The opinion of the court was delivered by: FOLLMER
Defendant, a nonregistered foreign corporation, has moved to dismiss this action on the ground that the venue of the action is not properly laid in this District. There has also been filed by the defendant a motion to strike certain affidavits and exhibits attached to exceptions which were taken by plaintiff to a prior ruling of the Court.
Plaintiff is a corporation incorporated in Pennsylvania, as a cooperative agricultural association, and has its principal place of business in Philadelphia, Pennsylvania. Defendant is a corporation incorporated in New York, as a cooperative agricultural association, and has its principal office in Syracuse, New York.
The Complaint, in three counts, alleges that from September 11, 1938 to September 11, 1963, when it withdrew, plaintiff was a member of defendant organization; that prior to December 1, 1963, each of plaintiff's members had signed a producers' marketing agreement with plaintiff, under which all of such members' milk was consigned to plaintiff for marketing by it; that from on or about December 1, 1963, until the present time, defendant sent four of its employees into York County, Pennsylvania, for the purpose of contacting plaintiff's members in Pennsylvania in order to get them to withdraw as members of plaintiff and to terminate their hauling agreement with plaintiff; that as the result of such conduct, many of plaintiff's members terminated their membership and marketing agreements with plaintiff. Furthermore, that in January and February of 1964 defendant sent from New York to each of plaintiff's members a letter with a withdrawal slip in blank, addressed to plaintiff, to induce plaintiff's members to terminate their membership and marketing agreement with plaintiff; that these letters went to plaintiff's members in York, Adams, Lancaster and Chester Counties, Pennsylvania; that as a result of such action many members of plaintiff whose milk was being shipped to Federal Order 2 Market, terminated their membership and marketing agreement with plaintiff. Furthermore, that as a result of the actions of defendant's agents or employees, including its President, and the indiscriminate passing out of literature contained in letters above referred to, many of plaintiff's members withdrew and terminated their processors' marketing agreement with plaintiff, all of which caused damage to plaintiff.
The jurisdiction of the Court is invoked upon the basis of diversity only, the plaintiff being a Pennsylvania corporation and the defendant a New York corporation not registered in Pennsylvania.
Plaintiff filed a motion for production, inspection and copying of documents. After argument, the Court, on August 18, 1964, filed a Memorandum denying in part plaintiff's motion to produce documents, stating that the refused documents would appear to relate only to the merits of the case. Among the documents requested by plaintiff were the Charter and By-laws of defendant, Metropolitan. In its Memorandum the Court explicitly stated that at this time its only concern was jurisdiction. Without requesting a reargument, plaintiff then filed exceptions to the ruling of the Court to which it attached an affidavit and a copy of Metropolitan's By-laws. Such affidavit and the accompanying exhibit certainly had no legitimate place as a part of the exceptions.
Motion to strike affidavits and exhibits will be granted.
Much has been written about the requirements relating to venue of actions against foreign corporations and there would seem to be no reason to recapitulate here what has been said so well heretofore. Jenkins v. Dell Publishing Company, D.C.W.D.Pa., 130 F.Supp. 104 (1955); Noerr Motor Freight, Inc., et al. v. Eastern R.R. Presidents Conference et al., D.C.E.D.Pa., 113 F.Supp. 737 (1953); Florio v. Powder-Power Tool Corp., 3 Cir., 248 F.2d 367 (1957); Strauss v. Delta Air Lines, Inc., D.C.E.D.Pa., 207 F.Supp. 120 (1962).
The Complaint was served upon the Agency through Abner N. Risser, Treasurer and Director, at his residence in Lancaster County, Pennsylvania, and in the Eastern District of Pennsylvania.
As stated, the Agency moved to dismiss the action on the ground that the venue of the action is not properly in this District because defendant is a New York corporation, not licensed to do business in Pennsylvania and is not doing business in Pennsylvania nor in this District.
Whether or not the service on the Treasurer-Director of the foreign defendant Agency is such as to make the Agency subject to the jurisdiction of the Pennsylvania Courts depends upon whether it has first been established that the defendant is legally present within Pennsylvania. Here the sole question is whether the service of process upon the Agency was valid under the provisions of Section 1011 of the Pennsylvania Business Corporation Law (15 P.S. § 2852-1011, subd. B.) which provides in part:
Rule 4(d)(3) of the Federal Rules of Civil Procedure provides as follows:
'(d) * * * Service shall be made as follows:
'(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by ...