Opinion
Action by Madeline Eklund Sorrens against Click, Inc., for damages for publication of an alleged libelous article and photographs. On motion to dismiss or in lieu thereof to quash return of service of summons.
Reference granted.
A. Alexander Katz, of New York City, for plaintiff.
Townley, Updike & Carter, of New York City (Stuart N. Updike, of New York City, of counsel), for defendant.
HULBERT, District Judge.
This is a civil action for damages. Plaintiff is a citizen and resident of this District. The defendant is a Delaware corporation and publishes at Philadelphia, Pa., a monthly magazine known as ‘ Click’ which is sold and distributed by defendant throughout the Nation.
The gravamen of the action is an alleged libelous article and photographs used in connection therewith in violation of the provisions of the Civil Rights Law of the State of New York (McKinney's Consolidated Laws of New York, c. 6, Ann.Book 8).
Defendant has moved pursuant to Rule 12(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, to dismiss the action, or in lieu thereof, to quash the return of service of summons on the ground: (a) that the defendant is a Delaware corporation not subject to service of process within this District, and (b) if it were, proper service has not been made.
It is not necessary to discuss the facts disclosed by the papers before me on this motion.
They do not, however, present an issue so clearly defined as that which warranted me in denying a similar motion in Winslow v. Domestic Engineering Co., D. C., 20 F.Supp. 576, and yet a much stronger presentation is made out by the plaintiff than in the case of McIntyre v. Atchison Topeka & S. F. Ry. Co., 33 F.Supp. 461, in which similar motions were granted. The Court pointed out in International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479, that each case must depend upon its own facts to show that the essential requirements of jurisdiction exist and they cannot be satisfactorily determined in this instance without the attendance and examination and cross examination of witnesses under oath. A reference will therefore be had to a Special Master to take testimony and report.
Submit order.