# Petition — GD Searle & Co. v. Cohn > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1898%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 455 U.S. 404 ## Text —_— Supreme Court, U.S. (80-644 FILED OCT 20 1980 No. DAK, JR., CLERK IN THE Supreme Court of the United States Octoser Term, 1980 G.D. SEARLE & COMPANY, Petitioner, vs. SUSAN COHN and WALTER COHN, Respondents, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Raymonp M. Tierney, JR. Saantey & FisHer, Attorneys for Petitioner, 550 Broad Street, Newark, New Jersey 07102. (201) 643-1220 Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611 ~ Questions Presented 1. Whether the application of New Jersey’s tolling stat- ute, N.J.S.A. 2A :14-22, to petitioner, a foreign corporation amenable to suit in New Jersey, denies petitioner its right to due process under the Fourteenth Amendment to the United States Constitution. 2. Whether the application of New Jersey’s tolling stat- ute, N.J.S.A. 2A :14-22, to petitioner, a foreign corporation amenable to suit in New Jersey, denies petitioner its right to equal protection of the laws under the Fourteenth Amend- ment to the United States Constitution. 3. Whether the application of New Jersey’s tolling stat- ute, N.J.S.A. 2A :14-22, to petitioner, a foreign corporation engaged solely in interstate and not intrastate commerce in New Jersey, constitutes the imposition of a burden of in- terstate commerce forbidden by the Commerce Clause of the United States Constitution. ii Parties to the Proceedings* Susan Cohn and Walter Cohn, Plaintiffs-Respondents. G. D. Searle & Company, Petitioner-Defendant. * The State of New Jersey is not a party to the within action. Neither the United States District Court for the District of New Jersey nor the United States Court of Appeals for the Third Cir- cuit has certified to the Attorney General of the State of New Jer- sey the fact that the constitutionality of a statute of that state was drawn into question pursuant to the United States Supreme Court Rules, Rule 28. However, Petitioner herein has served notice upon the Attorney General of the State of New Jersey of the within mat- ter and has notified him that 28 U.S.C. §2403(b) may be applicable. Additionally, the constitutionality of the same state statute was at issue in the case of Velmohos v. Maren Engineering Corp., 168 N.J. Super. 520, 403 A.2d 927 (App. Div. 1979), aff'd, 83 N.J. 282, 416 A.2d 372 (1980). In that case the New Jersey Attorney General was notified of the fact that the constitutionality of the stat- ute was at issue and he did not appear. 168 N.J. Super. at 522, 403 A.2d at 928. TABLE OF CONTENTS PAGE Questions PRESENTED i TaBLe or AUTHORITIES iv Orrnions BeLow 1 JURISDICTION 2 ConstiTuTIONAL Provisions, Statutes AND Ruues Iy- VOLVED 2 STATEMENT OF THE CasE 5 Reasons ror GRANTING THE Writ 7 Conclusion 18 APPENDIX: A—Opinion of the United States Court of Ap- peals for the Third Circuit la B—Judgment of the United States Court of Appeals for the Third Circuit 26a C—Opinion of the United States District Court for the District of New Jersey Re: Cohn v. G. D. Searle & Company 28a iv TABLE OF AUTHORITIES PAGE Table of Authorities Cases Cited Allenberg Cotton Co., Inc. yv. Pittman, 419 U.S. 20 (1974) 18 Avdel Corporation v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971) 9 Cohn v. G. D. Searle & Co., 447 F. Supp. 903 (D.N.J. 1978), rev’d, —— F.2d —— (Docket Nos. 79-2406 and 79-2605, 3rd Cir. July 23, 1980) ................ 1, 2, 6, 7, 17 Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921) 13, 14 Heiner v, Donnan, 285 U.S. 312 (1932) 12 Hurwitch v. Adams, 52 Del. 13, 151 A.2d 286 (Super. Ct. Del.), aff'd, 52 Del. 247, 155 A.2d 591 (Del. 1959) 17 International Shoe Co. v. State of Washington, 326 U.S. 310 (1945) 2 8 International Textbook Co. v. Pigg, 217 U.S. 91 (1910) 13, 16 Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276 (1961) 14 Lochner v. New York, 198 U.S. 45 (1905) ................. 11 Memphis Steam Laundry v. Stone, 342 U.S. 389 I alls dcls chdoecipiasidbtansiasnansichecestntiarsinctapeedanbniihenebeniesioode 14 Oswalt v. Seripto, Inc., 616 F.2d 191 (5th Cir. 1980) 8 Richardson v. Belcher, 404 U.S. 78 (1971) Reed v. Reed, 404 U.S. 71 (1971) 9, 10 Robbins v. Shelby Taxing District, 120 U.S. 489 (1887) 13, 14 TABLE OF AUTHORITIES v PAGE Royster Guano Company v. Virginia, 253 U.S. 412 (1920) 10 Shaffer v. Heitner, 433 U.S. 186 (1977) 8, 12 Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914) ........ 13, 14 Velmohos v. Maren Engineering Corp., 168 N.J. Super. 520, 403 A.2d 927 (App. Div. 1979), aff'd, 83 N.J. 282, 416 A.2d 372 (1980) ii, 7, 8, 13 Vlandis v. Kline, 412 U.S, 441 (1973) 11 Will v. Malosky, 432 Pa. 246, 247 A.2d 788 es 1968) 17 World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) .................... 8 United States Constitution Cited Article 1, Section 8, Clause 3 Fourteenth Amendment i, 2 Statutes Cited 28 U.S.C.: See. 1254 (1) 2 See. 1332(a) 5 See. 1441 5 N.J.S.A. 2A:14-2 5, 6 N.J.S.A. 2A :14-22 i, 3, 6, 11 N.J.S.A. 144 :13-3 13 N.J.S.A. 54:10A-1 13 N.J.S.A. 54:10E-1 13 vi TARLE OF AUTHORITIES PAGE Rules Cited N.J.R. 4:2-2 10, 16 N.J.R. 4:4-4 4 N.J.R. 4:4-4(¢) (1) 5, 9, 16 Other Authority Cited Comment, “The Tolling Provision of the Statute of Limitations—A Haven for the Dilatory Plaintiff,” 10 Seton Hall L. Rev. 585 (1980) 18 No. In THE Supreme Court of the United States Ocroser Term, 1980 a> — G.D. SEARLE & COMPANY, Petitioner, vs. SUSAN COHN and WALTER COHN, Respondents. » PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Petitioner, G. D. Searle & Company, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Circuit Court of Appeals for the Third Circuit entered in this proceeding on July 23, 1980. Opinions Below Petitioner requests review of the decision of the United States Court of Appeals for the Third Cireuit (Third Cir- cuit) reported sub nom. Cohn v. G. D. Searle & Co, —— F.2d —— (Docket Nos. 79-2405 & 79-2406, 3rd Cir. July 23, 1980). The opinion is reproduced in the Appendix at p. la, infra, The decision of the United States District Court for the District of New Jersey appears at 447 F. Supp. 903 (D. N.J. 1978). It is included in the Appendix at p. 28a, infra. Jurisdiction The judgment of the Third Cireuit was entered on July 23, 1980." A copy of that judgment is iueluded in the Ap- pendix at p. 26a, infra. This petition for certiorari has been filed within 90 days of the date of said judgment. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1), which states: “eases in the courts of appeals may be reviewed by the Supreme Court... (1) By-writ of certiorari granted upon a petition of any party to any civil or criminal case, before or after rendition of judgment or decree. .. .” Constitutional Provisions, Statutes and Rules Involved The Fourteenth Amendment to the United States Con- stitution, Section 1: 1 The within matter had been consolidated and decided by the Third Circuit in conjunction with the case of Hopkins v. Kelsey- Hayes, Inc. (Dearket No, 79-1881, 3rd Cir. July 23, 1980). The defendant in that case has also petitioned this Court for the issuance of a writ of certiorari. 3 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jur- isdiction the equal protection of the laws.” The Constitution of the United States, Art. 1, §8, Cl. 3 (the Commerce Clause) : “The Congress shall have Power... To regulate Com- merce with foreign Nations, and among the several States, and with the Indian Tribes; .. .” The New Jersey “Tolling Statute”, N.J.S.A. 2A :14-22: “Tf any person against whom there is any of the causes of action specified in sections 2A :14-1 to 2A: 14-5 and 2A :14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said section, or if any corporation or corporate surety not or- ganized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom sum- mons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or cor- 4 porate surety is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be com- menced by the section. The person entitled to any such action may commence the same after the ac- crual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.” New Jersey’s Long-Arm Rule, N.J.R. 4:4-4: “Service of summons, writs and complaints shall be made as folows: * * * (c) Corporations, Partnerships, and Associations. (1) Corporations. Upon a domestic or foreign cor- portaion, by serving, in the manner prescribed, in paragraph (a), either an officer, director, trustee, or managing or general agent; or any person author- ized by appointment or by law to receive service of process on behalf of the corporation; or the person at the registered office of the corporation in charge thereof. If service cannot be made upon any of the foregoing, then it may be made upon the person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then upon any servant of the corporation within this State acting in the dis- charge of his duties. If it appears by affidavit of plaintiff’s attorney or of any person having knowl- ledge of the facts that after diligent inquiry and ef- fort personal service cannot be made upon any of the foregoing and if the corporation is a foreign cor- poration, then, consistent with due process of law, service may be made by mailing, by registered or * 5 certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.” New Jersey’s Statute of Limitations for Personal Injury Actions, N.J.S.A. 2A :14-2: “Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.” Statement of the Case This is a products liability/negligence action brought by Mrs. Cohn, a user of the oral contraceptive, Enovid, and her husband against its manufacturer, G. D. Searle & Com- pany (Searle). Mrs. Colin’s use of Enovid allegedly re- sulted in a cerebrovascular accident which she suffered in 1964. Sometime in 1969 or 1970, the plaintiffs became aware of a possible link between Mrs. Cohn’s stroke and her in- gestion of Enovid, and, although not at issue in this Peti- tion, the District Court in an unpublished opinion concluded that plaintiffs had discovered their cause of action by 1970. Plaintiffs commenced this action in 1974 by the filing of a complaint in the Superior Court of New Jersey. Service was effected on Searle under New Jersey’s long arm rule, N.J.R. 4:4-4(ce)(1). No difficulty in obtaining the name of Searle or in effecting service was claimed. Searle removed the ease to the United States District Court for the Dis- trict of New Jersey pursuant to 28 U.S.C. $1441, invoking the diversity of citizenship jurisdiction of that Court un- der 28 U.S.C. §1332(a). 