Cooke v. Yarrington
Cooke v. Yarrington
Opinion of the Court
The opinion of the Court was delivered by
These actions were dismissed as to defendant Yarrington on the ground that the court lacked jurisdiction of him. The Appellate Division affirmed in an unreported opinion and we granted certification. 60 N. J. 513 (1972).
The Cookes could have obtained service upon Yarrington in a Pennsylvania action under the nonresident motorist’s statute of that State. Por reasons which do not appear, they elected to sue here. They instituted separate actions (Mr. Cooke is codefendant in Mrs. Cooke’s suit) on July 31, 1970, just short of the expiration of our two-year period of limitations. When Yarrington filed his answers after the expiration of the two-year period, plaintiffs learned that he had moved to New York before suit and that he challenged the service upon him made by leaving the suit papers with his mother at her home in New Jersey. We are told that plaintiffs then sued in New York, but failed when it was held under a borrowing statute that the Pennsylvania two-year statute was a bar.
When Yarrington’s motion to set aside service and to dismiss the suit revealed he was not a member of his parents’ household at the time service was attempted there, the Cooke’s served Yarrington at his New York address by certified mail under Rule 4:4-4(e) which permits such service if “consistent with due process of law.” See Avdel Corp. v. Mercure, 58 N. J. 264, 268, 277 A. 2d 207 (1971).
The service attempted at the parents’ home is conceded to be insufficient. Hence the question as to service is whether service by mail was “consistent with due process of law.” This turns upon the sufficiency of the New Jersey contacts to support an exercise of the judicial power of this State under the decisions of the United States Supreme Court, discussed in J. W. Sparks & Co. v. Gallos, 47 N. J. 295, 220 A. 2d 673 (1966).
The critical facts, supplied largely by the affidavits submitted by Yarrington on his motion, are these: At the time of the automobile accident (August 10, 1968), he was op
As we noted earlier, the motion was not only to set aside the service of process but also to dismiss the suit. At the oral argument, the trial court raised the question whether in any event the suits should be permitted to remain to the end that service might be attempted upon defendant on one of the periodic visits to this State. Fo mention was made of that possible disposition in the opinion the trial court later filed. Jurisdiction of a nonresident may be acquired by personal service upon him in this State. MacKay v. Avison, 82 N. J. Super. 92, 96 (App. Div. 1964); 62 Am. Jur. 2d, Process, § 50, p. 832. Having found that service by mail in New York was inadequate, the trial court should have permitted the suits to remain on the chance that jurisdiction of defendant by personal service might be obtained. Colon v. Pennsylvania Greyhound Lines, Inc., 27 N. J. Super. 280 (Law Div. 1953); Goldenberg v. Sibersky, 30 N. J. Super. 596 (Cty. Ct. 1954); Jones v. Denmark, 259
International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), held that a State court may take' jurisdiction of a controversy by appropriate notice to a nonresident if the underlying transaction had “minimal contacts” with the State. A more expansive view of State jurisdiction of the person was demanded by the reality that as interstate movements and transactions became commonplace State lines became less relevant to the resolution of ensuing controversies. The minimal contacts formula is imprecise and necessarily so. The controlling thought is fairness, and this permits flexibility to deal with the myriad factual patterns which emerge from our complex scene.
Yarrington stresses that since the accident did not occur in New Jersey, jurisdiction by service outside New Jersey cannot be asserted on the ground that the claims arose here. He insists that his residence in this State at the time of the out-of-state event is not a basis for such service in an action by nonresidents brought in this State after he left it. Eor this generalization, defendant refers to a tentative
As we have said, the suits were instituted in New Jersey in good faith and on a reasonable assumption that Yarrington resided here. The statute of limitations has since run. It would be undeniably unfair to leave plaintiffs without a trial on the merits. On the other hand, the only element of unfairness which Yarrington can advance is that New Jersey may not he a convenient place for trial since none of the parties live here and the accident occurred in Pennsylvania. But this complaint can be obviated under the doctrine of forum non conveniens, and we see no reason not to invoke it to assist in reaching the just result which the
The judgments are therefore reversed and the matters remanded for trial on the merits, with the proviso that, if defendant Yarrington so moves on the ground of forum non conveniens, the actions shall be dismissed but on condition that Yarrington accepts service of process in New York or Pennsylvania as he may elect, that the courts of such State accept the litigation, and that Yarrington does not assert the bar of a statute of limitations in such actions.
