Roland v. Modell's Shoppers World of Bergen County, Inc.

• Decision Date: 18 July 1966
• Docket Number: KAYSER-ROTH and J,No. A--361,A--361
• Citation: 222 A.2d 110,92 N.J.Super. 1
• Parties: Adrienne ROLAND, etc., et al., Plaintiffs, and Bernard Shapiro, as Connecticut State Welfare Commissioner, Added Party Plaintiff, v. MODELL'S SHOPPERS WORLD OF BERGEN COUNTY, INC., et al., Defendants and Third-Party Plaintiff, v. N.J. WAREHOUSE DISTRIBUTORS, INC. (and three others), Third-Party Defendants and Fourty-Party Plaintiffs-Appellants, v.eff Richards, Inc., Fourth-Party Defendants, and Pinky Town, Inc. and Nimfees, Inc., all corporations, Fourth-Party Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 1

92 N.J.Super. 1

222 A.2d 110

Adrienne ROLAND, etc., et al., Plaintiffs, and Bernard Shapiro, as Connecticut State Welfare Commissioner, Added Party Plaintiff, v. MODELL'S SHOPPERS WORLD OF BERGEN COUNTY, INC., et al., Defendants and Third-Party Plaintiff, v. N.J. WAREHOUSE DISTRIBUTORS, INC. (and three others), Third-Party Defendants and Fourty-Party Plaintiffs-Appellants, v. KAYSER-ROTH and Jeff Richards, Inc., Fourth-Party Defendants, and Pinky Town, Inc. and Nimfees, Inc., all corporations, Fourth-Party Defendants-Respondents.

No. A--361.

Superior Court of New Jersey

Appellate Division.

Argued April 26, 1965.

Decided July 18, 1966.

Joseph T. Ryan, Jersey City, for N.J. Warehouse Distributors, Inc. (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Roger W. Breslin, Sr., Hackensack, for Pinky Town, Inc. (Breslin & Breslin, Hackensack, attorneys).

William B. McGuire, Newark, for Nimfees, Inc. (Lum, Biunno & Tompkins, Newark, attorneys, Isabelle L. Kirchner, Newark, on the brief).

Before Judges GAULKIN, FOLEY and COLLESTER.

The opinion of the court was delivered by

GAULKIN, S.J.A.D.

This case presents the question whether a foreign corporation may be subjected to the jurisdiction of our courts under R.R. 4:4--4(d) when its only contact with New Jersey has been the shipment of goods into New Jersey which were purchased in New Jersey by a New Jersey resident but caused injury in Connecticut to a Connecticut resident.

The litigation began with the complaint of Adrienne Roland against Modell's Shoppers World of Bergen County, Inc. and Modell's Shoppers World of Union County, New Jersey corporations (hereafter collectively Modell's), retailers of wearing apparel. The first count of the complaint alleged that Modell's sold a leotard to a member of Adrienne's family at its store in Lodi, New Jersey; Modell's 'conduct in the premises' was 'negligent and unlawful' in that said 'leotard or portions thereof were combustible and inflammable,' and Modell's failed to give warning of that fact to purchasers and otherwise violated the 'Flammable Fabrics Act,' (15 U.S.C.A. § 1191 et seq.); as a result the garment caught fire while Adrienne, then five years old, was wearing it at her home in Stamford, Connecticut, causing her serious injuries. The second count charged that this constituted 'a breach of the implied warranty of merchantability, as provided by R.S. 46:30--20 (N.J.S.A.),' or of 'the implied warranty of reasonable fitness for the particular purpose for which the article was required as provided by R.S. 46:30--21 (N.J.S.A.),' or 'of an express warranty as provided by R.S. 46:30--18 (N.J.S.A.). The accident occurred on March 24, 1960, hence the Uniform Commercial Code does not apply.

Modell's filed a third-party complaint against Warehouse Distributors, Inc., alleging that Warehouse was Modell's lessee and had made the sale, and was liable for whatever wrong was done to Adrienne. Warehouse then filed a fourth-party complaint against Pinky Town, Inc. (Pinky) and Nimfees, Inc. (Nimfees) and others, alleging that one of them had sold the leotards to Warehouse and was liable for any sums for which Warehouse might be held liable. As an alternative count, Warehouse claimed contribution under the Joint Tortfeasors Contribution Act. Pinky and Nimfees were served by mail under R.R. 4:4--4(d). That rule provides that if service upon a foreign corporation cannot be made in this State, it may be made 'subject to due process of law, by mailing, * * * a copy of the summons and complaint to * * * its principal place of business, or to its registered office.' Pinky and Nimfees moved to set aside the service, and their motions were granted. Warehouse appeals.

The question before us is this--does the Federal Constitution permit our courts to obtain In personam jurisdiction over Pinky and Nimfees (hereafter the defendants) in this fashion, under the circumstances of this case?

