Defendant moves to dismiss, contending that since the place of performance is Erie County and the place where the principal resides and has its principal place of business is Warren County, both in the Western District of Pennsylvania, the action in the Federal Court must be instituted in the Western District.
Defendant's argument is based upon the premise announced in Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S. Ct. 1464, 1469, 89 L. Ed. 2079, that for purposes of diversity jurisdiction a Federal Court is 'in effect, only another court of the State, * * *.'
As pointed out in Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524,
'* * * The York case was premised on the theory that a right which local law creates but which it does not supply with a remedy is no right at all for purposes of enforcement in a federal court in a diversity case; that where in such cases one is barred from recovery in the state court, he should likewise be barred in the federal court. The contrary result would create discriminations against citizens of the State in favor of those authorized to invoke the diversity jurisdiction of the federal courts. It was that element of discrimination that Erie R. Co. v. Tompkins (304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188) was designed to eliminate.'
Venue requirements, however, must not be confused with jurisdictional issues. The principle is clearly stated in McCoy v. Siler, 3 Cir., 205 F.2d 498, 499, that 'A state cannot by legislation modify or repeal a Congressional statute on the venue of federal courts.'
Defendant concedes 'This action is by Vallamont Planing Mill Company, as plaintiff, although the name of the state authority is used in conjunction with the designation of the real plaintiff apparently incorrectly named as a use plaintiff.'
The venue is determined by 28 U.S.C. § 1391 which provides:
'(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 plaintiffs or all defendants reside.
'(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 residence of such corporation for venue purposes.'
Here the plaintiff is a resident of this district. Here also the defendant is both licensed to do business and is doing business in this district. The Western District, where defendant contends the venue to be, is in accord with what has been said as to the effect of a provision in the State statute as to the counties where suit may be instituted. Chief Judge Gourley in Claditis v. Wainwright, D.C.W.D.Pa., 119 F.Supp. 739, 740, involving the Pennsylvania Non-Resident Motorist Act, said:
'Since service was secured pursuant to the provisions of the Pennsylvania Non-Resident Motorist Act which requires that any suit instituted in the State Courts must be brought in the county in which the cause of action arose, it is contended that venue does not lie in the Western District, 75 P.S.Pa. § 1201, as modified by Pennsylvania Rules of Civil Procedure, Rules 2076-2082, 12 P.S.Appendix.
'In view of the fact that all the plaintiffs, in the case at bar, are residents of the Western District, it would appear that venue lies in this district in conformity with provision of United States law. The federal provision thus enunciated would bar plaintiffs from seeking relief in the federal courts in the Middle District, and it would prove an anomaly to remand the plaintiffs to the Middle District when venue would not lie.'
It follows that defendant's motion to dismiss the complaint must be denied.