Indiana Law Review


The Federal Long-Arm: The Uses of Diversity,
or 'Tain't So, McGee

Richard H. Seeburger*

The due process clause of the fourteenth amendment to the
Constitution of the United States prevents the courts of a state from
exercising in personam jurisdiction over a defendant who never has
had any contacts with that state. Whether the due process clause of
the fifth amendment would similarly limit the United States District
Court for that district, sitting in diversity jurisdiction, has yet to be

answered. There are presently a number of situations in which
federal courts exercising diversity jurisdiction do reach absent

parties a state court could not. These deserve critical examination

since they, along with some Supreme Court dicta, serve as authority
for a proposition which, if fully utilized, could have a profound

impact on individuals in our federal system.

The American Law Institute (ALI) has proposed expansion of
diversity of citizenship jurisdiction in heretofore frustrating multi-

party, multi-state situations,^ primarily to reach those absent who are
necessary for a just adjudication of the claim. The fact that territorial
limitations constitutionally prevent any state from achieving juris-
diction to resolve such a dispute^ suggests to the ALI that the solution,
if any, is to be found at the federal level, arguably in the article III

authority for diversity jurisdiction. This proposed new jurisdiction,
original and by removal, with only minimal diversity required,
would encompass those cases in which there are several parties
necessary for a just adjudication who are not all amenable to service
under any one state's jurisdiction.^ Another proposed change, in
interpleader, makes a corporation incorporated in more than one
place a citizen of that jurisdiction which will establish diversity."^

*Professor of Law, University of Pittsburgh School of Law. A.B., Dickinson

University, 1957; LL.B., Harvard University, 1960; LL.M., 1964.

^American Law Institute, Study of the Division of Jurisdiction Between
State and Federal Courts (1969) [hereinafter cited and referred to in text as
Study].

^Hanson v. Denckla, 357 U.S. 235 (1958). See quotation in note 29 infra.

3ALI Study, supra note 1, §§ 2371, 2373. Section 2371 provides for original

jurisdiction when defendants necessary for a just adjudication of plaintiffs claim are
beyond the reach of any one state. Section 2373 provides for removal when a dispersed
party is necessary to a defendant. Section 2374(b) proposes giving the district courts

nonreviewable discretion on motion or sua sponte to transfer such cases to any other

district for the convenience of the parties or witnesses, or otherwise in the interest of

justice.

Vd § 2375.



1977] FEDERAL LONG-ARM 481

The ALI, conscious that its proposals raise constitutional issues,
appended Supporting Memorandum B to the Study.^ The memor-
andum is brief but, g-iven the paucity of available authority, brevity is
not its principal weakness. It suffers from addressing the wrong
issue. It attempts to show a federal power to provide for nationwide
service of process in all diversity cases rather than those limited

situations to which the ALI Study was addressed. Secondly, it does
not confront a concern that has been voiced in several lower federal

courts, a possible fifth amendment due process limitation on such
service of process.

The memorandum proceeds from the assertion that most existing
authority draws no distinction between congressional power to
provide for nationwide service of process in cases involving the

enforcement of federal law and the power so to provide in diversity of
citizenship cases. The dearth of authority to the contrary is taken as
proof of the existence of a power never exercised as such and in any
event never directly challenged. The memorandum asserts that the
pattern of not crossing state lines in diversity cases is a product of

congressional choice rather than constitutional limits.^ The existing
authority relied on consists of Supreme Court dicta and two statutes
which provide for extraterritorial service of process in stockholder's
derivative actions and interpleader cases.

This Article will examine the authorities relied on by the
memorandum and other authorities, including developments since the
appearance of the ALI Study in which rights beyond state lines have
been affected by the actions of United States courts sitting in

diversity. Finally, this Article will suggest a constitutional justifica-

tion for extra-state service of process in some, but not all, diversity

cases, while recognizing an important difference between cutting off
the interests of an absent plaintiff and imposing liability on an absent
defendant.

I. The ALFs Authorities

The most prominent authority cited in the Study is the statement
of a unanimous Supreme Court (Mr. Justice Jackson not partici-
pating) that "Congress could provide for service of process anywhere
in the United States."^ This dictum by the Supreme Court must be

s/d. at 437-41.

^That the former is true does not establish the latter. The memorandum points
out that for one year under the Judiciary Act of 1801 one district did disregard state
lines, encompassing the District of Columbia and parts of Maryland and Virginia. Act
of Feb. 13, 1801, Ch. 4, §§ 4, 21, 2 Stat. 89, 96, repealed Act of March 8, 1802, Ch. 8, § 1, 2
Stat. 132. The early Congresses were not the final word on the powers of federal courts
under article III. See Marbury v. Madison, 5 U.S. (1 Cranch) 87 (1803).

^Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 442 (1946). The issue
was whether Federal Rule 4(f) could authorize service of process in the Southern



482 INDIANA LAW REVIEW [Vol. 10:480

taken as especially considered, since it came only a year after the
Court's extensive treatment of the extraterritoriality of state court

jurisdiction in International Shoe Co. v. Washington^ The primary
authority for the Court's assertion was Toland v. Sprague.^ Neither
case, however, involved service of process beyond that which the
state court could have accomplished. ^^ Such a statement from a
Supreme Court without contradiction or dissent, albeit with only fiat
authority, is certainly impressive. Further, the statement implicitly

contains two critical assertions. The first is that there resides
somewhere in the Constitution the grant of substantive power to
provide for nationwide service of process in a diversity case. The
second is that this power is in no way limited by the due process
clause of the fifth amendment. ^^

The memorandum also draws support from the majority's
refusal to respond to Mr. Justice Black's dissent in National
Equipment Rental, Ltd. v. Szukhent,^^ in which he directly raised the

District of Mississippi when a diversity action was properly laid in the Northern
District. Subsequently Mr. Justice Jackson in his plurality opinion in National Mutual

Ins. Co. V. Tidewater Transfer Co., 337 U.S. 582 (1949), said, "The defendant here does

not challenge the power of Congress to assure justice to the citizens of the District by
means of federal instrumentalities, or to empower a federal court within the District to
run its process to summon defendants here from any part of the country." Id, at 590.
The basis for federal jurisdiction in this case, however, was not diversity.

8326 U.S. 310 (1945).
937 U.S. (12 Pet.) 300 (1838). The following statement appears in the case:

"Congress might have authorized civil process from any circuit court, to have run into
any state of the Union." Id. at 328. This diversity case was commenced, however, by a
writ of foreign attachment against the property of the absent defendant, expressly

authorized today under Federal Rule 4(e). The Court cited no authority for its
statement.

^"The Court also cited two other cases, United States v. Union Pac. R.R., 98
U.S. 569 (1878), and Robertson v. Railroad Labor Bd., 268 U.S. 619 (1925), neither of
which was a diversity case.

i^Whether such due process limits apply when jurisdiction is based on federal
question has not been authoritatively answered. See Oxford First Corp. v. PNC
Liquidating Corp., 372 F. Supp. 191 (E.D. Pa. 1974) and the discussion of authorities at
198-205. The court applied "traditional procedural due process notions as a part of a
judicial fairness test rather than impose the International Shoe mandate of due process
on federal nationwide service of process statutes." Id. at 203 (emphasis in original).

