deals with the right of transfer of an action after it has been properly brought and that the provisions of section 1404(a) of the Code does not limit, or otherwise modify, any right granted by a statute that lays original venue.'
We conclude, therefore, that those cemetery companies who are not inhabitants of this district, do not transact business here, who are not found here, within the meaning of the venue section of the Clayton Act, cannot be added as additional defendants.
Slightly different considerations govern the question of joinder or intervention of the proposed additional plaintiffs. An action to recover treble damages under the anti trust laws is a 'spurious' class action. The types of relief sought for the class are several. In effect, it is but a congeries of separate suits. Wagner v. Kamper, D.C.W.D.Mo.1952, 13 F.R.D. 128. It is essentially a device for permissive joinder and its appropriateness in a given case must be tested in terms of advisability of joining all claims within a described category. For this reason, a clear definition of the class is essential. D & A Motors, Inc. v. General Motors Corp., D.C.S.D.N.Y.1956, 19 F.R.D. 365. A spurious class suit does not grant authority to adjudicate finally rights as to non-appearing parties, or to confer any additional substantive rights upon the plaintiffs suing. It is merely an invitation to members of the affected class to join in the action, and if they do not so join, they cannot be bound by the result. Mutation Mink Breeders Ass'n v. Lou Nierenberg Corp., D.C.S.D.N.Y.1959, 23 F.R.D. 155. It does not legally affect the rights and obligations of those who do not intervene. All American Airways v. Elderd, 2 Cir., 1954, 209 F.2d 247.
Furthermore, treble damage anti trust actions are founded not upon the mere existence of a conspiracy but upon injuries which result from the commission of forbidden 'overt' acts by the conspirators. Suckow Borax Mines Consolidated, Inc. v. Borax Consolidated, Ltd., 9 Cir., 1950, 185 F.2d 196. Each plaintiff in a treble damage anti trust suit must allege and prove that it suffered legal damage to its business or property resulting proximately from the alleged unlawful overt acts of the defendants.
It would appear that the cemetery business, as well as the monument business, is highly localized and competition is practically limited to the immediate vicinity or trading area of a given cemetery, or a local monument dealer. A monument dealer located outside the trading area of a particular cemetery defendant is not likely to be affected to any degree by any overt act of such cemetery defendant in furtherance of its alleged conspiracy with the supplier defendants.
For the foregoing reasons, it would make for a clearer definition of the class of permissible plaintiffs to limit the class to such of them as are located within the Eastern District of Pennsylvania, they being the ones who are most likely to have been affected by any of the overt acts of the permissible class of cemetery defendants. The class, as thus limited, will make for a more expeditious trial and disposition of this law suit.
If any proposed additional plaintiff is located outside the Eastern District of Pennsylvania, but within the trading area of any cemetery defendant, a separate petition for intervention may be presented and it will be considered.
Accordingly, we have concluded --
(a) To permit the joinder of such of the proposed additional cemetery defendants as are located, transact business or are found in the Eastern District of Pennsylvania, and
(b) To permit the joinder of such of the proposed additional plaintiffs as are located in this district.
Counsel will prepare a form of decree consistent with this opinion and submit it to the Court for approval.