Steele v. GD Searle and Co.

• Decision Date: 24 November 1976
• Docket Number: Civ. A. No. 4614.
• Citation: 422 F. Supp. 560
• Parties: Mrs. Nancy K. STEELE, Plaintiff, v. G. D. SEARLE AND COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

422 F. Supp. 560

Mrs. Nancy K. STEELE, Plaintiff, v. G. D. SEARLE AND COMPANY, Defendant.

Civ. A. No. 4614.

United States District Court, S. D. Mississippi, Jackson Division.

November 24, 1976.

Alfred N. Crisler, Jackson, Miss., William Larry Latham, Jackson, Miss., for plaintiff.

Cary E. Bufkin, Jackson, Miss., Michael S. Allred, Jackson, Miss., for defendant.

OPINION

DAN M. RUSSELL, Jr., Chief Judge.

Following the remand of the above styled case to this Court, Steele v. G. D. Searle & Co., 5 Cir., 483 F.2d 339, the defendant filed a motion for summary judgment predicated upon its earlier asserted defense that the applicable Kansas statute of limitations bars this action in Mississippi. It is to this issue that the briefs and oral argument of opposing counsel have been addressed.

In this diversity case, it is undisputed that had plaintiff, a resident of Kansas, and whose cause of action accrued in Kansas, brought her action in Kansas, it would have been barred. Her injury allegedly occurred in Kansas on February 15, 1964, and the applicable Kansas statute of limitations is two years KSA-60-513 (1968). For a similar type injury in Mississippi, the applicable statute is six years (Section 15-1-49, Mississippi Code of 1972). Plaintiff filed her action in the Chancery Court of the First Judicial District of Hinds County, Mississippi, on January 20, 1970, within one month of the expiration of the Mississippi limitation period, using state chancery attachment proceedings against resident creditors of Searle, a non-resident of Mississippi.

The case was removed to federal court, and upon defendant's motion to dismiss for lack of jurisdiction, the Judge to whom the case was assigned found that the federal court had in rem jurisdiction, but declined to rule on whether jurisdiction in personam had been established. Following a re-assignment of cases assigning this case to the undersigned Judge, defendant renewed its motion to dismiss for lack of jurisdiction on the grounds that defendant is not amenable to personal jurisdiction in that it has not qualified to do business in Mississippi and conducts no business in Mississippi, and the action being in rem may not be maintained by a non-resident plaintiff against a nonresident defendant under the due process or commerce clause of the U. S. Constitution. This Court found that the attempted service of process on the Secretary of State of Mississippi under the long arm statute was ineffective in that no part of plaintiff's cause of action accrued in this state or grew out of any tort, in whole or in part, committed by defendant in this state and that defendant had not had the "minimal contacts" otherwise necessary. As to the asserted jurisdiction in rem, the Court cited Pennoyer v. Neff, 95 U.S. 174, 24 L.Ed. 565, to the effect that such a procedure is a just and legitimate exercise of a state's authority to hold and appropriate property owned by the non-resident attachment debtors to satisfy the claims of its own citizens. However, where, as here, plaintiff was a nonresident, and defendant was found to be a non-resident, the Court held that, Mississippi having no interest in the case, jurisdiction should be denied. It was this decision that the Fifth Circuit panel reversed. Although not specifically disturbing this Court's finding that Searle's activities in Mississippi lacked the requisite minimal contacts under Mississippi law to support personal jurisdiction, the Fifth Circuit panel nonetheless had this to say: "Appellee can hardly claim to be a stranger to Mississippi or its laws. It has regularly dealt with companies incorporated or licensed to do business in Mississippi. In the course of these transactions, Searle both expected and received the protection of Mississippi law. The prospect of having to defend a suit in that state, albeit on a foreign cause of action, cannot fairly be seen as a rude and unbelievable shock to a company that maintains employees and ships several hundred thousand dollars worth of merchandise into Mississippi each year. In the horse and buggy days distance was a meaningful menace. Today we approach the speed of light, and corporations avail themselves of all the modern aspects of living. In our mobile society corporations cannot feel alien where their commercial interests magnetize them". Prior to this language the panel had said: "Indeed, the presence of the res, tangible or otherwise, within the jurisdiction represents a crucial point of contact. It goes far toward providing the essential `minimum' necessary for the constitutional assumption of jurisdiction".

With this language in mind the Court turns to the motion before it now. It begins its consideration with Sections 142 and 143, Restatement of the Law, Second, "Conflict of Laws 2d", page 396:

# 142. Statutes of Limitation of Forum

(1) An action will not be maintained if it is barred by the statute of limitations of the forum, including a provision borrowing the statute of limitations of another state.

(2) An action will be maintained if it is not barred by the statute of limitations of the forum, even though it would be barred by the statute of limitations of another state, except as stated in # 143.

# 143. Foreign Statute of Limitations Barring the Right

An action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy.

Under "Comments" pertaining to Section 142(1), it is stated that, as between states, application of subsection (1) is permissible under full faith and credit. Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211.

In the comments on Subsection (2), it is stated that, except for Section 143, each state determines for itself when a claim becomes stale, and hence maintenance of an action in the state of the forum is not ordinarily precluded by the fact that it is barred by the statute of limitations of another state, unless the bar of this latter statute is made applicable by a borrowing statute of the forum.

As to Section 143, the comments under this section indicate that application of the rule depends upon the local law of the forum, that is, it is for the courts of each state to determine the circumstances in which the rule is applicable.

Mississippi's so-called "borrowing statute", Section 15-1-65, is as follows:

"When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or county, or of some other state and county where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state".

Except for the fact that the defendant in Kershaw v. Sterling Drug, Inc., 5 Cir., 415 F.2d 1009, qualified to do and was doing business in Mississippi at the time plaintiff Kershaw's cause of action accrued, the...