Polizzi v. Cowles Magazines/Opinion of the Court

by Sherman Minton

United States Supreme Court

345 U.S. 663

Polizzi  v.  Cowles Magazines

 Argued: March 10, 1953. --- Decided: June 1, 1953

Respondent, an Iowa corporation which publishes Look magazine, maintains no offices in Florida, but sells its magazines to two independent wholesale companies which distribute them to retailers in Florida. Respondent does employ two 'circulation road men' whose job is to check retail outlets in a multi-state area which includes Florida. These two road men cover separate and mutually exclusive districts, and neither exercises any supervision over the other. Petitioner, a resident of Florida, brought suit against Respondent in the Circuit Court of Dade County, Florida, for allegedly libelous matter printed in Look magazine. Respondent moved to dismiss or in lieu thereof to quash the return of service, made on an agent of one of the distributing wholesalers. Before the state court acted on this motion, Respondent removed the action to the United States District Court for the Southern District of Florida. See 28 U.S.C. (Supp. V) §§ 1332, 1441, 1446, 1447(b), 28 U.S.C.A. §§ 1332, 1441, 1446, 1447(b). That court issued an additional summons which was served on Briardy, one of Respondent's road men, 'as a managing agent of (Respondent) transacting business for it in the State of Florida * * *.' See 28 U.S.C. (Supp. V) § 1448, 28 U.S.C.A. § 1448; Fed.Rules Civ.Proc., 4(d)(3), (7), 28 U.S.C.A.; Fla.Stat.Ann. § 47.17(5). On Petitioner's motion, the original state court service was quashed. Respondent then moved the court 'to dismiss this action or in lieu thereof to quash the return of purported or attempted service of the additional summons * * *.' The District Court, without passing upon the motion to quash the return of service, dismissed the action on the ground that it did 'not have jurisdiction under Section 1391, sub-section C, New Title 28, United States Code' because Respondent 'was not, at the time of the service of the summons, doing business in (the Southern District of Florida).' The Court of Appeals for the Fifth Circuit affirmed on the same ground, 197 F.2d 74, and we granted certiorari. 344 U.S. 853, 73 S.Ct. 94.

The only question in this case on the record before us is whether the District Court correctly dismissed the action for want of jurisdiction.

Both courts below held that the District Court lacked jurisdiction, but they reached that conclusion by deciding that Respondent was not 'doing business' in Florida within the meaning of 28 U.S.C. (Supp. V) § 1391(c), 28 U.S.C.A. § 1391(c). Section 1391 is a general venue statute. In a case where it applies, if its requirements are not satisfied, the District Court is not deprived of jurisdiction, although dismissal of the case might be justified if a timely objection to the venue were interposed. 28 U.S.C. (Supp. V) § 1406, 28 U.S.C.A. § 1406. But even on the question of venue, § 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by 28 U.S.C. (Supp. V) § 1441(a), 28 U.S.C.A. § 1441(a), and under that section venue was property laid in the Southern District of Florida. Lee v. Chesapeake & O.R. Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443; General Investment Co. v. Lake Shore & M.S.R. Co., 260 U.S. 261, 270-279, 43 S.Ct. 106, 67 L.Ed. 244; Moss v. Atlantic Coast Line R. Co., 2 Cir., 157 F.2d 1005. ^[1] The pertinent provisions of the two statutes are set forth in the margin. ^[2] Section 1391(a) limits the district in which an action may be 'brought.' Section 1391(c) similarly limits the district in which a corporation may be 'sued.' This action was not 'brought' in the District Court, nor was Respondent 'sued' there; the action was brought in a state court and removed to the District Court. Section 1441(a) expressly provides that the proper venue of a removed action is 'the district court of the United States for the district and division embracing the place where such action is pending.' The Southern District of Florida is the district embracing Dade County, the place where this action was pending. 28 U.S.C. (Supp. V) § 89, 28 U.S.C.A. § 89.

Therefore, the question whether Respondent was 'doing business' in Florida within the meaning of § 1391(c) is irrelevant, and the discussion of that question is beside the point. The District Court based its holding that it lacked jurisdiction on a statute which has no application to the case, and the Court of Appeals affirmed on the same reasoning.

We express no opinion whether Respondent was 'doing business' in Florida within the meaning of the due process requirements set out in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, because Respondent has not contended that the International Shoe test is not met. ^[3] Nor do we decide whether the District Court acquired jurisdiction of the person of Respondent by proper service, because the lower courts did not pass on the question of service. Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to the District Court to take jurisdiction of the action and determine whether the District Court acquired jurisdiction of Respondent by proper service.

Reversed.

Mr. Justice FRANKFURTER, not having heard the argument, took no part in the consideration and disposition of this case.

Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

Mr. Justice BLACK, with whom Mr. Justice JACKSON joins, concurring in part and dissenting in part.

Notes

1. See also 1 Barron and Holtzoff, Federal Practice and Procedure, § 101; Charles W. Bunn, Jurisdiction and Practice of the Courts of the United States (5th ed., Charles Bunn, 1949), 146 148; Moore, Commentary on the United States Judicial Code, 199.
2. '§ 1391. Venue generally
3. 'In the case now before the Court no question of due process is involved.' Brief for Respondent in Opposition to Writ of Certiorari, p. 9. 'All this has nothing to do with due process * * *.' Brief for Respondent, p. 17.