The allegations of fraud are conclusory, and provide nothing by which to evaluate their merit, see Rule 9(b), F.R.Civ.P.
The responding affidavit effectively contradicts every significant assertion of fact, and it does so with supporting detail, not by negative pregnant.
Taking the complaint and moving affidavits in their best light, the responding proof at least puts the key elements in equipoise. This is especially so in respect to the matter of developing an improved paper for PET bottles. In this posture, the court certainly cannot say that it is "probable" that McQueeny can succeed, and for that independent reason, the writ cannot issue.
It should be made clear that this court has not held the New Jersey attachment statute to be unconstitutional. It has serious doubts in view of Shaffer, and even if it were construed to allow attachment when the standards of that case are met, it is doubted that the Legislature intended use of the extraordinary writ when in personam jurisdiction can be achieved in fact within constitutional limits to their outermost boundaries, because the summons and attachment have always been essentially mutually exclusive.
The application for the writ is denied. Submit order.
Since Fergusson's papers challenged the constitutionality of the N.J. attachment statute, the court issued its certificate as required by 28 U.S.C. § 2403(b), and at the request of the Attorney General, an order has been entered allowing New Jersey to intervene for the purpose of the statute. The court has not received the papers to be submitted by the Attorney General in support of the statute, but in view of the disposition made above, it is unnecessary to reach the constitutional issue, in accordance with well established jurisprudential principles, and no ruling on the point is made or implied.
Fergusson also moved to transfer the action to the U.S. District Court for the Eastern District of Virginia. That motion will be denied for the time being, without prejudice to renewal after discovery. The reasons are practical. Wherever the action be tried, the critical discovery will be of the parties, and Fergusson has already incurred the expense of engaging a New Jersey law firm. Discovery of McQueeny, who lives in New York, can be accomplished conveniently, if oral examination on deposition and document discovery be needed, at the offices of Fergusson's attorneys in Newark, and this should be processed first. Of course, the expense of depositions should be avoided or reduced by beginning with requests for admissions, and then interrogatories if needed.
Discovery of Fergusson is to begin promptly after completing McQueeny's discovery. Document discovery and depositions, if needed, of Fergusson personnel should be conducted at its principal offices in Virginia.
The provisions of the order denying the motion for discovery is to set out these terms. Submit accordingly.
Since the handing down of the court's opinion in the above matter, the court has received the brief submitted by intervenor State of New Jersey, in support of the constitutionality of New Jersey's attachment statute, N.J.S.A. 2A:26-2.
The opinion expresses the view that, in light of the legislative history and purpose of the attachment statute, as well as the substantial modification of the law applicable to in personam jurisdiction, the highest court of New Jersey would probably construe the statute to allow attachment as original process only when effective service (whether actual or constructive within the State, or by long-arm service outside the State) could not be achieved.
Under this construction, there would be no denial of equal protection as between residents and non-residents. A resident may frustrate effective service by concealment in or absconding from the State. In the case of a non-resident, it may be that effective long-arm service cannot be achieved despite the existence of sufficient minimum contacts.
In either situation, then so long as there is property that can be levied on within the State, attachment would be allowable so long as all the other requirements were met, including the minimum contacts requirement.
While the rationale is different, the result is the same as advanced by the State, namely that the statute is valid.
© 1992-2004 VersusLaw Inc.