6 Searle thereafter moved for summary judgment on the ground that plaintilfs’ claims were barred by the applicable two-year statute of limitations, N.J.S.A. 2A:14-2. In op- position, plaintiffs argued that the statute of limitations was no bar to their complaint because New Jersey’s tolling statute, N.J.S.A. 2A :14-22, tolls the statute of limitations in any action against a foreign corporation, such as Searle, which is not represented in this state by any person or offi- cer upon whom summons or other original process may be served. Searle, a Delaware corporation with its principal place of business in Illinois, conducted an entirely interstate and not intrastate pharmaceutical business in New Jersey. — [1a] 2a Appendix A ie av Apprats From tur Unrrep States District Courr Fyr THE District or New Jersey D.C, Civil Nos, 78-1646 and 74-0450) - > Argued: February 11, 1980. Before: Apams, Garru and Van Dusen, Circuit Judges. Ape.yt, Howarp ANnp MatHews J. Luewettyn Matruews (Argued) P.O, Box 95 Browns Mills, N.J. 08015 Attorneys for Appellee (79-1881) Suantey & Fisner Raymonp M., Trerney, Jn., (Argued) Anpotrr 8 Brown 550 Broad Street Newark, N.J. 07102 Attorneys for Appellee, Cross-Appellant (79-2406 and 2605) Rawie & Henperson Lowett A, Resp, Jr. (Argued) 2100 Packard Building Philadelphia, PA 19102 Attorneys for Appellant (79-1881) 3a Appendia A Watter R, Conn, (Argued) Exvarne Harris 15 Valley Street South Orange, N.J. 07079 Attorneys for Appellants (79-2406 and 2605) OPINION or THE CouRT Gartu, Circuit Judge. These appeals’ present up with constitutional challenges to a New Jersey statute, N.J.S.A. §2A:14-22, which tolls the statute of limitations in actions against foreign corpora- tions which are not represented in New Jersey, but which may nonetheless be amenable to New Jersey’s long-arm jurisdiction. By contrast, foreign corporations which are represented in New Jersey receive the full benefit of all limitations statutes. Thus, the defendants here, both non- represented foreign corporations, claim that N.J.S.A. §2A: 14-22, by refusing them the protection of the limitation stat- ute, has denied them due process and equal protection of the laws under the United States constitution. We do not agree, as we conclude that the New Jersey statute is not irrational. Thus, we will not disturb New Jersey’s legislative enactment, which we hold satisfies con- stitutional standards. ? Although these cases were tried separately before two differ- ent district court judges, because they involve identical challenges to the constitutionality of a New Jersey statute, N.J.S.A. §24.:14-22, we consolidated them for the purpose of oral argument and dis- position, 4a Appendix A i. A. In the first of these appeals, Cohn v. D. D. Searle & Co., the plaintiffs, who are husband and wife, sued G, D. Searle & Co, (herinafter “Searle”) in tort for damages caused by a birth control pill, Enovid, which had been manufactured by Searle and which allegedly contributed to a stroke suf- fered by Mrs. Cohn. Searle is a Delaware corporation with its principal place of business in Illinois. Although it was at all times subject to New Jersey’s long-arm jurisdiction, see N.J. Ct. R. 4:4-4(¢)(1),? Searle was not registered to do business in New Jersey, and it maintained no agent for service of process in New Je:sey. In fact, the only person- nel affiliated with Searle who were located in New Jersey, during the time period relevant to this litigation, were 40 so-called “detail-persons” who worked out of their own homes and whose sole function was to generate good-will for Searle among New Jersey doctors. Before trial, Searle claimed the benefit of New Jersey’s two year statute of limitations as a defense. N.J.S.A. §2A: 2 Rule 4:4-4(c)(1) permits long-arm service upon out-of-state corporations in the following circumstance: If it appears by affidavit of plaintiff's attorney or of any person having knowledge of the facts that after diligent inquiry and effort personal service cannot be made upon any of the foregoing [methods for service within the state] and if the corporation is a foreign corporation, then, con- sistent with due process of law, service may be made by mailing, by registered or certified mail, return receipt re- quested, a copy of the summons and complaint to a regis- tered agent for service, or to its principal place of business, or to its registered office. 5a Appendia A 14-2° In response, the plaintiff claimed that the statute of limitations was no bar to their complaint because N.J.S.A. §2A :14-22 (hereinafter the “tolling provision”) tolls the limitations statute in any action against a foreign corpora- tion which “is not represented in this state by any person or officer upon whom summons or other original process may be served... .”* §N.J.S.A. §2A:14-2 provides: Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. 4N.J.S.A. §2A:14-22 provides in relevant part: If any person against whom there is any of the causes of action specified . . . is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or cor- porate surety not organized under the laws of this state, against whom there is such a cause of action, is not repre- ° sented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the ex- piration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety 7s not so re- presented within this state shall not be computed as part of the periods of time within which such an action is re- quired to be commenced by the section. The person en- titled to any such action may commence the same after the accrual of the cause therefor, within the period of time li- mited therefor by said section, exclusive of such time or (Footnote continued on following page) 6a Appendix A With the issue thus framed, and conceding that no facts were in dispute, Searle then moved for summary judgment, asserting that the Colins’ claim was barred by the statute of limitations. Searle argued that the tolling provision was not applicable in this case because Searle was “represented” in New Jersey by its detail-persons. Alternatively, Searle contended that the tolling provi- sion, if applicable to it, couid not pass muster under the equal protection clause of the United States constitution in that it drew an arbitrary and irrational distinction be- tween foreign corporations represented in New Jersey and foreign corporations not so represented, but which were nevertheless subject to New Jersey's long-arm jurisdiction. The district court rejected Searle’s argument that the presence of detail-persons in New Jersey afforded Searle the benefit of the statute of limitations. On the other hand, the district court accepted Scarle’s contention that the toll- ing provision was unconstitutional, 447 F. Supp. 903 (D. N.J. 1978). Reasoning that the tolling provision must be interpreted in light of the legislative intent at the time of (Footnote continued from preceding page) times of nonresidence or nonrepresentation. (emphasis ad- ded). Plaintiffs claimed, alternatively, that the statute of limitations was tolled by N.J.S.A. §2A:14-21 which stops the running of the limitations period against persons who are “insane” when their causes of action accrue. In an unpublished opinion, the district court found that on this record, plaintiff's condition did not con- stitute insanity within the meaning of N.J.S.A. §2A:14-21. Con- sequently, the district court rejected this alternative argument. In light of our conclusion, see infra, that N.J.S.A. §2.A:14-22 tolled the running of the limitations statute in this case, we need not, and do not, reach the merits of this contention. 7a Appendia A its enactment, the court held that Searle’s detail-persons were not adequate corporate “representatives” within the meaning of the tolling provision inasmuch as, as the time that provision was most recently amended, in 1949,° juris- 5 As the New Jersey Supreme Court has noted, the roots of the tolling provision are traceable as far back as 1820. See Lempke v. Bailey, 41 N.J. 295, 196 A.2d 523 (1963). In its original form, and up until 1949, however, the tolling provision made no specific reference to corporations, Jd. (citing Pennington, Laws of New Jersey, 1703-1820 at 670 (1821). As of 1949, the tolling provi- sion, which thus denied both represented and non-represented for- eign corporations the benefits of New Jersey's statutes of limita- tions, read as follows: If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2, 2:24-3, 2:24-5, 2:24-6, 2:4-16 or 2:24-17 of this title is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the ex- piration of the times limited in said sections, the time or times during which such person is not residing within this state shall not be computed as a part of the periods of time within which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause thereof, within the periods of time limited therefor by said sections, exclusive of such time or times of non-residence. N.J.R.S. §2:24-7. In 1949, the tolling provision was amended to its present form, referring, for the first time, to corporations “represented in this state by any person or officer upon whom summons or other ori- ginal process may be served.” Act of May 18, 1949, 1949 N.]J. Laws, ch. 125 (amending N.J.R.S. §2:24-7) (1937)) (currently codified at N.J.S.A. §2A:14-22) (emphasis added). The legis- (Footnote continued on following page) 8a Appendia A diction could be obtained over a foreign corporation only by serving, within New Jersey, an “officer, director, trustee or a managing or general agent of the corporation.” ® Jn (Footnote continued from preceding page) lative statement accompanying the 1949 amendments to the tolling provision explained this provision as follows: Foreign corporations licensed to do business in New Jersey are now deprived by judicial construction of the benefit of the statute of limitations. The purpose of this bill is to correct that situation. New York State found it necessary to make a similar change in its law in view of recent court decisions. The New York tolling law which is referred to in the legislative statement was N.Y.C.P.A. §19, which had been amended in 1943 so as to include as beneficiaries of the New York statutes of limitations, foreign corporations with “one or more officers or other persons in the state on whom a summons for such corporation may be served.” Act of April 3, 1943, 1943 N.Y. Laws, ch. 263. ®In 1949, the New Jersey rules governing service of process on corporations were as follows: N.J.RS. §2:26-43. Domestic corporations in personal ac- tion, personal or substituted service summons. Service of a summons in a civil action commenced against a domestic corporation in any of the courts of this State may be made by delivering a copy hereof to an officer, director, trustee or a managing or general agent of the cor- poration personally, or by leaving a copy thereof at his dwelling house or usual place of abode with some compe- tent member of his family of the age of fourteen years or over then residing therein, or by delivering a copy thereof (Footnote continued on following page) 9a Appendia A personam jurisdiction over Searle, therefore, could not have been obtained by service on mere detail-persons. 