Thus, when a defendant's business in a district is sufficiently intrastate and localized that the state, consistent with the commerce clause, could require it to qualify to do business there, see Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 33, 95 S.Ct. 260, 267, 42 L.Ed.2d 195 (1974), venue is proper. This view also has been adopted by respectable authorities, including two courts of appeals, see Eli Lilly Co. v. Home Ins. Co., 794 F.2d 710, 721 (D.C. Cir. 1986) (citing Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 316 n. 7 (D.C. Cir. 1985)), cert. denied, ___ U.S. ___, 107 S.Ct. 940, 93 L.Ed.2d 991 (1987); Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947 (1st Cir. 1984), and, with some differences, a number of district courts. See, e.g., Lubrizol Corp. v. Neville Chem. Co., 463 F. Supp. 33, 36-37 (N.D.Ohio 1978); Damon Coats, Inc. v. Munsingwear, Inc., 431 F. Supp. 1303, 1309 (E.D.Pa. 1977); P.C. Prods. Corp. v. Williams, 418 F. Supp. 331, 332 (M.D.Pa. 1976), appeal dismissed, 556 F.2d 568 (3d Cir. 1977).
They argue that Wyoming cannot be a proper venue because none of the defendants reside here and because the claim did not arise here. In regard to the issue of "where the claims arose," the defendants contend that the proper test for determining this was set forth by the federal district court in Massachusetts in Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F. Supp. 1106 (D.Mass. 1983), aff'd, 743 F.2d 947 (1st Cir. 1984). They assert that under Johnson the test for venue under the "claim arising" provision of § 1391(b) is "[w]hether a substantial portion of the acts giving rise to the plaintiff's claim occurred in this district. . . . (citations omitted) In applying this test, the court must consider the availability of witnesses, the accessibility of other relevant evidence and the convenience of the defendant."
In particular, defendants point to the Supreme Court's opinion in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The approach of the First Circuit has been set forth by the court of appeals in cases decided subsequent to Shaffer. E.g., Johnson Creative Arts, Inc. v. Wool Masters, Inc. 743 F.2d 947, 950 (1st Cir. 1984). This Court therefore declines to rule those cases as contrary to current Fifth Amendment due process doctrine.
Although it is hardly clear just what that phrase means, it is certain that it does not refer to the collusive creation of subject matter jurisdiction. It therefore presumably refers to in personam jurisdiction and constitutes an implicit promise to consent to the exercise of such jurisdiction. Compare Du-Al Corp. v. Rudolph Beaver, Inc., 540 F.2d 1230, 1233 (4th Cir. 1976) (implicitly equating the two tests); Houston Fearless Corp. v. Teter, 318 F.2d 822, 826 (10th Cir. 1963) (expressly equating the two tests), with Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 954 (1st Cir. 1984) (finding that the outer limits of the "doing business" provision of the federal venue statute are defined by the dormant Commerce Clause, not the Due Process Clause). See also 15 C. WRIGHT. A. MILLER E. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 3811 at 117-130 (1986) (criticizing the Commerce Clause test). On the other hand, it would seem that if the term "competent" in the consent to suit clause is reduced to consent to subject matter jurisdiction, that term would be mere surplusage.
The Constitution does not require the federal districts to follow state boundaries.Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984) (footnote and citation omitted).
In recent decisions, the First Circuit and the District of Columbia Circuit have applied the general principles established in Leroy to trademark infringement cases. The First Circuit in Johnson Creative Arts v. Wool Masters, 743 F.2d 947 (1st Cir. 1984); found, on facts similar to those here, that venue was improper in Massachusetts. In that case, a Massachusetts plaintiff brought a trademark suit in Massachusetts against two Massachusetts retailers and two New York defendants.
Nevertheless, while courts in federal question cases have found "that sufficient contacts [to justify the assertion of personal jurisdiction] exist whenever the defendant is served within the sovereign territory of the United States," Lorelei, 940 F.2d at 719 (citing cases), the basis for service of process returnable to a particular court must be grounded within a federal statute or Civil Rule. See, e.g., id. at 719-20; Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984). In other words, though personal jurisdiction and service of process are distinguishable, they are inextricably intertwined, since service of process constitutes the vehicle by which the court obtains jurisdiction.
It is clear that the fifth amendment "permits a federal court to exercise personal jurisdiction over a defendant in a federal question case if that defendant has sufficient contacts with the United States as a whole," Whistler Corp. v. Solar Electronics, Inc., 684 F. Supp. 1126, 1128 (D.Mass. 1988), citing Trans-Asiatic Oil Ltd. S.A. v. Apex Oil Co., 743 F.2d 956, 959 (1st Cir. 1984), and that sufficient contacts exist whenever the defendant is served within the sovereign territory of the United States. Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 n. 3 (1st Cir. 1984); Driver v. Helms, 577 F.2d 147, 156 n. 25 (1st Cir. 1978).
We do not understand Noxell to argue that defendant English, engaged full-time as a fire-fighter in California, somehow "resides" in the District of Columbia. Nor do we agree that Firehouse is so extensively engaged in activity in the District of Columbia as to warrant a determination that it is "doing business" and therefore resides in the District. See 28 U.S.C. § 1391(c) (corporation resides for venue purposes where "it is incorporated or licensed to do business or is doing business"); Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 954 (1st Cir. 1984) ("`[D]oing business' in a district for purposes of § 1391(c) [should be] read to mean engaging in transactions there to such an extent and of such a nature that the state in which the district is located could require the foreign corporation to qualify to `do business' there."). At oral argument, Noxell affirmed that Caliente's products are marketed in California, and that California is indeed a place where the claim arose.
"[S]ufficient contacts exist whenever the defendant is served within the sovereign territory of the United States." Lorelei Corp., 940 F.2d at 719 (citing Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 n. 3 (1st Cir. 1984)); accord United Elec., Radio & Mach. Workers of Am., 960 F.2d at 1085.