# Harold Noel Arrowsmith, Jr. v. United Press International

> Court of Appeals for the Second Circuit · June 11, 1963 · 320 F.2d 219

URL: https://www.frixlaw.com/law-library/cases/9449476

## Case

- **Full name:** Harold Noel ARROWSMITH, Jr., Plaintiff-Appellant, v. UNITED PRESS INTERNATIONAL, Defendant-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** June 11, 1963
- **Citations:** 320 F.2d 219; 6 A.L.R. 3d 1072; 7 Fed. R. Serv. 2d 38; 1963 U.S. App. LEXIS 5021
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Clark, Friendly, Hays, Kaufman, Lumbard, Marshall, Moore, Smith, Waterman
- **Cited by:** 726 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9449476

## How later opinions describe it (automated extraction)

- holding that it was error for district court to dismiss action for failure to state a claim prior to addressing challenges to personal jurisdiction and venue, because dismissal on the former ground would be with prejudice, while dismissal for either of the two latter grounds w…
- concluding that Vermont’s long arm statute, which limited suits against foreign corporations to suits brought by its own residents, did not violate equal protection clause of fourteenth amendment or privileges and immunities clause of article four, § 2, of the United States co…
- explaining that logic compels consideration of venue first because “[a] dismissal for . . . improper venue does not preclude a subsequent action in an appropriate forum, whereas a dismissal for failure to state a claim . . . is with prejudice”
- holding that allowing service according to “manner prescribed by the law of the state in which the service is made” does not “displace state statutes as to the taking of jurisdiction” in ordinary diversity actions
- stating that “logic compel[s] initial consideration of the issue of jurisdiction over the defendant [because] a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim”

## Opinion text

CLARK, Circuit Judge
(dissenting).
In Jaftex Corp. v. Randolph Mills, 2 Cir., 282 F.2d 508 , the two opinions considered at some length and with care a question of great national importance which can be "ultimately settfecT only by” the Supreme Court, namely, the law governing the obtaining of jurisdiction in personam of civil litigants in the federal courts. As wilh.be developed below,, the decision had a very good presSYn'the law schools and among"scholars. "ÑoWT’anT at a loss to understand the strong compulsion to eradicate root and branch the view there espoused that federal law con *235 trolled, and to do so in what would seem a rather poor vehicle to achieve that result. After all the attempts atoverkülj in the majority opinion, the quesfionre-^ mains not to be laughed off or otherwise discounted, but is one going to the very heart of our national system of courts.
^Bjjj; even though this decision as a7 precedent has great potentialities of! harm, the issue is no^one which normally (and here) has any considerable practical effect so far as the litigants are concerned; the use in federal service under F.R. 4(d) (7) of the new “long-arm” statutes becoming popular in the states, as well as the parallel, rather than conflicting, development of state and federal principles in this area, as in Jaftex with reference to New York, ordinarily give little occasion for meaningful federal-state conflict. So here, in order to make a case for their reversal, the majority has to ascribe a really fantastic “dooi\ closing” meaning, arrived at by way of-negative implication, to Vermont’s affirmative grant to its residents of a “long-arm” remedy by service in particular in-í stances on the secretary of state. _ The_ most natural conclusion here, just as in.. Jaftex, isthafstate and federal law as to ,' service__w£ujd__yield the "same "resiilt'."i' Hence this seems to me a~*substantially •manufactured case to register disagreement with Jaftex before the issue can ■get to the Supreme Court. This inconsiderable result is forced in a case where the district court did not advert to the issue and the plaintiff, a layman, greatly outmatched, filed his brief pro se without any mention of the matter. When I saw the turn the appeal was taking, I urged my brothers to appoint some lawyer of standing to represent the national interest and to assist us to a correct decision; but they have preferred to leave this most important intei’est unrepresented.
In their eagerness to blot out Jaftex, my brothers, it seems to me, have made an erroneous analysis of both the historical background and the present case law. I plan to cover both these aspects below; but since I consider yet more important the underlying philosophy and policy of e law and feel that this is sadly neglected by my brothers, I shall turn to it at once.
