether there was a seasonable assertion in the expiration of the period allotted for entering a general appearance and challenging the merits."
See, also, Wabash R. Co. v. Bridal, 8 Cir., 94 F.2d 117. In Findlay et al. v. Florida East Coast R. Co., 5 Cir., 68 F.2d 540, on page 541, Judge Hutcheson says: "It is undoubtedly true that the venue privilege accorded by section 51, Jud.Code (28 U.S.C.A. § 112), to a defendant sued in a federal court other than that of his or the plaintiff's residence, must be timely, effectively, and continuously asserted by him, and acts or conduct inconsistent with its assertion will constitute a waiver of it. Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 47 S. Ct. 578, 71 L. Ed. 1002; Brotherhood of Locomotive Engineers v. W.L. Shepherd Lumber Co. [5 Cir.], 51 F.2d 153."
In Rules of Civil Procedure 12(a), 28 U.S.C.A. following section 723c, it is stated: "A defendant shall serve his answer within 20 days after the service of the summons and complaint upon him".
In Rule 12(b) it is provided that "the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted." 12(b) further provides that "A motion making any of these defenses shall be made before pleading if a further pleading is permitted." Rule 12 (g) provides: "A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections so omitted, except that prior to making any other motions under this rule he may make a motion in which are joined all the defenses numbered (1) to (5) in subdivision(b) of this rule which he cares to assert."
In Moore's Federal Practice the author states at page 661: "Thus defenses '(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process' may be urged by one motion, but not by a series of motions, * * *"
The author further states at page 628: "He should, however, present the first five of the foregoing defenses [(1)-(5)] that he has in one motion. For example, he cannot move to dismiss the complaint because jurisdiction over his person has not been obtained and, losing on that motion, move to dismiss for improper venue. Such successive motions are precluded by subdivision (g)"
The Anchor Hocking Glass Corporation having failed for approximately five months to raise the question of venue and the plaintiff having had considerable expense in the taking of depositions, etc., requires us to hold that the Anchor Hocking Glass Corporation lost the personal privilege of venue in the District in which it resides. This loss was caused by failure to assert it seasonably and by submission through conduct. I do not see how the Anchor Hocking Glass Corporation will be inconvenienced by the trial of this case against it, as it will no doubt have to try the case in this Court against the Anchor Hocking Glass Corporation of Pennsylvania, its wholly owned and controlled subsidiary. On the other hand, if this action is not tried here against both defendants, it probably means that it will have to be tried in another jurisdiction which would mean expense and inconvenience to the plaintiff as well as to the Anchor Hocking Glass Corporation.
Let orders be prepared and submitted in accordance with the foregoing opinion.
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