447 F. Supp. at 909-10. Having disposed of this statutory issue, the district court then turned to Searle’s constitutional claims, The court observed that the purpose of the tolling provision, when it was originally enacted and as it was subsequently amended, see note 5 supra, was to protect New Jersey plaintiffs asserting causes of action against corporate de- fendants which were not subject to in personam jurisdic- tion in the New Jersey courts. In light of this purpose, the court concluded that the tolling provision was no longer relevant in cases where the out-of-state defend- ant was now subject to the long-arm jurisdiction of the New Jersey courts—a jurisdictional expansion which, in (Footnote continued from preceding page) to any person authorized by appointment or by law to re- ceive service of process on behalf of the corporation, or by leaving a copy thereof at the registered office of the cor- poration with any person in charge thereof. N.J.R.S. §2:26-44. Foreign corporations. Service of a summons in a civil action commenced against a foreign corporation may be made in the same manner as is provided in section 2:26-43 of the Revised statutes for serv- ice of summons upon a domestic corporation. New Jersey’s rule for long arm service was not promulgated until 1958, N.J. Ct. R.R. 4:4-4(d) (effective September 3, 1958) (presently N.J. Ct. R. 4:4-4(c)). See note 2 supra. It was not until 1971, however, that the New Jersey Supreme Court con- strued the long-arm rule to permit out-of-state service “to the utter- most limits permitted by the United States Constitution.” Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971). 10a Appendia A New Jersy,’ post-dated the 1949 amendment to the toll- ing provision. Therefore, the district court held that the continued application of the tolling provision in cases such as this one served no rational purpose and conse- quently violated the United States constitution. See 447 F. Supp. at 910-12. Both parties appealed from the judgment of the dis- trict court. In No. 79-2605, Searle contends that the dis- trict court erred by concluding that the presence of its detail-persons in New Jersey did not entitle it to the benefit of the statute of limitations. In No, 79-2406, the Cohns argue, contrary to the district court’s holding, that the tolling provision is a rational exercise of the legisla- ture’s prerogative and thus is constitutional. B. In the second appeal before us, Jlopkins v. Nelsey-IHayes, Inc., the plaintiff, Hopkins, was injured on May 18, 1975 when a tire mounted on a rim which had been manufactured by Kelsey-Ilayes exploded, This lawsuit was filed on April 27, 1978, nearly three years after plaintiff's cause of action had accrued. Kelsey-layes is a Delaware corporation, which has never been represented in New Jersey. How- ever, at all times it has been subject to New Jersey’s long- arm jurisdiction. ™The United States Supreme Court sanctioned broad long-arm rules in /nternational Shoe Co. v. Washington, 326 U.S, 310 (1945), when it held that states could exercise in personam jurisdiction over out-of-state defendants with only “certain minimum contacts” with the forum state. Expansive long-arm jurisdiction in New Jersey was not recognized until much later, however. See note 6 supra, lla Appendix A Before a different district court judge than the judge who presided in Cohn v. G, D, Searle, Inc., Kelsey-Hayes claimed the benefit of New Jersey’s two year statute of limitations and moved for summary judgment. Plaintiff responded that the running of the limitations statute was tolled by N.J.S.A. §2A:14-22, see note 4 supra, and that therefore its complaint was not barred. Alternatively, the plaintiff argued that the statute was tolled under New Jersey’s “dis- covery rule,” see Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973), Fernandi v. Strully, 35 N.J. 484, 173 A.2d 277 (1961), under which the statute does not begin to run until the plaintiff has had a reasonable opportunity to “discover” the identity of the person who caused his injury. At the pre-trial stage, Kelsey-Hayes responded only to the plain- tiff’s first argument, It claimed that the tolling provision, when applied to defendants subject to New Jersey’s long- arm jurisdiction, violated the due process and equal protec- tion clauses of the United States constitution. In ruling on Kelsey-Hayes’ summary judgment motion, the district court similarly confined its analysis to the con- stitutionality of the tolling provision. The district court judge in Hopkins expressly disagreed with the constitu- tional holding reached by the district court judge in Cohn v. G. D. Searle, Inc., supra, The Hopkins court concluded that since under New Jersey law, obtaining jurisdiction over non-represented foreign corporations process under the long-arm rule was more difficult than obtaining juvisdie- tion over foreign corporations which were represented in New Jersey, a rational basis existed for distinguishing be- tween these two categories of defendants. Having found that this “rational basis” supported the tolling provision, the district court rejected both defendant’s due process and 12a Appendix A equal protection arguments. J/opkins v. Kelsey-IHayes, Inc., 463 F. Supp. 539, 542 (D.N.J. 1978). Pursuant to 28 U.S.C. § 1292(b), the district court and this court certified Kelsey-Hayes’ interlocutory appeal from the order denying summary judgment. C. Shortly before we heard argument in these cases, counsel called our attention to Velmohos v. Maren Engineering Corp., No. A-72/143 (N.J. Sup. Ct. June 18, 1980), a ease which was at that time pending before the New Jersey Su- preme Court. Velmohos involves the identical issues raised in these appeals. In Velmohos, as in these cases, New Jersey plaintiffs had sued non-represented foreign corporations in tort, and had relied upon the tolling provision in response to a statute of limitations defense. The state defendants in Velmohos raised two arguments against application of the tolling pro- vision, First, they claimed that their amenability to New Jersey’s long-arm jurisdiction constituted sufficient “rep- resentation” within the state to entitle them to a limita- ions defense—in that case, two years. Secondly, they argued that, as applied to them, the tolling provision violated the federal constitution, In an unreported opinion, the state trial court in Velmohos struck down the tolling provision on federal constitutional grounds, adopting the reasoning of the district court in Cohn y. G. D. Searle & Co., supra. This decision was reversed by the Appellate Division of the Su- perior Court, which held that the tolling provision was ra- tional and was thus constitutional, 168 N.J. Super. 520 (App. Div. 1979). 13a Appendix A Notwithstanding the pendency of the Velmohos appeal before the New Jersey Supreme Court, we heard arguments on the merits in the appeals before us. Nevertheless, ree- ognizing that certain holdings of the New Jersey Supreme Court would have binding effect upon us," and at the sugges- tion of all the parties, we agreed to withhold decision in these cases pending the decision in Velmohos, On June 18, 1980 the New Jersey Supreme Court filed its opinion in Velmohos, affirming the Appellate Division, Vel- mohos v. Maren Engineering Corp., No. A-72/143 (NJ. Sup, Ct. June 18, 1980). The court, in construing the New Jersey statute which provides for tolling, held that a for- eign corporation’s mere amenability to New Jersey's long- arm jurisdiction did not constitute suflicient “representa- tion” of that corporation in New Jersey to prevent the toll- ing of the statute of limitations, /d., slip op. at 17, In so holding, the New Jersey Supreme Court reasoned that the “language [of the tolling provision] must be interpreted from the intent of the Legislature at the time of enactment.” Id., slip op. at 15, At the time the tolling provision was en- acted, the concept of “representation” within New Jersey, as that term is used in the tolling provision, could not have included amenability to long-arm jurisdiction, because long- arm jurisdiction did not then exist. See notes 6 and7 supra. Thus, the court reasoned that incorporating the judicial ex- pansion of long-arm jurisdiction into its interpretation of *’Any construction of the New Jersey tolling provision by the state’s highest court would, of course, be binding upon us. Simi- larly, we would be bound if the New Jersey Supreme Court struck down the provision on state constitutional grounds, However, any decision of the New Jersey Supreme Court on federal constitu- tional grounds is not binding upon us. lda Appendia A the tolling provision would be accepting the argument that “a Rule of Court can act as an implied, partial repeal of a legislative enactment.” This the Supreme Court of New Jersey refused to do, Velmohos, supra, slip op. at 16. Having thus disposed of the defendants’ statutory argu- ments,” the Velmohos court then proceeded to consider and, after consideration, to reject the constitutional chal- lenges to the tolling provision, The court concluded that the existence of long-arm jurisdiction did not destroy the rationality of the tolling provision, observing that extra- territorial service is far more difficult to achieve than service within the state, /d., slip op. at 23.'° Since Velmohos has been decided and we have received comments from the parties, we now turn to the issues presented to this court. We conclude that the defendants in both cases are subject to the New Jersey tolling pro- vision and that the tolling provision does not violate the fourteenth amendment of the United States constitution. ® Two justices dissented from the majority opinion in Velmohos. They would have construed the tolling provision as inapplicable to corporations which are amenable to long-arm jurisdiction, Conse- quently, they did not reach the constitutional questions. See Vel- mohos v. Marne Engineering Corp., supra (Sullivan, J. dissenting, joined by Handler. J.) 10©The New Jerscy Supreme Court observed that, had the statute been attacked under the New Jersey state constitution, its analysis and result would have been no different. Velmohos, supra, slip op. at 18-19 n.12, The first step in our analysis of the merits of these ap- peals has been facilitated, to a great extent, by the opin- ion of the New Jersey Supreme Court in Velmohos, For after Velmohos, a corporation whose only “presence” in New Jersey is that it is amenable to the state’s long- arm jurisdiction, clearly cannot argue that under the toll- ing statute it is “represented” in New Jersey so as to obtain the benefit of New Jersey’s limitations statute.’ In Kelsey-llayes, this holding settles the statutory issue, en- abling us to proceed directly to the constitutional question, because Aelsey-Iayes, the corporate defendant in that case, had no other “presence” in New Jersey apart from its amenability to long-arm jurisdiction, In Searle, however, the statutory issue has not been completely resolved by Velmohos in light of the presence of Searle’s detail-persons in New Jersey. The district court in Searle ruled that the existence of these detail- persons did not preclude the operation of the tolling stat- ute, and Searle’s appeal from that ruling is the subject of No, 79-2605. Although it has not expressly decided the issue before us, we are convinced from the Velmohos opinion, that the New Jersey Supreme Court would simi- Many other state courts have construed their tolling provisions differently, so that out-of-state defendants amenable to long-arm jurisdiction would be exempt from the tolling rule. See generally Annot., Tolling of Statute of Limitations During Absence from State as Affected by Fact that Party Claiming Benefit of Limitations Re- mained Subject to Service During Absence or Nonresidence, 55 A.L.R.3d 1158. As the Velmohos majority points out, however, those cases involved different statutory language than the New Jersey tolling provision, See Velmohos, supra slip op. 14 & 14n8 léa Appendix A larly conclude that Searle's detail-persons are not the “representatives” contemplated within the tolling provi- sion, As previously indicated, in Velmohos, the New Jer- sey Supreme Court emphasized that the language of the tolling provision “must be interpreted from the intent of the Legislature in light of the circumstances at the time of enactment.” Velmohos, supra, slip op, at 15. At the time the tolling provision was amended to refer to corpo- rations which were “represented” in New Jersey, see note 5 supra, personal service upon minor functionaries such as Searle's detail-persons would not have sufliced to ob- tain jurisdiction over foreign corporations. Jn personam jurisdiction over foreign corporations could only have been obtained by service upon officers or duly appointed agents of the company, See NwJ.S.A, §2:26-44 (repealed) (quoted in note 6 supra); Porcelli vy. Great Atlantic & Pacific Tea Co., 128 N.J.L. 608, 27 A2d 641 (Sup. Ct. 1941); cf. N.J. Ct. R. 4:4-4(¢) (1); Wright v. News Syndr- cate Co., 35 N.J.Super. 