Now I think it clear that it is the assumed compulsion of Erie R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 , and only that, which leads to my brothers’ conclusion here; only such a positive mandate would justify rejecting the flexible and workable uniform standard so long followed in the federal courts for the vague, uncertain, conflicting rules of the states. And surely this is the more-apparentjyhen .adoption of the supposedstate_ rules -carries with..it an implied invitation...... for . discrimination against federal citizens otherwise elB • gible to sue federalwise. Butjmtu'ally u there is no such compulsion 7rom ErifL; the bite there was to see that a litigant’s substantive rights are to be determined by the appropriate state law and are not to be prejudiced by the fact that they are being enforced in a federal court. Here state law as to libel will ultimately determine the plaintiff’s rights on the merits, as the considerable and premature discussion of the merits by my brothers demonstrates. But this does / not say how the federal courts shall be organized and how one is brought before them; indeed to put this in the hands / of the states would be to destroy all rea-; son for having a federal tribunal (af£ which the litigant has more confidence) enforce a litigant's rights accorded by state law. See Friendly, The Historic j Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483 (1928). This would seem settled by recent decisions of the Supreme Court upholding the obligation of. affording a trial according to federal standards. As the Court properly says: “The federal system is an independent system for administering justice to litigants who properly invok^jtsjjurisdiction.” Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525, 537 , 78 S.Ct. 893, 900 , 2 L.Ed.2d 953 . The Court there declined to follow state law as to issues to be kept from the jury. This principle was definitively and finally set for diversity as well as other actions in Simler v. Conner, *236 372 U.S. 221 , 83 S.Ct. 609 , 9 L.Ed.2d 691 , decided since, but re-enforcing, the Jaf-tex holding.
Contrary to the views of distinguished courts and commentators, the majority here brush these cases aside as only applications of the Seventh Amendment. But the matter cannot be so summarily dismissed. There is nothing in the Seventh Amendment to instruct as to this issue; and the result is one reached by the Court through a careful analysis of •what a trial in the federal court essentially means. It is by no means so clearly ■compelled as is the result I am supporting ’lere, which has a direct statutory base, as pointed out below. Moreover, reliance t»n the Seventh Amendment is a late afterthought with our court; in common with other, but not all, circuits we had brashly and overeagerly ruled at least three times that state law governed jury submissions in diversity cases. Gutierrez v. Public Service Interstate Transp. Co., 2 Cir., 168 F.2d 678, 680 ; Rowe v. Pennsylvania Greyhound Lines, 2 Cir., 231 F.2d 922, 924 , cert. denied Pennsylvania Greyhound Lines v. Rowe, 351 U.S. 984 , 76 S.Ct. 1052 , 100 L.Ed. 1498 ; Presser Royalty Co. v. Chase Manhattan Bank, 2 Cir., 272 F.2d 838, 840 ; cf. O’Connor v. Pennsylvania R. Co., 2 Cir., 308 F.2d 911 . 1 That experience of error should have warned us against overhasty application of the Erie principle to federal court organization in advance of Supreme Court direction. 2
The correct rule is, I believe, ably stated by Judge Brown for a unanimous court in Monarch Ins. Co. of Ohio v. Spach, 5 Cir., 281 F.2d 401 , refusing to apply to a federal diversity case a Florida statute excluding from evidence a written statement from a property owner concerning injury to his property where he had not been furnished a copy. Judge Brown speaks of the importance of the constitutional provision for diversity jurisdiction (which of course contains no limitation dependent on state action). He says, 281 F.2d 401 , at page 407:
“Not the least of these countervailing considerations [against state practice] is the indispensable necessity that a tribunal, if it is to be Ían independent court administering law, must have the capacity to regulate the manner by which cases are to be tried and facts are to be pre- j sented in the search for the truth of f the cause. As Erie epitomized, the constitutional factors subject federal courts in diversity cases to special /-> limitations. But the jurisdiction of courts in such cases is no less constitutional than in non-diversitv litigation. The judicial power of the United States vested by Art. Ill of the Constitution ‘in such inferior Courts as the Congress may * * * establish’ is declared to ‘extend to all Cases, in Law and Equity * *; to Controversies * * * — between Citizens of different States * A United States District Court •clothed with power by Congress pursuant to the Constitution is not a mere adjunct to a state’s judicial machinery. In entertaining diversity cases it is responding to a constitutional demand made effective by congressional action and, as the recent abstention cases have made so clear, it has a constitutional duty to hear and adjudicate.”
