United States District Court, Northern District of Illinois, E.D
October 22, 1958
HERMAN RENSING, PLAINTIFF
TURNER AVIATION CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Campbell, District Judge.
Plaintiff, Herman Rensing, a citizen and resident of
California, sues the defendant, Turner Aviation Corporation, an
Indiana corporation, alleged by the plaintiff to be doing
business in this District, for personal injuries allegedly
sustained while a passenger in defendant's plane which crashed to
the ground at or near Grant Park, Illinois, on March 6, 1957. The
complaint bases jurisdiction on Title 28 U.S.C. § 1332 and 1391.
The defendant has filed a motion to dismiss the complaint or
quash the return of summons contending that service of process
could not properly be made upon it in Illinois under Rule 4(d)
F.R.Civ.P., 28 U.S.C.A., because the defendant, a foreign
corporation, was not "doing business" in this District so as to
be present for jurisdictional purposes. Service of process upon
the president of the defendant while he was temporarily present
in this District the defendant states does not act to bring the
corporation within the jurisdiction of this Court. The defendant
further maintains that the question of what constitutes "doing
business" is one of Federal and not State law.
The plaintiff maintains that the defendant was "doing business"
in Illinois so as to be present for jurisdictional purposes and
was therefore subject to service of process. The plaintiff agrees
that the question of what constitutes "doing business" is one of
Federal and not State law.
The affidavits submitted by the parties indicate that the
defendant has never been licensed to do business in Illinois; nor
owned any property the business situs of which is in Illinois;
nor maintained any facility for conducting business in Illinois;
nor employed or retained officers or agents in Illinois. The
plaintiff's affidavit states that planes operated by the
defendant land at Midway Airport in the City of Chicago "with
regularity" and that such planes "principally carry passengers
for hire from points in Indiana; and that a lesser part of it's
regular business is the carrying of passengers for hire from the
City of Chicago to various points of Indiana and elsewhere."
Defendant's affidavit shows that for a period of fourteen (14)
months prior to the accident, the defendant made the following
flights into Illinois:
1. No intrastate flight in Illinois;
2. Eight (8) one-way flights into Illinois;
3. Two (2) one-way flights out of Illinois;
4. Seven (7) round-trip flights from a point outside
Illinois to a point in Illinois and return.
It further appears that Roscoe Turner, a resident of Indiana
and president of the defendant corporation, was served with a
summons and complaint herein directed against the corporation
while he was temporarily present in Chicago, Illinois, on
personal business. The issue now presented by the pleadings is
whether or not the defendant, Turner Aviation Corporation, was
"doing business" within this Judicial District so as to be
considered "present" here for jurisdictional purposes. As stated
above, both parties maintain that this issue should be decided
solely by Federal law. I think both are incorrect.
I find a great deal of confusion among the decisions in regard
to the term "doing business." Much of this confusion seems to be
due to the fact that in some instances Federal law has been
applied in its interpretation while in other cases, State law has
governed its interpretation. Further confusion stems from the
fact that Title 28 U.S.C.A. § 1391(c) provides in regard to venue
that a foreign corporation may be sued where it is "doing
business" while presence of a foreign corporation for
jurisdictional purposes is often governed by the same phrase,
"doing business." An example of this is seen in Riverbank
Laboratories v. Hardwood Prod. Corp., 7 Cir., 220 F.2d 465, where
upon a motion to dismiss because of improper venue, the Court
applied State law in interpreting "doing business." The Court
relied directly upon Canvas Fabricators Inc. v. William E. Hooper
& Sons Co., 7 Cir., 199 F.2d 485, which case however was
predicated upon a motion to quash summons because of lack of
jurisdiction over the person of a foreign corporation. In this
case the question of whether a foreign corporation was "doing
business" within the State and hence "present" for jurisdictional
purposes was quite properly decided according to State law. The
Riverbanks case considering the question of improper venue under
Title 28 U.S.C. § 1391(c) apparently overlooked the fact that the
Canvas case was one of jurisdiction and not of venue and applied
the same State test for "doing business" and was therefore later
reversed by the United States Supreme Court in 350 U.S. 1003, 76
S.Ct. 648, 100 L.Ed. 866. For the reasons I shall try to point
out it is my opinion that the law clearly requires questions of
venue to be decided by Federal law and questions of jurisdiction
in diversity cases to be decided by the law of the State wherein
the particular U.S. District Court is sitting.
