We heard this case on defendant's motion to dismiss action or quash return of service of summons.
This suit, as originally filed, named defendant as a Delaware corporation. Plaintiff then filed an amended complaint naming defendant as a New York Corporation. An additional summons was issued which was served on John J. Athana as resident agent of the corporation in this District. The Marshal's return of service reads:
"I hereby certify and return that on the 16th of August, 1940, I received the within summons in civil action and complaint and served same on the therein-named, Rpentice-Hall, Inc., by handing to and leaving a true and attested copy thereof with J. Athana, resident agent at his office, room # 3222 Grant Building Pittsburgh, Pa., in said District on the 16th day of August, 1940."
The motion to quash is accompanied by an affidavit of Athana, stating he is employed by defendant solely on a commission-basis for the purpose of soliciting orders for business for defendant, a New York corporation, which orders, when received, are forwarded to the New York office of defendant; and if accepted, are filled from New York; that he is not an officer, director, or agent of defendant for receiving on accepting service of legal process; that defendant does not maintain an office in Pittsburgh for transaction of business; and that the offices at No. 3222 Grant Building in Pittsburgh, where service of process in this case was made on him, is an office where he receives telephone calls on an agreement made by himself personally, and is not the office of defendant. Also in like tenor is the affidavit of Vincent C. Ross, which accompanies the motion to quash.
The plaintiff filed a counter-affidavit in which he alleges that defendant maintains a listing in the Pittsburgh Polk City Directory as follows:
"Prentice-Hall, Inc. J. J. Athana, Rep. Tax Services, 3222 Grant Building"
and a further listing
"Athana, John J. (Ruth A.) Rep. Prentice-Hall, Inc. h. 183 Morrison Drive Apt. 6 (M.L.)"
Pittsburgh Telephone Directory of 1940-1941 also lists defendant as:
"Prentice-Hall, Inc. Grant Building, Atlantic 0842"
That the Grant Building directory located on the main floor thereof lists Prentice-Hall, Inc., in Room 3222, and Athana in the same room. This listing is also shown on the 32nd-floor directory.
In addition, the parties, on July 8, 1941, filed a stipulation which reads as follows:
"It is hereby stipulated by and between counsel for the plaintiff and counsel for the defendant, as follows;
"John J. Athena has in two or three isolated instances, at the request of the New York office of the defendant, called on delinquent accounts of the defendant and inquired of such accounts as to whether they had some complaint in regard to the defendant's service. On one or two of such occasions checks have been tendered to Mr. Athena intended for the defendant, which Mr. Athena has accepted and forwarded to the defendant. It is not within the scope of Mr. Athena's employment by the defendant to make collections for the defendant; Mr. Athena's duties are solely those set forth in his affidavit heretofore filed herein by the defendant, namely, soliciting orders for the defendant on a commission basis and forwarding them to the defendant's New York office for acceptance or rejection."
Under the Federal Copyright Act, suits for infringement may be brought "in the district of which the defendant or his agent is an inhabitant, or in which he may be found." Title 17 U.S.C.A. § 35.
The question for determination is whether or not Athana is an agent of the defendant within the meaning of this statute. Upon the affidavits and stipulation filed in connection with the motion to quash, I am of the opinion that he is. See Real Silk Hosiery Mills, Inc., v. Philadelphia Knitting Mills Co., 3 Cir., 46 F.2d 25; Fort Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corporation, D.C., 31 F.Supp. 403.
The motion to dismiss the action or quash return of service of summons will be denied.
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