It is significant that the Monarch Ins. Co. case and Jaftex are relied on by two acute commentators to justify their argument that federal rule-making authority may extend to uniform federal rules of evidence, now under consideration by the Judicial Conference of the United States and its committees. Degnan, The Law *237 of Federal Evidence Reform, 76 Harv.L.Rev. 275 (1962); Ladd, Uniform Evidence Rules in the Federal Courts, 49 Va.L.Rev. 692 (1963). These cases also are relied on to support even more general conclusions of an increasing trend j toward support of federal court control ^of its own organization and procedure,' as in Vestal, Erie R.R. v. Tompkins: A Projection, 48 Iowa L.Rev. 248, 265-266 (1963), or in Green, Federal Jurisdiction in Personam of Corporations and Due Process, 14 Vand.L.Rev. 967, 979 (1961). See also Boner, Erie v. Tompkins: A Study in Judicial Precedent, 40 Texas L. Rev. 509, 619, 638-642 (1962) ; Carrington, The Modern Utility of Quasi in Rem Jurisdiction, 76 Harv.L.Rev. 303, 318-321 (1962); Smith, Blue Ridge and Beyond: A Byrd’s-Eye View of Federalism in Diversity Litigation, 36 Tul.L.Rev. 443 (1962), as well as the law review notes approving Jaftex, viz., Note, 47 Cornell L.Q. 286 (1962); Note, 74 Harv.L.Rev. 1662 (1961); Note, 22 Ohio St.L.J. 421 (1961) ; Note, 34 Temp.L.Q. 339 (1961) ; but see Note, 6 Vill.L.Rev. 404 (1961). 3 It seems not out of place to regard the general judgment of these scholars as more likely to state the law of the future than does my brothers’ backward-looking opinion.
The question raised in the articles cit- 4 ?'' ed above as to the power to adopt feder- j al uniform rules of evidence points to a ! whole series of problems resulting from ¡ the decision herein which are not con-, 1 sidered by my brothers. If their concluí sion is a necessary one it is hard to see how state rules of evidence must not control, as well as state rules of discovery, pre-trial, and the like. And if there is a dividing line to save some of the vaunted and attractive modern federal proce- *238 I dure, where is it and how is it to be dejfined? The opinion puts in jeopardy some of Hie most advanced principles of procedure we have, for, practically, under the majority’s rule, the more technical and restrictive procedure will always control. Only yesterday we ruled that under federal rule the ad damnum clause of a complaint did not restrict a jury’s verdict, even though the state rule be otherwise. Riggs, Ferris & Geer v. Lillibridge, 2 Cir., 316 F.2d 60 , Apr. 10, 1963. How is this case now to be sustained under my brothers’ view that state procedure, however outmoded, is the rule for the federal courts, at least in diversity cases? Like questions arise as to other of our decisions, including Iovino v. Waterson, 2 Cir., 274 F.2d 41 , cert. denied Carlin v. Iovino, 362 U.S. 949 , 80 S.Ct. 860 , 4 L.Ed.2d 867 , upholding the substitution of a foreign administrator under F.R. 25(a) (1), contrary to New York law — approved in Notes in 60 Colum.L.Rev. 738 (1960) and 73 Harv.L.Rev. 1618 (1960)—and Hope v. Hearst Consol. Publications, Inc., 2 Cir., 294 F.2d 681 , cert. denied Hearst Consol. Publications, Inc. v. Hope, 368 U.S. 956 , 82 S.Ct. 399 , 7 L.Ed.2d 388 , approved in Comment, 62 Colum.L.Rev. 1049, 1061-1076 (1962).
The majority opinion affects to findl doubt as to the existing or pre-Erie rule! and to make various assumptions about it, such as that it assumes to accept federal jurisdiction up to the limits permitted the states by the Fourteenth Amendment (an odd straw man, indeed — one in no way suggested or intimated by me) | that it states no “federal standard,” and so on. This is a curious failure to react history — one which, however, is apparently at the root of their difficulty in appreciating the existing federal rule. While there may be lurking constitutional overtones in the background, the federal law is shaped by statutory enactment based on easily understood principles, which reflect still important and widely held views of common sense and I fairness that a person should not be j forced into litigation at a distance from ¡ his home: These appear in the First Judiciary Act of 1789 as provisions both of service, then termed “civil arrest,” and of venue. The famous § 11, ch. 20, 1 Stat. 78 , 79, after providing for diversity jurisdiction in the federal circuit courts in cases where the matter in dispute exceeds the sum of $500 and for their exclusive cognizance of crimes against the United States, continues: “But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ, * * These provisions were continued in Rev.Stat. § 739, Judicial Code § 51, and in the former 28 U.S.C. § 112 . During this period the requirements as to service and venue were treated together; but, as the Reviser’s Notes state, they were separated in the recent revision of the Code, the venue requirements going to 28 U.S.C. § 1391 and the service requirements going to 28 U.S.C. § 1693 . 4 This latter statute is completely ignored by my brothers* which may help to explain their error (in note 10 of the majority opinion) in saying that § 11 “has always been a venue provision and nothing more,” as well as their difficulty in understanding this statutory background. It is true that § 1693 is expanded and also made less necessary by F.R. 4(f), as pointed out in First Flight Co. v. National Carloading Corp., supra, D.C.E.D.Tenn., 209 F.Supp. 730 ; but its continuance on the statute books is significant as emphasizing the durable federal policy it embodies.