The court overruled the objections of California defendants to suit in Pennsylvania
based on false and misleading financial statements, inducing an exchange of stock,

because the defendants knew that their financial statements would be sent to and used
by the plaintiff concern in Pennsylvania. Should such limitations apply in federal
question jurisdiction, it seems clear they would apply in diversity.

^2375 U.S. 311 (1964). The pertinent language in the dissent is as follows:
It has been established constitutional doctrine since Pennoyer v. Neff

was decided in 1878, that a state court is without power to serve its process
outside the State's boundaries so as to compel a resident of another State
against his will to appear as a defendant in a case where a personal judgment
is sought against him. This rule means that an individual has a



1977] FEDERAL LONG-ARM 483

point. In issue was whether defendants were properly served under
Federal Rule 4(d)(1) and that turned on the factual dispute of
whether they had appointed a particular individual their agent for
receiving service of process in their contract with plaintiff. The
majority ruled they had, so no comment on the point raised in the
dissent was necessary. ^^

Finally, the memorandum draws support from the acceptance in
lower federal courts without apparent question of two acts of

constitutional right not to be sued on such claims in the courts of any State

except his own without his consent. The prime value of this constitutional
right has not diminished since Pennoyer v. Neffwas decided. Our States have
increased from 38 to 50. Although improved methods of travel have

increased its speed and ameliorated its discomforts, it can hardly be said that

these almost miraculous improvements would make more palatable or
constitutional now than in 1878 a system of law that would compel a man or
woman from Hawaii. Alaska, or even Michigan to travel to New York to
defend against civil lawsuits claiming a few hundred or thousand dollars

growing out of an ordinary commercial contract.

It can of course be argued with plausibility that the Pennoyer

constitutional rule has no applicability here because the process served on the

Szukhents ran from a federal, not a state, court. But this case was in federal
court solely because of the District Court's diversity jurisdiction. And in the
absence of any overriding constitutional or congressional requirements the

rights of the parties were to be preserved there as they would have been
preserved in state courts. Neither the Federal Constitution nor any federal

statute requires that a person who could not constitutionally be compelled to
submit himself to a state court's jurisdiction forfeits that constitutional

right because he is sued in a Federal District Court acting for a state court

solely by reason of the happenstance of diversity jurisdiction. The constant
aim of federal courts, at least since Erie R. Co. v. Tompkins, has been, so far
as possible, to protect all the substantial rights of litigants in both courts

alike. And surely the right of a person not to be dragged into the courts of a
distant State to defend himself against a civil lawsuit cannot be dismissed as

insubstantial. Happily, in considering this question we are not confronted
with any congressional enactment designed to bring nonstate residents into a

Federal District Court passed pursuant to congressional power to establish a
judicial system to hear federal questions under Article HI of the Constitu-
tion, or its power to regulate commerce under Art. I, § 8, or any of the other
constitutionally granted congressional powers; we are dealing only with its
power to let federal courts try lawsuits when the litigants reside in different
States. Whatever power Congress might have in these other areas to extend

a District Court's power to serve process across state lines, such power does
not, I think, provide sound argument to justify reliance upon diversity
jurisdiction to destroy a man's constitutional right to have his civil lawsuit

tried in his own State. The protection of such a right in cases growing out of
local state lawsuits is the reason for and the heart of the Pennoyer

constitutional doctrine relevant here.

Id. at 330-32 (Black, J., dissenting) (citations omitted).

^^It is clear that the state rules could have authorized service of process. The
focus of the dissent above quoted was on Erie rather than due process. It may well
have been prompted by Abraham, Constitutional Limitations Upon the Territorial
Reach of Federal Process, 8 ViLL. L. Rev. 520 (1963).



484 INDIANA LAW REVIEW [Vol. 10:480

Congress authorizing such nationwide service of process. ^"^ Support,
rather, should be drawn from the lack of direct challenge.

The "support" that Supporting Memorandum B lends, then, is
simply the assertion that there is no difference in federal court

between the authority of Congress to provide for nationwide service
of process to enforce federal laws that have a nationwide effect and
its authority to provide for nationwide service of process to enforce

laws whose effect has a territorial limitation by virtue of their
authority being derived from state sovereignty.

There are, however, areas of support not relied on by the
Memorandum — at the Supreme Court, congressional, and lower
federal court levels — which suggest a difference between reaching
absent plaintiffs and absent defendants. It is to these authorities this
Article now turns.

II. Other Authorities

Nationwide service of process^^ in statutory interpleader^^ cases

has more authority behind it than the fact that Congress thought it
could do it. Of the cases^"^ that have reached the Supreme Court,
resort to nationwide service of process was had in all but one.^^ In one

i^The memorandum cites by way of reference Steinberg v. Hardy, 90 F. Supp.
171 (D. Conn. 1950), involving 28 U.S.C. § 1695, providing for extraterritorial service

of process Dver the corporation in stockholder's derivative actions, and Great Lakes

Auto Ins. Group v. Shepherd, 95 F. Supp. 1 (W.D. Ark. 1951), involving 28 U.S.C. §
2361, providing for such service over claimants in interpleader cases. While what
Congress thought about its powers is clear from a reading of the statutes, it is difficult

to see what the reference to these two cases adds. Furthermore, the issue was not
raised in the Steinberg case. A more appropriate citation would have been Overfield v.
Pennroad Corp., 113 F.2d 6 (3d Cir. 1940), the only case involving such a direct

challenge under that statute. The authority given by the circuit court there was a
perfunctory reference to cases involving a federally created cause of action, including

those cited in note 10 supra. The interpleader case is an interesting reference. There
were cross-claims between defendant claimants unrelated to the fund deposited in
court. As to those defendants who were served under the statute but who did not
submit themselves to the jurisdiction of the court, the claims were dismissed, albeit on

the grounds that they were unauthorized under Federal Rule 13(g) since they did not

arise out of the same transaction or occurrence. See discussion in note 88 infra.
1^28 U.S.C. § 2361 (1970).
le/d § 1335.

I'^Griffin v. McCoach, 313 U.S. 498 (1941) is excluded from consideration here

since there was no appeal from the grant of relief in interpleader below. The sole
question before the Supreme Court was the choice of law rule in second stage
interpleader, i.e., the dispute among the claimants once the stakeholder is given relief
by a discharge from liability beyond the fund deposited in the court.

i^Levinson v. United States, 258 U.S. 198 (1922). The citizenship of the claimants
does not appear. It would seem that jurisdiction was not based on diversity, but rather
on 28 U.S.C. § 1345 with the United States as plaintiff. In any event, the Court said,

"[A]s all the parties consented to jurisdiction we do not feel called upon to raise a
question on that score." Id. at 200. Certainly the Court could not have been referring to



1977] FEDERAL LONG-ARM 485

case relief was denied. ^^ Of the remaining cases, three involved
problems of subject matter jurisdiction under 28 U.S.C. § 1335^" and

one involved a problem of jurisdiction to grant ancillary relief.^' In

none of these six cases was a challenge to nationwide service of
process made and the Supreme Court itself gave no indication that a
future challenge would be fruitful.

