TRANSMIRRA PRODUCTS CORP. AND ROBERT ARONSTEIN, PLAINTIFFS-APPELLANTS,
v.
FOURCO GLASS CO., DEFENDANT-APPELLEE
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The court held that the trial judge did not err in finding venue lacking because there was no showing that the defendant committed acts of infringement within the district.
Plaintiff sued for patent infringement. The trial court dismissed the action for lack of venue. The appellate court reversed, but the Supreme Court re…
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PER CURIAM.
On remand to us by the Supreme Court of the United States, Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786, reversing our decision, Transmirra Products Corp. v. Fourco Glass Co., 2 Cir., 233 F. 2d 885, which had reversed Judge Dawson’s dismissal of this action for patent infringement, D.C.S.D.N.Y., 133 F.Supp. 531, the sole question is whether the trial judge erred in his holding that venue was lacking below. But we find no error in the finding that defendant, Fourco Glass Co., did not commit acts of infringement in the Southern District of New York. There was no showing that Fourco’s asserted collusion with the Radio Corporation of America in developing “Filterglass” or the sale of “Vid-O-Lite” for an infringing purpose ever occurred in this district.
The distribution of the booklet here was not an example of actively inducing infringement within the meaning of 35 U.S.C. § 271(b), because plaintiffs failed to carry their burden of showing that the glass advertised was “not a staple article * * * suitable for substantial noninfringing use,” 35 U.S.C. § 271(c), or that the booklet represented an effort to advertise the defendant’s glass for use in a manner to infringe the Aronstein patent.
Nor was there error in the decision to determine this preliminary issue of venue in the usual manner on affidavits, here supplemented by answers to interrogatories, and a deposition from one of the defendant’s employees in the district, rather than by a full trial. See F.R.Civ.P., Form 19, 2d par., and the various cases cited in 2 Moore’s Federal Practice 2248, 2249, n. 8 (2d Ed. 1948), as well as Land v. Dollar, 330 U.S. 731, 735, note 4, 67 S.Ct. 1009, 91 L.Ed. 1209, and cases there cited. The court’s conclusion that plaintiffs had already had ample opportunity to make a showing of venue was quite reasonable, and its denial of the belated motion for further depositions was not error. Affirmed.
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Webster v. Royal Caribbean Cruises, Ltd., 124 F. Supp. 2d 1317 (S.D. Fla. 2000)…thout aid of such outside materials the court would be unable to discern the actual basis, in fact, of a party’s challenge to the bare allegation in the complaint that venue is proper in this court. Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538-39 (2nd Cir.1957) (resolving motion to dismiss because of improper venue “in the usual manner on affidavits, here supplemented by answers to interrogatories, and a deposition from one of the defendant’s employees in the district, rather than by a fu…
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MGC Commc'ns, Inc. v. BellSouth Telecomms., Inc., 146 F. Supp. 2d 1344 (S.D. Fla. 2001)…r dismissal of an action on the basis of improper venue. For defenses raised under Rule 12(b)(3), the court may consider matters outside the pleadings if presented in proper form by the parties. See Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538-39 (2nd Cir.1957) (resolving motion to dismiss because .■ of improper venue “in the usual manner on affidavits, here supplemented by answers to interrogatories, and a deposition from one of defendant’s employees in the district, rather than by a ful…
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Horberg v. Kerzner Int'l Hotels Ltd., 744 F. Supp. 2d 1284 (S.D. Fla. 2007)…Ward v. Kerzner Int’l Hotels, No. 03-23087-CIV-JORDAN, 2005 WL 2456191, *2 (S.D.Fla.2005) (citing Webster v. Royal Caribbean Cruises, Ltd., 124 F.Supp.2d 1317, 1320 (S.D.Fla.2000) (citing Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538, 538-39 (2d Cir. 1957))). Forum selection clauses are “prima facie valid,” and should be specifically enforced unless the party against whom the clause is sought to be enforced can “clearly show that enforcement would be unreasonable and unjust,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Land v. Dollar, 330 U.S. 731 (U.S. 1947)
- Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (U.S. 1957)
- Transmirra Prods. Corp. & Robert Aronstein v. Fourco Glass Co., 233 F.2d 885 (2d Cir. 1956)