The opinion of the court was delivered by: EGAN
This is a civil class action for treble damages and injunctive relief under the anti trust law.
The plaintiffs are five monument dealers in the Greater Philadelphia area who brought this action on behalf of themselves and all other monument dealers in that area. The fifth plaintiff was added by stipulation after the suit was started. The defendants are all of the leading cemetery memorial parks in that area and their supplier, James H. Matthews & Company, of Pittsburgh, Pennsylvania, The Gorham Manufacturing Co., and its sales subsidiary, Gorham Company, of Providence, Rhode Island, all of whom shall be referred to as 'supplier defendants.' The supplier defendants are in the business of selling bronze grave markers used in cemetery memorial parks. The complaint alleges a conspiracy between the supplier defendants and the cemetery defendants and other cemeteries, which conspiracy, for present purposes, may be briefly described as having for its object the exclusion of plaintiff monument dealers from this market in violation of the anti trust laws.
The plaintiffs' motions, which are presently before this Court, seek:
1. Permission to add as named plaintiffs some 13 additional monument dealers located in various parts of the Commonwealth of Pennsylvania, beyond the Greater Philadelphia area.
2. Permission to add as named defendants 22 additional cemeteries located in the trading areas of the proposed additional named plaintiffs, and
3. Permission to expand the present class action into a class action on behalf of all of the monument dealers in the Commonwealth of Pennsylvania. As thus expanded, the class represented will consist of approximately 300 monument dealers.
The venue, in treble damage suits, fixed by the Clayton Act, 15 U.S.C.A. § 15
(formerly Section 7 of the Sherman Act), is in the district in which defendant resides or is found, or has an agent. The same Act, 15 U.S.C.A. § 22
provides that the venue in case of anti trust suits against a corporation shall be in the district whereof it is an inhabitant, or in which it is found, or transacts business. Because of the above venue provisions, a court in which a treble damage action is pending has no authority to bring in defendants who reside outside the district in which the court is held. This was specifically held in Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, at page 466, 65 S. Ct. 716, at page 730, 89 L. Ed. 1051 where the Supreme Court of the United States said,
'It is true that § 5 of the Sherman Act (15 U.S.C.A. 5) empowers the court before whom proceedings under § 4 [ 15 U.S.C.A. § 4] are pending to bring in parties who reside outside the district in which the court is held. That procedure is available in civil suits brought by the United States. Standard Oil Co. v. United States, 221 U.S. 1, 46, 31 S. Ct. 502, 510, 54 L. Ed. 619. But since § 4 is limited to suits brought by the United States, § 5 is similarly confined. See Greer Mills & Co. v. Stoller, C.C., 77 F. 1; Hansen Packing Co. v. Armour & Co., D.C., 16 F.Supp. 784, 787. Apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. As stated in Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 623, 45 S. Ct. 621, 622, 623, 69 L. Ed. 1119;
"In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons. Under the general provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U.S. 476, 25 L. Ed. 237; Ex parte Graham, Fed.Cas.No.5,657, 3 Wash. (C.C.) 456, and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the district. Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093. Such was the general rule established by the Judiciary Act of September 24, 1789 C. 20, § 11, 1 Stat. 73, 79, in accordance with the practice at the common law. Piquet v. Swan, Fed.Cas.No.11,134, 5 Mason 35, 39 et seq. And such has been the general rule ever since. Munter v. Weil Corset Co., 261 U.S. 276, 279, 43 S. Ct. 347, (349) 67 L. Ed. 652." (Emphasis supplied.)
See also, Hansen Packing Co. v. Armour & Co., D.S.S.D.N.Y.1936, 16 F.Supp. 784.
Counsel for plaintiffs insist, however, that the joinder as defendants of non-residents of the district is specifically authorized by § 1392(a) of Judicial Code (28 U.S.C.A. § 1392(a)), which provides that:
'Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.'
It is true that in United States v. National City Lines, 1949, 337 U.S. 78, 69 S. Ct. 955, 93 L. Ed. 1226, the Supreme Court of the United States held that the removal clause of the Judicial Code, 28 U.S.C.A. § 1404(a), applied to all civil anti trust cases. But the Court took great pains to point out that it reached this conclusion because it was of the opinion that Congress by this new enactment, which was included for the first time in the Judicial Code of 1948, intended to change the prior law which prohibited such removal in cases where the venue was ...