A second, and perhaps more far-reaching, area of support not
relied on by the ALI may be found in the acquiescence of the
Supreme Court and Congress^^ in certain amendments to the Federal
Rules of Civil Procedure in 1963 and 1966 authorizing district courts

to "reach" parties beyond the boundaries of the state in which the

court sits.

In 1963, amendments to Federal Rule 4(f) were adopted to
provide for service beyond the territorial limits of the state, but

within 100 miles of the place* in which the action is commenced or to
which it is assigned or transferred for trial, for persons who are
brought in as parties pursuant to Federal Rule 13(h) as additional

parties, or Federal Rule 14 as third parties, or Federal Rule 19 as

additional parties joined when needed for a just adjudication.^^

In 1966 a rewriting of the class action provisions of Federal Rule

23 was adopted, changing the impact of a judgment adverse to
extraterritorial class members. Rule 23(c)(2) now requires a
member of a "spurious" class to "opt out" rather than permitting him
to "opt in." The new class provided for in Federal Rule 23(b)(2),
designed to cover actions in the civil rights field in which "the party
opposing the class has acted or refused to act on grounds generally

subject matter jurisdiction. In context, however, it seems probable the reference is not
to personal jurisdiction either, but to "equitable jurisdiction" to grant relief in

interpleader, since it was suggested the stakeholder did not stand indifferent as then
required by 28 U.S.C. § 1335.

i^The eleventh amendment was held to preclude federal jurisdiction in Worcester
County Trust Co. v. Riley, 302 U.S. 292 (1937). An executor was unable to interplead
the different states which claimed his decedent was their resident for purposes of
inheritance taxes. The Court held that the possibility of conflict of decisions between
the courts of two states is not forbidden by the Constitution. Thus a suit against the tax
collectors was held to be a suit against the states since the officers would not be acting
beyond the limits of the states' lawful power. But cf. Western Union Tel. Co. v.
Pennsylvania. 368 U.S. 71 (1961), discussed infra at note 95.

^"State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967); Treinies v. Sunshine
Mining Co., 308 U.S. 66 (1939); Sanders v. Armour Fertilizer Works, 292 U.S. 190
(1934). In the first two cases the Court raised the issue itself.

^^Dugas V. American Sur. Co., 300 U.S. 414 (1937).
22The Congress does not always acquiesce in the product of the Advisory

Committee of the Judicial Conference. See 28 U.S.C. A. Legislative History, Federal
Rules of Evidence, at 825-26.

"The Advisory Committee cited Mississippi Publishing Corp. v. Murphree, 326
U.S. 438 (1946), as authority so to provide.



486 INDIANA LAW REVIEW [Vol. 10:480

applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the class as

a whole," provides no "opt out" opportunity.^^

III. Recent Lower Federal Court Practices

Lower federal courts have considered the extraterritorial impact
of the 1963 and 1966 amendments. In addition they have decided a
number of cases since the ALI Study involving statutory inter-
pleader and pendent jurisdiction of a state claim on a federal cause of

action, when nationwide service of process was used. Many of the
courts were not as satisfied as the ALI was with the legitimacy of
nationwide service of process in any and all diversity cases. Their

concern was not, as was Justice Black's,^^ with the source of federal
power so to provide, but rather with limitations on any such power
that fundamental fairness notions of due process might impose.

Those lower federal courts that confronted the issue did not seek

to equate the minimal contacts standard applied under McGee v.
International Life Insurance Co.'^^ with that which might be applic-

able to the exercise of federal p|Ower. The basis of the state court's
power is that it is sovereign within a defined territorial area.^'^ That
this is a necessary limitation upon power became somewhat obscured
in the cases dealing with the "presence" of foreign corporations.^^

^^Congress was careful, however, to limit extraterritoriality in the Multidistrict
Litigation Act, 28 U.S.C. § 1407 (1970), authorizing transfer only for pretrial purposes

and requiring remand to the original district for trial. "Pretrial proceedings" has been
held to include the granting of summary judgment. Humphreys v. Tann, 487 F.2d 666
(6th Cir. 1973), cert, denied, 416 U.S. 956(1974). The Rulesof Procedure of the Judicial
Panel on Multidistrict Litigation provided for transfer for trial across district lines, §
5.3, or across circuit lines, § 5.4, but only in compliance with 28 U.S.C. § 1404(a) (1970),

to a district where the action might have been brought, i.e., where service over the
defendant could have been obtained.

^^See note 12 supra.

26355 U.S. 220 (1957).

27Pennoyer v. Neff, 95 U.S. 714, 723 (1877):

[T]he exercise of jurisdiction which every State is admitted to possess

oyer persons and property within its own territory will often affect persons
and property without it. To any influence exerted in this way by a state
affecting persons resident or property situated elsewhere, no objection can be

justly taken; whilst any direct exertion of authority upon them, in an attempt
to give ex-territorial operation to its laws, or to enforce an ex-territorial

jurisdiction by its tribunals, would be deemed an encroachment upon the
independence of the State in which the persons are domiciled or the property
is situated, and be resisted as usurpation.

28See, e.g., McGee v. International Life Ins. Co., 355 U.S. at 222-23:
Since Pennoyer v. Neff, this Court has held that the Due Process Clause

of the Fourteenth Amendment places some limit on the power of state courts
to enter binding judgments against persons not served with process within
their boundaries. But just where this line of limitation falls has been the



1977] FEDERAL LONG-ARM 487

However, the point was forcefully reasserted in Hanson v. Denckla.^^
Assuming the power of the federal government to provide for service
of process across state lines in diversity cases, it is not restricted by

the inherent limitations of a territorial sovereignty, i.e., the en-

croachment on another sovereign, at least in those kinds of cases over
which no one state could acquire jurisdiction. While the lower
federal courts seemed to assume the power to cross state lines for
certain purposes, they were uncomfortable with the notion that such
power can run to the outermost limits of the borders of the United
States of America.

The cases considered in the lower federal courts, in order of their
complexity, involve (1) pendent jurisdiction, (2) Federal Rule 4(f),

(3) Federal Rule 23, and (4) 28 U.S.C. § 2361.

A. Pendent Jurisdiction

A problem of extraterritoriality under the doctrine of pendent
jurisdiction arises when a complaint based on a federal cause of
action for which nationwide service of process has been authorized^^

subject of prolific controversy, particularly with respect to foreign corpor-

ations. In the continuing process of evolution this Court accepted and then

abandoned "consent," "doing business," and "presence" as the standard for

measuring the extent of state judicial power over such corporations. See
Henderson, The Position of Foreign Corporations in American Constitutional
Law, c. V. More recently in International Shoe Co. v. Washington, the Court
decided that "due process requires only that in order to subject a defendant to

a judgment in personam, if he be not present within the territory of the
forum, he have certain minimum contacts with it such that the maintenance
of the suit does not offend 'traditional notions of fair play and substantial

justice.'
"

Looking back over this long history of litigation a trend is clearly

discernible toward expanding the permissible scope of state jurisdiction over

foreign corporations and other nonresidents. In part this is attributable to

the fundamental transformation of our national economy over the years.
Today many commercial transactions touch two or more States and may
involve parties separated by the full continent. With this increasing

nationalization of commerce has come a great increase in the amount of
business conducted by mail across state lines. At the same time modern
transportation and communication have made it much less burdensome for a
party sued to defend himself in a State where he engages in economic
activity,

(citations omitted).