1383, 118 A.2d 215 (1955) (service on “any servant of the corporation” within New Jersey appropriate under current rules), Thus, the New Jersey legislature could not have intended that individuals such as Searle’s detail-persons could obtain the benefits of the limitations statutes for their companies, particularly since the detail-persons had only a minimal affiliation with Searle and could not, at the time tolling provision was enacted, have subjected Searle to in personam jurisdiction in New Jersey. Moreover, it is significant, as the New Jersey Supreme Court noted, see Velmohos, supra, slip op. at 15, that the tolling provision speaks of individuals who “represent,” 17a Appendix A rather than just “act” for, the foreign corporation in New Jersey. By contrast, the applicable court rules of service speak only of “servants” who merely “act” in New Jer- sey. See N.J. Ct.R. 4:4-4(¢)(1). It appears to us, there- fore, that the statutory tolling provision contemplates a much more significant corporate figure or presence—one capable of “representing” the corporation—than does the service rule. This higher standard which requires “repre- sentation” in New Jersey before a foreign corporation can receive the benefits of the limitations statutes, comports with the original purpose of the tolling rule: to permit plain- tiffs who have causes of action against foreign corporate defendants which are not represented in New Jersey, to maintain the viability of their actions despite the passage of time. Moreover, this purpose is consistent and compat- able with New Jersey’s policy of liberally construing limi- tations statutes so as to preserve, whenever possible, a plaintiff’s opportunity to litigate his claim on the merits. See Velmohos, supra, Galligan vy. Westfield Centre Service, Inc., 82 N.J. 188, 412 A.2d 122 (1980). Therefore, in light of its own statutory analysis, we are satisfied that the New Jersey Supreme Court, if faced with this question, would hold that Searle’s detail-per- sons do not constitute “representation” of Searle in New Jersey, sufficient to provide New Jersey’s limitations pro- tections to Searle. To the contrary, we are convinced that the New Jersey Supreme Court would hold, and conse- quently we hold, that Searle’s detail-persons do not exempt it from the tolling provision. Accordingly, unless the toll- ing provision is unconstitutional, and we conclude that it is not, the limitations statute will not bar the plaintiffs’ claims against the defendants in both cases before us. 18a Appendix A B. Thus, there remains for consideration only the constitu- tional challenges made here to the tolling provision. The defendants concede that the tolling provision does not implicate any fundamental interest or suspect classifica- tion.’* In these circumstances, we ordinarily afford great leeway to legislative judgments. As we recently stated: 12 Indeed, this concession would seem to be compelled by Cemp- bell v. Holt, 115 U.S. 620 (1885) where the Supreme Court held that repeal of a statute of limitations as to debts which had already been barred did not implicate the fourteenth amendment rights of the debtor. In reaffirming Campbell, some 60 years later, the Court, speaking through Justice Jackson, stated: Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent ex- pedients, rather than principles. They are practical and prag- matic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349. They are by definition arbitrary, and their operation does net discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation." They repre- sent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. He may of course, have the protection of the policy while it exists, but the history of pleas of limita- tion shows them to be good only by legislative grace and to be subject to a relatively large decree of legislative control. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (footnote omitted). Thus, it is clear that the defendants have no “right” to protection of the statute of limitations. Their only claim can be that the state legislature acted irrationally, under the circum- stances, by denying them the benefit of the limitations statute. 19a Appendix A In reviewing a state statute or constitutional provision under the due process or equal protection clause, a court must determine if the provision ra- tionally furthers any legitimate state objective. “For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision. . . .” Flemming v. Nestor, 363 U.S. 603, 612 (1960). The court may even hypothesize the motivations of the state legisla- ture to find a legitimate objective promoted by the provision under attack. See Weinberger v. Salfi, 422 U.S. 749, 780 (1975); Williamson v, Lee Optical Ine., 348 U.S. 483, 487-90 (1955) ; Trafelet v. Thomp- son, 594 F. 2d 623, 626 (7th Cir.), cert. denied, —— US. , 48 U.S.L.W. 3239 (Oct. 1, 1979). Malmed vy. Thornburgh, No. 79-2467, slip op. at 7, (3d Cir. May 13, 1980) (Aldisert, J.) (emphasis in original). Thus, the defendants challenging the constitutionality of the tolling provision have the difficult burden of demon- strating that the provision cannot “rationally further[ ] any legitimate state objective.” Id. In seeking to meet this burden, the defendants argue that the tolling provision violates the constitution be- cause it is overprotective.” They argue that the purpose 18\Vhen no fundamental interests or suspect classifications are involved, both “underinclusive’ and “overinclusive’” statutes are subjected to the same “minimum rationality” test. Nevertheless, it has been argued that “overinclusive” or overprotective statutes present even less need for judicial action than statutes which are “underinclusive” in their regulatory sweep. (Footnote continued on following page) 20a Appendia A of the tolling provision was to protect New Jersey plain- tiffs who could not obtain in personam jurisdiction over out-of-state defendants.* ‘lhe defendants contend that the tolling provision is no longer relevant or needed to promote this interest in cases where an out-of-state corporate defendant is amenable to New Jersey’s long- arm jurisdiction. In such cases, they contend the plain- tiffs may assert their causes of action and serve their complaints upon non-represented foreign corporate defend- ants in the same fashion as they serve domestie corpora- (Footnote continued from preceding page) “Overinclusiveness,” a second variant of legislative ap- proximation for which a classification may be overturned,'® poses less danger than underinclusiveness, at least from the viewpoint of political accountability, for overinclusiveness does not exempt potentially powerful opponents from a law’s reach. L. Tribe, American Constitutional Law, 999 (1978). (Footnote omitted). 4 Tn a technical sense, this appears to be an over-simplification. In 1949, the tolling provision was amended to exempt foreign cor- porations “represented in this state by any person or officer upon whom summons ... may be served... .” Four years earlier, how- ever, the Supreme Court had greatly expanded the states’ jurisdic- tional powers over out-of-state defendants, permitting the state courts to exercise in personam jurisdiction over out-of-state defend- ants with “certain minimum contacts” with the forum state. /nter- national Shoe Co. v. Washington, 326 U.S. 310 (1945). Thus, at the time the tolling provision was last amended, New Jersey plaintiffs could have constitutionally obtained service on foreign cor- porations who did not have “representatives” in the state. The New Jersey courts did not recognize the full expanse of long-arm jurisdiction until much later, however. See Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971) ; notes 6 and 7 supra. 2la Appendiz A tions or foreign corporations “represented” in New Jer- sey. Thus, they claim that the extra protection provided New Jersey plaintiffs by the tolling provision, is unneces- sary and arbitrary in light of the original purpose of the tolling provision. Being arbitrary, they contend the statute is therefore unconstitutional. The defendant’s argument overiooks the fact that the tolling provision must be upheld if it “rationally furthers any legitimate state objective,” without regard to whether the legislature specifically focused on that objective. Mal- med v. Thornburgh, supra. In this case, at least one such legitimate objective is readily apparent: the tolling pro- vision eases the burdens upon New Jersey plaintiffs prose- cuting lawsuits against out-of-state defendant corporations which are not represented in New Jersey and which, in a great many instances, are difficult to locate and to serve, despite the availability of the longarm rule. The New Jersey Court Rules, by their very terms, make clear that long-arm service may be utilized only as a last resort. They provide that service may be made [u] pon a domestic or foreign corporation, by serving ... either an officer, director, trustee, or managing or general agent; or any person authorized by ap- pointment or by law to receive service of process on behalf of the corporation; or the person at the registered office of the corporation in charge there- of. If service cannot be made upon any of the fore- going, then it may be made upon the person at the place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then upon any servant of the corporation within this State acting in the discharge of his duties. Jf it appears by affidavit of plaintiff’s at- 22a Appendia A torney or of any person having knowledge of the facts that after diligent inquiry and effort personal service cannot be made upon any of the foregoing and if the corporation is a foreign corporation, then, consistent with due process of law, service may be made by mailing, by registered or certified mail, re- turn receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office. N.J. Ct.R. 4:4-4(c)(1) (emphasis added). Moreover, Justice Pashman in writing for the New Jer- sey Supreme Court in Velmohos emphasized the special burdens which inhere in achieving long-arm service: Under our rules, extra-territorial service is not sim- ply