Budd Co. v. United States Department of Transportation

89 F.R.D. 555, 31 Fed. R. Serv. 2d 591, 1981 U.S. Dist. LEXIS 9515
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 13, 1981
DocketCiv. A. No. 80-4396
StatusPublished
Cited by4 cases

This text of 89 F.R.D. 555 (Budd Co. v. United States Department of Transportation) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Budd Co. v. United States Department of Transportation, 89 F.R.D. 555, 31 Fed. R. Serv. 2d 591, 1981 U.S. Dist. LEXIS 9515 (E.D. Pa. 1981).

Opinion

MEMORANDUM

GILES, District Judge.

Plaintiff, The Budd Company (“Budd”) a disappointed bidder on a rail car manufacturing contract in the State of New Jersey seeks injunctive relief and monetary damages against the United States Department of Transportation, Urban Mass Transportation Administration (“UMTA”) and the Administrator, Theodore Lutz, for alleged violation by UMTA of its own grant guidelines. The relevant guidelines were directed to the New Jersey Transit Corporation (“NJTC”), the grantee.

Federal question jurisdiction is alleged under 28 U.S.C. § 1331(a) and a contract claim of less than $10,000 is made against the United States under the Tucker Act, 28 U.S.C. § 1346(a)(2). Budd also avers violations of the Fifth Amendment, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and various federal statutes and regulations pertaining to federal procurement. Budd asserts that through the UMTA guidelines it enjoys an implied private cause of action to compel compliance. Budd contends that both the actions of NJTC, the state defendant, and UMTA, the federal defendant, give rise to federal causes of action.

Before this court can consider the merits of Budd’s claim, particularly its motion for preliminary injunction, it must address and decide the defendants’ alternative motion to dismiss or transfer this action due to improper venue. There is no dispute that as to federal defendant UMTA venue in this district is proper. 28 U.S.C. § 1391(e). Plaintiff contends that venue is also proper as to NJTC because allegedly it is doing business within the Commonwealth of Pennsylvania on a continuous basis and is amenable to state service of process under the Long Arm Statute, 42 Pa.C.S.A. § 5322(a) (Supp.1980), and, is a foreign corporation doing business in this district within the meaning of 28 U.S.C. § 1391(c). NJTC counters that it is a public agency of the New Jersey Department of Transportation, that it is a corporation in name only, and that it does no business with or in Pennsylvania. NJTC wholly owns a transit company, Transport of New Jersey (“TNJ”) an operating bus company, having acquired it through an October, 1980 stock purchase. NJTC gives operating subsidies to TNJ and two other New Jersey companies, Delaware River Coach Company and Starr Transit. The latter are privately owned companies. NJTC leases buses to the transit companies [557]*557for $1.00 per year. Pursuant to an Interstate Commerce Commission license, TNJ carries bus passengers from New Jersey across the Delaware River to Pennsylvania and back again. It similarly operates between New York and New Jersey. Despite the stock acquisition by NJTC, TNJ remains a separate corporate entity. Plaintiff argues that NJTC does business in Pennsylvania through the wholly owned subsidiary, TNJ.

IN PERSONAM JURISDICTION AND VENUE

“The question of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum ... neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties ... Accordingly, when there is a sound prudential justification for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue.”

Leroy v. Great Western United Corporation, 443 U.S. 173, 180, 99 S.Ct. 2710, 2715, 61 L.Ed.2d 464 (1979) (citations omitted).

In Leroy, the United States Supreme Court reviewed a holding by the Texas Supreme Court that the state’s long arm statute was coextensive with the constitutional minimum contacts standards. The Court first addressed the statutory issue of proper venue rather than determining a novel constitutional issue, namely whether the Texas statute conformed with the requirement of due process. Id. It held that venue was not proper and therefore reversed. Id. at 180, 99 S.Ct. at 2715.

Similarly, in the instant case the relevant Pennsylvania statute 42 Pa.C.S.Ann. § 5322(b) (Supp.1980) makes the state’s long arm jurisdiction coextensive with that allowed by the United States Constitution. Accordingly, this court shall adhere to the teaching of Leroy, supra, and not address the constitutional issue first; rather, I shall first consider venue.

§ 1391(c)

Budd contends that venue is proper in this district because NJTC is “doing business” in Pennsylvania through its wholly owned subsidiary TNJ. TNJ does operate buses in the Commonwealth. Even assuming that NJTC is a corporation within the meaning of the statute, the mere fact that its wholly-owned subsidiary does business in this district is not sufficient for § 1391(c) venue purposes as to the parent.

In Manville Boiler Co. v. Columbia Boiler Co., 269 F.2d 600, 606 (4th Cir. 1959) a case involving patent infringement, the Fourth Circuit Court of Appeals stated:

Though there was advertising matter referring to the office of the Virginia corporation as a factory branch and Columbia’s home office in Pottstown as its offices and factory, suggesting a unitary business, the operations of the two corporations were kept distinct and separate. The Virginia corporation was treated as a separate entity, though its policies and activities were directed from Pottstown. Columbia sold boilers to the Virginia corporation, which paid for them, usually promptly, and resold them to customers in Virginia. Columbia did not service boilers sold by the Virginia corporation to Virginia customers, and it can be held to have a regular and established place of business in Virginia only by treating the office of the Virginia corporation as Columbia’s regular and established place of business.

Accord Shapiro v. Ford Motor Co., 359 F.Supp. 350, 352 (D.Md.1973). The Manville Boiler Co. court held that the question of venue was controlled by Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 and that even if the rule enunciated in Cannon unduly emphasized corporate form over corporate control, the rule was well established. 269 F.2d at 606.

[558]*558Similarly, in Papercraft Corporation v. Procter & Gamble Company, 439 F.Supp. 1060, 1062 (W.D.Pa.1977) the trial court stated quite appropriately:

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89 F.R.D. 555, 31 Fed. R. Serv. 2d 591, 1981 U.S. Dist. LEXIS 9515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/budd-co-v-united-states-department-of-transportation-paed-1981.