When Swift v. Tyson, 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865
representing a doctrine of a Federal common law free from the
authority of State courts was overruled by Erie R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, a new policy
concerning the proper distribution of judicial power between
State and Federal Courts was proclaimed by the Supreme Court. "In
essence, the intent of that decision was to insure that, in all
cases where a federal court is exercising jurisdiction solely
because of the diversity of citizenship of the parties, the
outcome of the litigation in the federal court should be
substantially the same, so far as legal rules determine the
outcome of a litigation, as it would be if tried in a State
court. The nub of the policy that underlies Erie R. Co. v.
Tompkins is that for the same transaction the accident of a suit
by a non-resident litigant in a federal court instead of in a
State court a block away, should not lead to a substantially
different result." Guaranty Trust Co. v. York, 326 U.S. 99, 109,
65 S.Ct. 1464, 1470, 89 L.Ed. 2079.
Today, this policy is recognized by Congress in Title 28,
U.S.C.A. § 1652 which provides:
"The laws of the several states, except where the
Constitution or treaties of the United States or Acts
of Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the
courts of the United States, in cases where they
Thus, it is generally stated that in diversity of citizenship
cases, all substantive
matters are controlled by State law while purely procedural
matters, that is procedural matters which do not affect the
substantive rights of the parties are controlled by Federal law.
Guaranty Trust Co. v. York, supra; Occidental Life Ins. Co. of
California v. Kielhorn, D.C., 98 F. Supp. 288; Brookshire v.
Pennsylvania R. Co., D.C., 14 F.R.D. 154; Cyclopedia of Federal
Procedure, Sec. 6.03.
Title 28 U.S.C.A. § 1391, entitled Venue Generally provides in
subsection (c) as follows:
"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."
It was noted before that a state may gain jurisdiction over a
foreign corporation by a number of ways. However, the most usual
way for a state to gain personal jurisdiction over a foreign
corporation occurs when the corporation is "doing business"
within the state because then it is present within the state and
is thus amenable to process. Fletcher, Cyclopedia of Corporations
Sections 8639-8648; Cyclopedia of Federal Procedure Sec. 11.76.
Therefore, since the phrase "doing business" is found in Title
28 U.S.C.A. § 1391(c) in regard to venue and also is used with
regard to the basic jurisdiction of the Court over the person of
a foreign corporation, the following problems are presented:
1. Should Federal or State law govern the
interpretation of the phrase "doing business" as
contained in the venue section, 1391(c) of the
United States Code;
2. Should Federal or State law be applied in
deciding whether a corporation is "doing
business" within the judicial district of the
court so that it is "present" for jurisdictional
purposes and thus amenable to service;
3. Should the same test for "doing business" be
applied in both instances.
In considering these problems, it is important to distinguish
between jurisdiction of the subject matter, jurisdiction over the
person and venue. Jurisdiction of the subject matter is the
fundamental power of the Court to hear and decide a cause on its
merits and therefore is beyond the scope of litigants to confer.
It is clearly distinguished from venue in Neirbo Co. v. Bethlehem
Shipbuilding Corp., 308 U.S. 165
, 60 S.Ct. 153, 84 L.Ed. 167.
Jurisdiction over the person is the power of the Court over the
parties obtained by process or appearance. To distinguish this
from venue see Robertson v. Railroad Labor Board, 268 U.S. 619
45 S.Ct. 621, 69 L.Ed. 1119. Venue on the other hand merely
relates to the place where a suit may be heard and is a personal
privilege of a party which may be asserted or waived. Commercial
Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49
S.Ct. 98, 73 L.Ed. 252. Cyclopedia of Federal Procedure, Sections
4.01, 4.49, 4.5. The essence of venue is "to save defendants from
inconveniences to which they might be subjected if they could be
compelled to answer in any district, or wherever found." General
Investment Co. v. Lake Shore & M.S. Ry. Co., 260 U.S. 261
S.Ct. 106, 113, 67 L.Ed. 244. Thus, it can be seen that a
district court may have jurisdiction over the subject matter and
may obtain personal jurisdiction over the defendant by service of
process and yet the defendant may defeat the suit in that
District by asserting his privilege of venue, if venue is not
proper in the district. Cyclopedia of Federal Procedure, Sec.