an alternative to service within the State. Plain- tiffs may not resort to out-of-state service unless proper efforts to effect service in New Jersey have failed. The rule imposes a further burden on a plaintiff by requiring him to gather sufficient in- formation to satisfy a court that service is “consist- ent with due process of law.” Velmohos, supra, slip op. at 23. Since long-arm service is more difficult to achieve than service within the state, it is not irrational for New Jersey to distinguish between two classes of foreign corporations. Those foreign corporations which are represented in New Jersey, and are thus more readily available to plaintiffs, are afforded limitations protections. On the other hand, the limitations statutes are tolled against foreign corpora- 23a Appendix A tions which are not represented in New Jersey and thus are not as available to New Jersey plaintiffs. This distine- tion betwen represented and non-represented foreign cor- porations reflects the pragmatic difficulties which may be encountered by plaintiffs suing foreign corporations. Since service of process under the long-arm statute is more diffi- cult and time-consuming to achieve than service within the state, and since out-of-state, non-represented corporate de- fendants may be difficult to locate let alone serve, tolling the statute of limitations protects New Jersey plaintiffs and facilitates their lawsuits against such defendants. Because the tolling provision fulfills the legitimate state purpose of easing the special burdens of suits against non- represented foreign corporations, we cannot say that the distinction which it recognizes is irrational.” In arguing against the constitutionality of the tolling provision, the defendants attempt to distinguish between the service of a complaint and the filing of a complaint. They point out that, under New Jersey practice, a plaintiff can © Although many courts have construed state tolling statutes so as to exempt individuals who are subject to service of process in the state, sce note 10 supra, no court, other than the district court in Cohn v. Searle, supra, has concluded that such a result was man- dated by the constitution. In fact, in Vaughn v. Deitz, 430 S.W.2d 487 (Sup. Ct. Tex. 1968), the Texas Supreme Court specifically upheld the Texas tolling statute against a constitutional argument identical to that raised here. Moreover, in Bauserman v. Blunt, 147 U.S. 647 (1893), the Su- preme Court gave effect to a Kansas statute which tolled the statute of limitations in an action against an out-of-state defendant who was nevertheless subject to service in the state. Although Bauserman did not discuss the constitutional issue, the court implicitly recog- nized the constitutionality of this type of tolling provision. 24a Appendia A file a “John Doe” complaint, and thereby stop the running of the statute of limitations without having served the de- fendant with process. See N.J. Ct.R, 4:4-1 (summons must be served within 10 days of filing a complaint or action may be dismissed on defendant’s motion). This procedure, they argue, enables a plaintiff to preserve his complaint against a statute of limitations defense, notwithstanding any later difficulties encountered in serving process. Because of this procedure, the defendants contend that the protection af- forded by the tolling provision is superfluous and that the tolling provision is thus arbitrary, irrational and, conse- quently, unconstitutional. We are not persuaded by the defendants’ argument, In the first instance, the protection afforded plaintiff by the “John Doe” procedure is imperfect, at best. Complaints filed in this manner are subject to dismissal after six months on the court’s own motion, unless the plaintiff, by proving his diligence, can convince the court to retain the ease on the docket. N.J.Ct.R. 1:13-7, We do not believe that, given their crowded calendars, the state courts would permit a “John Doe” complaint to remain on the docket for a lengthy or indefinite period of time. Thus, the “John Doe” proced- ure does not, in fact, afford New Jersey plaintiffs the same protection as the tolling provision. Furthermore, the de- fendants’ argument suffers from a more basie flaw. Even if the tolling provision could be considered superfluous in light of the “John Doe” procedure, this would not necessar- ily lead to our holding that the tolling provision is arbitrary or irrational. Nothing in law or logie prevents the New Jersey legislature from providing New Jersey plaintiffs with a mechanism for relief from the burdens of suits against non-represented foreign corporations which is addi- tional to any mechanism found in the Court Rules. 25a Appendiz A Accordingly, since we find that N.J.S.A. §2A :14-22 has a rational foundation, and recognizing that rationality is the test for both due process and equal protection challenges in this context, see Malmed v. Thornburgh, supra, we reject the defendants’ constitutional attacks on the statute. III. We therefore hold that the foreign corporate defendants in these cases, not being represented in New Jersey, are subject under New Jersey law to New Jersey’s tolling pro- vision, which we hold to be constitutional. Thus, in these cases, defendants may not claim the protection of the stat- ute of limitations. In light of our conclusion, the interloeu- tory order of the district court which denied summary judg- ment in Hopkins v, Kelsey-Hayes, ut No. 79-1881, will be affirmed, and the order of the district court in Cohn v. G. D. Searle, at Nos. 79-2406 and 79-2605, entering judgment for the defendant will be reversed. Each case will be remanded to the particular district court for further proceedings. Costs in each case will be taxed against the respective de- fendant. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 26a APPENDIX B Judgment of the United States Court of Appeals for the Third Circuit UNITED STATES COURT OF APPEALS For tue Tuirp Circuit ». > No. 79-1881 ROY HOPKINS vs. KELSEY-HAYES, INC., Appellant (D. C. Civil No. 78-1646) Nos. 79-2406 and 79-2605 SUSAN COHN and WALTER R. COHN, her husband, Appellants in No. 79-2406 vs. G. D. SEARLE & COMPANY, Appellant in No. 79-2605 (D. C. Civil No. 74-0450) On APPEAL FROM THE Unitep States Districr Court FOR THE District or New JERSEY > ~~ 27a Appendix B Present: Apams, Van Dusen and Gartu, Circuit Judges JUDGMENT These causes came on to be heard on the records from the United States District Court for the District of New Jersey and were argued by counsel on February 11, 1980. On consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said District Court, filed April 27, 1979 and appealed at our No. 79-1881, be, and the same is hereby affirmed, and the judgment of the said District Court filed August 6, 1979 and appealed at our Nos. 79-2406 and 79-2005, be, and the same is hereby reversed, and the causes are remanded to the particular District Court for further proceedings eon- sistent with the opinion of this Court. Costs in each case are taxed against the respective defendant. ATTEST: Tomas Quinn Clerk July 23, 1980 28a APPENDIX C Opinion of the United States District Court for the District of New Jersey Re: Cohn v. G. D. Searle & Company UNITED STATES DISTRICT COURT For rue District or New Jersey Civ. A. No, 74-450 March 22, 1978 Susan Coun and Watrer Conn, her husband, Plaintiffs, Vv. G. D. Searte & Company, Defendant. Walter R. Cohn, Newark, N. J., for plaintiffs. Shanley & Fisher by Raymond M. Tierney, Jr., Robert L. Dughi, Newark, N. J., for defendant. OprInion Meanor, District Judge. This matter comes before the court on defendant’s mo- tion for summary judgment. For reasons stated herein- after, the issues presented by this motion will be treated 29a Appendix C in two stages. This first opinion is addressed to the ques- tion whether the defendant is entitled to the benefit of the statute of limitations. The resolution of the issue turns on the construction and application of the New Jersey toll- ing statute to a foreign unlicensed corporate defendant which, from the time of the occurrence of the injury alleged in the instant complaint, had no formal presence within New Jersey yet remained amenable to long-arm service. If it is determined that the defendant has available to it the defense of the statute of limitations, then it will be necessary to decide whether the plaintiffs are entitled to the “discovery” exception to strict application of the stat- ute. Plaintiffs Susan and Walter Cohn have brought this suit against G. D. Searle & Co. (hereinafter “Searle”), the manufacturer of the oral contraceptive Enovid, for per- sonal injury and per quod damages allegedly resulting from Mrs. Cohn’s use of the drug. Mrs. Cohn commenced taking the contraceptive in the spring of 1963 and con- tinued its use until December 22, 1964. On that date she suffered a stroke, or cerebral vascular accident (C.V.A.), when a blood clot lodged in the circulatory system of her brain. The C.V.A. required surgery, long hospitalziation and rehabilitative therapy and resulted in permanent physi- eal injury. From the sparse information before me at this time it ap- pears that in 1964 little or nothing was known about poten- tial coagulant side effects of oral contraceptives. However, from at least 1966 the medical literature and the lay press increasingly reported work which sugzested a relationship between oral contraceptives and abnormal blood clotting. Sometimes between 1966 and late 1973 the Cohns became 30a Appendix C aware of the possible linke between Mrs. Cohn’s C.V.A. and ingestion of Enovid. They initiated suit against Searle on January 29, 1974. Their complaint, predicated on theories of negligence, breach of warranty, statutory violations and strict liability, was filed in the Superior Court of New Jer- sey, Law Division, Bergen County. Service was effected on Searle under the long-arm rule. On April 1, 1974 the case was removed to this court pursuant to 28 U.S.C, § 1441. Jurisdiction is vested under 28 U.S.C, § 1332. At all times relevant to this action the plaintiffs have been residents of New Jersey. Searle is a Delaware corporation with its principal place of business in Liiinois. Prior to De- cember 30, 1960 Searle was registered to do business in New Jersey, but on that date it formally withdrew from the state. However, from 1964 to 1974, the period between Mrs, Cohn’s C.V.A. and the filing of the instant complaint, Searle re- tained in its employ some four dozen persons known as Medical Service Representatives or “detailmen” who worked and, in most cases, resided in New Jersey. The func- tion of these detailmen was to call on physicians to discuss Searle’s pharmaceutical products. Searle moves for summary judgment on grounds that plaintiffs’ cause of action is time-barred undere the rele- vant two-year statute of limitations, N.J.S.A. 2A:14-2 (1952). Searle acknowledges that plaintiffs may have some relief from the strict two-year limit under the New Jersey “discovery” rule. Fernandi v. Strully, 35 N.J. 434, 173 A. 1N.J.S.A. 2A:14-2 provides: Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within his state shall be commenced within 2 years next after the cause of any such action shall have accrued. 