29357 U.S. 235, 251 (1958):

Those restrictions are more than a guarantee of immunity from
inconvenient or distant litigation. They are a consequence of territorial

limitations on the power of the respective States. However minimal the
burden of defending in a foreign tribunal, a defendant may not be called
upon to do so unless he had the "minimum contacts" with that State that are a
pre requisite to its exercise of power over him.
305ee, e.g., 15 U.S.C. §§ 78aa, 77v(a) (1970).



488 INDIANA LAW REVIEW [Vol. 10:480

contains a count based on state law. Courts which have considered

the issue have split fairly evenly, all agreeing that the issue is only

one of statutory construction.^^ Those dismissing the pendent claim

view Congress as having intended to authorize service for the limited

purpose of deciding the "case" created by federal law.^^ Pendent

jurisdiction, it is argued, goes only to subject matter jurisdiction and

not to personal jurisdiction. That argument, however, was turned
around by the only circuit court to consider the point directly:

Congress has bestowed upon the United States District Courts
the power to extend their writ extraterritorily so as to compel

a personal appearance before them. Once the defendant is
before the court, it matters little, from the point of view of
procedural due process, that he has become subject to the
court's ultimate judgment as a result of territorial or
extraterritorial process. Looked at from this standpoint, the

issue is not one of territorial in personam jurisdiction — that
has already been answered by the statutes — but of subject
matter jurisdiction. It is merely an aspect of the basic

pendent jurisdiction problem.^^

B. Federal Rule of Civil Procedure 4(f)

Much the same reasoning has been used in the lower federal
courts to support the 100 mile bulge amendment to Federal Rule
4(f) in 1963. Since the bulge provision is limited to service under

Federal Rule 14 (upon a person not a party to the action who is or
may be liable to him for all or part of the plaintiffs claim against
him) or under Federal Rule 19 (upon a person needed for a just
adjudication), the subject matter is properly seen as ancillary rather

than pendent.

When the original subject matter jurisdiction is not based on
diversity the additional party, who was served only on the state
rather than the federal cause of action (but who could have been
made subject to the federal cause by Congress in order to completely
adjudicate the federal cause of action under ancillary jurisdiction),
presents a problem not significantly different from that of the party
who is served under a federal cause of action but must also respond to
a state cause of action under pendent jurisdiction. Thus in Coleman v.
American Export Isbrandtsen Lines, Inc.^^ a longshoreman allegedly

^'^See Mills, Pendent Jurisdiction and Extraterritorial Service Under the Federal
Securities Laws, 70 COLUM. L. REV. 423 (1970).

32See, e.g., Wilensky v. Standard Beryllium Corp., 228 F. Supp. 703, 705-06 (D.

Mass. 1964); Ferguson, Pendent Personal Jurisdiction in the Federal Courts, 11 ViLL.

L. Rev. 56 (1965).

33Robinson v. Penn Central Co., 484 F.2d 553, 555 (3d Cir. 1973).
34405 F.2d 250 (2d Cir. 1968).



1977] FEDERAL LONG-ARM 489

injured in New Jersey on defendant's ship sued the shipowner in
New York, and a claim over was made against the Philadelphia
stevedoring corporation not doing business in New York. Congress
could have given a cause of action against the stevedoring company
just as it could completely subsume a pendent state claim based on a
controversy which it could regulate exclusively. The problem
therefore is not of constitutional dimensions when the basis of
jurisdiction originally was not diversity and the 100 mile bulge is
limited to Rules 14 and 19.^^

However, when the original cause of action is based exclusively
on state law, the problem of service under Rule 4(f) cannot be

resolved on the basis of Congress' ability to provide for the convenient

resolution of federally based claims. Only one such case arose, Pierce

V. Globemaster Baltimore, Inc.,^^ in which a diversity action was
brought in Maryland against a Maryland manufacturer of rope
whose negligence allegedly caused the rope to break resulting in the

death in Pennsylvania of plaintiff's decedent. Defendant filed a third

party complaint under Federal Rule 14, served in eastern Pennsyl-

vania under amended Federal Rule 4(f) against the retailer, claiming
that any defect in the rope was caused by him, and against
the decedent's employer, claiming he failed to provide the decedent, a

painter, with a safe place to work.^'^ The court saw Coleman as
settling the validity of Rule 4(f), regardless of the subject matter

jurisdiction. It saw no constitutional problem, given Hanna v.
Plumer-^^ and the availability of nationwide service of process in

interpleader cases.

^^The Reporter to the Advisory Committee in his Memorandum on Comments to
Rule 4 relied on the statutory service provisions of the stockholder's derivative suit, 28

U.S.C. § 1695 (1970), and interpleader, 28 U.S.C. § 2361 (1970). See Vestal, Expanding
the Jurisdictional Reach of the Federal Courts: The 1963 Changes in Federal Rule U, 38

N.Y.U. L. Rev. 1053, 1061 (1963).
3649 F.R.D. 63 (D. Md. 1969).
3'^The typical fact situation under Rule 14 would be the obverse of this one, the

"vouching in" by an insured against his insurer, an employer against his employee or a

retailer against a distributor or manufacturer, when there is a duty of indemnification.
Notice may cross state lines and the prior judgment is given collateral estoppel effect
against the vouchee. In these cases, as with warranty, there is no personal jurisdiction

over the absent vouchee. Rather it is his pre-existing duty to indemnify that binds the

vouchee subsequently.

^380 U.S. 460 (1965). An executor in a diversity case was served by leaving
copies of the summons and complaint at his home with his wife pursuant to F.R.C.P.
(4)(d)(l) rather than in hand as required by state law. The Court held the Rule was
within the Enabling Act and without the Erie rule. For a discussion on whether these

are mutually exclusive categories see: Chayes, Some Further Last Words on Erie: The
Bead Game, 87 Harv. L. Rev. 741 (1974); Ely, The Irrepressible Myth of Erie, 87 Harv.
L. Rev. 693 (1974); Ely, The Necklace, 87 Harv. L. Rev. 753 (1974). Hanna does not
hold anything arguably procedural is therefore constitutional. Reliance on it in Pierce

begs the question.



490 INDIANA LAW REVIEW [Vol. 10:480

Pierce is the only case to squarely raise the issue of the power of

the federal government to provide for service across state lines. It did
not consider limitations based on fundamental fairness, but in that

regard the third party defendants were Pennsylvanians who could
have been made to travel much farther than 100 miles within the
state, to a place far less convenient, such as Pittsburgh, rather than to

Baltimore, Maryland.

