question whether the Neirbo rule is applicable to actions over which the federal courts have exclusive jurisdiction and which are subject to the general venue statute. But for the more controversial question whether the Neirbo rule is applicable to actions of exclusive federal jurisdiction which are subject to special venue statutes, Section 1391(c) merely substitutes another question, namely, whether the general venue provisions of Section 1391(c) are applicable to those special venue statutes where venue of actions against corporate defendants is geared to, or dependent on, their residence.
The narrow question presented by the present case is whether Section 1391(c) of Title 28 U.S.C.A. modifies Section 12 of the Clayton Act so as to make proper the venue of an antitrust action against a foreign corporation in a judicial district of the state in which the foreign corporation is licensed to do business.
The cryptic Revisers' Note to Section 1391 and the legislative history of this section shed no light on this question. Perhaps no man is better qualified to give the further illumination needed than Professor James W. Moore, who was a special consultant to the revisers of the Judicial Code as well as chief research assistant to the reporter to the Supreme Court's advisory Committee on Federal Rules of Civil Procedure and author of the authoritative Moore's Federal Practice.
Moore, on pages 178 and 179 of his Commentary on the U.S. Judicial Code (1949), states: 'The coverage of new Title 28 in relation to special venue is approximately the same coverage of former Title 28, although there has been a consolidation of some former statutory provisions, and some clarification and improvement. Other titles of the United States Code must, therefore, be consulted to determine the venue of many actions. But, and this is very important, all special venue provisions, whether within Title 28 or some other title, must be read in connection with the following general provisions: * * * 2. 'A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."
And at pages 192 and 193 of his Commentary, Moore explains: 'Prior to the Code a corporation was a resident of the state in which it was incorporated; and, more specifically, where the state of incorporation was divided into two or more district, then in the district where its official residence was designated by the Charter or state law and, in the absence of such a designation, then in the district where the corporation maintained its home office. The Code has made no change in this rule relative to the residence of a corporate plaintiff. For venue purposes it has, however, radically altered the rule relative to a corporate defendant. Section 1391(c) * * * is a provision of general applicability to a corporate defendant, whether the case be one governed by a general venue provision, or by a special venue provision within Title 28, such as Sec. 1400(b) governing a patent infringement action,
or by a special venue provision contained in some other title of the United States Code.'
The last clause covers the question now before this Court. In the present case the 'special venue provision contained in some other title of the United States Code' to which Section 1391(c) is applicable is Section 22 of Title 15, Section 12 of the Clayton Act. Judge Ryan, in Auburn Capitol Theatre Corp. v. Schine Chain Theatres, D.C.S.D.N.Y. 1949, 83 F.Supp. 872, at page 874, referring especially to Section 1392
but also to Section 1391(c), states:
'Anti-trust plaintiffs are not deprived of the benefits of these general venue provisions. * * * The venue provisions of the anti-trust laws were enacted to give anti-trust plaintiffs special venue privileges in addition to those granted by general venue statutes. United States v. National City Lines, 334 U.S. 573, 68 S. Ct. 1169 (92 L. Ed. 1584); they were intended to facilitate the prosecution of anti-trust actions, not to replace or make unavailable general venue provisions.'
There is no rule of statutory construction which would restrict the applicability of Section 1391(c)'s definition of residence of defendant corporations for venue purposes to the other subsections of 1391, namely, 1391(a) and (b), quoted supra, which regulate the venue for all civil actions except those subject to special venue statutes. Cf. Ex parte Collett, 1949, 337, U.S. 55, 58-59, 69 S. Ct. 944, 93 L. Ed. 1207; United States v. Nat. City Lines, 1949, 337 U.S. 78, 80-81, 69 S. Ct. 955, 93 L. Ed. 1226.
It should be pointed out that antitrust defendants are adequately protected against being forced to defend suits in inconvenient forums by the transfer of venue section of the Judicial Code, 1404(a); United States v. Nat. City Lines, supra; Paramount Pictures, Inc., v. Rodney, 3 Cir., 186 F.2d 111.
Therefore, under Section 12 of the Clayton Act as modified by Section 1391(c) of the Judicial Code, Eagle Lion, because it is licensed to do business as a foreign corporation in Pennsylvania, is subject to the present antitrust actions brought in this District Court for the Eastern District of Pennsylvania.
Accordingly, defendant Eagle Lion's motions to dismiss the complaints as to it are denied.