4.14. Title 28 U.S.C.A. § 1406.
It has been consistently held that venue in Federal courts is
not affected or limited by State legislation, but is wholly a
matter of congressional control and legislation. Doyle v. Loring,
6 Cir., 107 F.2d 337; State Public School Bldg. Authority v.
Maryland Casualty Co., D.C., 127 F. Supp. 902; Cyclopedia of
Procedure Sec. 4.01. Further it has been stated that:
"Essentially venue is an incidence of procedure. It
is a part of that body of law which bounds and
delineates the forum and the manner and mode of
enforcing a litigant's rights. It is distinguishable
from and is not within the field of law, known as
substantive, which recognizes, creates and defines
rights and liabilities and causes of action." Hadlich
v. American Mail Line, D.C., 82 F. Supp. 562.
Therefore, in line with this reasoning a series of cases, with
which I agree, have held that the interpretation of "doing
business" under the venue section, Title 28 U.S.C.A. § 1391(c) is
controlled solely by Federal and not by State law. Consolidated
Cosmetics v. D-A Pub. Co. Inc., 7 Cir., 186 F.2d 906; Martin v.
Fischbach Trucking Co., 1 Cir., 183 F.2d 53; Murphree v.
Mississippi Pub. Corp., 5 Cir., 149 F.2d 138; Singleton v.
Atlantic Coast Line R. Co., D.C., 20 F.R.D. 15; State Public
School Building Authority v. Maryland Casualty Co., D.C.,
127 F. Supp. 902, 904; Glick v. Empire Box Corp., D.C., 119 F. Supp. 224;
Kertes Mfg. Corp. v. Speidel Corp., D.C., 93 F. Supp. 483;
Olympic Radio & Television, Inc., v. Hazeltine Research, Inc.,
D.C., 85 F. Supp. 579.
The interpretation of "doing business" under Sec. 1391(c) must
then be established according to Federal law. In my opinion the
best exposition of this interpretation may be found in Remington
Rand, Inc., v. Knapp Monarch Co., D.C., 139 F. Supp. 613. Neither
Sec. 1391 nor the revisers' notes supply any direct indication as
to deciding how much activity a foreign corporation must engage
in before it is held to be "doing business" under this Section.
The Supreme Court partly filled the void in Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84
L.Ed. 167, which holds that a foreign corporation waived the
provisions of the applicable venue statute when it appointed an
agent for receipt of service of process as required by the law of
the state in which the corporation was doing business. However,
what if a foreign corporation violated the state law and did not
appoint an agent to accept service of process as a condition
precedent to doing business within the state? Some courts held
that by this unlawful act, the foreign corporation does not waive
its privilege of asserting the venue defense. Moss v. Atlantic
Coast Line R. Co., 2 Cir., 149 F.2d 701. The result was a curious
situation in which a law abiding corporation would waive its
venue privilege while a non-conforming corporation was able to
assert a venue defense.
Upon revision of the Judicial Code, Congress, in effect adopted
the Neirbo decision in Sec. 1391(c). See Ruth v. Eagle-Picher
Co., 10 Cir., 225 F.2d 572. Congress achieved the result of the
Neirbo decision without reliance upon a concept of waiver or
reference to appointment of a statutory agent, by making the
focal point of the statute the obtaining of a license to do
business by the corporation. At the same time the result of those
decisions which conferred the venue defense on the non-conforming
corporations was removed by providing that venue would be proper
if a corporation was "doing business" within the District.
Viewed in this background, the interpretation of "doing
business" under Sec. 1391(c) becomes clear since its purpose is
to prevent foreign corporations who do not obtain a license and
who do business within the state from asserting the privilege of
It seems therefore, that a foreign corporation must be "doing
business" to such a degree that the state would require that it
be licensed before the venue requirements of Sec. 1391(c) will be
satisfied. However, as pointed out in Remington Rand, Inc., v.