3la Appendix C 2d 277 (1961); Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). Nevertheless, Searle asserts that the Cohns had reason to know of the cause of action against Searle no la- ter than 1970, and, therefore, their claims are precluded. [1] Plaintiffs respond that their action is timely because the causal relationship between contraceptives and clotting was not definitively demonstrated until late 1973, and that in any case the New Jersey tolling statute, N.J.S.A, 2A: 14-22 (1952),? deprives Searle of the statute of limitations because Searle is a foreign corporation not represented with- in the state by “any person or officer” upon whom process 2N.J.S.A. 2A:14-22 provides: If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A :14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may com- mence the same after the accrual of the cause thereof, within the period of time limited thereof by said section, exclusive of such time or times of nonresidence or nonrepresenta- tion. 32a Appendix C could be served within the meaning of the tolling statute. Searle retorts that the tolling statute is inapplicable be- cause Searle was effectively represented within the state by its detailmen, or alternatively, by virtue of the fact that from the date of the C.V.A. onward it was subject to New Jersey long-arm jurisdiction. Finally, if the tolling statute, as interpreted by the New Jersey courts, is deemed to apply to a foreign corporation amenable to long-arm service, Searle asserts that the statute as applied violates the equal protection and due process clauses of the United States Constitution. Thus, the questions presented by this motion are whether Searle is entitled to the benefit of the statute of limitations, and if so, whether the plaintiffs’ action is timely upon application of the “discover, ” rule even though the instant complaint was filed over nine years after the in- jury to Mrs. Cohn. I shall consider the statute of limita- tions issue here. Because I find Searle is entitled to a stat- ute of limitations defense, I must reach the second question, but I leave it for another day.’ 8 The parties are still negotiating over the terms of a submission, if necessary, on the discovery issue. In the New Jersey courts resolution of that issue would take place without a jury, Lofez v. Swyer, supra, but here jury trial exists as a matter of right. Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976). I understand that the parties are willing to submit the discovery question to me on the existing written record without an evidentiary hearing and, of course, without jury trial. I am willing to accept it on that basis. However, I am informed that the defendant seeks to exact from the plaintiffs an agreement that any facts found as a result of such a submission of the issue be reviewed on ap- peal by the “clearly erroneous” standard of Rule 52{a), F.R.Civ.P., rather than to permit the Court of Appeals to review such fact determinations without the constraints of the clearly erroneous standard. See Government of Virgin Islands v. Gereau, 523 F.2d 140, 145-146 (3d Cir. 1975). 33a Appendiz CU [2-5] At the heart of the issue of whether Searle has a statute of limitations defense is the construction and ap- plication of the tolling statute. N.J.S.A. 2A :14-22 provides in relevant part: If any person against whom there is any of the causes of action specified in section 2A :14-1-5 and 2A: 14-8... is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation ... not organized under the laws of this state, against whom there is such a cause of action, is not repre- sented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person... is not residing within this state or such corporation ... is not so represented within this state shall not be com- puted as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may com- mence the same after the accrual of the cause there- for, within the period of time limited therefor by said section, exclusive of such time or times of non- residence or nonrepresentation. (Emphasis supplied.) The statute exempts from its effect foreign corporations represented in the state by “any per- son or officer” upon whom process may be served. It is undisputed that Searle has had no statutory or ap- pointed agent in New Jersey at any time from the date of 34a Appendix C Mrs. Cohn’s C.V.A, Nevertheless, Searle first argues that it is within the foreign corporation exception because it was represented by detailmen who are “persons or officers” with- in the meaning of the tolling statute. The rules pertaining to service on foreign corporations from the date of Mrs. Cohn’s injuries are R.R. 4:4-4(d) (effective Sept. 3, 1958) and its successor R. 4:4-4(c)(1) (effective Sept. 8, 1969) (current version). Searle notes that under these rules jur- isdiction may be obtained over a foreign corporation “by serving... any servant of the corporation within this State acting in the discharge of his duties.” Searle argues that the tolling statute must be construed to be consistent with the service rules during the time period relevant to this action, and since personal jurisdiction could have been ob- tained over Searle by serving a detailman in the discharge of his duties, representation by detailmen during the period was sufficient to stay the tolling of the statute of limita- tions, Searle’s argument is not persuasive for two reasons. First, Searle’s proposed construction of the foreign cor- poration exception to the tolling statute is inconsistent with the manifest purpose of the statute itself. That enact- ment was intended to protect plaintiffs in New Jersey courts* by preserving their causes of action where ser- *The courts of New Jersey have found that the tolling statute operates to the benefit of residents and nonresident plaintiffs whose causes of action have accrued within the state. Govan v. Trade Bank & Trust Co., 109 N.J.Super. 271, 263 A.2d 146 (App.Div. 1970); Marsh v. Davis, 99 N.J.Super. 130, 238 A.2d 709 (Law Div. 1968). However, in a subsequent opinion which failed to mention Govan the Third Circuit has held that the tolling statute protects only New Jersey residents. Zelson v. Thomforde, 428 F.2d 1360 (3d Cir. 1970). Sha Appendix C vice could not be had upon a defendant on account of absence from the state. Lemke vy. Bailey, 41 N.J. 295, 303, 196 A.2d 523 (1963) (Schettino, J., dissenting) ; Ferraro v. Ferro Trucking Co., 72 N.J.Super. 519, 524, 179 A.2d 74 (Law Div. 1962). Searle’s detailmen operated out of their homes because Searle had no office within this state. They reported to Searle’s office in Skokie, Illinois. Their fune- tion was to talk to New Jersey doctors about Searle’s products to advertise them and generate good will for the company. Searle does not assert that they had any power to make contracts or place orders. Thus, the detailmen had minimal association with Searle in the public eye and had very limited authority to act on behalf of the com- pany. It is inconceivable, in light of the purpose of the tolling statute, that the legislature intended to give the benefit of the statute of limitations to a foreign corporate defendant whose only representation within the state was by employees so invisible as these. The second reason that Searle’s rationale is not convine- ing is that it incorporates into the tolling statute changes in the law which were made after the act’s passage. Nar- rowly drawn statutory language must be interpreted from the intent of the legislature in light of circumstances at the time of enactment. 2A Sutherland, Statutory Construction § 49.02 (4th Ed. 1973). “A new meaning may not be given the words of an old statute in consequence of changed con- ditions probably not foreseen by the Legislature.” F'i- delity & Deposit Co. of Maryland vy. Abaguale, 97 N.I. Super. 132, 143-44, 284 A.2d 511, 518 (Law Div. 1967). The present tolling statute has its origins in an enactment of the Council and General Assembly of New Jersey on February 21, 1820. The foreign corporations exception was 36a Appendia C added by amendment in 1949.5. The only legislative his- tory relating to the 1949 amendment is the introduction statement of the bill’s sponsor, Assemblyman Mackey, which provides: Foreign corporations licensed to do business in New Jersey are now deprived by judicial construction of the benefit of the Statute of Limitations. The pur- pose of this bill is to correct that situation. New York State found it necessary to make a similar change in its laws in view of recent court decisions. The import of this statement of legislative purpose is far from unambiguous, but it sheds some illumination on the phrase “any person or officer” as used in the tolling statute. An understanding of Mackey’s introductory statement requires an analysis of the New York law to which it re- fers. In 1949 New York’s tolling statute was C.I.A. § 19, which had most recently been amended in 1943. Before 1943, § 19 had included an exception® fiem the tolling 5 Act of May 18, 1949, 1949 N.J.Laws, ch. 125 (amending N.J.R.S. 2:24-7 (1937); current version at N.J.S.A. 2A:14-22). ® Before 1943 C.P.A. § 19 provided in pertinent part: But this section does not apply while a designation made in pursuance of law of a resident of the state on whom a sum- mons may be served for another person or corporation re- mains in force. Nor does this section apply while a foreign corporation has had or shall have one or more officers in the state on whom a summons for such corporation may be served, N.Y.C.P.A. § 19 (1920), as amend by Act of Apr. 5, 1928, 1928 N.Y.Laws, ch. 809 (current version at N.Y.Civ.Prac.Law (McKin- ney) § 207 (1972)). 37a Appendix C statute for persons or corporations with a designated agent for the service of process and foreign corporations with officers who might be served within the state. The 1943 amendment’ to § 19 enlarged the exception to inelude per- sons or corporations with agents for service of process designated by statute or appointment and foreign corpora- tions with “officers or other persons” who might be served. The revision notes appended to the amendment indicate that the foreign corporation exception was broadened to include persons besides officers who were servable pursu- ant to C.P.A. § 229. At that time, C.P.A. § 229,° governing 7The amendment provided in pertinent part: But this section does not apply in either of the follow- ing cases: 1. while a designation or appointment, voluntary or in- voluntary, made in pursuance of law, of a resident or nonresident person, corporation, or private or public officer on whom a summons may be served within the state for another resident or nonresident person or corporation with the same legal force and validity as if served personally on such person or corporation within the state, remains in force. 2. while a foreign corporation has had or shall have one or more officers or other persons in the state on whom a summons for such corporation may be served. Act of Apr. 3, 1943, 1943 N.Y.Laws, ch. 263. 