C. Class Actions

A third area of potential extraterritorial effect in diversity
jurisdiction is found in class actions, in particular the 1966 amend-
ments affecting the "spurious" class provisions of Federal Rule
23(b)(2) and (3). The Advisory Committee's Notes observed of the old
rule that, "[T]he judgments in 'true' and 'hybrid' class actions would
extend to the class (although in somewhat different ways); the
judgment in a 'spurious' class action would extend only to the parties,
including the intervenors."^^ The new rule binds the members of the
"spurious" class who have been given notice and who do not request
exclusions.

The binding effect of class action judgments on absent non-
parties was early challenged and confirmed. In Smith v. Swormstedt^^
the Court held: "The legal and equitable rights and liabilities of all
being before the court by representation, and especially where the
subject matter of the suit is common to all, there can be very little
danger but that the interest of all will be properly protected and
maintained.""^1 Not only were the plaintiffs representing a class, but
the defendants were being sued as a class. The dispute was between
the southern and northern travelling ministers of the Methodist
Episcopal Church over a fund and property in Cincinnati held by an
unincorporated body politic in Ohio also named as a defendant. The
action was filed in Ohio, where all the property in dispute was located.
Supreme Tribe of Ben Hur v. Cauhle^'^ was similar, involving a class
action by representatives of Class A certificate owners brought in
Indiana concerning the power of a fraternal benefit association
Organized under Indiana law to create Class B benefits, allegedly
diluting the Class A benefits.

The importance of the in rem-in personam distinction and its
applicability to class actions seemed immaterial until Christopher v.

39FED. R. Civ. P. 17 to 23.2.

^°57 U.S. (16 How.) 288 (1853). The class action was deemed an equitable remedy.
There appears to have been no challenge to any extraterritorial impact of such
remedies raised in a state court.

^i/d at 303.

42 255 U.S. 356 (1921).



1977] FEDERAL LONG-ARM 491

Bnisselback.^'^ An Illinois federal court judgment levying an
assessment upon stockholders of an insolvent federal joint stock land
bank located there was held not to be res judicata to Ohio stockholders.
The Supreme Court ruled that mere membership in the corporation
(class) was not consent to jurisdiction for in personam liability under
the facts of the case, although otherwise, "[I]t is enough that in every
case the stockholder has assumed or retained his membership in the
corporation after the warning of the statute, or of rules governing the
corporation, of which he knew or had opportunity to know, that the
benefits of membership carry with them the risk that the corporation
may stand in judgment for him."^'* The Court referred to the class
action provisions as preserving "unimpaired the jurisdiction of

Federal courts of equity in a class suit to render a decree binding upon
absent defendants affecting their interest in property within the

jurisdiction of the court. ""^^

Recent cases, however, have focused rather on the issue of the

adequacy of representation'^^ and this concern seems an echo of the
statement in Smith v. Swarmstedt quoted above. '^'^ The modern
impetus for this is found in Hansberry v. Lee,"^^ a case ironic because

«302 U.S. 500 (1938).
*'Id. at 504.

^^Id. at 505 (emphasis added).

^^See Note, Collateral Attack on the Binding Effect of Class Action Judgments, 87
Harv. L. Rev. 589 (1974). Adequacy of representation does not eliminate the need for
notice. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-77 (1974).

*'^See text accompanying note 40 supra.
''^311 U.S. 32 (1940). The theoretical justification of protection through adequacy

of representation may be undercut by the line of cases beginning with Fuentes v.
Shevin, 407 U.S. 67 (1972), in which the Court rejected the argument that no prior

hearing was needed if substantive rights could be protected through subsequent
return of property and award of damages. The Court noted that while due process
tolerates some variance in form of the hearing appropriate to the nature of the case, the

opportunity for a hearing must exist. There was no suggestion that the forum should

be anything other than one with competent jurisdiction. Under Federal Rule 23(c)(2),
requiring the absent party to request exclusion imposes no great burden. The absent

party is not entitled to actual notice, however, but only "the best notice practicable

under the circumstances, including individual notice to all members who can be
identified through reasonable effort." This language is taken from Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950). See Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 173-74 (1974). The Court in Mullane assumed that notice would not, and was

not calculated to, come to the attention of all persons with an interest in the common
trust fund for which an accounting was sought. To the argument that the proceeding
was in personam the Court responded:

The legal recognition and rise in economic importance of incorporeal or

intangible forms of property have upset the ancient simplicity of property

law and the clarity of its distinctions, while new forms of proceedings have
confused the old procedural classification.

But in any event we think that the requirements of the Fourteenth
Amendment to the Federal Constitution do not depend upon a classification



492 INDIANA LAW REVIEW [Vol. 10:480

that binding effect was denied, although it could have been granted
had the first case proceeded explicitly on an in rem basis rather than
as a class action. The controversy concerned a large area in Chicago
subject to racially restrictive agreements entered into by some 500
landowners, which was to become effective when signed by owners of
ninety-five percent of the frontage. A class action was brought to
enforce it and the parties stipulated that the ninety-five percent
requirement had been met. In a subsequent suit to enforce the
agreement, the trial court found that owners of only fifty-four

percent had signed the agreement, but that the issue was res judicata
because of the prior class action. The Supreme Court of Illinois
reversed and was affirmed by the United States Supreme Court
which said:

Those who sought to secure its benefits by enforcing it could
not be said to be in the same class with or represent those
whose interest was in resisting performance, for the agree-
ment by its terms imposes obligations and confers rights on
the owner of each plot of land who signs it. If those who thus
seek to secure the benefits of the agreement were rightly
regarded by the state supreme court as constituting a class, it
is evident that those signers or their successors who are
interested in challenging the validity of the agreement and
resisting its performance are not of the same class in the sense
that their interests are identical so that any group who had
elected to enforce rights conferred by the agreement could be

for which the standards are so elusive and confused generally and which,

being primarily for state courts to define, may and do vary from state to
state. Without disparaging the usefulness of distinctions between actions in

rem and those in personam in many branches of the law, or in other issues, or
the reasoning which underlies them, we do not rest the power of the state to
resort to constructive service in this proceeding upon how its courts or this
Court may regard this historic antithesis. It is sufficient to observe that,
whatever the technical definition of its chosen procedure, the interest of the

state in providing means to close trusts that exist by the grace of its laws and
are administered under the supervision of its courts is so insistent and rooted
in custom as to establish beyond doubt the right of its courts to determine the

interests of all claimants, resident or nonresident, provided its procedure

accords full opportunity to appear and be heard.

399 U.S. at 312-13 (emphasis added). But this power of the state, whether proceeding
under an "in rem" label or not, to adjudicate the interests of nonresidents in a trust
fund admittedly situated there, or against the trustee who owes his legal status to the
laws of that state, involves no intrusion on the territorial sovereignty of another state.

The same cannot necessarily be said of the state's power to adjudicate the rights or
liabilities of a nonresident in a spurious class action. The common questions of fact or
law in such a class action do not exist by grace of the federal law. The federal interest
in adjudicating them is not the same as New York's in Mullane.



