the State of New Jersey, as well as to the neglect of the plaintiffs in failing to make a more reasonable effort to effect notice upon the defendants of the pending action, thus affording them an opportunity to be heard upon the merits. Procedural due process is a two-edged sword designed to bring the contest within the forum so that the adverse parties may both be heard. International Shoe, supra.
Moreover, the plaintiffs' post judgment conduct amply demonstrates the relatively simple manner in which defendants could have been notified of this suit. Plaintiffs had no difficulty in reaching the defendants in New York City when they sought to perfect their judgments by collection. It should be noted that after the entry of judgment on March 3, 1964 plaintiffs had costs taxed on March 9, 1964, waited for the expiration of the time for appeal, and on May 11, 1964 secured an affidavit certifying that no appeal had been filed. On June 24, 1964 plaintiffs levied on the bank account of Helena Rubinstein, Inc., in New York City. If equal diligence had been pursued initially to bring notice of the suit to the defendants in New York, the present situation would not exist. It is perhaps more fair to conclude that the intense preoccupation of plaintiffs' counsel with the prosecution of claims against a foreign corporation, as well as his understandable mistake in believing that he was complying with the legal requirements regarding effective service of process, prompted the strict adherence to what appears to be the letter of the law. But the fact remains that the present positions of the parties are unjust. The demands of due process required by the Fourteenth Amendment are such as accord with traditional concepts of fair play, substantial justice, and a resolution of controversy upon the merits. These are the very pillars of anglo-Saxon law. It is to this end that minimal procedural due process requirements must be met, not only in subjecting a party to suit, but as well and with like equality of treatment before the law, affording such party an opportunity to defend. But defense of such an action by its very terms implies adequate notice. Consequently, procedural due process requires adequate notice. International Shoe v. State of Washington, supra. No such notice, either actual or constructive, effectively reached the defendants. Hence, the attempted service of process failed both in fact and in law. In Tarbox v. Walters, 192 F.Supp. 816 (E.D.Penna.1961), the Court held that service of process in the Federal Court under Rule 4, Fed.R.Civ.Proced. permits service as provided in the state where service is sought to be made. Process had been left at the office of defendant's employer, where he stopped only 2 or 3 times a year, he being a traveling salesman. This attempted service of process was held insufficient as not reasonably calculated to bring notice of the suit to defendant and acquaint him with his duty and right to defend. The court held that the attempted service was a compliance. With the Pennsylvania Rules of Civil Procedure, but only a token and ineffectual compliance, and hence insufficient. See also, Grooms v. Greyhound Corp., 287 F.2d 95 (6 Cir. 1961).
Therefore, under the circumstances here presented and in order to do substantial justice between the parties, and for the other reasons herein assigned, it is the determination of this Court in the exercise of its permissive judicial discretion that the judgments against the defendants, as well as the supplementary proceedings taken pursuant thereto, be and the same are hereby vacated and rendered nugatory. General Telephone Corp. v. General Telephone Answering Service, 277 F.2d 919 (5 Cir. 1960).
And it is further determined and ordered that the motion to quash service of process is hereby denied. The attempted service of process may be perfected by formalizing the entry of appearance on behalf of defendants, in proper corporate name, consent to which has been indicated by defense counsel. Answer may be filed as provided by the Federal Rules of Civil Procedure, the time therefor being computed from the date of the filing of an order in accordance herewith.
Upon oral argument plaintiffs' counsel urged that in the event defendants prevail, he should be reimbursed for his expenses in obtaining two expert medical witnesses at the first trial and be awarded a reasonable counsel fee, totaling $ 400.00. Fairness dictates that the parties be restored to their original positions and the plaintiffs made whole. Such request seems reasonable and proper and an award of $ 400.00 to plaintiffs' counsel is hereby ordered.
Counsel for defendants shall submit an order, with consent of counsel or upon notice, in conformity with the views herein expressed.
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