Opinion
Order Affirmed Jan. 24, 1951.
See 186 F.2d 707.
Action by Joseph W. Jones against the Davega Stores Corporation, Motorola, Inc., and Motorola-New York, Inc., for damages and injunctive relief because of alleged trade-mark infringement by Motorola, Inc., an Illinois corporation. Motorola, Inc., moved to quash service of summons and process and to dismiss action as to it. The District Court, McGohey, J., held that where a New York Corporation was an independent distributor of products of foreign corporation and there was no interlocking directorate between foreign corporation and distributor, service of process upon an employee of distributor corporation did not give jurisdiction over foreign corporation.
Order in accordance with opinion.
L. Stewart Gatter, New York City, for plaintiff.
Archer Scherl, New York City, for Motorola, Inc.
McGOHEY, District Judge.
The action, brought in this court by reason of diversity, seeks damages and injunctive relief because of alleged trade-mark infringement by Motorola, Inc., an Illinois corporation. This foreign defendant moves, under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., (a) to quash service of summons and process on the ground that no proper service was made on it; and (b) to dismiss the action as to it, on the ground that it is a foreign corporation, does not do business in the Southern District of New York and is not and was not subject to service of process here.
Plaintiff claims to have properly served the foreign defendant, by serving an employee of Motorola-New York, Inc., a co-defendant, claiming that the latter is in fact an agent of the foreign defendant. The proofs before me completely contradict that claim. They show that Motorola-New York, Inc., wholly owned by one Nathan Cooper, is a New York corporation which is only one of many independent distributors of the products of Motorola, Inc.; that there is no interlocking directorate between Motorola-New York, Inc. and Motorola, Inc.; and that the latter and its officers, directors and employees have no financial or stock interest in the former. Moreover, the proof shows that the process which it is claimed reached the foreign corporation was served merely on an employee of the domestic corporation.
Accordingly, the motion is granted. The plaintiff's request for reference to a Master is denied because on the showing before me it would only unfairly harass Motorola-New York, Inc., which the plaintiff seeks to have subjected to investigation. The cases cited by the plaintiff on this point are distinguishable and do not require a different result.
Submit order.