That policy of course is the well known one going beyond venue requirements to require service within the district un- • *239 less specifically excepted by statute. Ex^ ception has been made in a limited number of instances, as stated in the opinion, involving antitrust, interpleader, and securities-regulation statutes. More lately limitations have been set by F.R. 4(f) — which has the force of statute. The first, a provision set in the original rule, was an extension of service of process throughout an entire state — applicable of course only in districts not coterminous with state boundaries — upheld in Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 446 , 66 S.Ct. 242, 246 , 90 L.Ed. 185 , with the statement here most pertinent that “the rule is a rule of procedure and not of substantive right.” Now the recent amendments to Rule 4(e) and (f), effective July 1, 1963, add two further provisions of relevance here, one providing for service according to state rules in proceedings quasi-in-rem, i. e., started by attachment or garnishment of property, 5 and the other for service not only throughout the state, but also upon additional parties not more than 100 miles from the place of commencement of the action or of trial, as well as persons ordered to respond to an order of commitment for civil contempt. 83 Sup.Ct. No. 7, p. 8; also 83 Sup.Ct. No. 11, p. LXI. Among the various important problems not faced by my brothers is that of adjusting their rule of state control to these new provisions; what law, for ex- j ample, would govern the summons to thei Southern District of New York of corpo-j rations doing some business in adjacent^ portions of Connecticut, New Jersey, or;j Pennsylvania?
It is true, of course, that the application of this principle of restriction of service to the district had to go through a course of development as to corporations, due to the historic controversy as to location or citizenship of a corporation. But this was settled long ago by the rather natural construction that a corporation must be “present,” i. e., must be doing business, within the district to be subject to suit there. See, as examples of the settled law, Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264 , 37 S.Ct. 280 , 61 L.Ed. 710 ; Robertson v. Railroad Labor Board, 268 U.S. 619 , 45 S.Ct. 621 , 69 L.Ed. 1119 ; and for full explanation and citation, Jaftex Corp. v. Randolph Mills, supra, 2 Cir., 282 F.2d 508 , 512, and notes 2-4. And with this there has occurred the parallel development, as in New York, known to us all and outlined in Jaftex, of the state and federal law as to a corporation doing business within the district, but with the federal law getting its authority from this statutory background.
From all this I regard as quite clear and subject to dogmatic assertion that, there is a federal law of statutory authority governing the requirements of service of process upon defendants, in- ¡ eluding corporations, within the district," and that this law, contrary to repeated assertions in the majority opinion, _is quite well known and reasonably precise. Hence the concession in the opinion that the majority would accept a mandate from Congress “or its rule-making delegate” to settle this issue would seem directly applicable, for there exists just that mandate which the majority is rather blithely overriding. And the federal principle, as I have indicated, seems to me flexible and useful, making use of state developments under F.R. 4(d) (7),' but avoiding the confusions and limita,tions inherent in any attempt to apply exclusively state law. 6 To those confusions and limitations I now turn.
*240 It is significant that, while anouncing this broad fiat, my brothers avoid developing it in particular areas of difficulty. Thus they are hard put to find a meaningful distinction between state and federal law, and, after what, I submit, are strange suggestions as to the effect of recent Vermont statutes concerning service of process, finally dump the matter back into Judge Gibson’s lap for solution. „ I have already indicated the quite obvious j difficulties in applying any state principle to the extensions of service authorized j by the new amendments of F.R. 4. But j the area of applicability of the principle |j is left quite in doubt; the majority simply note the problem rather generally and leave it unsolved. Does their vaunted ■^principle apply only to diversity cases, ; / bearing in mind the considerable extent to which the federal question jurisdiction may turn on state law? For example, note the extent to which tax refund actions may turn up questions of state probate and estate law. Passing this, we have a considerable area where jurisdic- < tion may well depend both on diversity J and federal question jurisdiction. Not e the question of unfair competition alleged as “pendent” to a federal case of trademark infringement. These are by no ■means imaginary difficulties, but are inherent in any attempt to break up ex- ■: pansive federal litigation into small state : units and to apply differing rules of es- - tablishing jurisdiction as to each unit.
■J Over-all is the issue of national subj servience to the divisive policies of the f statute, a pattern of law at best belittling and undignified for the national courts ^and in all events inviting states to make ¡invidious discriminations in favor of,( s ^Ctheir own locals. True, the states to date have not. been active in such discriminatory legislation, but the effect of the invitation now extended by my brothers may well be to stimulate such legislation on the part of states jealous of or ill disposed toward the. national power. Here, as I develop below, I do not believe it conceivable that Vermont had in mind to prevent as full remedies for New Hampshire or Maryland citizens as for its own. But the opinion suggests that perhaps it is foolish or quixotic for a state not to do just that.