1977] FEDERAL LONG-ARM 493

said to be acting in the interest of any others who were free to
deny its obligation.'*^

There are apparently no cases which successfully impose in
personam liability on an absent class defendant. Cases under
Federal Rule 23 in which absent plaintiffs have been bound by an
adverse "spurious" class action judgment — in which only their
interests in a chose in action or a cause of action were cut off—have
not yet been based on diversity jurisdiction.^^ The fact that an absent
plaintiff might not be bound before the 1966 amendments led one
defendant to argue that an absent class plaintiff ought not take

advantage of a successful class action. This "mutuality" argument
was rejected in that instance, since the plaintiff was in fact a party to
the original action.^^

D. Interpleader

It is natural that the ALI proposal should rely heavily on the

''^311 U.S. at 44. For a recent discussion of adequacy of representation, see
Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973), holding that failure to appeal is not

adequate representation if the representative was given retroactive benefits and the
rest of the class was not. The case was a class action by drivers with suspended
licenses, brought under Federal Rule 23(b)(2), seeking a declaratory judgment on the
validity of a state's law on financial responsibility for motorists involved in accidents.

It was governed by the intervening decision in Bell v. Burson, 402 U.S. 535 (1971).
Although only implicit in the quotation in note 48 supra, it has been held that
determination of adequacy of representation made prior to certifying the class is not
binding on absent class members and may be challenged in a collateral proceeding.
Research Corp. v. Edward J. Funk & Sons Co., 15 Fed. Rules Serv. 2d 580 (N.D. Ind.
1971).

^In re Four Seasons Securities Laws Litigation, Arthur Anderson & Co. v. Ohio,
502 F.2d 834 (10th Cir. 1974), and Phillips v. Clark, 525 F.2d 500 (10th Cir. 1975),
denying relief under Federal Rule 60(b), which would have permitted absent plaintiffs
to opt out after settlement. The court concluded they could have opted out earlier and
that the representation leading to a settlement in retrospect was adequate. There are
apparently no cases involving a challenge to the binding effect of a class action by an

absent member who did not have the right to opt out. In National Student Market
Litigation v. Barnes Plaintiffs, 530 F.2d 1012 (D.C. Cir. 1976) there was a failure of
proof by the moving class members that they had not received notice. Another
situation in which an absent party can be bound is found in Federal Rule 19(a),
providing that a person needed for a just adjudication who is beyond the reach of
process can be joined as an involuntary plaintiff in a "proper case." Such cases are

those in which there is a pre-existing duty to permit the name to be used as a plaintiff
and the situation is similar to the vouching in or warranty situation discussed in note

37 supra. See Independent Wireless Tel. Co. v. R.C.A., 269 U.S. 459 (1926).
siSchrader v. Selective Serv. Sys. Local Bd. No. 76, 329 F. Supp. 966 (W.D. Wis.

1971), rev'd on other grounds, 470 F.2d 73 (7th Cir.), ceH. denied, 409 U.S. 1085 (1972).



494 INDIANA LAW REVIEW [Vol. 10:480

provision for nationwide service of process in statutory interpleader

cases.^2 ii is ^ widely used provision of long standing.^^

The nature of jurisdiction in interpleader has been the subject of
dispute in the lower federal courts, notwithstanding the lack of

challenge to nationwide service of process in those cases reaching the

Supreme Court.^^ There is disagreement whether jurisdiction is in
rem, quasi in rem, or in personam. The matter becomes critical if
there are cross-claims.

Assume A, B and C were all residents of California. A owns a
yacht and hires B to repair it for him for $15,000, to be held in escrow
by C pending successful completion of the work. A moves to Maine
and B to Hawaii. C, while visiting his friend A in Maine, is told that
the work was not successfully completed. B informs C the work is
done and demands the money. C files an interpleader action in the
United States District Court for the District of Maine,^^ depositing

the $15,000 with the court and serving A in Maine and B in Hawaii.
A, alleging that the work was not performed, files a counterclaim for
the fund and, alleging $50,000 damage by virtue of ^'s work on the
boat, cross-claims against B.^^

Plainly a Maine state court could not give judgment against B for
the alleged damage to the boat if he does not submit to the court's
jurisdiction. However, the statutes and rules contemplate that the

5228 U.S.C. § 2361 (1970) provides that in interpleader actions brought under
section 1335 of that title "a district court may issue its process for all claimants and
enter its order restraining them from instituting or prosecuting any proceeding in any
State or United States Court affecting the property, instrument or obligation . . . until

further order . . . ."

53First adopted in 1917, 39 Stat. 929, it antedates 28 U.S.C. § 1695 (1970),

covering stockholder's derivative actions, adopted April 16, 1936, ch. 230, 49 Stat.

1213. There is yet another statutory provision having effect across state lines, 28

U.S.C. § 1404(a) (1970), adopted June 25, 1948, ch. 646, 62 Stat. 937, providing for a
change of venue. It is similar to 28 U.S.C. § 1406(a) (1970), providing for transfer to a
jurisdiction where the action could have been brought in order to cure improper venue,
in that the transferee court has personal jurisdiction over the defendant, and the
transferor court does not. Hoffman v. Blaski, 363 U.S. 335 (1960). Section 1406(a) differs
from section 1404(a) in that the defendant may move under section 1404(a) to transfer
the case even when venue is proper, forcing the plaintiff to try the case in a district
where plaintiff is not subject to service of process. See Van Dusen v. Barrack, 376 U.S.
612 (1964). Apparently no plaintiff, on defendant's section 1404(a) motion, has objected
to the court's powers.

^See notes 17-21 supra.

55Venue is set where a claimant resides. 28 U.S.C. § 1397 (1970).
^^The pertinent language of Federal Rule 13(g) is "arising out of the transaction

or occurrence ... or relating to any property that is the subject of the original action."

Clearly if there were no escrow arrangement and the suit was only between A and B
the counterclaim would be compulsory as arising out of the "transaction or occurrence"
within the meaning of Federal Rule 13(a). See 6 C. Wright & A. Miller, Federal
Practice and Procedure § 1410 (1969).



1977] FEDERAL LONG-ARM 495

United States District Court sitting in diversity may do so.^"^ The
jurisdiction of the cross-claim is ancillary, which supplies the basis
for subject matter jurisdiction. Is it a basis for personal jurisdiction

in the federal court?

The nature of the court's jurisdiction over the claimants in an
interpleader action should be viewed as a product of the nature of an

interpleader action. Conventional wisdom, if not received know-
ledge, had it that the relief Sifforded by interpleader was essentially in
personam although the basis of the jurisdiction was essentially in
rem, whether reference was to the original "strict" bill in inter-
pleader on the law side or the bill in the nature of a bill in

interpleader on the equity side. The latter was clearly a device of the
Chancellor. The origin of the former is a matter of some dispute,
although relief is always the discharge of the stakeholder-plaintiff

from personal liability upon the deposit of payment into court. Then
the claimants, "enjoined" from suing the stakeholder-plaintiff, fight
it out among themselves in the "second stage." Whether the first
stage is viewed as giving essentially legal or equitable relief, there

were four strict requirements:

The equitable remedy of interpleader . . . depends upon and
requires the existence of the following conditions: 1. The
same thing, debt, or duty must be claimed by both or all the
parties against whom the relief is demanded. 2. All the
adverse titles or claims must be dependent. 3. The person
asking relief—the plaintiff—must not have any claim or
interest in the subject matter. 4. He must have incurred no
independent liability to either of the claimants; that is, he

must stand perfectly indifferent between them, in the
position merely of a stakeholder.^^

Equity's development of a bill in the nature of a bill in interpleader

gave relief when the stakeholder violated the third requirement by
claiming an interest in the subject matter and when there was some
basis for equitable relief other than the possibility of multiple

liability or inconsistent judgments.^^ Even if the first stage of strict

^Wut see Marine Bank & Trust Co. v. Hamilton Bros., Inc., 55 F.R.D. 505 (W.D.
Fla. 1972), discussed in note 88 infra.

