Johns-Manville Corp. v. United States

601 F. Supp. 170, 1985 U.S. Dist. LEXIS 23226
CourtDistrict Court, D. Colorado
DecidedJanuary 22, 1985
DocketCiv. A. Nos. 84-C-893, 84-C-894
StatusPublished
Cited by2 cases

This text of 601 F. Supp. 170 (Johns-Manville Corp. v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johns-Manville Corp. v. United States, 601 F. Supp. 170, 1985 U.S. Dist. LEXIS 23226 (D. Colo. 1985).

Opinion

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

In these two actions, Johns-Manville Corporation and Johns-Manville Sales Corporation (collectively referred to as “Johns-Man-ville”) seek reimbursement or indemnification for damages paid by them in settlement of two asbestos-related actions filed in the Superior Court of California for Los Angeles County. Civil Action No. 84-C-893 seeks reimbursement for the plaintiffs’ $30,000 settlement with Hessuph W. Sexton, who was allegedly exposed to the plaintiffs’ asbestos products while employed at Long Beach Naval Shipyard, California, from 1944 to 1975. Civil Action No. 84-C-894 seeks similar relief in connection with the plaintiffs’ $67,000 settlement with Philsun Owen, who was allegedly exposed while employed by Pearl Harbor Naval Shipyard from 1941 to 1945 and by Long Beach Naval Shipyard from 1950 to 1954 and 1959 to 1978.

Plaintiff Johns-Manville Corporation was incorporated in New York and plaintiff Johns-Manville Sales Corporation was incorporated in Delaware. The headquarters and principal place of business for both plaintiff corporations has been located in Jefferson County, Colorado since 1971.

The complaints in these two cases are virtually identical; each asserts the same six claims for relief. The plaintiffs assert their First, Second, Third and Fourth claims under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), their Fifth claim under the fifth amendment to the United States Constitution, and their Sixth claim under the Public Vessels Act, 46 U.S.C. § 781 et seq. and the Suits in Admiralty Act, 46 U.S.C. § 741 et seq.

The United States has moved, pursuant to Fed.R.Civ.P. 12(b)(3), to dismiss the First, Second, Third, Fourth and Fifth claims in each case on the ground that venue is not proper in Colorado under 28 U.S.C. § 1402(b) and 28 U.S.C. § 1391(e). Alternatively, the United States has moved to transfer the cases to the United States District Court for the Central District of California.

The venue provision applicable to suits under the Federal Tort Claims Act is 28 U.S.C. § 1402(b). It provides that:

“Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title [28 U.S.C. § 1346(b) ] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.”

The statute controlling venue for claims against the United States arising under thé Constitution is 28 U.S.C. § 1391(e), which provides for venue in any judicial district in which:

“(1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.”

Subsection (1) has no application because in cases where the United States is the sole defendant, it cannot be treated as residing in a district merely because it maintains an office there. To conclude otherwise would render the remaining three venue limitations superfluous in any suit against the United States. See Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264, 267 (7th Cir.1978). I conclude that the United States does not reside in Colorado for purposes of this venue provision. Moreover, [172]*172subsection (3) does not apply because no real property is involved in this action.

I. Residence of a Corporate Plaintiff for Venue Purposes.

It is clear that a corporate defendant resides for vénue purposes in any judicial district in which it is incorporated or licensed to do business or is doing business. See 28 U.S.C. § 1391(c). But all seven circuit courts which have addressed the question where a corporate plaintiff resides for venue purposes have held that residence is limited to the state of incorporation. Rosenfeld v. S.F.C. Corp., 702 F.2d 282, 283 (1st Cir.1983); Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264, 270 (7th Cir.1978); Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1289 (9th Cir.1977); American Cyanamid Co. v. Hammond Lead Products, Inc., 495 F.2d 1183, 1184-86 (3d Cir.1974); Manchester Modes, Inc. v. Schuman, 426 F.2d 629, 629-32 (2d Cir. 1970); Carter-Beveridge Drilling Co. v. Hughes, 323 F.2d 417, 418 (5th Cir.1963); Robert E. Lee & Co. v. Veatch, 301 F.2d 434, 435-38 (4th Cir.1961), cert. denied, 371 U.S. 813, 83 S.Ct. 23, 9 L.Ed.2d 55 (1962). The Tenth Circuit has not yet addressed this issue.

A number of district courts that have examined the issue of a corporate plaintiffs residence have concluded that a corporate plaintiff may be treated for venue purposes as residing both in the district of its incorporation and in the district where its principal place of business is located. In Combs Airways, Inc. v. Trans-Air Supply Company, 560 F.Supp. 865, 868 (D.Colo.1983), Judge Kane held that venue is proper under section 1391(a) in the district where a corporate plaintiff has its principal place of business. After noting that section 1391(c) provides that a corporation may be used in any judicial district in which it is incorporated, or licensed to do business or is doing business, his opinion reasoned:

“Because of modern corporate practices, venue and jurisdictional concepts have been broadened to accommodate the realities of contemporary business. The principal place of business may be considerably more significant to jurisdiction and venue than the place of incorporation. While I am aware that courts are not in agreement on this issue, I hold that this broader interpretation should apply to a corporation which institutes a suit as well as to one subject to suit. Another district court came to the same conclusion in Munsingwear, Inc. v. Damon Coats, Inc., 449 F.Supp. 532 (D.Minn.1978).”

In Munsingwear,

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601 F. Supp. 170, 1985 U.S. Dist. LEXIS 23226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-manville-corp-v-united-states-cod-1985.