activities exist or where the "center of gravity of the corporate function" exists, rather than where occasional meetings of directors take place. Holman v. Carpenter Technology Corp., 484 F. Supp. 406, 410 (E.D. Pa. 1980) (quoting Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 864 (S.D.N.Y. 1959)).
ABPI-Del., in support of jurisdiction being in this court, contends that its principal place of business is Delaware. In support of this contention ABPI-Del. offers the following factors: 1) All the parties in their respective complaints allege that ABPI-Del. has its principal place of business in Delaware; 2) ABPI-Del. corporate documents list 1600 Pennsylvania Ave., Wilmington, Delaware as the corporation's principal place of business; 3) Some meetings of the board of directors and shareholders of ABPI-Del. took place at the corporation's 1600 Pennsylvania Ave. address; 4) ABPI-Del. maintains a "Cash Management Account" with Merrill, Lynch, Pierce, Fenner & Smith, Inc. at Merrill Lynch's office in Wilmington, Delaware; 5) ABPI-Del. maintains a checking account with Mellon Bank (Delaware); and 6) ABPI-Del. pays corporate taxes only in Delaware.
That the parties allege in their complaints that ABPI-Del.'s principal place of business is Delaware is of no consequence to the court's jurisdictional determination. Subject matter jurisdiction is a question of judicial power; it is not a question of preference or selection, or a question of whether the parties agree as to the court's jurisdiction. Subject matter jurisdiction cannot be agreed to or waived by the parties. Bialac v. Harsh Building Co., 463 F.2d 1185, 1186 (9th Cir. 1972). Once the court determines that it does not have power to decide a case, irrespective of the parties' allegations in the pleadings, anything that has been previously decided in the case is a nullity and absolutely meaningless and the case must immediately be dismissed. Neither the parties nor the court may confer subject matter jurisdiction on the court by agreement, consent, waiver, estoppel or desire. Lack of subject matter jurisdiction in the court is lack of power in the court, and nothing short of facts that supply what the law prescribes as supporting jurisdiction can restore that power. The facts here fall below that level.
As to the 1600 Pennsylvania Ave., Wilmington, Delaware address referenced in certain corporate documents, the evidence clearly suggests that this is not the office of ABPI-Del., but, in fact, is the office of Landsburg, Platt, Greenwald, Flax & Nieto, an independent accounting firm. While it is true some ABPI-Del. corporate activity takes place at this address, such as some meetings of the board of directors, the office is not the exclusive office of ABPI-Del. ABPI-Del. owns no property nor has any permanent or part-time employees in this office. In reality, 1600 Pennsylvania Ave. is an accounting firm's office manned by accountants and their employees which ABPI-Del. apparently has permission to use simply as a business mailing address. While the use of this address undoubtedly serves the legitimate ABPI-Del. business purposes of being the place where mail is received, it is not ABPI-Del.'s principal place of business.
Evidence has been offered that ABPI-Del. has a "Cash Management Account" and a checking account in Delaware. There is no evidence, however, as to any activity in either account which suggests that the corporation's principal place of business is Delaware. It is true that ABPI-Del. pays corporate taxes in Delaware, but such payment comes about, presumably, through the tax laws having to do with it being created and existing under Delaware law and not because Delaware is ABPI-Del's principal place of business. Finally, while the evidence suggests that some sporadic meetings of the board of directors and shareholders were held in Delaware, there is simply no evidence before the court to allow it to conclude that the corporation's "center of gravity" is in Delaware. The corporation has no offices, executive or professional staff, or employees of any kind in Delaware. None of its officers, directors or shareholders reside in or are citizens of Delaware. In short, the corporation conducts no, or virtually no business in Delaware.
On the other side of the corporate fulcrum, the following factors support the notion that ABPI-Del.'s principal place of business is indeed in Pennsylvania: 1) ABPI-Del.'s corporate counsel, David Kittner, Esq., is a partner in the Philadelphia law firm Blank, Rome, Comisky & McCauley and is a citizen and resident of Pennsylvania; 2) All the officers of ABPI-Del. are citizens and residents of Pennsylvania;
3) Most of the members of ABPI-Del.'s board of directors are Pennsylvania citizens, the other members being citizens of states other than Delaware;
4) Critical correspondence between defendant Bonar and ABPI-Del. concerning Bonar's desire to purchase the APC stock held by ABPI-Del., the very stock at issue in this litigation, was sent to ABPI-Del. in care of David Kittner at his Philadelphia, Pennsylvania law office address; 5) Negotiations between ABPI-Del. and both the Schottlands and Bonar for the sale of the APC stock owned by ABPI-Del. took place primarily in Pennsylvania, never in Delaware; and 6) ABPI-Del. is wholly-owned by ABPI-Pa., a Pennsylvania corporation whose principal place of business is in Pennsylvania. Most importantly, however, is the fact that the sole business purpose and activity of ABPI-Del. is the holding of stock in a Pennsylvania corporation. In other words, ABPI-Del.'s "business," and its only business, is the part ownership of APC, a Pennsylvania corporation with its principal place of business in Pennsylvania.
In Hereth v. Jones, 544 F. Supp. 111 (E.D.Va. 1982), plaintiff was a Georgia corporation whose sole business activity was that of being a general partner in a limited partnership which owned a nursing home in Virginia. In concluding that the corporation's principal place of business was in Virginia, where the nursing home was located, and not in Georgia, the court stated:
Though plaintiff . . . is incorporated under the laws of the State of Georgia, it has absolutely no function or activity in that State. Indeed, it is alleged to be "passive" in its activities in [Virginia]. Nevertheless, infinitesimal though the activity be, such activity as this corporation engages in, it engages in as a general partner in . . . a limited partnership which owns a nursing home in Hopewell, Virginia.
The question of a corporation's "principal place of business" requires a determination of relative activity. . . . Apparently its sole raison d'etre is to be the corporate general partner in the Virginia nursing home venture. Thus such activity as exists in Virginia is greater than the non-activity in any other State. That being so, the Court is forced to conclude that the principal place of business of plaintiff Hopewell Medical Center, Inc., is within the Commonwealth. It follows, then, that complete diversity is lacking since both defendants are citizens of Virginia. (Emphasis added).