The opinion of the court was delivered by: Decker, District Judge.
This is another chapter in the consolidated discovery and
pretrial proceedings pending in this court pursuant to transfers
made under 28 U.S.C. § 1407.
Presently before the court are the motions of six defendants in
various actions to quash service of process and dismiss the
actions for improper venue. Defendants maintain that they are not
inhabitants of the forum districts, are not found there, and
transact no business there within the meaning of § 12 of the
Clayton Act, 15 U.S.C. § 22. That provision is directed to
the place for venue and service in antitrust actions against
corporations, and provides:
"Any suit, action, or proceeding under the antitrust
laws against a corporation may be brought not only in
the judicial district whereof it is an inhabitant,
but also in any district wherein it may be found or
transacts business; and all process in such cases may
be served in the district of which it is an
inhabitant, or wherever it may be found."
Accordingly, if venue in the forum districts was proper,
extraterritorial service upon defendants at their places of
inhabitancy was permissible.*fn1
The term "transacts business" has been defined to mean "[t]he
practical, everyday business or commercial concept of doing or
carrying on business `of any substantial character' * * *."
United States v. Scophony Corporation, 333 U.S. 795, 807, 68
S.Ct. 855, 862, 92 L.Ed. 1091 (1948). As applied by the lower
courts, the term "embraces elements of substantiality of business
done, with continuity in character, regularity,
contemporaneousness with time of service, and not looking toward
cessation of business." Commonwealth Edison Co. v. Federal
Pacific Electric Co., 208 F. Supp. 936 (N.D.Ill. 1962). Factors to
be considered also include the extent of business solicitation
and promotion within the district, both in person and by mail or
Applying these tests to the evidentiary matter submitted
herein, this court has concluded that movants Viking Press,
Inc.,*fn3 Thomas Y. Crowell Co., Inc.,*fn4 William Morrow &
Company,*fn5 and David McKay Company, Inc.,*fn6 are transacting
business in the relevant districts. Accordingly, their motions to
dismiss are denied.
Viking Press has challenged venue in actions brought originally
in courts in Arizona, Kansas, Wisconsin and Minnesota. Yet Viking
admits by answers to interrogatories that its salesmen make
periodic visits to these states, and its estimated sales for
fiscal 1968 in each of the relevant states are as follows:
Arizona Kansas Wisconsin Minnesota
$28,225 $31,643 $57,300 $130,850
The affidavits and answers to interrogatories filed by
defendant Crowell show significant sales in the forum states,
amounting to $45,172 in Kansas in 1967 and $39,470 in Arizona in
1968.*fn8 In addition, Crowell is represented by a commission
salesman who makes periodic visits to solicit sales in these
states and by a "traveler" who promotes sales, although he
himself takes no orders. Other promotional efforts in the form of
catalogs and advertising in the forum states amounted to
estimated expenditures of $3,770 in Kansas and $2,895 in Arizona
in fiscal 1968.
As to defendant Morrow, its sales amounted to $14,926 in Kansas
in 1967 and $24,000 in Arizona in 1968. It is represented in both
states by a commission salesman who visits each approximately
three times per year for a week at a time, and it has a salaried
salesman who visits Kansas approximately six times each year.
$200 per year is spent for catalogs and other promotional
materials sent into each state.
Defendant McKay's sales in Kansas totaled $8,665 in 1967. A
salesman visits the state twice a year, as does a traveler. An
estimated $200 was spent in 1968 to ...