The motions were heard upon affidavits, answers to interrogatories and depositions. They show that defendants are not licensed to do business in New Jersey, never had an office, officers, agents or employees or owned property in New Jersey, and never advertised or solicited business here, except that for about three months in 1961, after the sale in question, Nimfees' salesmen solicited orders for bathing suits in New Jersey. The leotards were purchased by Warehouse through Merchandising Associates, Warehouse's representative, which placed Warehouse's orders with Pinky or Nimfees in New York City. They shipped the goods to addresses designated by Warehouse, f.o.b. New York, by independent carrier or by mail. They had sold merchandise of various types to Warehouse for several years before the sale in question, and have other New Jersey customers to whom sales and deliveries are made in the same manner. Bills are mailed to the purchasers at their home offices. Presumably the home office of Warehouse is in New Jersey.

At this point it may be helpful to summarize the features of this case which the numerous authorities on the subject have deemed more or less significant:

1. The product was dangerous.

2. The defendants delivered to other customers in New Jersey over a period of years.

3. The purchaser was a resident and the purchase was made here.

4. Adrienne is a resident of Connecticut and she was injured there.

5. It is not the infant who is suing Pinky and Nimfees but Warehouse.

6. The contract of sale was entered into in New York.

7. Except for Nimfees' solicitation of orders for bathing suits, neither defendant ever physically entered New Jersey.

8. The goods were delivered in New Jersey by mail or by public carrier f.o.b. New York.

9. Pinky and Nimfees are not the manufacturers of the product, only distributors.

10. Pinky and Nimfees billed Warehouse in New Jersey and the bills were paid from New Jersey.

11. The places of business of Pinky and Nimfees are near Hackensack, where the court is located, and it would not be inconvenient for them to litigate the matter here.

12. Except as above set forth, these defendants had no contacts with New Jersey.

We hold that the service upon Pinky and Nimfees was valid and we reverse.

The history of the development of jurisdiction over nonresidents from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), to International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), is too well known to require retelling here. Representative portions of the mass of material on the subject are mentioned in J.W. Sparks & Co. v. Gallos, 47 N.J. 295, 220 A.2d 673 (1966); Hoagland v. Springer, 75 N.J.Super. 560, 183 A.2d 678 (App.Div.), affirmed, 39 N.J. 32, 186 A.2d 679 (1962); Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (Ct.App.1965), certiorari denied, Estwing Manufacturing Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965); Comment, 'In Personam Jurisdiction over Nonresident Manufacturers in Product Liability Actions,' 63 Mich.L.Rev. 1028, 1031--36 (1965).

For the purposes of this opinion it is enough to point out that it is not disputed that since International Shoe the law has been that 'due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. " International Shoe Co. v. State of Washington, supra, 326 U.S., at p. 316, 66 S.Ct., at p. 158, 90 L.Ed., at p. 102; J. W. Sparks & Co. v. Gallos, supra.

Though there has been no dispute that this is the rule, there has been serious and sometimes angry dispute over what it means. Since 1945, when International Shoe was decided, hundreds of cases have endeavored to apply the rule to as many different fact situations. It is agreed that the application of the rule to each case depends upon the facts in that particular case, but over the years a sort of consensus has been arrived at by the majority of the courts and commentators that in some situations extraterritorial service is valid. No purpose would be served by discussing those cases because in the situation before us there is disagreement about whether the Constitution permits such service. Therefore, we must turn to the cases which, as Reese and Galston described them in 44 Iowa L.Rev. 249 (1959), deal with 'Doing An Act Or Causing Consequences As Bases Of Judicial Jurisdiction.'

When we turn to the examination of the authorities for guidance we must bear in mind that our R.R. 4:4--4(d) permits extraterritorial service subject only to 'due process of law'--that is, to the outermost limitations permitted by the Federal Constitution. Our rule contains no definitions, limitations or exceptions. Cf. Leflar, 'Conflict of Laws', 36 N.Y.U.L.Rev. 36, 42 (1961). To paraphrase a popular song, anything any state can do under the Federal Constitution we can do, and if a state is limited by the terms of its statutes or rules, we can do it better. Hence, we do not need to struggle with the oft difficult problems of statutory construction faced by courts in states with detailed 'long arm statutes.' Compare e.g., Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., supra, with Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (Sup.Ct.1961). See also Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2 Cir. 1964); Ewing v. Lockheed Aircraft Corp., 202 F.Supp. 216 (D. Minn. 1962).

We have pointed out that it would not be inconvenient for defendants to try the case in Hackensack. However, we are aware of the fact that convenience is not the equivalent of jurisdiction and that, no matter how convenient, there can be no jurisdiction without the essential minimum contacts. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)....