UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 12, 1986
SUSAN COHN AND WALTER COHN, HER HUSBAND, APPELLANTS
G. D. SEARLE & CO., APPELLEE IRWIN I. KIMMELMAN, ESQ., ATTORNEY GENERAL OF NEW JERSEY, INTERVENOR
Appeal from the United States District Court for the District of New Jersey
PRESENT: SEITZ, WEIS and ROSENN, Circuit Judges.
The court having read the petition for panel rehearing and the answer thereto and having concluded that the resolution of the factual issue as to whether plaintiff actually relied on the tolling provision of the New Jersey statute would not alter its ultimate conclusion, it is
Ordered that the petition for panel rehearing is denied, and it is
FURTHER ORDERED that the slip opinion in this case is modified in the following respects:
Delete carryover paragraph on pp. 11-12 and replace with the following:
Assuming arguendo that the district court correctly stated the purpose of the Commerce Clause rule in this case, we think the burden on interstate commerce that it perceived might result from nonretroactive application of that rule is largely illusory. Certainly, any inhibiting effect the statute might have had on foreign corporations and others contemplating doing business in New Jersey vanishes once the statute is invalidated, whether or not that invalidation is retroactive. Moreover, had there been no tolling statute, the probability is that the Cohns and most other plaintiffs similarly situated would have filed suit within the two-year statutory period. Although it is possible that prospective invalidation will permit maintenance of some suits that would not have been timely filed absent the tolling statute, we do not think that this slight marginal burden, if any, does violence to the Commerce Clause.*fn9
Delete fourth sentence in first full paragraph on page 12, beginning "By contrast. . . ."
Delete last sentence in Part III on page 13 and replace with the following:
Accordingly, we conclude that the three Chevron factors point to a holding of nonretroactivity.
Delete material in first full paragraph on page 16 following "By contrast, . . ." and replace with the following:
By contrast, in McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied, 395 U.S. 903 (1969), in which this court overruled its previous approval of "manufactured" diversity of citizenship as a basis for federal jurisdiction, we applied the new rule to the parties before the court only after finding that dismissing the action on that basis would not result in irremediable harm to the plaintiff who could still institute an action in state court. Id. at 876. See also id. at 877 (similar analysis to apply to all cases involving causes of action arising before the date of the decision). Dismissal of plaintiffs claim here would, of course, forever bar it. And permitting the case to go forward will not prejudice Searle's defense on the merits. In addition, we note that affirming the district court's dismissal of the suit on the ground that Searle is entitled to the benefit of its constitutional attack on the statute would have the paradoxical effect of denying plaintiffs the benefit of their successful appeal on the issue of retroactivity. In sum, the circumstances of this case do not warrant excepting Searle from the generally applicable rule we announce today.