8C.P.A. § 229 at that time provided in pertinent part: When any natural person or persons not residing in this state shall engage in business in this state, in any action against such person or persons arising out of such business, the summons may be served by leaving a copy thereof with the complaint with the person who, at the time of service, is in charge of any business in which the defendant or de- fendants are engaged within this state... .. Act of Apr. 15, 1941, 1941 N.Y.Laws, ch. 455, amending N.Y. C.P.A. § 229 (1920) (repealed 1962). 38a Appendix C service on nonresidents engaging in business in New York State, permitted service on the person in charge of any business in which the defendant was engaged within the state. Interpreting the language of the 1943 amendment to C.P.A. § 19 in light of C.P.A. § 229, it appears that at most the amendment broadened New York’s foreign corpo- ration exemption to include companies represented within the state by statutory or appointed agents, oflicers or busi- ness managers. Since the New Jersey Legislature in- tended in 1949 to adopt a tolling exemption similar to New York’s, the New Jersey Legislature could not have in- tended that an employee with no managerial authority, such as a detailman, could be a representative sufficient to bring a foreign corporation out of the tolling statute.® ® Mackey’s introductory statement to the 1949 amendment to the New Jersey tolling statute indicated that New York had amended its tolling statute in a similar fashion in response to recent court decisions. Research has disclosed no significant cases prior to 1943 regarding persons through whom a foreign corporation might be served. However, section 1 of the 1943 amendment to C.P.A. § 19, n. 5 supra, was adopted specifically to alter the rule of Maguire v. Yellow Taxicab Corp., 253 A.D. 249, 1 N.Y.S.2d 749, rehear- ing denied, 253 A.D. 890, 2 N.Y.S.2d 1021, aff'd mem., 278 N.Y. 576, 16 N.E.2d 110 (1938), which held that amenability to process through the Director of Motor Vehicles did not exempt a non- resident defendant from the tolling statute. These facts suggest that the New Jersey Legislature may well have intended that repre- sentation by a statutory agent within the state would be sufficient to satisfy the tolling statute’s foreign corporation exemption. See Ferraro v. Ferro Trucking Co., 72 N.J.Super. 519, 179 A.2d 74 (Law Div. 1962). But see Whalen v. Young, 28 N.J.Super. 543, 101 A.2d 64 (Law Div. 1953), reversed on other grounds, 15 N.J. 321, 104 A.2d 678 (1954); Lackovic v. New England Paper Tube Co., Inc., 127 N.J.Super. 394, 317 A.2d 426 (Law Div. 1974). Cf. Lemke v. Bailey, supra. 39a Appendix CU This conclusion is strengthened by reference to the law in New Jersey regarding service on foreign corporations at the time of enactment of the New Jersey foreign cor- poration exemption. In 1948, a year before the tolling statute amendment, the legislature amended N.J.R.S, 2:26- 43 and 44'° providing for service on corporations. Those amendments permitted acquisition of personal jurisdiction over foreign corporations by service on an oflicer, director, trustee, managing or general agent or agent by appoint- ment or by law for the service of process. A detailman with minimal agency powers could not be considered a 1°The 1948 amendment to N.J.R.S. 2:26-43 and 44 (1937) (repealed 1951) provided: 2:26-43. Domestic corporations in personal actions; per- sonal or substituted service of summons. Service of a summons in a civil action commenced against a domestic corporation in any of the courts of this State may be made by delivering a copy thereof to an officer, di- rector, trustee or a managing or general agent of the cor- poration personally, or by leaving a copy thereof at his dwell- ing house or usual place of abode with some competent member of his family of the age of fourteen years or over then residing therein, or by delivering a copy thereof to any person authorized by appointment or by law to receive serv- ice of process on behalf of the corporation, or by leaving a copy thereof at the registered office of the corporation with any person in charge thereof. 2:26-44. Foreign corporations. Service of a summons in a civil action commenced against a foreign corporation may be made in the same manner as is provided in section 2:26-43 of the Revised Statutes for service of summons upon a domestic corporation. Act of Sept. 10, 1948, 1948 N.J.Laws, ch. 356, 40a Appendix C managing or general agent, nor any other individual with- in the statutory list. Since in 1949 personal jurisdiction over a foreign corporation could not have been obtained by serving a detailman, the legislature could not have intended an exemption from the tolling provision for an entity represented by snch an employee. Searle urges that N.J.S.A. 2A :14-22 be interpreted as consistent with the rule regarding service of process at the time of plain- tiff’s injury. Such an approach would be inappropriate, however, since the reach of service was substantially expanded in 1953, Wright v. News Syndicate Co., Inc., 35 N.J. Super. 133, 135, 1138 A.2d 215 (Law Div. 1955), a change which the legislature could not have anticipated in 1949, [6, 7] Searle next takes the position that because Searle was at all times relevant to the instant complaint amenable to long-arm service," it was represented within the state within the meaning of the tolling statute. The effect of amenability to long-arm jurisdiction on N.J.S.A, 2A:14-22 is a novel question heretofore not considered by the courts. A number of courts have considered the construction of the New Jersey tolling provisions in light of a defend- ant’s amenability to service through the Director of Motor Vehicles under the nonresident motorist statute, N.J.S.A. 11 New Jersey does not have a long-arm statute under the New Jersey Constitution of 1947, the Supreme Court has exclusive rule- making power over practice, procedure and administration of the courts. Winbery v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950), From 1963 to 1974, long-arm service was available over Searle pur- suant to the court rules. R.R. 4:4-4(d) (effective Sept. 3, 1958) ; R. 4:4-4(c) (1) (effective Sept. 8, 1969) (current version). 4la Appendix C 39:7-2 (1973)."* In the leading case, Lemke v. Bailey, supra, the New Jersey Supreme Court held that the tolling statute deprived a nonresident individual defendant of the benefit of the statute of limitations even though the de- fendant had been subject to service pursuant to N.J.S.A. 39:7-2. Searle argues that Lemke should not be considered controlling here because the Supreme Court specifically reserved the question of the effect of availability of sub- stituted service upon a corporate defendant, and, in any case, there the court relied heavily on legislative acquies- cence in, and plaintiffs’ reliance on, prior court inter- pretation of the relationship between 2A :14-22 and 39:7- 22 and 39:7-2, which consideration would be irrelevant to the novel question here presented. Plaintiffs urge that Lemke should be read broadly to hold that the statute of limitations does not run against a nonresident individual, and that Lemke binds the court here because there is no reason to treat individual and corporate defendants dif- ferently.” 12 Holding that amenability to service through the Director of Mo- tor Vehicles does not entitle a nonresident defendant to the benefit of the statute of limitations are Gotheiner v. Lenihan, 20 N.J.Mise. 119, 25 A.2d 430 (Sup.Ct. 1942); Whalen v. Young, 28 N.J.Super. 543, 101 A.2d 64 (Law Div. 1953), rev'd on other grounds, 15 N.J. 321, 104 A.2d 678 (1954); Lemke v. Bailey, supra; Lackovie v. New England Paper Tube Co., 127 N.J.Super. 394, 317 A.2d 426 (Law Div. 1974); Blackmon v. Govern, 138 F.Supp. 884 (D.N.J. 1956). Contra, Ferraro v. Ferro Trucking Co., supra. 13 Plaintiffs cite two cases for the proposition that the tolling statute deprives a nonresident defendant of a statute of limitations defense despite amenability to substituted service. Kenny v. Duro- (Footnote continued on following page) 42a Appendix C (Footnote continued from preceding page) Test Corp., 91 F.Supp. 633 (D.N.J. 1950); Mann v. Morristown Memorial Hospital, Civ. No. L-23529-64 (N.J.Super., Law Div., filed Aug. 6, 1965, dismissed by consent Mar. 6, 1968). Neither case supports plaintiffs’ argument. Kenny held that under the tolling statute a foreign licensed corporation could not plead the statute of limitations despite the fact that it was servable within the state. However, the court indicated that the 1949 foreign cor- poration exemption was only prospective in effect and therefore inapplicable to that case. Jd. at 635-36. On the other hand, the facts in Mann do not support the read- ing that plaintiffs give to its result. \/ann was a malpractice ac- tion against a hospital and two doctors. The plaintiff was treated by the defendants until June 1963, when his cause of action ac- crued, Tortorello v. Reinfeld, 6 N.J. 58, 66, 77 A.2d 240 (1950). He filed his complaint on Aug. 6, 1965. Summary judgment was granted to two defendants on statute of limitation grounds, but denied as to Dr. Matthews, who had moved from New Jersey in August 1963 and been served under the long-arm rule. Plaintiffs herein assert that Matthews had been subject to long-arm service from the time of his departure, and, therefore, the denial of his motion for summary judgment represents a holding that the tolling statute always applies to a nonresident defendant despite amena- bility to sustituted service. However, long-arm jurisdiction was not available against indi- vidual defendants until January 1964, R.R. 4:4-4(j) (effective Jan. 2, 1964) (current version at R. 4:4-4(e)). Assuming that the limitations period would ordinarily run during periods of ab- sence when subject to substituted service, the statute ran against Matthews for two months in 1963 and then re-commenced to run in January 1964, By that calculation, the complaint was filed only some seven months into the limitations period, and the action was timely without the aid of the tolling statute. Thus, the disposi- tion of Matthews’ summary judgment motion does not reflect on the relationship between the tolling statute and substituted service, 43a Appendix C Amenability to long-arm service cannot be deemed to con- stitute representation within the state for the very same reason that the foreign corporation exemption is not trig- gered by he presence within the state of servants acting in the discharge of their duties. The narrow foreign corpora- tion exception must be construed in light of legislative in- tent at the time of enactment. The tolling statute exemp- ion was adopted in 1949. Although the Supreme Court had held four years earlier that the reach of state process could contitutionally extend beyond the territorial boundaries of a state, International Shoe Co, y. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), long-arm service was not adopted in New Jersey until 1958." Further, the New Jersey courts have tended to construe the tolling stat- ute narrowly so as not to incorporate subsequent broaden- ing of the service laws. See, n. 12, supra. One court has held in the context of an individual defendant that amen- ability to long-arm service does not satisfy the tolling stat- ute, Fidelity & Deposit Co. of Maryland y, Abagnale, supra, 97 N.J.Super. at 144, 234 A.2d 511. For these rea- sons, the foreign corporation section of the tolling statute cannot be construed to encompass extraterritorial service unknown to the legislature at the time of enactment and not within the intendment and scope of the statutory language.” ™Long-arm service over corporations was adopted in 1958, R.R. 4:4-4(d) (effective Sept. 3, 1958). It was extended to in- dividuals in 1964, R.R. 4:4-4(j) (effective Jan. 2, 1964), 1 Searle has relied on cases construing the Ohio and Idaho tolling statutes to be inapplicable to foreign corporations subject to long-arm jurisdiction, Pertis vy. Miller Equipment Co., 324 F.Supp. 898 (N.D.Ohio 1970); Lipe v. Javelin Tire Co., Ine. 96 Idaho 723, 536 P.2d 291 (1975). The tolling statutes in those states provide for tolling when a person is “absent from the state.” Such general language lends itself to a broader interpretation than the more restrictive wording of the New Jersey statute. dia Appendix C [8,9] Finally, Searle argues that if the New Jersey toll- ing statute acts to deny the statute of limitations to a for- eign corporation subject to long-arm jurisdiction, that stat- ute violates the equal protection clause of the United States Constitution.” This, toc, is an issue of first impression. Searle’s position is that a statutory classification must bear a rational relationship to the purpose of the enactment to withstand an equal protection challenge. Where an out- of- state defendant is amenable to process, Searle argues that the purpose of the tolling statute is satisfied, and there is no reason to deny such a defendant the statute of limita- tions. While conceding that Searle is correct as to the equal protection standard, plaintiffs reply that the classification here under attack is rational because one of the purposes of the tolling statute is to penalize foreign unlicensed cor- porations by denying them repose to encourage domesti- cation.” Searle also makes a due process argument. Because of my holding on the equal protection question, I need not reach Searle’s due process claim. 17 Plaintiffs’ position that the tolling statute was intended as a penalty to induce licensure is flawed. N.J.S.A. 14A;:13-3(1) (1969) provides that a foreign corporation has no right to trans- act business within New Jersey without obtaining a certificate of authority from the Secretary of State. Where corporate activities do not meet the standard of “transacting business,” registration is not required. See N.J.S.A. 14A:13-3(2); N.J.S.A. 14A:13-11 (1969); Meterials Research Corp. v. Metron, 64 N.J. 74, 312 A.2d 147 (1973); United States Time Corp. v. Grand Union Co., 64 N.J.Super. 39, 165 A.2d 310 (Ch.Div. 1960). Assuming, ar- guendo, that the tolling statute was intended to impose a penalty (Footnote continued on following page) 45a Appendix C The thrust of the equal protection clause is the pro- eription of arbitrary discrimination between persons simi- larly situated. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 88 A.2d 607 (1952). As more fully stated by the Supreme Court, the Fourteenth Amendment does not deny to the States the power to treat different classes of per- sons in different ways. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885), Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 468, 93 L.Ed, 533 (Footnote continued from preceding page) on unlicensed foreign corporations, such a penalty would fall with equal weight on all foreign corporate defendants without repre- sentation by persons or officers, irrespective of the nature of their New Jersey activities. Lecause the standard of state contacts sufficient for long-arm jurisdiction is substantially lower than that for “transacting business,” Materials Research Corp. v. Metron, supra, 64 N.J. at 84, 312 A.2d 147, the sanction of the tolling statute would be imposed on corporations which would not be re- quired to register under N.J.S.A. 14A:13-3. While there may be some justification for denying the statute of limitations to cor- porations transacting business without registration, the tolling sta- tute would reach a far greater class of corporate defendants and, as construed by plaintiffs, that statute would itself effect an irra- tional classification. Further, since state licensure may not be re- quired of a foreign corporation which is involved in the state solely in interstate commerce, Eli Lilly & Co. v. Sav-On Drugs, Inc., 366 U.S. 276, 278 & n. 7, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), plaintiffs’ reading of the tolling statute would run afoul of the commerce clause. I am aware of no provision imposing penalties for transacting business without a license other than N.J.S.A. 14A:13-11. 46a Appendix C (1949) ; McDonald v. Board of Election Commission- ers, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of eri- teria wholly unrelated to the objective of that stat- ute. A classification “must be reasonable, not arbi- trary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly cireum- stanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed. 2d 225 (1971). Accord, N.J. Restaurant Association v. Holderman, 24 N.J. 295, 131 A.2d 773 (1957). As indicated, the purpose of the tolling statute is to pre- serve a plaintiff’s cause of action where service cannot be effected upon the defendant on account of nonamenability to process. Lemke v. Bailey, supra (Schettino, J., dis- senting); Ferraro v. Ferro Trucking Co., supra, Nothing in the legislative history or court construction of N.J.S.A. 2A :14-22 supports plaintiffs’ assertion that a purpose of the statute is to penalize foreign unlicensed corporations to encourage licensure.”* 18 While the sponsor’s statement regarding the 1949 amend- ment indicated that the legislature intended to give the benefit of the statute of limitations to foreign licensed corporations, the lan- guage of the amendment is not so narrowly phrased as to deny unlicensed corporations a statute of limitations defense. 47a Appendia C The effect of the foreign corporation section of the toll- ing statute is to distinguish between domestic and foreign corporations subject to service through representative agents within the state and foreign corporations subject to service under the long-arm rule. The former are entitled to plead the statute of limitations while the latter are de- nied its reprose. Since this difference in treatment bears no rational relationship to the object of the tolling statute, I find that the statute denies equal protection to foreign cor- porations amenable to long-arm jurisdiction.” Cf. Lemke v. Bailey, supra 41 N.J. at 305-06, 196 A.2d 523 (Schettino, J., dissenting). ” While this holding is limited to corporate defendants, indi- viduals are subject to long-arm jurisdiction in New Jersey, R.4:4-4 (ec), and I agree with plaintiffs that “[t]here is no logical reason to treat corporate and individual defendants in a different manner.” Lackovic v. New England Paper Tube Co., Inc., supra, 127 N.J. Super. at 398, 317 A.2d at 429. One court has held that it does not deny equal protection of the laws to apply a tolling statute to an individual defendant subject to substituted service pursuant to a nonresident motorist statute because of the latter statute’s requirement of actual notice to the defendant for a personal judg- ment and the difficulty of locating an individual in another state. Vaugn v. Deitz, 430 S.W.2d 487 (Tex.1968). However, the bur- dens on plaintiffs found so onerous by that court are minimized in New Jersey practice. In New Jersey, an action is commenced by filing a complaint with the court, R. 4:2-2, and a summons is to be issued and served 10 days thereafter. R. 4:4-1. How- ever, liberal relief is granted from the 10-day service rule where the plaintiff uses due diligence to find the defendant. See Cooke v. Yarrington, 62 N.J. 123, 299 A.2d 400 (1973); X-L Liquors, Inc. v. Taylor, 17 N.J. 444, 454, 111 A.2d 753 (1955). Thus, there is no prejudice to plaintiffs in requiring them to file a com- plaint within the limitations period where their cause of action will be preserved so long as they make reasonable efforts to find the defendant. 48a Appendix C One who by law is subject to a state’s jurisdiction is ef- fectively present and represented within that state. //ur- witch v. Adams, 151 A.2d 286 (Del.Super.Ct.), aff’d 52 Del. 247, 155 A.2d 591 (1959); Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156 (1958); Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964). Where the long-arm rule places an out- of-state defendant on an equal footing with a resident or represented one, there is no rational justification for differ- ential treatment of such defendants with regard to the stat- ute of limitations, While the tolling statue made eminent good sense in the days of territorial restrictions on service, it has become dated in the instant context by modern changes in the law of in personam jurisdiction. The in- firmity which the statute has developed in the course of the aging process is over-permissiveness: until today it allowed a plaintiff to postpone indefinitely the assertion of his cause of action even though the defendant was subject to service. As a matter of fair judicial administration, where a de- fendant may be brought before the courts, he should be per- mitted to assert the statute of limitations to implement the important policies behind that statute to spare defendants from being put to a defense after evidence is lost, memories have faded and witnesses have died or disappeared and to deliver the courts from the litigation of stale and possibly fraudulent claims. Union City Housing Authority v. Com- monwealth Trust Co., 25 N.J. 330, 335, 136 A.2d 401 (1957). The instant holding brings New Jersey law” into conform- 20T express no view on the rule of Lemke v. Bailey, supra, but note that any defendant subject to service under the New Jersey nonresident motorist statute, N.J.S.A. 39:7-2, is also amenable to long-arm jurisdiction. 49a Appendiz C ity with the rule in the majority of the states** that amena- bility to process by substituted or long-arm service renders the tolling statute inapplicable. In light of the above result, it will become necessary to resolve the second issue tendered by the motion of defendant for summary judgment—whether plaintiffs are entitled to the benefit of the “discovery” rule in bar of the statute of limitations. There will be no necessity to enter an order on the motion until that question is resolved. 21 Of the 42 states which have considered the question, 38 take the majority position. See 94 A.L.R. 485 (1935); 119 A.L.R. 859 (1939); 17 A.L.R.2d 502 (1951); 55 A.L.R.3d 1158 (1974). Contra: New Jersey: Lemke v. Bailey, 41 N.J. 295, 196 A.2d 523 (1963). Ohio: Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139 (1950). However, the Ohio courts have taken a different approach to corporations. Sce Partis v. Miller Equipment Co., 324 F.Supp. 898 (N.D.Ohio 1970), aff'd, 439 F.2d 262 (6th Cir. 1971). S. Carolina: Macri v. Flaherty, 115 F.Supp. 739 (E.D.S.C. 1953). Texas; Dietz v. Vaughn, 423 S.W.2d 113 (Civ.App. 1967), aff'd, 430 S.W.2d 487 (Tex. 1968). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1898%3A1. Public record. Not legal advice.