Contrary to assertions in the majority opinion, this is by no means the law of all the other circuits. In its eagerness to overprove its point, that opinion fails to note a most obvious part, namely, that the great majority of cases cited depend upon an explicit state statúte made operative by F.R. 4(d) (7) authorizing service according to local state law. Thus in a federal case upholding service upon a foreign corporation by service upon the secretary of state under a state statute, it is obvious — there being no federal statute or rule directly authorizing such service — that the holding depends upon this cited rule and tells us absolutely nothing (unless by negative inference) about the supremacy of state service. A count of noses is not of supreme importance, since the Supreme Court must decide and, as we have already seen, our court has been known to go wrong in jumping too fast. But it is desirable to set the record straight; and in an appendix to this dissent, I make the more careful analysis which I think my brothers should have made before advancing their rather reckless version of the state of the precedents. 7
Thus I cannot concur in a remand which directs Judge Gibson to work on a wholly undesirable concept as to the governing law. I would not object to a re-J mand for the taking of evidence as to the ! defendant’s doing business in Vermont, j and for district court findings on this 5 issue which we do not now have. But on the whole, this appears unnecessary, *241 since defendant in its affidavits has undoubtedly presented what it believes to» be its strongest ease; and on that IJmlj lieve the service good under-aither-ied-1 eral or state law. It clearly appears1 that Miss McCaig, the agent served, is engaged full time in defendant’s main business activities, to wit, those of dis- ■ covering and processing the news of this entire state and region and then of distributing such news and others collected by United to the various outlets which the defendant serves in the state. This is much more than the mere soliciting of business as an agent for, say, a railroad or a resort hotel, to recall issues in other cases we have had. It is an integral part of the very business for which the defendant is created and has its existence. That its operation here is presently small in bulk is not due to the nature of the business, but to the limited press activities in the state — which may well disappear as Vermont becomes politically more lively and independent. The point is that they were such as the circumstances called for and thus did all the news-gathering business necessary to keep Vermont attuned to the other parts of defendant’s far-flung operations. This, I believe, makes defendant amenable to service as here. See, e. g., Acton v. Washington Times Co., D.C.Md., 9 F.Supp. 74 ; Ricketts v. Sun Printing & Pub. Asso., 27 App.D.C. 222 ; International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 , 161 A.L.R. 1057 ; Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 445, 446 , 66 S.Ct. 242 , 90 L.Ed. 185 ; Jacobowitz v. Thompson, 2 Cir., 141 F.2d 72 ; Nash-Ringel, Inc. v. Amana Refrigeration, Inc., D.C.S.D.N.Y., 172 F.Supp. 524 ; Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., D.C.S.D.N.Y., 178 F.Supp. 150 .
Further, while I welcome the views of Judge Gibson, sophisticated in Vermont law as he most certainly is, I cannot believe that there is enough doubt about this question to justify a remand. For the statutes dealing with service of foreign corporations, in my judgment, cannot possibly be found to represent a discriminatory or door-closing policy, as the majority imply. These statutes are ‘clearly but a natural response to the stress which recent Supreme Court cases have placed on contacts with the forum state. See International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 , 161 A.L.R. 1057 ; McGee v. International Life Ins. Co., 355 U.S. 220 , 78 S.Ct. 199 , 2 L.Ed.2d 223 ; Hanson v. Denckla, 357 U.S. 235 , 78 S.Ct. 1228 , 2 L.Ed.2d 1283 . When the Vermont statutory law is read in the light of the admonitions of these cases, the restrictions of its terms to actions concerning Vermont residents and growing out of Vermont occurrences can be seen as a quite sound attempt on the part of the Vermont legiálators to insure the statute’s constitutionality by requiring that even the farthest reaches of the long-arm statute necessarily involve sufficient contacts with the forum state 8 See, e. g., Smyth v. Twin State Improvement Corp., 116 Vt. 569 , 80 A.2d 664 . The fact that nonresidents are not mentioned in the Vermont statutes dealing with service of foreign corporations does, not therefore show that Vermont wishes'" to afford a safe haven from suits by out-of-state plaintiffs to out-of-state corporations that conduct business there. Rather, it evidences a desire to save the constitutionality of a rather far-reaching statute. Thus Angel v. Bullington, 330 U.S. 183 , 67 S.Ct. 657 , 91 L.Ed. 832 , and Woods v. Interstate Realty Co., 337 U.S. 535 , 69 S.Ct. 1235 , 93 L.Ed. 1524 , have no more application here than they did in Jaftex for the reason stated therein, namely, that no clear and precise state r policy would be frustrated by permitting suit in the federal forum. See Jaftex *242 Corp. v. Randolph Mills, supra, 2 Cir., 282 F.2d 508 , 514.