58J. PoMEROY, Equity Jurisprudence § 1322 (1883).
59

A bill in the nature of a bill of interpleader is one in which the complainant
seeks some relief of an equitable nature concerning the fund or other subject-
matter in dispute, in addition to the interpleader of conflicting claimants.

The complainant is not required, as in strict interpleader, to be indifferent
stakeholder, without interest in the subject-matter. It is essential, however,

that the facts on which he relies entitle him to equitable, as distinguished
from legal, relief; he is not permitted, under the guise of a bill in equity, to



496 INDIANA LAW REVIEW [Vol. 10:480

interpleader gave an equitable remedy that involved the in personam
relief of an injunction against the claimant-defendants suing the

discharged stakeholder-plaintiff for the res, the original basis of

jurisdiction is seen to be in rem. Relief in the first stage of strict

interpleader, even if viewed as equitable, nonetheless had as its

ancestor common law interpleader, used in a "real" or in rem action
like detinue.^^

Whatever the original requirements of interpleader,^^ Pomeroy's

four requirements were contained in the original federal statute.

They were, however, much modified by subsequent amendments.^^
These changes were due almost entirely to the writing of Professor

Zechariah Chafee, Jr., who drafted the 1936 amendments.^^ Pres-
ently the first three of Pomeroy's requirements are expressly

abolished under both statutory and Rule^'^ interpleader.^^ The ability

litigate a purely legal claim or interest in the subject-matter ....
J. POMEROY, Equity Jurisprudence § 1481 (4th ed. 1919).

^'^There is a view that no writ of interpleader was available at common law, but
that it was available only as a defensive measure. See Rogers, Historical Origins of
Interpleader, 51 YALE L.J. 924 (1942). Plainly it was available in response to detinue
actions brought by several claimants to lost goods casually found, or to a bailee given

goods to be delivered to a third person upon the happening of a certain event.
61

1. The "classic" requirements for interpleader are not in any proper sense
classic but are in fact of fairly late origin in the history of equitable

jurisdiction.

2. The four requirements for interpleader stated by Pomeroy originated in
the improvisations ad hoc and achieved generalization and authority by
virtue of credulous extensions of precedent.

3. Of the four requirements, one—the requirement that the claimants' titles
be "derivative" or from a "common source"— is plainly insupportable; another
— that the stakeholder not dispute the extent of his liability — is the subject
of divided authority concealed by the suppositious "bill in the nature of
interpleader"; another — that the stakeholder have no "independent liability"
to either claimant — was a response to a now obsolete procedural difficulty;
and the remaining one — that the claims relate to "the same debt or duty"— is
question-begging.

Hazard & Moskovitz, An Historical and Critical Analysis of Interpleader, 52 Cal. L.
Rev. 706, 749-50 (1964).

6239 Stat. 929 (1917); 43 Stat. 976 (1925); 44 Stat. 416 (1926); 49 Stat. 1096 (1936).

^^Professor Chafee's writings include: Modernizing Interpleader, 30 Yale L.J.
814 (1921); Interstate Interpleader, 33 YALE L.J. 685 (1924); Interpleader in the United
States Courts, 41 Yale L.J. 1134 (1932), 42 Yale L.J. 41 (1932); Federal Interpleader

Bill: Draft and Memorandum, prepared for the Section on Insurance Law of the
American Bar Association (May 1934); The Federal Interpleader Act of 1936, 45 YALE
L.J. 963, 1161 (1936); Federal Interpleader Since the Act of 1936, 49 Yale L.J. 377
(1940); Broadening the Second Stage of Interpleader, 56 Harv. L. Rev. 541, 929 (1943).

^^Federal Rule 22 interpleader is not part of the present discussion, since it

contemplates personal service under Federal Rule 4, and not service across state lines.

^^Developments in the Law: Multiparty Litigation: in the Federal Courts, 71 Harv.

L. Rev. 875, 926-27 (1958).



1977] FEDERAL LONG-ARM 497

to file counterclaims under Federal Rule 13 would seem to eliminate
the fourth requirement of no independent liability. ^^ Federal
interpleader today seems to contemplate relief when jurisdiction
cannot be viewed as either in rem or quasi in rem. This may not be
the case and therefore such actions might be maintainable in state
courts. It was, however, failure of relief in a state court that led to

adoption of the federal statute in the first place. That failure should
be reviewed before turning to the current disputes on the nature of

interpleader jurisdiction in the lower federal courts and the possi-
bility of cross-claims between absent claimants.

The case is, of course, New York Life Insurance Co. v. Dunlevy^'^
and the failure or refusal of the Court to apply the quasi in rem
jurisdictional base of Harris v. Balk.^^ The difficulty flows both from
the problem of locating the situs of intangible property and the
fictitious ubiquity of corporations. The issue for our purposes is
whether Mullane^^ will permit the reification and localization of such
property so that a court can give in rem or quasi in rem judgments
even though the property holder may be in more than one territorial
jurisdiction at any one time. The answer seems to be "yes."

In Harris the property was an admitted debt which was attached
by the civil arrest of the debtor by a creditor of the creditor. This
asset was in effect reified by the debtor's admitting the debt and
depositing a bond as a condition for his release. The debtor then
notified, but did not serve, his creditor in another state. In a

subsequent suit by that creditor against the debtor in the other state,

^The proper historical conception of interpleader has been stated thusly:
A person against whom two or more persons make claim may bring an action
for determination whether he is liable to one or several of the claimants, and

if so to what extent, whenever:
(a) the claims involve contentions of fact, or contentions of mixed law

and fact, such that the plaintiff may sustain double or multiple liability as a
consequence of the contentions being determined inconsistently; or

(b) the claims may exhaust a limited fund to which the claimants look
for recovery.

Hazard & Moskovitz, supra note 61, at 762-63.
e^New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916).
68198 U.S. 215 (1905). Notwithstanding Harris, the Third Circuit recently

declared quasi in rem jurisdiction unconstitutional on the basis of Fuentes v. Shevin,
407 U.S. 67 (1972), apparently even as a means of establishing jurisdiction when the
res would not be restrained after appearance. Jonnet v. Dollar Savings Bank, 530 F.2d

1123 (3d Cir. 1976). Judge Gibbons concurred on the ground that the minimum
contacts test of International Shoe Co. v. Washington, 326 U.S. 310 (1945) for personal

jurisdiction applies also to quasi in rem jurisdiction and thus limits Harris. Sub-
sequently another panel invalidated the Delaware sequestration procedure on the latter

ground. U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (3d Cir. 1976). A broad array of
challenges to that procedure, which does not permit a special or limited appearance, is

presented in Greyhound Corp. v. Heitner, 361 A.2d 225 (Del. 1976), appeal filed sub

nam. Shaffer v. Heitner, 45 U.S.L.W. 3004 (June 15, 1976) (No. 75-1812).

