Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MOWREY v. JOHNSON & JOHNSON

October 27, 1981

Kay Rosaire MOWREY and James A. Mowrey, Plaintiffs,
v.
JOHNSON & JOHNSON, Pitman-Moore, Inc., and Pitman-Moore, Ltd., Defendants



The opinion of the court was delivered by: WEBER

At first blush it may seem unusual for a United States District Court in Pennsylvania to be presiding over a controversy between residents of Florida, New Jersey and Canada, involving the death of African lions in Quebec. Yet in this diversity case that is precisely what we are called upon to do.

On June 12, 1979, six trained African lions, performers with the Gatini Circus, suddenly and mysteriously became ill while touring with the circus in Quebec Province, Canada. Ultimately all six of the animals succumbed to this illness, the last of the troupe dying in Erie, Pennsylvania, in September 1979.

 Two years later, on June 12, 1981, the owner-trainers of these lions, residents of Florida, filed this action in the United States District Court for the Western District of Pennsylvania. In their complaint the plaintiffs named three defendants-Johnson & Johnson, Pitman-Moore, Inc., and Pitman-Moore, Ltd. Johnson & Johnson, and Pitman-Moore, Inc. are New Jersey corporations. Pitman-Moore, Ltd. is a Canadian corporation.

 According to the plaintiffs' complaint these defendants manufacture, distribute and sell animal pharmaceuticals throughout the United States and Canada. One product produced by these defendants is Telmin B, an animal de-wormer which is frequently used for the worming of horses and other large animals, but which is highly toxic to felines. The plaintiffs allege that their lions died as a result of ingestion of Telmin B. The plaintiffs further allege that none of the packages or labels under which Telmin B was distributed indicated that that product was toxic to felines. According to the plaintiffs this failure by the defendants to so label these packages constituted negligence, a breach of warranties and gave rise to strict liability in tort. The plaintiffs demanded as damages the purchase price of the lions, the cost of the medical expenses associated with their illness and the profits lost by the plaintiffs as a result of their deaths.

 The defendants have responded by filing a motion to dismiss. In this motion defendants raise two principal arguments. *fn1"

 First, they contend that venue does not lie over the instant case under 28 U.S.C. § 1391. In the alternative, defendants argue that the doctrine of forum non conveniens and 28 U.S.C. § 1404 mandate dismissal of this action. We reject both of these arguments. Accordingly, we deny the defendants' motion to dismiss.

 Turning initially to the question of venue under 28 U.S.C. § 1391 we recognize that proper venue is a prerequisite to maintaining an action in federal court. Accordingly, once venue is challenged the plaintiffs bear the burden of proving that venue is properly laid in a specific district. Lieb v. American Pacific International, Inc., 489 F. Supp. 690, 696 (E.D.Pa.1980); Hawkins v. National Basketball Assoc., 288 F. Supp. 614, 615 (W.D.Pa.1968).

 In this case federal jurisdiction is founded solely on diversity of citizenship. Therefore, 28 U.S.C. § 1391(a) describes the limitations on proper venue in this action. That section, in pertinent part, provides that:

 
A civil action ... 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.

 In this action the plaintiffs attempt to meet their burden of proving proper venue under 28 U.S.C. § 1391(a) in two ways. First, plaintiffs contend that the three defendant corporations "reside" in the Western District of Pennsylvania. Second, plaintiffs argue that their claims arose in this district because, inter alia, one of the lions died in Erie, Pennsylvania. On the former of these two grounds we believe that the plaintiffs have met their burden of proving proper venue. Therefore, for this reason, we deny defendants' motion to dismiss for improper venue.

 The defendants in this action are two New Jersey corporations, Johnson & Johnson and Pitman-Moore, Inc. and a Canadian corporation, Pitman-Moore, Ltd. The residence of domestic corporations for venue purposes is generally defined by 28 U.S.C. § 1391(c), which describes corporate residence in the following terms:

 
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.

 In this case it is conceded by the parties that Johnson & Johnson and Pitman-Moore, Inc. both do business in the Western District of Pennsylvania. Accordingly, we conclude that venue is proper over these defendants in this district.

 As for Pitman-Moore, Ltd., as a Canadian corporation it is treated as an alien for the purposes of establishing proper venue. See, e.g. Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 92 S. Ct. 1936, 32 L. Ed. 2d 428 (1972); General Aircraft Corporation v. Air America, Inc., 482 F. Supp. 3 (D.C.D.C.1979). Under 28 U.S.C. § 1391(d), an alien is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.