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JUNIOR SPICE, INC. v. TURBOTVILLE DRESS

March 9, 1972

JUNIOR SPICE, INCORPORATED
v.
TURBOTVILLE DRESS, INC., et al.


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a motion to dismiss under Rule 12, Fed. R. Civ. P., or in the alternative to transfer under 28 U.S.C. § 1406 to the Middle District of Pennsylvania on the ground of a defect in venue, i.e., that venue in this diversity case is improperly laid in the Eastern District of Pennsylvania. The apparently novel question raised by the case *fn1" is whether an individual acquires constructive residency in a state for venue purposes by virtue of long arm service under a nonresident property owners act.

 The plaintiff (Junior Spice) is a New York corporation with its principal place of business in New York. The corporate defendants are Pennsylvania corporations with their places of business in the Middle District. The individual defendants (Oshiraks), who have been residents of Kansas since 1969, are the owners of property situate in the Middle District of Pennsylvania leased to the corporate defendants in which the fire which gave rise to this lawsuit occurred on August 27, 1968. *fn2" The Oshiraks were served with process under Pennsylvania Nonresident Property Owners Act (Act). *fn3" The Oshiraks are the moving parties; the plaintiff resists their motion. Full understanding of the question involved in the case necessitates a recitation of the applicable venue statutes.

 28 U.S.C. § 1391 provides:

 
(a) "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.
 
(b) . . .
 
(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."

 The law is clear that corporations (both domestic and foreign) have multiple residence, as it were, and may be sued in any district in the state. See Minter v. Fowler & Williams, Inc., 194 F. Supp. 660 (E.D. Pa. 1961); Vance Trucking Company v. Canal Insurance Co., 338 F.2d 943 (4th Cir. 1964); DeGeorge v. Mandata Poultry Co., 196 F. Supp. 192 (E.D. Pa. 1961); Johnstone v. York County Gas Co., 193 F. Supp. 709 (E.D. Pa. 1961). Accordingly, Turbotville Dress, Inc. and Paulco Products Co., which are both Pennsylvania corporations, may be sued in this as well as the other two federal districts in Pennsylvania. *fn4" Junior Spice, in opposition to the motion to transfer, cites the above cited cases to us as being dispositive. The Oshiraks, on the other hand, assert that they are not dispositive because they do not deal with the residency of individuals for venue purposes. We agree.

 28 U.S.C. § 1392(a) provides:

 
"Any civil action, not of a local nature, against defendants residing in different districts in the same state may be brought in any such districts."

 The question is raised as to whether the Oshiraks reside in any district of the state pursuant to this section. Junior Spice asserts that the Oshiraks, like the defendant corporations, have general Pennsylvania residency acquired constructively by service of process on the Secretary of the Commonwealth under the Nonresident Property Owners Act. *fn5" Their argument continues to the effect that this is therefore an action against defendants residing in different districts of the state, which may be brought in any district, including this district, either pursuant to § 1392(a) or by way of analogy to the cases involving corporations which hold that they may be sued in any district. The Oshiraks, on the other hand, submit that they are residents of Kansas and that to impute Pennsylvania residency to them because of the long arm service permitted by the Act would be to create an untenable fiction. Their position is that they have no Pennsylvania residence for venue purposes under the venue statutes, which we have recited, and that since: (1) the Eastern District is not a district in which all defendants actually or constructively reside (§ 1391(a)); and (2) all defendants do not reside in different districts in the (same) state (§ 1392(a)), venue cannot be laid in the Eastern District, but only in the Middle District where the cause of action arose.

 As we have said above, the cases dealing with the residency of corporations are inapposite to the status of the Oshiraks, who are individuals. We hold that constructive residency for venue purposes is not acquired by long arm service under the Nonresident ...


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