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Glickman v. Anderson

Decided: December 9, 1993.

BARRY GLICKMAN AND KATHLEEN GLICKMAN, PLAINTIFFS-RESPONDENTS,
v.
TODD D. ANDERSON, O.D. JONES CONSTRUCTION CO., JOHN DOE (1-10) AND XYZ CORPORATION (1-10) (NAMES BEING FICTITIOUS AS THEIR TRUE IDENTITIES ARE UNKNOWN), DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Shebell, Long and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.

Shebell

This is an appeal by defendant, O.D. Jones Construction Co. (Jones), who is an out-of-state owner of an automobile that was involved in an accident in New Jersey after it was stolen in Florida. Defendant appeals, on leave granted, from the Law Division order denying defendant's motion for dismissal based upon lack of personal jurisdiction. We reverse and remand.

On March 9, 1993, plaintiffs, Barry Glickman and his wife, Kathleen, filed a complaint, relating to the injuries Mr. Glickman sustained, against defendants, Todd D. Anderson, O.D. Jones Construction Co., John Doe (1-10) and XYZ Corporation (1-10). On April 30, 1993, defendant, O.D. Jones Construction Co., filed an answer reserving the right to move to dismiss for lack of personal jurisdiction. Defendant, within the 90 days permitted by R. 4:6-3, filed a motion for summary judgment based upon a lack of jurisdiction. The motion was denied on June 25, 1993. Defendant filed a motion for leave to appeal, which we granted.

These are the facts. On April 5, 1991, Otha D. Jones, of defendant O.D. Jones Construction Co., parked his Ford van in front of Scotty's Hardware Store in Bartow, Florida. When he returned a short time later, the van had been stolen. He had left the van's doors unlocked. There is conflicting evidence regarding Jones's placement of the keys when he exited the vehicle. According to the police report, on the day the van was stolen Jones stated that he placed the keys to the vehicle on the floor next to

the driver's seat before exiting the vehicle. However, in his affidavit, prepared on May 11, 1993, Jones stated the following:

As I exited the van, I believe I dropped the keys, either onto the floor of the van or onto the pavement. I was not aware I had dropped the keys at that time. I entered Scotty's, and five minutes later, when I returned, the van had disappeared.

Five days later, plaintiff Barry Glickman was operating his motor vehicle on Highway 22 in the Township of Green Brook, New Jersey. Defendant Todd D. Anderson was operating the stolen van and allegedly caused it to collide with the plaintiff's vehicle.

Plaintiffs' complaint stated that the alleged negligence of defendant O.D. Jones Construction Co. was the following:

[I]t left its vehicle with keys in the ignition under circumstances where said defendant knew or should have known that such conduct would lead to the unauthorized use of said vehicle.

Plaintiff Barry Glickman claimed serious and permanent personal injuries, and his wife sought damages for loss of services, society, and consortium.

Defendant asserts that no one on its behalf has ever driven this van in New Jersey except to retrieve the stolen van after the accident and that its use in New Jersey was never authorized. Defendant contends that since it had no "minimum contacts" with the State of New Jersey, there is no personal jurisdiction over Jones. Plaintiffs allege that the "minimum contacts" requirement for non-resident jurisdiction has been met and that summary judgment was not appropriate because a factual dispute exists.

Service of process was not attempted under N.J.S.A. 39:7-2, authorizing service upon the Director of the Division of Motor Vehicles as to certain non-resident motor vehicle operators and owners.*fn1 Rather, New Jersey's "long-arm" rule, R. 4:4-4(c)(1), which permits the exercise of personal jurisdiction over out-of-state corporations subject only to due process of law, was employed. This rule provides as follows:

(1) Corporations. Upon a domestic or foreign corporation, by serving, in the manner prescribed in paragraph (a), either an officer, director, trustee, or managing or general agent; or any person authorized by appointment or by law to receive service of process on behalf of the corporation; or the person at the registered office of the corporation in charge thereof. If service cannot be made upon any of the foregoing, then it may be made upon the person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then upon any servant of the corporation within this State acting in the discharge of his duties. 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.

[ R. 4:4-4(c)(1) (emphasis added).]

The due process clause of the United States Constitution provides the following:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due ...


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