Polizzi v. Cowles Magazines, Inc.
Polizzi v. Cowles Magazines, Inc.
Opinion of the Court
delivered the opinion of the Court.
Respondent, an Iowa corporation which publishes Look magazine, maintains no offices in Florida, but sells its magazines to two independent wholesale companies which distribute them to retailers in Florida. Respondent does employ two “circulation road men” whose job is to check retail outlets in a multi-state area which includes Florida. These two road men cover separate and mutually exclusive districts, and neither exercises any supervision over the other. Petitioner, a resident of Florida, brought suit against Respondent in the Circuit Court of Dade County, Florida, for allegedly libelous matter printed in Look magazine. Respondent moved to dismiss or in lieu thereof to quash the return of service, made on an agent of one of the distributing wholesalers. Before the state court acted on this motion, Respondent removed the action to the United States District Court for the Southern District of Florida. See 28 U. S. C. (Supp. V) §§ 1332, 1441, 1446, 1447 (b). That court issued an additional summons which was served on Briardy, one of Respondent’s road men, “as a managing agent of [Respondent] transacting business for it in the State of Florida . . . See 28 U. S. C. (Supp. V) § 1448; Fed. Rules Civ. Proc., 4(d)(3), (7); Fla. Stat. Ann., 1943, §47.17(5). On Petitioner’s motion, the original state court service was quashed. Respondent then moved the court “to dismiss this action or in lieu thereof to quash the return of purported or attempted service of the additional summons . . . .” The District Court, without passing upon the motion to quash the return of service, dismissed the action on the ground that it did “not have jurisdiction
The only question in this case on the record before- us is whether the District Court correctly dismissed the action for want of jurisdiction.
Both courts below held that the District Court lacked jurisdiction, but they reached that conclusion by deciding that Respondent was not “doing business” in Florida within the meaning of 28 U. S. C. (Supp. V) § 1391 (c). Section 1391 is a general venue statute. In a case where it applies, if its requirements are not satisfied, the District Court is not deprived of jurisdiction, although dismissal of the case might be justified if a timely objection to the venue were interposed. 28 U. S. C. (Supp. V) § 1406. But even on the question of venue, § 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by 28 U. S. C. (Supp. V) § 1441 (a), and under that section venue was properly laid in the Southern District of Florida. Lee v. Chesapeake & O. R. Co., 260 U. S. 653; General Investment Co. v. Lake Shore & M. S. R. Co., 260 U. S. 261, 270-279; Moss v. Atlantic Coast Line R. Co., 157 F. 2d 1005.
Therefore, the question whether Respondent was “doing business” in Florida within the meaning of § 1391 (c) is irrelevant, and the discussion of that question is beside the point. The District Court based its holding that it lacked jurisdiction on a statute which has no application to the case, and the Court of Appeals affirmed on the same reasoning.
We express no opinion whether Respondent was “doing business” in Florida within the meaning of the due process requirements set out in International Shoe Co. v. Washington, 326 U. S. 310, because Respondent has not
Reversed.
See also 1 Barron and Holtzoff, Federal Practice and Procedure, § 101; Charles W. Bunn, Jurisdiction and Practice of the Courts of the United States (5th ed., Charles Bunn, 1949), 146-148; Moore, Commentary on the United States Judicial Code, 199.
“§ 1391. Venue generally.
“(a) A civil action wherein jurisdiction is founded onlj on diversity of citizenship may, except as otherwise provided by law, be brought
“(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.” (Emphasis supplied.)
“§ 1441. Actions removable generally.
“(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” (Emphasis supplied.)
“In the case now before the Court no question of due process is involved.” Brief for Respondent in Opposition to Writ of Certio-rari, p. 9. “All this has nothing to do with due process Brief for Respondent, p. 17.
Concurring in Part
with whom Mr. Justice Jackson joins, concurring in part and dissenting in part.
Polizzi lives in Coral Gables, Florida. He has been in the construction business there for some years. Cowles Magazines, Inc., an Iowa corporation, publishes Look, a magazine circulating nationally. May 23, 1950, Look carried an article branding Polizzi as one of the ringleaders of a national gang of murderous, blackmailing prostitute-pandering criminals. Nearly 50,000 copies covered Florida. Many were displayed and distributed in Polizzi’s home town. He at once wrote the publisher that the charges against him were false, demanding both retraction and apology. It did nothing. Polizzi then
This Court reverses solely because both the District Court and the Court of Appeals in dismissing referred to and relied on the “doing business” provisions of 28 U. S. C. § 1391 (c), a venue statute not applicable to removal cases like this but to suits originally filed against corporations in United States District Courts. For this reason, not suggested by Cowles or Polizzi, the Court refuses to pass on the “doing business” contention which Cowles did make and which both courts below decided.
I think this Court should here and now reject Cowles’ dilatory contentions. There may have been some reason for snarling up lawsuits against foreign corporations a hundred years ago because of newly expanding activities of migratory businesses. But there is no such excuse now. A large part of the business in each and every state is done today by corporations created under the laws of other states. To adjust the practical administration of law to this situation the Court in recent years has refused
Under any of the concepts, old or new, I think Cowles was doing business in Florida. It had a regular agent there, paid by the month, whose sole job was to carry on activities for Cowles in order to increase Look’s circulation in that state. On this agent, who managed for the publishing corporation all the business it carried on in Florida, process was served. These facts, together with others which I need not labor, show the frivolous nature of the “doing business” question. They show also the lack of merit in the question the Court tells the district judge to pass on: Should the 1950 notice by service on the corporation’s regular Florida representative be held sufficient to require it to defend, or should the District Court now after three years’ litigation quash that service and require that new notice of the suit the corporation is here defending be served on some other company employee? I venture to suggest that if this question were raised anywhere except in a court, it would be dismissed as ludicrous.
But aside from what has been said, there is a new statute which gives an anachronistic flavor, a sort of irrelevance to all of Cowles’ dilatory motions and arguments. I refer to 28 U. S. C. § 1404 (a), which has codified the doctrine of jorum non conveniens. That statute
The record makes clear that the “doing business” question was the ground on which Cowles made the motion to dismiss, the ground on which the District Court dismissed the lawsuit, the ground on which the Court of Appeals affirmed, and a ground on which Cowles asked us to affirm the dismissal. The corporation’s motion to dismiss
Cf. von Jhering, In the Heaven of Legal Concepts, translated in Cohen and Cohen, Readings in Jurisprudence and Legal Philosophy, 678-689.
See on this point International Shoe Co. v. Washington, 326 U. S. 310; Travelers Health Assn. v. Virginia, 339 U. S. 643; United States v. Scophony Corp. of America, 333 U. S. 795.
28 U. S. C. § 1404 (a) provides:
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
A companion statute, 28 U. S. C. § 1406 (a), provides:
“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”
28 U. S. C. § 2106 provides that this Court in reversing judgments may direct the District Court to enter such orders as are “just under the circumstances.”
Concurring in Part
concurring in part and dissenting in part.
I agree that the District Court and the Court of Appeals erroneously referred to the wrong venue statute in deciding the question of “doing business.” Like Mr. Justice Black I think it unfortunate that this case must be prolonged by a remand to consider again the same “doing business” question under another statute. Unlike Mr. Justice Black, however, I find nothing in the majority opinion to suggest that the enlightened rationale of our more recent cases such as International Shoe Co. v. Washington, 326 U. S. 310, has been abandoned or impaired. Nor do I find any hint in the majority opinion that anything in the Constitution or other federal law prohibits the trial of this case in a United States District Court in Florida. My objection is that the majority have not ruled on this question at all.
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