Before KALODNER, STALEY and HASTIE, Circuit Judges.
This appeal requires us to review a district court's dismissal of an action because of lack of service upon the defendant, and the refusal of that court, in the absence of such service, to exercise its discretion on plaintiff's motion made pursuant to 28 U.S.C. § 1406(a) to transfer the action to another forum, where defendant was amenable to service.
Adolph Hohensee, appellant, filed a complaint in the United States District Court for the Middle District of Pennsylvania to recover for damage resulting from an allegedly libelous newspaper article published by the defendant News Syndicate, Inc., appellee.*fn1 Jurisdiction was based on diversity of citizenship, the complaint alleging that appellant was a citizen of Pennsylvania, residing in the Middle District, while appellee was a Delaware corporation with its principal place of business in New York City.
The district court quashed the service of summons made on appellee at its principal place of business in New York City and allowed appellant thirty days within which to perfect service. The caption of an amended complaint, filed by appellant within that time, read as follows:
"Adolph Hohensee P.O. Box 910 Scranton, Pa., Plaintiff v.
"News Syndicate, Inc., A Foreign Corporation c/o Morris Goodman, 1801 Ariel Street Scranton, Penna., T/A Anthracite News Co., 935 N. Washington Avenue Scranton, Penna., Agent.
An alias summons, together with a copy of the amended complaint, was served on Henry Nogi, attorney for Morris Goodman, at Scranton within the Middle District of Pennsylvania. The district court, concluding this service to be improper, dismissed the complaint and refused to exercise its discretion on appellant's motion under Section 1406(a) to transfer the action to New York where defendant-appellee could be served.
The question raised by appellant as to the effectivess of the service of appellee by service on Nogi requires no discussion. The record is clear that the only relationship between Nogi's client, Morris Goodman, and the appellee was that of buyer and seller. We need not cite authority for the proposition that such a bare and limited relationship is an insufficient basis for effectuating service of process.
Appellant's contention that the district court had power to exercise its discretion on his motion to transfer absent proper service of appellee does, however, require consideration.*fn2
On the question raised by appellant there is divided authority. Our research shows that appellant's position is supported by the District of Columbia Circuit which recently held in Amerio Contact Plate Freezers, Inc. v. Knowles, 1960, 107 U.S.App.D.C. 81, 274 F.2d 590, followed in Hayes v. Livermont, 1960, 108 U.S.App.D.C. 43, 279 F.2d 818, that the absence or presence of jurisdiction of the person of the defendant is immaterial in determining whether a district court has power to act on a motion made under Section 1406(a).*fn3 Other decisions support the district court's action*fn4 which, based upon our reading of Section 1406 and a consideration of the purpose behind its enactment, we think was correct and should be affirmed.
Section 1406, 28 U.S.C., reads ...