G. D. Searle & Company v. Cohn

PETITIONER: G. D. Searle & Company
RESPONDENT: Cohn
LOCATION: A truck stop

DOCKET NO.: 80-644
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 455 US 404 (1982)
ARGUED: Dec 07, 1981
DECIDED: Feb 24, 1982

ADVOCATES:
Walter R. Cohn - on behalf of the Respondents
William P. Richmond - on behalf of the Petitioner

Facts of the case

Question

Media for G. D. Searle & Company v. Cohn

Audio Transcription for Oral Argument - December 07, 1981 in G. D. Searle & Company v. Cohn

Warren E. Burger:

The Court will hear arguments first this morning in Searle and Company against Cohn.

Mr. Richmond, I think you may proceed whenever you are ready.

William P. Richmond:

Mr. Chief Justice, and may it please the Court, the question in this case is the constitutionality of a New Jersey statute which places unique discriminatory burdens on corporations which are located entirely outside the state of New Jersey.

On its face, the statute involved here is one that simply states that the New Jersey tolling statute will not run against a corporation... unless... I am sorry... will not run as long as the corporation is not represented in the state of New Jersey.

Our position is that the purpose of the tolling statute has been satisfied by the adoption in New Jersey of long arm jurisdiction and service of process.

The statute also places a heavy penalty upon out of state corporations, and finally, that the purported justifications for the tolling statute are either fictions or are improper, and each of these justifications could be accomplished in less discriminatory fashions.

There is no question, Mr. Richmond, is there, that Searle does business in New Jersey, and is subject to the long arm statute?

William P. Richmond:

There is no dispute in this case, Your Honor, that New Jersey does have long arm jurisdiction over G. D. Searle and Company.

That is correct.

There is also no dispute in this case that Searle does not do business within the state for purposes of its qualification statute.

Tolling statutes exist in many states, but their purpose is to protect a plaintiff against having his cause of action lost as a result of not being able to serve the defendant within the state, but the New Jersey statute has a unique and critical difference.

In New Jersey, the only way a foreign corporation may get the benefit of a statute of limitations is by registering to do business within the state.

This means that New Jersey denies the statute of limitations to all corporations that may be served by long arm jurisdiction.

Mr. Richmond, does your opposition agree with that?

I take it it is your position that to appoint an agent for service, you must qualify to do business within the state of New Jersey.

William P. Richmond:

Yes, sir.

Our position is that there is simply no procedure under New Jersey law by which a corporation could appoint an agent for service of process without more.

The plaintiffs--

Does your opposition agree with that?

William P. Richmond:

--No, but the opposition's position is based upon a footnote in the Velmohos case from the New Jersey Supreme Court.

The court was not considering in that footnote the extent of the qualification which would be necessary in order to appoint an agent for service of process.

All the court was doing was addressing the question of whether a corporation could terminate the running of the statute of limitations by appointing an agent, and the body of the Velmohos case makes it obvious that the court was considering that only two kinds of defendants could be exempted from the statute of limitations.

One was the domestic corporation and the other one was the one that was licensed within the state.

As I say--

If there is any question about the New Jersey law here, certainly we can't determine it, can we?

William P. Richmond:

--No, sir.

We agree entirely that the New Jersey Supreme Court has the right to interpret its statute.

However--

What about the court of appeals, though?

Did the court of appeals have anything to say about it?