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SCHOLZ RESEARCH & DEV. v. KURZKE

September 27, 1989

SCHOLZ RESEARCH AND DEVELOPMENT, INC., Plaintiff,
v.
BERNARD KURZKE and MS MUSIC SERVICE GmbH, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is defendant's motion to dismiss for lack of personal jurisdiction, pursuant to F.R.Civ.P. 12(b) (2). For the following reasons, the court denies the motion and sua sponte transfers this action to the United States District Court for the District of New Jersey.

 FACTS

 The action before the court involves allegations of patent infringement. The plaintiff, Scholz Research and Development, Inc.,("Scholz Research") is a corporation formed by Tom Scholz, founder of the rock group "Boston". Scholz Research holds three patents relating to a device marketed under the trademark "Rockman". The Rockman is an audio signal processor originally used to enhance the output signal of electric guitars. The device eliminated the need for cumbersome sound systems and large amplifiers when practicing and recording.

 Defendant Bernard Kurzke is the principal owner of defendant MS Music Service GmbH, a corporation with its principal place of business in Hamburg, West Germany. Kurzke arranged for the manufacture of an audio signal processing device named "Sound Studio I" by a Taiwanese amplifier manufacturer. Kurzke entered into an agreement with Latin Percussion Inc., a New Jersey corporation, to distribute the Sound Studio I in the United States. Plaintiff's patent infringement suit alleges that the circuitry of the Sound Studio I is an exact copy of the patented circuitry of the Rockman.

 DISCUSSION

 Defendant claims that this court lacks jurisdiction over Kurzke and MS Music because they lack minimum contacts with Illinois, neither satisfying the Illinois Long Arm statute or due process requirements. Plaintiff contends jurisdiction is conferred due to the service of process within Illinois and that defendants have sufficient contact with Illinois to satisfy both the Long Arm Statute and due process. As will be explained, this court finds that service while in the jurisdiction of the court is sufficient to confer jurisdiction. Therefore, the court need not decide whether defendants have minimum contacts with Illinois. *fn1"

 The practice of transient service, or "tagging" (serving a defendant while present in the forum state), is one of the most criticized practices in American law. 4 Wright & Miller, Federal Practice and Procedure, sec. 1064, note 15 (1987). Since the Supreme Court's decisions in International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945) and Shaffer v. Heitner, 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977), many commentators and some courts have considered the transient service rule to be dead. *fn2" However, a close reading of these cases, as well as recent federal and state court cases, shows that transient service is still widely accepted, even in light of the Supreme Court's decisions. 4 Wright & Miller, Federal Practice and Procedure, sec. 1073 (1987).

 The power of the state to exercise jurisdiction over persons present within its boundaries is an ancient one. The Supreme Court explained the historical underpinnings of this power in Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878):

 
The several states of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent states, and the principles of public law to which we have deferred are applicable to them. One of these principles is that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence, every state has the power to determine for itself the civil status and capacities of its inhabitants[.]
 
Pennoyer, 95 U.S at 722.

 Thus, it is clear that service of process while within a certain state has long been a valid ...


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