Dissenting Opinion
Temporarily Assigned (dissenting). I would go no further than to set aside the dismissal of the action, allowing plaintiffs a reasonable time to accomplish personal service of process on the defendant within this State. I do not believe plaintiffs have effected personal jurisdiction over defendant in New Jersey by mailing process to him in New York, compatible with any justifiable rationale of the minimum contacts principle.
Defendant had no presence in New Jersey when process was left for him at his mother’s home, business or otherwise. He had moved from the State about a year before. For did plaintiffs’ injuries emanate from any action or activity of the defendant in this State or from action elsewhere having significant effects here. See Avdel Corporation v. Mercure, 58
The “Few Jersey roots” of the Pennsylvania accident alluded to by the Court as a basis for sustaining jurisdiction here — New Jersey registration of car and driver — are in my judgment too tenuous a connection with the accident for such consequences. See Restatement, Conflict of Laws 2d, § 36, Comment e, p. 149 (1969), indicating that a state is naturally interested in all acts done within its territory and that therefore “[a] state will usually have judicial jurisdio» tion over an individual who does, or who causes to be done, in the state an act, even though it is not claimed to be tortious, as to causes of action arising from the act”. (Emphasis added.) In no realistic sense did this accident arise from the facts that defendant and the vehicle he drove were licensed and registered, respectively, in New Jersey.
I am aware of no case or authoritative expression anywhere which sustains “contacts” such as those here advanced by plaintiffs as sufficient to sustain jurisdiction over an absent defendant. See Owens v. Superior Court of Los Angeles County, 52 Cal. 2d 822, 345 P. 2d 921, 924 (Sup. Ct. 1959). Plaintiffs’ dilemma here is simply a result of failure by their attorneys (not New Jersey counsel) to bring a timely action in an appropriate jurisdiction. Pennsylvania was the natural forum in which to bring this action, and defendant could have been sued there under the Pennsylvania non-resident motorists act. Instead, counsel waited until the Pennsylvania and New Jersey statutes of limitations had almost expired, and then forwarded the case to New Jersey attorneys for suit, apparently without investigating to determine if defendant, an unmarried resident at his parents’ New Jersey home at the time of the accident almost two years before, was still a resident there. There is no indication whatever that
Cases involving jurisdictional due process cannot in my judgment be decided on a court’s conception of the good faith of a plaintiff in selecting a forum for action; nor upon the absence of prejudice to a defendant in being subjected to suit in the particular jurisdiction where there are insufficient contacts present. “Fairness”, in the due process sense of International Shoe Co. v. Washington, 326 U. S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) and similar decisions of the United States Supreme Court, is couched only in terms of the foreign defendant having “certain minimum contacts [with the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.” I cannot find such minimum contacts of defendant with Yew Jersey in this case on any of the several postulates for jurisdiction which have been developed by the cases or by the Restatement, Conflict of Laws 2d, cited above, or on any basis which independent thought about the matter suggests.
The squeeze on plaintiffs here is not the result of reasonable enforcement of due process by the courts below but that of the carelessness of counsel in letting the statutes of limitations of those states having potential jurisdiction over defendant in the matter go by without suit. Obviously defendant had nothing to do with that. Relief from such statutes cannot be afforded plaintiffs at the price of dispensation with due process requirements as against defendant. Jurisdiction over the person is not a matter of discretion with the court but a question of power to act. Perhaps plaintiffs have a negligence action against the attorneys handling the matter in the first instance.
I would thus modify the judgment of the Appellate Division only to the extent of the expression in the first paragraph of this dissent.
For modification — Judge Coneobd — -1.
Reference
- Full Case Name
- Bernice Cooke, Plaintiff-Appellant, v. Thomas S. Yarrington and Michael Cooke, Defendants-Respondents; Michael K. Cooke, Plaintiff-Appellant, v. Thomas S. Yarrington, Defendant-Respondent
- Cited By
- 14 cases
- Status
- Published