Knapp-Monarch, it would be erroneous to make the propriety of
venue dependent upon any particular state licensing law or to
attempt an examination of all state licensing laws. There the
"No attempt will be made to establish criteria
which definitely mark the boundary line between
proper and improper venue. Congress has decreed state
licensing requirements closely approximate the
desired balance between the aggrieved plaintiff who
might be penalized if the foreign corporation were
not required to answer in any vicinity where its
activity might cause an alleged injury and the
resulting inconvenience to the foreign corporation
forced to defend far from home. With this balance as
a guiding principle, it can be said the activity must
be of such a nature so as to localize the business
and make it an operation within the district."
139 F. Supp. 613, 617.
In regard to "doing business" in the jurisdictional sense, it
seems clear to me that it is now generally accepted that in
diversity of citizenship cases, the question of whether a
corporation is present or "doing business" in the State or
Federal District so as to be subject to process and the
jurisdiction of the Federal Court is one of substantive law and
thus is governed solely by State law and court decisions subject
to Federal constitutional limitations. Therefore, if State courts
would not regard a particular foreign corporation as "doing
business" in the State so as to be subject to their jurisdiction,
a Federal District Court sitting in the State and hearing a
diversity of citizenship case should likewise rule that the
corporation is not "doing business" so as to be subject to its
jurisdiction. Riverbank Laboratories v. Hardwood Products Corp.,
7 Cir., 220 F.2d 465; Roberts v. Evans Case Co., 7 Cir.,
218 F.2d 893; Cincinnati Shoe Mfg. Co. v. Vigorith, 6 Cir., 212 F.2d 583;
Robbins v. Benjamin Air Rifle Co., 5 Cir., 209 F.2d 173; Partin
v. Michaels Art Bronze Co., 3 Cir., 202 F.2d 541; Canvas
Fabricators v. William E. Hooper & Sons Co., 7 Cir.,
199 F.2d 485; Pulson v. American Rolling Mill Co., 1 Cir., 170 F.2d 193;
Hellriegel v. Sears Roebuck & Co., D.C., 157 F. Supp. 718; Haas v.
Fancher Furniture Co., D.C., 156 F. Supp. 564; W.H. Elliot & Sons
Co. v. E. & F. King & Co., D.C., 144 F. Supp. 401; Hilmes v.
Marlin Firearms, D.C., 136 F. Supp. 307; Kenny v. Alaska Airlines,
D.C., 132 F. Supp. 838; Convery v. Clairol Inc., D.C., 123 F. Supp. 29;
Allentown Record Co. v. Agrashell, D.C., 101 F. Supp. 790;
Perkins v. Louisville & N.R. Co., D.C., 94 F. Supp. 946.
It seems clear that Federal District Courts sitting in
diversity cases should interpret "doing business" under Sec.
1391(c) according to Federal law as it is used in the licensing
concept while "doing business" for jurisdictional purposes should
be decided strictly in accordance with the law of the State
wherein the Court is sitting.
A guide for District Courts in making this distinction is found
in Remington Rand, Inc., v. Knapp-Monarch Co., which states in
regard to "doing business" in the licensing concept that:
"Not only must the activity be of such a nature so
as to localize the business and make it an operation
within the district but, quantitatively, such
activity must be more than the minimum amount of
activity needed to meet a constitutional due process
objection where a question of amenability of a
foreign corporation to service of process is raised.
Any reference in federal venue problems to the
`principles of fairness' test (See International Shoe
Co. v. State of Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 90 L.Ed. 95) employed in amenability to
service of process matters, is improper * *."
139 F. Supp. 613, 618, 619.
It is quite possible therefore that a Federal Court in the
interpretation of the phrase "doing business" might find that it
has proper jurisdiction over the person of a foreign corporation
but that venue is improper.
Further complications sometimes arise if State statutes provide
for different means to establish the presence of a foreign
corporation within the State
for jurisdictional purposes such as where State statutes provide
for the submission of a foreign corporation to State jurisdiction
under certain circumstances such as "consent" or "minimum
contacts" theories. A Federal District Court in a diversity of
citizenship case must apply the particular State law in regard to
jurisdiction in these cases and thus can gain jurisdiction over
the person of a foreign corporation even though the corporation
is not "doing business" within the State in any sense. However,
once a Federal District Court has found, according to State law,
that it has jurisdiction over a foreign corporation, the question
may then arise as to whether such manner of gaining jurisdiction
violates the due process clause or the interstate commerce clause
of the Federal Constitution. Const. art. 1, § 8, cl. 3; Amend.