It is well, by way of summary, to consider what this opinion and decision actually accomplishes. In the case before us, it postpones decision for some months or years for interim proceedings which, in my judgment, can lead only to one eon- . elusion already indicated, namely, that the court has jurisdiction under either federal or state law. Beyond that, in the realm of federal procedure, it rejects a uniform, flexible, and well understood federal rule for service of process for an uncertain, conflicting, and variable rule of state service, with an invitation to the states to develop discriminatory legislation against nonresidents. And yet further it nullifies attempts applauded by scholars to confine the Erie principle to its proper role of substantive rights without impairment of the integrity of the federal court organization; in so doing it casts doubt upon the validity of the well-conceived and hitherto highly successful steps to improve the administration of justice in the federal system and indeed generally. Surely this is a heavy price to pay to register disagreement with a disliked decision before the issue can get to the Supreme Court.
So I dissent from the steps taken to. deny jurisdiction here.
APPENDIX
¿n supporting their claim to the unanimous support (except for Jaftex) of the rule they now enunciate, my brothers have made the obvious, but telling, mistake of ignoring the important distinction between service pursuant to F.R. 4(d) (3) and that pursuant to F.R. 4 (d) (7). The latter permits actions to be 'commenced in federal courts by service of process on a foreign corporation in the manner prescribed by the law of the forum state. It would seem needless to say, had not the majority missed the point, that state law must of course be looked to in determining whether a defendant served pursuant to a state statute is properly before the court. So cases applying state law under F.R. 4(d) (7) have no relevance at all to the issue at hand, but show merely that the Federal Rules provide an alternative to the manner of service prescribed by F.R. 4 (d) (3) — -the rule to which the Jaftex doctrine applies and which is the only one of the rules here in issue. Yet the majority repeatedly wrest from context quotations from F.R. 4(d) (7) cases which are then presented as acclaim for their position.
Thus in Pulson v. American Rolling Mill Co., 1 Cir., 170 F.2d 193 , quoted approvingly, and in the very recent case also cited, Waltham Precision Instrument Co. v. McDonnell Aircraft Corp., 1 Cir., 310 F.2d 20 , service was made on the Massachusetts Commissioner of Corporations and Taxation under the provisions of Mass.Gen.Laws ch. 181, § 3A, which provides for substituted service on a foreign corporation that “does business” in the Commonwealth. In such cases there is necessarily (a) question whether the service comports with the state requirements for holding a foreign corporation responsible to the laws of the state, and ‘Q).) whether these state requirements satisfy the commands of the United States Constitution. But to say this much is still to say nothing about the case in which service is made pursuant to F.R. 4(d) (3), rather than under a special state statute. Thus in all fairness we must disregard the deliberations of the First Circuit as immaterial to the issue which confronts us here.
The same is true of the Fifth Circuit cases which the majority cite. Connor v. New York Times Co., 5 Cir., 310 F.2d 133 , reversing a previous decision, 5 Cir., 291 F.2d 492 , concerned service on the defendant under the Alabama Substituted Service Statute, 2 Ala.Code 1940 (1955 Cum.Supp.) tit. 7, § 199(1), which provides that a foreign corporation appoints the secretary of state as process agent by “doing business” in Alabama. In Stanga v. McCormick Shipping Corp., 5 Cir., 268 F.2d 544, 548 , the Fifth Circuit Court of Appeals clearly recognizes the distinction between F.R. *243 4(d) (3) and F.R. 4(d) (7), which has eluded my brothers. That court starts its discussion of the jurisdictional problem in that case by observing about the person served:
“As Holmes clearly was not a person described in F.R.Civ.P. 4(d) (3), 28 U.S.C.A. validity of the service of process depends wholly on it having been ‘served * * * in the manner prescribed by the law of the state in which the service is made for the service of summons * * * upon any such defendant * * *.'
“Thus have we come face to face with the law of Louisiana. * * * ”
The language quoted by the Fifth Circuit is, of course, that of F.R. 4(d) (7); the law of Louisiana becomes important when the court determines that F.R. 4(d) (3) is not applicable and turns to F.R. 4 (d) (7). The statement quoted by my brothers to show support for them from! the Fifth Circuit was, as one might guess, taken from the court's discussion of Louisiana law which followed the above quotation.
