The opinion of the court was delivered by: GRIM
These three civil actions have been brought under the antitrust laws
to obtain an injunction and to recover treble damages for alleged violations of these statutes by the defendants. The plaintiff in each case is engaged in the business of leasing advertising materials to exhibitors of motion picture films. Plaintiffs, in turn, procure these materials from defendant National Screen Service Corporation and from other sources. The complaints, which are identical except as to the names of the plaintiffs, in essence charge the existence of a scheme on the part of National Screen Service Corporation to destroy plaintiffs' business. They further allege that the so-called 'producer-distributor-defendants', of whom the moving defendant, Eagle Lion Films, Inc. (hereinafter referred to as Eagle Lion) is one, have a financial interest in National Screen Service Corporation and that they have granted to National Screen certain exclusive contracts for the manufacture and distribution of advertising accessories relating to their respective motion pictures. All defendants in these cases, with the exception of Eagle Lion, have filed answers denying the foregoing charges and concede that as to them the actions have been properly brought in this court.
However, Eagle Lion has filed motions to dismiss the complaints as to it, contending that the venue is not proper in the actions against it.
The facts relating to the question of venue are not in dispute. Each of the motions to dismiss is supported by an identical affidavit of David J. Melamed, treasurer of Eagle Lion. These affidavits disclose the following facts: Prior to June 12, 1950, Eagle Lion, an Ohio corporation, which was in the business of distributing motion pictures, maintained its principal place of business in New York City, and occupied an office at 1225 Vine Street in Philadelphia, from which address it transacted business. Since June 12, 1950, Eagle Lion has not occupied an office in the Commonwealth of Pennsylvania. On June 12, 1950, the motion picture distribution business of Eagle Lion Films, Inc. was taken over by Eagle Lion Classics, Inc., a New York corporation, and since that date Eagle Lion has not engaged in the motion picture distribution business, but has been engaged in the process of winding up its affairs. On that same date, Eagle Lion Classics, Inc. took over from Eagle Lion occupancy of the latter's Philadelphia office. Also, on that date, Eagle Lion Classics, Inc. took over personnel of Eagle Lion and from that date Eagle Lion has not maintained any employees in Pennsylvania. Since June 12, 1950, Eagle Lion has not entered into the Eastern District of Pennsylvania nor any other part of the Commonwealth of Pennsylvania for any reason whatsoever.
However, Eagle Lion has one remaining connection with Pennsylvania. Although it is no longer engaged in business in Pennsylvania, it is still licensed to do business here as a foreign corporation, pursuant to Article X of the Business Corporation Law of 1933 P.L. 364, Secs. 1001 to 1015, 15 P.S. Secs. 2852- 1001 to 2852- 1015.
The antitrust laws, pursuant to which these actions have been brought, contain special provisions regulating the venue of antitrust actions against corporations. Section 12 of the Clayton Act, 38 Stat. 736, 1914, 15 U.S.C.A. § 22, provides that: '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.'
According to the undisputed facts regarding its activities in this judicial district, Eagle Lion is not an inhabitant of this district, may not be found in this district, and does not transact business in this district. Therefore, none of the three alternative requirements of Section 12 of the Clayton Act for venue of an action against a corporate defendant is satisfied as to Eagle Lion.
Neirbo Company v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167, held that when, as a prerequisite to obtaining a license to do business as a foreign corporation in a particular state, a corporation consented to be sued in the state courts of that state, it thereby waived its objection to venue requirements in diversity actions brought in the federal courts in that state. The Neirbo rule is based on the fiction of waiver of venue. The federal courts extended this fiction by applying the Neirbo rule to cases involving a federal question of which the federal and state courts have concurrent jurisdiction, such as actions under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., the Emergency Price Control Act, 50 U.S.C.A.Appendix § 901 et seq., and the Jones Act, 46 U.S.C.A. § 688.
On the question whether the Neirbo rule is applicable to cases like the present case, where the federal courts have exclusive jurisdiction, there is conflicting authority in the cases.
With reference to actions over which the federal courts have exclusive jurisdiction, prior to the Judicial Code of 1948, some cases drew a distinction between actions which were subject to the general venue statute, former 28 U.S.C.A. § 112, and actions which were subject to special venue statutes, and extended the Neirbo rule of waiver of venue only to actions brought under the general venue statute. Other cases applied the Neirbo rule even to actions brought under special venue statutes, including the following antitrust cases: Giusti v. Pyrotechnic Industries, 9 Cir., 1946, 156 F.2d 351; In re Grand Jury Subpoenas Duces Tecum, D.C.S.D.N.Y. 1947, 72 F.Supp. 1013, 1021; Ball v. Paramount Pictures, D.C.W.D.Pa. 1944, 57 F.Supp. 505, citing Dehne v. Hillman Investment Co., 3 Cir., 1940, 110 F.2d 456 (action subject to general venue statute).
The general venue statute prior to the new Judicial Code of 1948 was Section 51 of the Judicial Code of 1911, as amended, 28 U.S.C.A. § 112 (1940), which stated that, except as to actions predicated solely on diversity jurisdiction, '* * * no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant * * *.' The Judicial Code of 1948, new Title 28, U.S.C.A., went into effect September 1, 1948. The new general venue section, comparable to former Section 112, supra, is 28 U.S.C.A. § 1391, which provides in subsections (a), (b) and (c) as follows:
'(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all defendants reside.
'(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.
'(c) 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 ...