abode. With this position the government agrees. We are then, not concerned with 'intent."
Further, in the Stacher case, the Court of Appeals for the Ninth Circuit went to great pains to analyze the District Court's findings of fact as to residence. As may be seen at pages 116 to 119, the most searching scrutiny is given to all the circumstances surrounding the activities of defendant Stacher. The latter had lived in New Jersey for 38 years prior to 1953, continued to receive wages from New Jersey corporations, and still owned his Newark homestead at the time suit was brought. Physically, he was in Reno or Las Vegas, Nevada, at the crucial times -- and was conducting substantial business dealings there. Palm Springs and Beverly Hills, California, proved to be his residence, however.
Analysis of the factors leading to the court's ruling in that case shows that the test for residence was not different from that which this Court intends to apply here -- that is, -- something more than mere physical presence, and something less than domicile. Thus it will be seen that had the court in the Stacher case, construing three statutes which contained the words reside or resident, been concerned primarily with intent, defendant Stacher would doubtless have been held to be a New Jersey resident. Had actual place of abode been the essence, he would have been a 'resident' of Nevada. Instead after a complete analysis of his activities during the time in question, the residence was found to have been in Southern California.
Other grounds of argument raised by the plaintiff must likewise be disapproved. Without conceding wrong venue, he argues convenience to the parties, citing DeGeorge v. Mandate Poultry Co., D.C.E.D.Pa.1961, 196 F.Supp. 192, opinion, by Wood, J. Such argument might be appropriate to a motion to transfer -- but would require support in the record beyond mere conclusory assertions of a pleader.
A case already cited was urged as supporting plaintiff's position, Champion Spark Plug Company v. Karchmar, D.C.S.D.N.Y.1960, 180 F.Supp. 727. It held that dismissal of one or more defendants for improper venue did not require dismissal as to remaining defendants. That proposition is not helpful here. True, it has been assumed that if plaintiff were able to maintain venue in this district, dismissal of the separate suit of Jess Johnson (of Illinois) in his own right would follow -- but the ruling of this Court is that Larry Johnson did not reside in the Eastern District of Pennsylvania at the time suit was filed.
A suggestion of waiver of objection to venue by one of the defendant interests has been made. Smith v. Bain, D.C.M.D.Pa.1954, 123 F.Supp. 632 is urged as intimating that if a certain letter from a defendant to counsel had been more explicit it might have amounted to a waiver.
In the present case a letter has been written to this Court to the effect that an interest represented by counsel who has been present without taking part in the defense would have no objection to the forum. The hint is too subtle to amount to a waiver. It is not possible for a court to make distinctions between the wishes of the defendant which it sees before it and some other part of the defendant personality which has been split off and appears or observes by silent counsel. While sympathetic to counsel who must operate under the most frustrating limitation imaginable for a lawyer, a ban on speech, a court must rule only on the clear cut motions and objections of the parties before it.
This Court has been asked to dismiss the present complaint for improper venue. For the foregoing reasons, the motion is granted. The ruling of this Court is, therefore, that the complaint filed in this action shall be dismissed and it is so ordered.
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