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DELORO SMELTING & REF. CO. v. ENGELHARD MINERALS &

June 1, 1970

DELORO SMELTING AND REFINING COMPANY, Limited, a corporation, of the Dominion of Canada, Plaintiff,
v.
ENGELHARD MINERALS AND CHEMICALS CORPORATION (a Delaware corporation), Defendant and Third-Party Plaintiff, v. H. KLAFF AND COMPANY, Inc. (a Maryland corporation), Third-Party Defendant


Cohen, District Judge.


The opinion of the court was delivered by: COHEN

This challenged third-party action raises, among others, an issue requiring an interpretation of the 100-mile "bulge" or extension to the territorial jurisdiction of a federal district court under Rule 4(f) *fn1" of the Federal Rules of Civil Procedure. Before we dispose of these problems, brief narrative seems in order.

 Pending in the State of Maryland is an action by Deloro, filed May 4, 1968, against Klaff, alleging conversion of the cobalt. Subsequent to the filing of that suit, a similar action was instituted by Deloro against Engelhard in the New Jersey Superior Court, Essex County, in April, 1969 for the conversion of the same cobalt. Engelhard, being nonresident of New Jersey, removed the case to the United States District Court in Newark and then moved to have the cause of action reallocated to Camden, so that Klaff in Baltimore could be brought in as a third-party defendant. Deloro bases its action against Engelhard on the theory that Engelhard succeeded to the rights and assumed the liabilities and responsibilities of the merged corporation, Minerals and Chemicals, one of which was for the alleged conversion of the stolen cobalt. Accordingly, Engelhard alleging a good faith purchase from its seller, Klaff, sought to join it as a third-party defendant. The motion was granted, process issued and was served by a United States marshal upon Klaff's comptroller at its principal place of business in Baltimore, Maryland, on December 3, 1969, pursuant to Rule 4(f), F.R. Civ. P. (See Note 1 ante).

 Klaff filed the present motion to dismiss the third-party complaint, or to quash the personal service of process, on the ground that its place of business was beyond the 100-mile extension of territorial jurisdiction from the Federal Courthouse in Camden. Thereafter, as a precaution, Engelhard delivered to the United States Marshal's Office, a copy of the third-party summons and complaint for service upon Klaff at its principal place of business in Baltimore, by certified mail, pursuant to Rule 4(e), F.R. Civ. P., providing for such service of process by use of New Jersey Revised Rule 4:4-4(d) [now R. 4:4-4(c)(1)], *fn3" the so-called "long arm" provision of the rules. Klaff acknowledged receipt of the process on March 30, 1970. It should be observed that under both Federal and New Jersey Rules, this latter method of service cannot be utilized unless all other means fail; provided, however, that the requirements of federal due process are observed. This additional attempt to effect service of process upon the foreign corporation enables this Court to determine the validity of both methods employed upon the one motion challenging the complaint in the third-party action.

 In regard to the first method of service or process under Rule 4(f), involving construction of the 100-mile extra-territorial "bulge" of judicial jurisdiction, research has revealed no reported case providing a yardstick by which this distance is to be measured. The second method, under Rule 4(e) providing for service by mail upon a foreign corporation, raises an issue as to whether there are "sufficient minimal corporate contacts" with the State of New Jersey within due process of law, so as to subject such corporation to judicial jurisdiction here.

 Klaff contends that its place of business, by use of the "ordinary, usual and shortest route of public travel," is situated more than 100 miles from this forum. This contention is supported by various affidavits *fn4" executed by official representatives of car, rail and air transportation companies, and also by a private investigator. A combination of any of these media shows a range of 102.8 to 115 miles from Klaff's office to this forum. The range will vary, of course, depending upon the termini points, i.e., railroad station to railroad station, airport to airport, center city to center city, state border to state border, or courthouse to courthouse, or courthouse to place of service.

 The position of Engelhard is that the measurement of distance to be employed, in giving realistic effect to Rule 4(f), is by use of the straight-line, i.e., "as the crow flies" test. In utilizing this construction, Klaff is within the 100-mile radius of this forum and subject to in personam process as a third-party defendant.

 Engelhard claims that by employment of a Bates National Ruler calibrated to 1/16 of an inch upon the official map of Rand McNally Road Atlas, 1969, the distance from Baltimore to Camden has been computed to be 91 miles, more or less. Engelhard's approximation of road mileage between downtown Baltimore and downtown Camden, as calculated by the Motor Club of America, is 102-105 miles, pointing up the closeness to the 100-mile limit.

 In considering the first issue, the 100-mile "bulge" of federal jurisdictional reach of process, we are confronted with a choice between two possible yardsticks with which to measure the distance: (1) the "ordinary, usual and shortest route of public travel" to the forum, or (2) the straight-line "as the crow flies" method.

 
"The bringing in of parties under the 100-mile provision in the limited situations enumerated is designed to promote the objective of enabling the court to determine entire controversies. In the light of present-day facilities for communication and travel, the territorial range of the service allowed, analogous to that which applies to the service of a subpoena under Rule 45(e)(1), can hardly work hardship on the parties summoned. The provision will be especially useful in metropolitan areas spanning more than one State." (Italics supplied.)

 Cognizant of the fact that in subpoena situations under Rule 45(e)(1), the "ordinary, usual and shortest route" has been utilized by the courts, nevertheless, we are of the view that the straight-line, or the "as the crow flies" test seems to be the more realistic choice. Where, as here, the question of distance is a close one, the "ordinary, usual and shortest" method is troublesome. In this era of mobility, what may be shortest may not necessarily be ordinary or usual. Modes of transportation, choices of routes, traffic congestion, road construction, detours, weather conditions, rerouting of air traffic are a few of the daily problems presenting too many variables and imponderables. And who is to be the final arbiter? Adoption of the "as the crow flies" method, calculated simply by use of a map and a ruler, would avoid these myriad problems. Axiomatically, the arithmetical straight-line is the shortest distance between two points. Judicial notice may be taken of the distance between two cities. Munson S.S. Lines v. Newman, 24 F.2d 416 (5 Cir. 1928). Cf.: Merchant Bank of N.Y. v. Grove Silk Co., 11 F.R.D. 439 (M.D. Pa. 1951) which, under Rule 45 F.R. Civ. P., adopted the "ordinary usual and shortest route of public travel and not [the] mathematically straight line between the place of service and the place of trial." This rule seems to be bottomed upon the convenience of witnesses. While convenience of parties, witnesses and counsel is always of concern, such can hardly be contrasted to a judicial concern under Rule 4(f) with the extraterritorial reach of the judicial jurisdiction in personam over parties upon whom judgment is to be imposed. In any event, witnesses beyond the reach of a subpoena can always be deposed. It seems to ...


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