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VIVADENT, INC. v. DARBY DENTAL SUPPLY CO.

March 19, 1987

Vivadent (USA), Inc., Plaintiff,
v.
Darby Dental Supply Co., Inc., Dental Wholesalers, Inc. and Spencer Meade Dental, Inc., Defendants


Fisher, Chief Judge.


The opinion of the court was delivered by: FISHER

Defendants move, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and Title 28 U.S.C. Section 1404(a), to dismiss plaintiff's complaint on the grounds that venue has been improperly placed, and alternatively, to transfer this action to the United States District Court for the Eastern District of New York. By stipulation of the moving party, this matter is decided on the basis of the papers submitted, in accordance with Rule 78 of the Federal Rules of Civil Procedure. For the reasons herein stated, defendants' motions are granted and this action is ordered transferred to the Eastern District of New York.

 Plaintiff, Vivadent (USA), Inc., a New York corporation with its principal place of business in Amherst, New York, alleges that it is the exclusive United States distributor for the Ivoclar/Vivadent Group (Complaint, Paragraph 4). It sues defendants, Darby Dental Supply Company, Inc., Dental Wholesalers, Inc., and Spencer Meade Dental, Inc., all New York corporations, for violations of the Lanham Act (15 U.S.C. Sections 1051 et seq.), for unfair competition and trademark infringement, and for violations of the New Jersey trademark statutes (N.J.S.A. 56:3-1 et seq.) (Complaint, Paragraph 1). Plaintiff seeks to enjoin and demands damages resulting from all defendants' sales nationwide. Plaintiff alleges that venue exists "by virtue of 28 U.S.C. ยง 1391. The defendants reside, are found, have an agent, transact business or are doing business within the District of New Jersey" (Complaint, Paragraph 2).

 For purposes of this motion to dismiss or transfer for improper venue, this court notes that defendants carry the burden of persuading the court that venue is improperly placed. Gulf Oil v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). This court also notes, however, that the deference given to plaintiff's choice of forum is reduced where the suit is brought outside plaintiff's home forum. Hardaway Constructors, Inc. v. Conesco Industries, Ltd., 583 F. Supp. 617, 620 (D.N.J. 1983).

 Venue is controlled by 28 U.S.C. Section 1391(b), the statute controlling venue of matters not founded solely on diversity of citizenship. This section provides that such actions may be brought only in the judicial district where all defendants reside or in which the claim arose, except as otherwise provided by law. *fn1" Title 28 U.S.C. Section 1391(c) limits the "residence" of a corporation for venue purposes as follows:

 Here, it is undisputed that defendants are neither licensed to do business in New Jersey, nor incorporated in New Jersey. Instead, plaintiff alleges that defendants are "doing business," within the meaning of Section 1391(c), in the forum state of New Jersey and that venue properly is based in this district. In support of their motion to dismiss or transfer for improper venue, defendants state that venue is improperly placed in a forum where the companies have no contact whatsoever with the state of New Jersey. *fn2" Each of the defendants is a dental supply mail-order company which distributes catalogs by mail and telemarkets its product line to dentists in every state in the country. Defendants allege that all catalogs are mailed and all calls are made from New York, the only state in which defendants are licensed to do business. Defendants further aver that sales of Vivadent products to dentists in New Jersey comprise less than 3 % of defendants' total national sales, and these sales are effectuated by mailing the products from New York to New Jersey, which is insufficient commercial activity for "doing business" within the meaning of the venue statutes.

 No uniform definition of "doing business" has been adopted in this circuit or by other circuit courts. Most courts recognize that the term "doing business" within the meaning of 28 U.S.C. 1391(c) is not coextensive with the minimum contacts definition of "doing business" in connection with service of process and due process (see, e.g., Trinity Metals v. Andy Intern., Inc., 424 F. Supp. 966, 969 (E.D. Pa. 1977)), although there is no general agreement on whether the standard is more stringent for venue purposes than for due process purposes. Bredberg v. Long, 778 F.2d 1285, 1289 (8th Cir. 1985). Compare, e.g., Houston Fearless Corp. v. Teter, 318 F.2d 822, 825 (10th Cir. 1963) with Wright v. Columbia University, 520 F. Supp. 789, 795 (E.D. Pa. 1981) and Rheem Mfg. Co. v. Johnson Heater Corp., 370 F. Supp. 806, 809 (D. Minn. 1974). Because venue essentially is a matter of choosing a convenient forum and ensuring that defendants are not unfairly subjected to a foreign forum, Leroy v. Great Western United Corp., 443 U.S. 173, 183-184, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979), this court finds that the better approach is that adopted by the First Circuit in Johnson Creative Arts v. Wool Masters, 743 F.2d 947 (1st Cir. 1984). That court stated:

 
The minimum contacts test for personal jurisdiction is based on the minimum amount of "fairness" required in order to comport with due process. Venue limitations generally are added by Congress to insure a defendant a fair location for trial and to protect him from inconvenient litigation.
 
. . .
 
[Accordingly,] we cannot accept the proposition that venue is proper in any district in which a corporate defendant constitutionally could be subjected to service.

 743 F.2d at 950-951 (emphasis in original).

 After concluding that the test for "doing business" under 1391(c) should not be the same as the test for "doing business" for due process and minimum contacts purposes, the court tackled "the more difficult job of formulating a workable test to determine what business activity is necessary" for "doing business" for venue purposes. Id. at 952. In its analysis, the First Circuit noted Remington Rand, Inc. v. Knapp-Monarch Co., 139 F. Supp. 613 (E.D. Pa. 1956).


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