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Cohn v. Searle

: January 7, 1986.


Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 74-0450)

Author: Seitz

Before SEITZ, WEIS, and ROSENN, Circuit Judges.


SEITZ, Circuit Judge.

Plaintiffs Susan Cohn and Walter R. Cohn, husband and wife, appeal from the final summary judgment of the district court dismissing their complaint as untimely. Plaintiffs are residents of New Jersey; defendant G.D. Searle & Co. (Searle) is a Delaware corporation whose principal place of business is in Illinois. The district court's jurisdiction over this case was grounded in diversity, 28 U.S.C. § 1332 (1982). We have appellate jurisdiction under 28 U.S.C. § 1291 (1982).


The serpentine course of this litigation may be adequately charted from the five published opinions it has generated,*fn1 and there is no need to do more here than briefly note its highlights.

Plaintiffs brought suit in 1974 in the Superior Court of New Jersey. The complaint alleged that Susan Cohn suffered a stroke in 1963 that was caused by her use of the oral contraceptive Enovid, manufactured by Searle. Liability was premised on various state-law tort theories.

After removing the case to federal court, Searle moved for summary judgment on the ground that the suit was untimely under New Jersey's two-year statute of limitations for tort actions, N.J. Stat. Ann. 2A:14-2 (West 1969). Plaintiffs argued in response that the action was timely because N.J. Stat. Ann. 2A:14-22 (West 1969) (the tolling statute), tolled the statute of limitations.*fn2 The tolling statute provides that the statute of limitations is tolled in any action against a foreign corporation not "represented" in New Jersey by an agent for service of process, for as long as the defendant remains unrepresented. Plaintiffs argued -- and all parties concede here -- that Searle was unrepresented in New Jersey at all relevant times.

Defendant responded, inter alia, by arguing that the tolling statute violated the Equal Protection and Due Process clauses of the United States Constitution. The district court accepted Searle's equal protection argument and dismissed the complaint as time-barred.*fn3

This court reversed on appeal, holding that the statute violated neither equal protection nor due process.*fn4 Although Searle's brief before this court also attacked the tolling statute on Commerce Clause grounds, our opinion did not address that issue.

The Supreme Court, on certiorari, affirmed this court's equal protection and due process holdings, but remanded for further consideration of Searle's Commerce Clause claims. The Court declined to reach that issue, first, because it had not been addressed here or in the district court, and second, because of a perceived ambiguity as to the manner in which a foreign corporation could become "represented" within the meaning of the tolling statute. We in turn remanded to the district court to consider those issues.

Following our remand, but before the district court could issue its decision, the Supreme Court of New Jersey decided Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983) (Coons I). In that case, whose operative facts were similar in relevant respects to those here, the court resolved the ambiguity in the state law perceived by the Supreme Court by holding that a corporation could only be represented in the state by obtaining a certificate of authority to do business there. See N.J. Stat. Ann. 14A:13-4 (1969). As noted by the court, a corporation thus registered is subject, inter alia, to personal jurisdiction in any lawsuit commenced in New Jersey. The New Jersey court went on to hold, however, that the tolling statute, thus interpreted, was a "forced-licensure provision" which violated the Commerce Clause.

Subsequently, on rehearing, the court held that its invalidation of the tolling statute would not be accorded retroactive effect;*fn5 thus, "the statute of limitations as to foreign, unrepresented corporations commences to run as of" August 3, 1983, the date of the Coons I decision. Coons v. American Honda Motor Co., 96 N.J. 419, 476 A.2d 763 (1984) (Coons II). It held further that even the litigants in the case before it would continue to be governed ...

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