14. This, of course, is a Federal question and State authorities
are not controlling. But, it is a question which is not reached
for decision until it is found that the State statute is broad
enough to assert jurisdiction over the defendant in a particular
situation. Pulson v. American Rolling Mill Co., 1 Cir.,
170 F.2d 193. Assuming that the manner of gaining jurisdiction over a
foreign corporation is not unconstitutional and that the
corporation is not "doing business" in the particular State under
the venue section, Title 28 U.S.C.A. § 1391(c), then the
corporation would have the privilege of having the case dismissed
or transferred by virtue of Title 28 U.S.C.A. § 1406, for
In Illinois, the situation becomes involved because of the
Illinois Civil Practice Act, Section 17 (Ill.Rev.Stat. 1957, Ch.
110, § 17) which, insofar as material here provides:
"(1) Any person, whether or not a citizen or
resident of this State, who in person or through an
agent does any of the acts hereinafter enumerated,
thereby submits said person, and, if an individual,
his personal representative, to the jurisdiction of
the courts of this State as to any cause of action
arising from the doing of any said acts:
"(a) The transaction of any business within the
"(b) The commission of a tortious act within this
"(c) The ownership, use, or possession of any real
estate situated in this State;
"(d) Contracting to insure any person, property or
risk located within this State at the time of
This statute should be viewed in light of the criteria laid
down by the United States Supreme Court in International Shoe Co.
v. State of Washington, 326 U.S. 310, 66 S.Ct. 154 which looked
to the "contacts of the corporation with the state of the forum
as make it reasonable, in the context of our federal system of
government, to require the corporation to defend the particular
suit which is brought there". At page 316 of 326 U.S., at page
158 of 66 S.Ct. it was stated that "due process requires only
that in order to subject a defendant to a judgment in personam,
if he be not present within the territory of the forum, he have
certain minimum contacts with it such that the maintenance of the
suit does not offend traditional notions of fair play and
The court further held that "to the extent that a corporation
exercises the privilege of conducting activities within a state,
it enjoys the benefits and protection of the laws of that state.
The exercise of that privilege may give rise to obligations; and,
so far as those obligations arise out of or are connected with
the activities within the state, a procedure which requires the
corporation to respond to a suit brought to enforce them can, in
most instances, hardly be said to be undue."
This test of "minimum contacts with (the state) such that the
suit does not offend traditional notions of fair play and
substantial justice" goes beyond the "consent", "doing business",
"presence" tests as standards for measuring the extent of state
judicial power over foreign corporations. In reaffirming this
test, the United States Supreme Court recently said:
"Looking back over this long history of litigation
a trend is clearly discernible toward expanding the
permissible scope of state jurisdiction over foreign
corporations and other nonresidents. In part this is
attributable to the fundamental transformation of our
national economy over the years. Today many
commercial transactions touch two or more States and
may involve parties separated by the full continent.
With this increasing nationalization of commerce has
come a great increase in the amount of business
conducted by mail across state lines. At the same
time modern transportation and communication have
made it much less burdensome for a party sued to
defend himself in a State where he engages in
economic activity." McGee v. International Life Ins.
Co., 355 U.S. 220, 78 S.Ct. 199, 201, 2 L.Ed.2d 223.
It is clear that Section 17 of the Illinois Civil Practice Act
is intended to assert jurisdiction of the State of Illinois over
nonresident defendants to the fullest extent possible under the
Due Process Clause of the Fourteenth Amendment and Article 2, §
2 of the Illinois Constitution, S.H.A., and to implement the
"minimum contact" theory of jurisdiction enunciated by the
Supreme Court. The Illinois Supreme Court has recently reviewed
the constitutional foundations for the section and held it valid
under the Federal and State Constitutions. Nelson v. Miller,
11 Ill.2d 378, 143 N.E.2d 673. See also Orton v. Woods Oil & Gas
Co., 7 Cir., 249 F.2d 198; Hellriegel v. Sears Roebuck & Co.,
D.C., 157 F. Supp. 718 and Haas v. Fancher Furniture Co., D.C.,
156 F. Supp. 564. Similar statutes in Maryland and Vermont have both
withstood constitutional objections. Smyth v. Twin State
Improvement Corp., 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193;
Johns v. Bay State Abrasive Products Co., D.C., 89 F. Supp. 654.