The majority’s pretentions of appellate support in the Eighth, Ninth, and Tenth Circuits are equally unjustified. Electrical Equipment Co. v. Daniel Hamm Drayage Co., 8 Cir., 217 F.2d 656 , involved service made in accordance with Iowa Code Ann. § 494.2 , subd. 6 — another statute making the secretary of state process agent for foreign corporations that do business on the forum state. In L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 9 Cir., 265 F.2d 768 , the court, without discussion of this issue, looked to general law to decide whether the foreign corporation there did sufficient business in California to sustain service of process. Finally, in Steinway v. Majestic Amusement Co., 10 Cir., 179 F.2d 681 , 18 A.L.R.2d 179 , cert. denied 339 U.S. 947 , 70 S.Ct. 802 , 94 L.Ed. 1362 , service'■jvas^'m.ade upon the secretary of state pursuáht-4o Okla.Stat.Ann. § 1.17. The court in that- case explicitly recognized that it was'proceeding under F.R. 4(d) (7).
The Sixth Circuit is admittedly regarded as at least tacitly in agreement with the Jaftex principle. See, e. g., First Flight Co. v. National Carloading Corp., D.C.E.D.Tenn., 209 F.Supp. 730 , 735 n. 11 and accompanying text (opinion of Judge Frank W. Wilson approving of Jaftex) ; Shuler v. Wood, D.C.E.D.Tenn., 198 F.Supp. 801, 803 (opinion of Chief Judge Robert L. Taylor disapproving of Jaftex, with which he finds his Court of Appeals in seeming agreement); Paragon Oil Co. v. Panama Refining & Petrochemical Co., D.C.S.D.N.Y., 192 F.Supp. 259, 261 . The Sixth Circuit cases which indicate that the Court of Appeals there is allied with the Jaftex majority are Lasky v. Norfolk & W. Ry. Co., 6 Cir., 157 F.2d 674 , where the court in a Per Curiam opinion without mention of the Ohio statute and looking to general law upheld service on the manager of the defendant’s coal bureau at its Cleveland office; Bach v. Friden Calculating Mach. Co., 6 Cir., 167 F.2d 679, 680 , where the court explicitly recognized F.R. 4(d) (7) as. an alternative manner of service to that prescribed by F.R. 4(d) (3), and, having noted an Ohio statute, Ohio Gen.Code § 11290, which provided to much the same effect as F.R. 4(d) (3), looked to both general and Ohio law to reverse a lower court order to quash the service on the managing agent of defendant’s Cincinnati office; and Scholnik v. National Airlines, 6 Cir., 219 F.2d 115, 120 , cert. denied National Airlines v. Scholnik, 349 U.S. 956 , 75 S.Ct. 882 , 99 L.Ed. 1280 , where the court again recognized the distinction between F.R. 4(d) (3) and F.R. 4(d) (7) and found that “under either the Federal or State provision” the service in question was sustainable. WSAZ, Inc. v. Lyons, 6 Cir., 254 F.2d 242 , is in no way inconsistent with the above decisions, as my brothers seem to imply,, for not only did the action come to the federal courts by removal, but in addition it involved service upon the secretary of state pursuant to Ky.Rev.Stat. §§ 271.385 and 271.610. Thus it was appropriate for the court in that case to have regard for Kentucky law.
*244 Only the District of Columbia Court of Appeals has considered the disputed issue in Jaftex since it was decided, and that court took the not unusual course of expressly ruling on both local and federal grounds. Fiat Motor Co. v. Alabama Imported Cars, Inc., 110 U.S.App.D.C. 252 , 292 F.2d 745 , cert. denied 368 U.S. 898 , 82 S.Ct. 175 , 7 L.Ed.2d 94 . See also the concurring opinion in Mutual International Export Co. v. Napco Industries, Inc., D.C.Cir., 316 F.2d 393 , well stating the distinction in service under the two rules. The Fourth Circuit Court of Appeals has remained silent on this issue; and the district court case, Easterling v. Cooper Motors, Inc., D.C.M.D.N.C., 26 F.R.D. 1 , on which my brothers base their claim to the Fourth Circuit, was explicitly one under F.R. 4(d) (7), service having been pursuant to N.C.Gen.Stat. § 1—97.
Thus all that fairly remains of the majority’s assertion of universal acclaim for their position is a divided Court of Appeals in the Third Circuit, Partin v. Michaels Art Bronze Co., 3 Cir., 202 F.2d 541 , and the Seventh Circuit, Canvas Fabricators, Inc. v. William E. Hooper & Sons Co., 7 Cir., 199 F.2d 485 .
. For the conflicting cases collected see 2B Barron & Holtzoff, Federal Practice and Procedure § 871.1, pp. 10-19 (1961); 5 Moore’s Federal Practice 92-104 (2d Ed. 1951), •with cases cited at 102, n. 5, 1962 Cum.Supp. 8, 9.
