The opinion of the court was delivered by: RICHEY
The defendant in this matter, The Burns and Russell Company of Baltimore City ("Burns"),
has moved this Court for several forms of relief. First, Burns moves for a dismissal of this action on the grounds that the Court has no personal jurisdiction over it. Second, and in the alternative, Burns asks that this action be dismissed on the basis of improper venue under 28 U.S.C. § 1391. In the event the Court determines that a dismissal is not appropriate, Burns asks that this action be transferred to the District Court for the District of Maryland under 28 U.S.C. § 1406(a). Finally, Burns asks that the Court not exercise jurisdiction over a pendent state law claim accompanying plaintiff Trenwyth Industries, Inc.'s ("Trenwyth's") principal federal claim.
For the reasons set forth herein, the Court declines to decide Burns' arguments respecting personal jurisdiction and pendent jurisdiction, but holds that because venue with respect to this action does not properly lie in this forum, this action shall be transferred to the District Court for the District of Maryland.
Both Trenwyth and Burns are engaged in the manufacture of glazed masonry blocks and tiles. This is a trademark action by Trenwyth principally alleging that Burns included photographs of masonry actually produced by Trenwyth in advertising materials that Burns submitted to an industry trade publication.
Trenwyth seeks damages under the Federal Trademark Law, 15 U.S.C. § 1125(a), as well as under statutes and common law of the District of Columbia relating to false representation and unfair competition. In addition, Trenwyth seeks declaratory judgments with respect to several issues arising out of allegations by Burns that Trenwyth improperly used trade secrets and infringed several of Burns' patents. On July 1, 1988, approximately one week before the filing of this action, Burns filed a suit in Maryland state court which raised most, if not all, of the trade secret issues as to which Trenwyth seeks declaratory relief here.
The facts most pertinent to the motions before the Court are as follows. Burns is a Maryland corporation with its headquarters and principal place of business in Baltimore. All of Burns' manufacturing operations are in Baltimore, as are all of its officers and employees. Burns has no offices or employees in the District of Columbia, and is not registered to do business in the District of Columbia. Burns pays no income or property taxes to the District of Columbia. Burns' only advertising in the District of Columbia, other than through the Sweets Catalog File, apparently consists of (1) yellow page listings by both Burns and a subsidiary in the District of Columbia phone book, and (2) similar advertising in the Blue Book Register, also a trade publication distributed in the District of Columbia.
Burns contends that none of the witnesses who might be called at a trial of this matter reside in the District of Columbia. Instead, according to Burns, the bulk of its witnesses would be from Maryland (primarily Baltimore) while a few might come from other parts of the country.
With respect to the Sweets Catalog File, it is prepared by the McGraw-Hill Company, located in New York, and is bound in Indianapolis, Indiana. It is distributed from Indianapolis to a national readership, including recipients in the District of Columbia. Approximately 21,918 copies of the 1988 edition of Sweets were distributed around the country; 222 were sent to readers in the District of Columbia.
Trenwyth is a District of Columbia corporation with its headquarters and principal place of business in Emigsville, Pennsylvania. It appears that Trenwyth does business with purchasers in the District of Columbia. Although Trenwyth claims that several of the witnesses it would call at a trial "live in and/or work in and around Washington, D.C.,"
none of the specific witnesses Trenwyth has named are actually residents of the District.
Burns' first contention is that this Court lacks personal jurisdiction over it, and that Trenwyth's complaint must be dismissed under Fed. R. Civ. P. 12(b)(2). Burns' contention requires an analysis of the extent to which the District of Columbia could constitutionally exercise jurisdiction over Burns in light of the facts recited above. Rule 4(e) of the Federal Rules of Civil Procedure provides that when a defendant is not a resident of the forum in which the federal district court sits, service on such person shall be had only "under the circumstances and in the manner prescribed" in the forum state's long-arm statute. The extent to which the District of Columbia's long-arm statute
may provide jurisdiction in this case is a constitutional question: the jurisprudence of "minimum contacts" reflects both a constitutional concern over the reasonableness of subjecting a person to suit in a jurisdiction with which he or she has had little or no contact, as well as a respect for fundamental principles of interstate federalism. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 319, 90 L. Ed. 95, 66 S. Ct. 154 (1945).
The Court hesitates to decide a question of this nature unless it must. This is particularly so when, as here, it is a close question whether the District of Columbia's long-arm statute, as limited by the Fifth Amendment, would permit jurisdiction over Burns. Under these circumstances, the Court refers to the Supreme Court's suggestion in Leroy v. Great Western United Corp., 443 U.S. 173, 180, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979), that a federal court may pretermit the personal jurisdiction analysis by finding that venue is improper, when to do so would avoid a decision on a close jurisdictional question with constitutional implications. See, e.g., Transistor Devices, Inc. v. Tracor, Inc., 654 F. Supp. ...