of account under the name of Peckham, Little & Co., Inc. of New York. Another exhibit dated July 31, 1961 is an invoice under the name of Peckham, Little and Company, Inc. Still another exhibit dated November 6, 1962 is an order under the name of Peckham, Little & Co., Inc. All of these exhibits indicate that the principal office of these corporations is 350 Warren Street, Jersey City, New Jersey.
Bopetro, Inc. (hereinafter referred to as Bopetro) argues that this action be dismissed as to it since it ceased doing business in this district more than a year ago, citing Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 230 F.2d 511 (3rd Cir. 1956). It is true that, when applying the transacting business test, the defendant must still be conducting substantial business in this district at the time of the commencement of the action. From the exhibits submitted it is not clear that Bopetro ever carried on any business in this district. Yet Bopetro's answers to interrogatories admit to a certain amount of sales to customers in the Philadelphia area. Finally, Bopetro identifies as its agent a man whose address is 350 Warren Street, Jersey City, New Jersey, the same address as the principal office of Peckham.
Under these circumstances, the motion to dismiss by these two defendants must be denied until full discovery is obtained. After the plaintiff has an opportunity to explore its general discovery on the merits and the picture as to these defendants is more clear, they may reassert their motions.
Both Bopetro and Peckham have moved in the alternative to transfer this action to another district under 28 U.S.C.A. § 1404(a). Since plaintiff has chosen its forum in this district and all other defendants which will defend this action are here, this Court feels the interests of justice will best be served by keeping the number of actions involved to a minimum and litigate the rights of all parties alleged to be a part of the conspiracy in this action.
III. WEBSTER PAPER and SUPPLY CO., INC. and BARDEEN'S, INC.
As to the final two defendants, Webster Paper and Supply Co., Inc. (hereinafter referred to as Webster) and Bardeen's, Inc. (hereinafter referred to as Bardeen's), the sales in this district do not amount to transacting business in any substantial manner. The sales were extremely light, sporadic and unsolicited. Plaintiff argues as to Webster and Bardeen's that these motions be denied for the present to enable discovery on the merits which might prove the alleged conspiracy to allocate geographic markets. Assuming this is proven, and Webster and Bardeen's are not transacting business here as a result of the conspiracy, venue in this district would still be improper. Under the Clayton Act venue provision, a corporate defendant must be an inhabitant, found or transacting business within the district. There are strong policy reasons to allow a plaintiff to sue in its own district all defendants which cause it damage as a result of conspiratorial abstention, but this Court must be bound by the legislation actually passed by Congress and they have not seen fit, as yet, to allow such an action.
Plaintiff argues, finally, that Webster was a wholly owned subsidiary of a corporation registered to do business in Pennsylvania at the time of the commencement of this action and therefore should be held in until discovery is completed as to this corporate relationship. Plaintiff cites a number of cases holding that a wholly owned subsidiary doing business in one jurisdiction will subject the parent to suit in that jurisdiction if the corporate relationship is such that the subsidiary is merely the instrumentality of the parent. No cases have been cited, and this Court has found none, that hold the presence of a parent corporation will subject a wholly owned subsidiary operating exclusively in a foreign jurisdiction to suit here. Since Webster is neither transacting business, on inhabitant nor found in this district, its motion to dismiss should be granted.
And now this 18th day of March, 1965, the Motion to Dismiss of the A & C Company is hereby denied: the respective Motions to Dismiss and to transfer of Peckham, Little & Co., Inc. and Bopetro, Inc. are denied without prejudice; and the Motions to Dismiss of Webster Paper and Supply Co., Inc. and Bardeen's, Inc. are granted.