the sale of defendant's products in the forum was held to be a sufficient contact, the reasoning there does not apply in this case. Tefal was an action for trademark infringement. The nature of the claim in such a case is quite different from that in a contract case. In an infringement action the plaintiff's injury arises from and is aggravated by the sale of defendant's products, thereby rendering all such sales relevant contacts. Here, on the other hand, the presence of Gold Bond's products in this district is in no way related to the breach of contract alleged.
In contract actions the simplest and most logical answer to the question of where the claim arose is place of performance. See, Moore's Federal Practice, § 0.1425.2 at 1435 (2d Ed. 1985). This is a particularly practical course to follow where the claim is for breach of contract in that breach often occurs at place of performance.
Plaintiff in this case contends that performance on its part and defendant's breach both occurred in this district in that Gold Bond received the goods at Clark's Lancaster plant and was to remit payment there. Defendant claims that performance on its part, payment, was due in plaintiff's New York office. Gold Bond also claims that its receipt of the goods in Lancaster was plaintiff's choice, and so venue should not be based on that contact. Insofar as the latter argument is applied to the issue of Gold Bond's residence in this district, it is persuasive, but it loses its cogency when applied to the issue of where the claim arose. It is logical that the decision as to a corporate defendant's residence in a particular district should not be based solely upon its activities incident to the transaction in issue, particularly where it appears that those activities would not subject it to the forum's licensing requirements. However, those activities are viewed differently and assume more importance when the issue is where the claim arose. In that context, plaintiff's contacts with the forum are also weighed, along with the terms of the contract itself.
Place of delivery is ordinarily a contract term subject to negotiation between the parties. Nothing in the record suggests that there is such disparity of position between the two corporate parties to this action that Gold Bond was prevented from participating in the choice of Lancaster as plaintiff's place of performance. Moreover, if defendant normally paid for plaintiff's goods at the Lancaster plant and was to do so for the contract involved in this case, defendant's performance was due in Lancaster as well. As noted, however, defendant disputes plaintiff's factual allegations on that point.
In summary, it appears from the present record that although Gold Bond is not a resident of this district for venue purposes, the claim did arise here. Still, the question of sufficiency of contacts even on that issue is close enough to warrant discovery. If discovery is to be undertaken, however, it should include further inquiry into the issue of defendant's residence as well. Accordingly, the Court will order discovery limited to providing such information as will clarify the record upon which we are to make our determination as to the propriety of venue in this district.
AND NOW, this 16th day of October, 1985, upon consideration of defendant's motion to dismiss the complaint or to transfer the action and plaintiff's response thereto, IT IS ORDERED that the motion is DENIED without prejudice.
IT IS FURTHER ORDERED that discovery upon the issue of proper venue be undertaken forthwith and concluded within sixty (60) days.