In the recent case, Orton v. Woods Oil & Gas Co., 249 F.2d 198,
200, our Court of Appeals for the Seventh Circuit in considering
Sec. 17(1)(a) held that the question of whether a foreign
corporation was engaged in "the transaction of any business
within this State" was coterminous with the Due Process Clause of
the Fourteenth Amendment. Therefore under Section 17(1)(a), a
foreign corporation would have to have such "minimum contacts"
with the territory of the forum that the maintenance of an in
personam suit does not "offend traditional notions of fair play
and substantial justice."
Thus it can be seen that a Federal District Court sitting in
Illinois may have jurisdiction over a foreign corporation by
virtue of Section 17 and yet the venue may be improper under
Title 28 U.S.C.A. § 1391(c) because the corporation was not
"doing business" within the judicial district as determined by
federal law in its usage in the licensing concept. In a case of
this nature, the defendant must assert the improper venue at the
earliest practicable moment since it is only a personal privilege
which can be waived or lost by failure to assert it seasonably or
by formal submission in a cause or submission by conduct. Graver
Tank & Manufacturing Corp. v. New England Terminal Co., 1 Cir.,
125 F.2d 71. It is possible under certain circumstances that the
court on its own motion may raise improper venue and dismiss or
transfer the case. Ellenwood v. Marietta Chair Co., 158 U.S. 105,
15 S.Ct. 771, 39 L.Ed. 913; Cyclopedia of Federal Procedure Sec.
The defendant, Turner Aviation Corporation, has made a motion
to dismiss the complaint or quash return of summons upon the
grounds that it was not "doing business" within this judicial
district so as to be "present" for jurisdictional purposes. Both
the defendant and plaintiff maintain that the question of "doing
business" should be resolved according
to federal law. This contention is clearly wrong. The "presence"
of a foreign corporation within a judicial district for
jurisdictional purposes is as we have seen a matter of
substantive law and must be decided solely according to state
law. Therefore, the question of whether or not this court has
jurisdiction over the defendant, Turner Aviation Corporation must
be decided according to Illinois law and more particularly
Section 17 of the Illinois Civil Practice Act (Ill.Stat., 1957,
Ch. 110, § 17).
Since the plane crash occurred at or near Grant Park, Illinois,
and since ultimate liability in tort is not a jurisdictional
fact, Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, it is
clear that this court has jurisdiction over the person of the
defendant by virtue of Sec. 17(1)(b) which provides for the
submission to the jurisdiction of the courts of Illinois by the
"commission of a tortious act within this State." Whether this
court would also have jurisdiction over the person of the
defendant by virtue of Section 17(1)(a) is questionable since
the Act by its express terms states that the cause of action must
arise from "the transaction of any business within this State."
Further, in light of Orton v. Woods Oil & Gas Co., it might be
difficult to maintain that the defendant's occasional, sporadic
and irregular flights into Illinois amounted to such "minimum
contacts" with the territory of the forum so that the maintenance
of a suit in personam would not "offend traditional notions of
fair play and substantial justice." To do so might expand the
Illinois concept of State jurisdiction over nonresidents beyond
the limit imposed by due process.
However, since this Court clearly has jurisdiction over the
person of the defendant by virtue of Section 17(1)(b) and since
the constitutionality of the Act has been accepted, only the
question of venue remains. Had it been urged upon this Court that
venue was improper because the defendant was not "doing business"
under Sec. 1391(c) within this Judicial District, there may have
been grounds to dismiss the complaint or transfer the case to a
proper venue as provided in Sec. 1406(a). See Remington Rand,
Inc. v. Knapp-Monarch Co., supra. But here the defendant made his
motion to dismiss or quash return of summons on the basis of lack
of jurisdiction making no mention whatever of improper venue. By
proceeding directly to the vital issue of jurisdiction without
raising the question of improper venue, I hold that the defendant
has waived its privilege of venue by not interposing a "timely
and sufficient objection to the venue." Sec. 1406(b). Graver Tank
& Manufacturing Co., v. New England Terminal Co., supra.
Accordingly, the motion of the defendant, Turner Aviation
Corporation, to dismiss the complaint or to quash return of
summons, is hereby denied.
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