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Certisimo v. Heidelberg Co.

Decided: December 6, 1972.

JOSEPH CERTISIMO AND HARRIET CERTISIMO, PLAINTIFFS,
v.
HEIDELBERG COMPANY, A COMPANY ESTABLISHED IN WEST GERMANY, AND HEIDELBERG EASTERN, INC., A CORPORATION OF THE STATE OF DELAWARE, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT, A COMPANY ESTABLISHED IN WEST GERMANY, THIRD-PARTY DEFENDANT



Byrne, A.j.s.c.

Byrne

This is a motion by the third-party defendant in this action, Heidelberger Druckmaschinen Aktiengesellschaft (hereinafter HDAG) to dismiss the third-party complaint against it due to insufficiency of process. Defendant and third-party plaintiff Heidelberg Eastern, Inc., a Delaware corporation, sought to serve HDAG, the third-party defendant, under R. 4:4-4(c)(1), which provides in part that:

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 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, 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.

HDAG argues that it has no contacts with the forum state and that therefore service by mailing would not be "consistent with due process of law." Heidelberg Eastern, Inc. responds that HDAG does indeed have sufficient minimal contacts with the State of New Jersey to employ the "long-arm rule" by reason of the injury sustained by plaintiff.

A review of the undisputed facts shows that most of the bases for jurisdiction under the long-arm statutes which have been developed since International Shoe v. Washington , 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, in 1945 are not present

in this case. Plaintiff in this case suffered injury to his hands while operating a printing press manufactured by HDAG and distributed by Heidelberg Eastern, Inc. The injury was allegedly caused by a press which was "negligently, carelessly and recklessly designed, constructed, manufactured, inspected and maintained."

The press was manufactured by HDAG, a West German corporation which manufactures and sells Heidelberg presses in Germany to companies doing business in a number of countries throughout the World. All manufacturing and selling activities by HDAG are carried on outside the United States. Title to the printing presses and parts which are to be sold in the United States passes in Germany to Heidelberg Eastern, a corporation which then imports the presses into the United States. Heidelberg Eastern is not an agent of HDAG. HDAG owns no financial interest in any distributor of its products; nor does it supervise, control or otherwise oversee the business operations of its distributors in the United States. Heidelberg Eastern sold the press to plaintiff's employer, Compton Press, a New Jersey corporation.

HDAG states by affidavit that it does no business in the State of New Jersey, has never qualified to do business in New Jersey and has no office, place of business or personnel in the State of New Jersey or in the United States. HDAG neither owns nor controls any property in New Jersey. It does not ship its products to individuals or corporations located in New Jersey. It neither solicits business nor advertises its products in the State of New Jersey or in the United States. HDAG does not sell its products to customers in New Jersey, although it sells machines to Heidelberg Eastern; however, those transactions occur in West Germany.

In short, the only contact on which personal jurisdiction may be based in this case is the fact that a printing press sold to the third-party plaintiff with the obvious expectation that it would be resold in the United States eventually caused injury

to plaintiff in New Jersey. Third-party defendant claims that this is not even a "contact." Third-party plaintiffs argue that the single act is enough to support jurisdiction under R. 4:4-4(c)(1).

The narrow question to be determined is this: Does the sale and delivery of a product in a foreign nation by a foreign manufacturer to an American distributor with the obvious expectation that it will be sold in some state of the United States subject the foreign manufacturer to the personal jurisdiction of New Jersey's courts when the product causes injury to a New Jersey resident in New Jersey? More simply, is a finding of jurisdiction in such a situation "consistent with due process of law"?

I

Two United States Supreme Court cases must provide the origin for any response to this question. In International Shoe Co. v. Washington , 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) the Supreme Court held that:

In International Shoe the minimum contacts of the foreign corporation consisted of salesmen within the state exhibiting samples of merchandise and soliciting orders from prospective buyers. Holding that such activities were systematic and continuous, the court found that the State of Washington may maintain suit in its own courts in conformity to the due process requirements of the Fourteenth Amendment. However, in McGee v. International Life Insurance Co. , 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), the contacts with the State of California were not as great. There a resident of California purchased an

insurance policy from an Arizona company. The company was later taken over by defendant, a Texas company, which mailed a reinsurance certificate to the assured who, in turn, mailed his premiums to the defendant's Texas office. Neither the Arizona nor the Texas company ever had an office or agent in California, and the Texas company had never solicited or done any insurance business in California apart from issuing the policy sued upon. After the assured died, the beneficiary sued defendant in California, serving it by mail, and obtained a judgment which the Texas courts ...


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