. Perrin v. Pearlstein, 2 Cir., 314 F.2d 863 , seems another instance of undue haste to apply the Erie principle to reverse a jury verdict. See 2 Corbin on Contracts § 446 (1950) and 1962 Pocket Parts.
. This scholarly response of a dozen articles, including a number by some of the most acute procedural scholars of the country, so soon after the decision and so unusual in both quality and quantity, hardly merits the majority’s belittling denigration in its reference in note 13 to “academic support for Jaftex, based on a few [sic!] law review comments.”
Of the general law text writers, Professor Moore criticizes as “not sound” the view of “[s]ome federal courts * * * i that obtaining jurisdiction over a de- ¡ fendant is a matter falling under the Erie doctrine,” 1A Moore’s Eederal Practice 1f 0.317 [5], p. 3536 (2d Ed. 1961); 2 id. 1f 4.25, pp. 970, 971 (2d Ed. 1962); while the opposite view is supported in 1 Barron & Holtzoff, Eederal Practice and Procedure § 138, n. 35.4, § 179, n. 95.3 (Wright Ed. 1960), 1962 Pocket Parts § 138, nn. 35.4, 85, § 179, n. 95.3, but admitting a conflict in the cases. It is too early for extensive case citation of Jaftex; it is warmly approved in First Flight Co. v. National Carloading Corp., D.C.E.D.Tenn., 209 F.Supp. 730 , and reluctantly followed (though actually doubtfully in point, see note 6 infra) in Southern New England Distributing Corp. v. Berkeley Finance Corp., D.C.Conn., 30 F.R.D. 43 . See also the Appendix, p. 242, infra.
My brothers assume to find a modicum of that academic support, which they seem to need so desperately, in the ALI Study of the Division of Jurisdiction between State and Federal Courts (Tent. Draft No. 1, 1963), prepared by distinguished Reporters assisted by most distinguished Advisers, among whom the opinion writer here modestly omits reference to himself. It is difficult to perceive how much help can be drawn from this quite tentative and highly controversial, possibly courageous, possibly foolhardy, argument for preserving a shell of diversity jurisdiction, but only in sharply restricted form. Nowhere is there mention or direct discussion of Jaftex. But among the several proposals for limiting diversity jurisdiction, including the drastic one of denying it to a person in any district in a state of which he is a citizen, id. § 1302(a), p. 9, is one for a statute which rather ambiguously denies “binding effect” upon any party beyond that which the local state law “prescribes” in a like action brought in its courts of general jurisdiction, id. § 1303, p. 11, and see pp. 54-56. (Query: Is this intended to do anything more than restate the original Erie doctrine, without the later procedural glosses added by cases such as this?) One suspects, in these days of increasing racial tension, that Congress will long hesitate before sharply limiting access to the federal courts as thus urged. Incidentally, as pointed out in id. p. 56, n. 15, the enactment of these statutes will call for a “re-examination” — i. e., repeal — of the just adopted amendments to F.R. 4(e) and (f) discussed below.
. 28 U.S.C. § 1693 reads as follows:
“Except as otherwise provided by Act of Congress, no person shall be arrested in one district for trial in another in any civil action in a district court.”
. These provisions seem to have received a mixed reception. See, e. g., Carrington, The Modern Utility of Quasi in Rem Jurisdiction, 76 Harv.L.Rev. 303 (1962); Abraham, Constitutional Limitations upon the Territorial Scope of Service of Federal Process, 32 F.R.D. 83 ; Elliott & Green, Quasi in Rem Jurisdiction in the Federal Courts: The Proposed Amendments to Rule 4, 48 Iowa L.Rev. 300 (1963). The debate also demon-states the durability of the policy of restriction.
. The majority opinion appears to find great difficulty in how to treat removed cases. 'This issue is not before us and no definitive ruling is necessary, but I *240 do not see the difficulty or any attempt by two circuit judges to overrule sub silentio a decision of the Supreme Court, as well as one by Judge Learned Hand— conce.dedly “no mean feat,” were it ever to happen. See note 5 of the majority i opinion. Removal jurisdiction is admitted>ly derived jurisdiction, and I see no problem in holding it therefore dependent on 'the original state jurisdiction.
. See Appendix, p. 242 infra:
. For similar statutes in other states, obviously due to a like impulse, see, e. g., 6 Conn.Gen.Stat. § 33-411; Idaho Code (Supp.) § 5-514; 2 Ill.Rev.Stat. c. 110, § 17; Wash.Rev.Code § 4.28.185; Wis.Stat.Ann. (Supp.) § 262.05.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449476. Public record. Not legal advice.