^^See quotation in note 48 supra.



498 INDIANA LAW REVIEW [Vol. 10:480

the Supreme Court held the defendant could plead his deposit in the
first suit as a defense, since he had given notice. The practical effect
was to hold that the original obligation has a situs where the debtor
was and, when attached, could be treated like a res for jurisdictional
purposes. '^0

In Dunlevy the debtor did not admit its liability to anyone in

particular, but only that it owed the sum to one of two claimants, not
knowing which because of a disputed assignment."^! Here again the
nonresident claimant was given notice but not served. Here,
however, that claimant was allowed to prevail in the second suit and
the debtor was not permitted to plead the deposit in court in an
interpleader action in the first state or that the property had been

awarded to the other claimant. "^^ xhe holding seems to indicate that if
the stakeholder does not admit the property belongs to the absent

claimant, or the court does not so adjudicate, there is nothing of the

nonresident's in the state over which to extend quasi in rem
jurisdiction, thus leaving the absent claimant with notice free to

argue later that there was.

This distinction has been advanced more formally in Atkinson v.
Superior Courf^ in which Justice Traynor said Dunlevy was an
interpleader action initiated by the stakeholder, whereas Harris was
garnishment or attachment. The former involved a disputed claim,
the latter an undisputed claim. In Atkinson the question was

^"Note that the attaching creditor was not claiming title to or an existing right to
immediate possession in the thing attached. At common law the writ of garnishment
was closely related to interpleader, but was allowed only in an action for detinue,
involving chattels real. There the defendant could garnish or call in a third party who
also had a claim. The writ of scirefacias would issue against the third party, who then
became the defendant in the detinue action, with the garnishee out of court discharged
from further liability.

^^The debtor was a corporation doing business in more than one state. Nothing
was made to turn on the potential problem of deciding in which state the debt would be
located if the Harris rule of the debt following the debtor were to be applied to such
corporations. The case was decided as though the debtor were an individual.

''^As the caption suggests, the stakeholder-debtor was an insurance company. The
1917 Act, 39 Stat. 929, authorized filing of interpleader by "any insurance company or
fraternal benefit society." The 1925 amendment, 43 Stat. 976, expanded this to "any
insurance company or association or fraternal or beneficial society." The 1926
amendment, 44 Stat. 416, added casualty companies and surety companies. The final
changes in 1936, 49 Stat. 1096, include "any person, corporation, association, or

society" and added relief in the form of a bill in the nature of a bill in interpleader. The
Act always required a deposit or bond. Federal Rule 22 interpleader does not
expressly require deposit or bond. See Urborn, Multiple Claims from One Accident:
Federal Interpleader, 34 Ins. Counsel J. 343 (1967), urging this benefit of Rule
interpleader. However, Rule interpleader requires in personam jurisdiction in the
first instance, and in any event, the court has discretion in requiring deposit or bond.
See United States v. Coumantaros, 146 F. Supp. 51 (S.D.N.Y. 1956).

7349 Cal. 2d 338, 316 P.2d 960 (1957).



1977] FEDERAL LONG-ARM 499

whether New York trustees were indispensible parties to a California
class action brought by California employees against California

employers to decide whether certain royalties were wages so that
their diversion to New York trusts would be in violation of a
collective bargaining agreement. The employers alleged their
willingness to pay the royalties as wages, but alleged the conflicting

demands of the New York trustees. The court held that since the case
was not one of the stakeholder invoking the jurisdiction of a court
remote from the claimant for the purpose of terminating his

obligation, or one where the stakeholder seeks to have conflicting
claimants adjudicate their rights in a forum of his own choice, the
court could find no distinction between quasi in rem jurisdiction over
a nonresident's chose in action admittedly his and jurisdiction to
establish that it was never his."^"* The court found the minimum
contacts required by due process satisfied."^^

Statutory interpleader was intended to overcome the Dunlevy
problem^^ and as noted above"^"^ this has apparently been successful.

While no direct challenge to nationwide services of process was made
in the Supreme Court in State Farm Fire and Casualty Co. v.

'^The situs of the chose in action as California was not challenged. When the
stakeholder is a corporation present in more than one state, unless the obligation can be
reified and localized, no one state has exclusive territorial jurisdiction to foreclose the

interest of nonresident claimants without infringing on the sovereignty of another

state. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961), discussed in note

94 infra. In Steele v. G.D. Searle & Co., 483 F.2d 339 (5th Cir. 1973), the court treated
the problem of locating the situs of the debt of a multi-state corporation (admittedly

generally present) in a manner similar to locating the corporate presence by evaluating
the contacts with the state of the transaction giving rise to the debt.

^^For a general discussion of the impact of Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950), on the problem, see Hazard, A General Theory of State
Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 281-88, and von Mehren & Trautman,
Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 112X(1966j. The
"minimum contacts" theory has been the subject of a great deal of commentary. See,
e.g.. Comment, Jurisdiction in Rem and the Attachment of Intangibles: Erosion of the
Power Theory, 1968 DuKE L.J. 725. It has been suggested that full faith and credit
rather than due process is the proper focus where subsequent impact on non-

residents is involved. Pennoyer v. Neff, 95 U.S. 714 (1877), is blamed for equating full

faith and credit with due process and then focusing on due process alone. See

Comment, Long Arm and Quasi In Rem Jurisdiction and the Fundamental Test of
Fairness, 69 MiCH. L. Rev. 300, 305 (1970).

'^See Sanders v. Armour Fertilizer Works, 292 U.S. 190 (1934). Note that in
statutory interpleader the concerns expressed by Justice Traynor in Atkinson would be

expressed in terms of venue in the federal courts. In any event, the distinction between

permitting a claimant to reify the debt, but not permitting the stakeholder to reify it

where another claimant is located, is elusive at best.

^^See cases cited at notes 18-21 supra. Since no challenge has been made in the
Supreme Court, there has been no occasion to pass on the jurisdictional consequences of
the amendments cited in note 62 supra.



500 INDIANA LAW REVIEW [Vol. 10:480

Tashire,'^^ such a challenge was made below but expressly was not
passed on."^^ The Ninth Circuit ruled that claimants with unliqui-
dated tort claims were not claimants within the meaning of section
1335,^^ and on this point the Supreme Court reversed. While holding
that interpleader jurisdiction was properly invoked, the Supreme
Court ruled that the injunction affecting the second stage was
improper, thus avoiding the issue. The language used, however,
recognized the traditional distinction between in rem or quasi in rem
in the first stage proceeding, and personal jurisdiction in the second
stage.^^

^8386 U.S. 523 (1967).

^^Tashire v. State Farm Fire & Cas. Co., 363 F.2d 7 (9th Cir. 1966).
^•'The case went to the circuit court on an interlocutory appeal from the grant of a

preliminary injunction. 28 U.S.C. § 1292(a)(1) (1970). The action was commenced in
the United States District Court for the District of Oregon, where a potential claimant,

a passenger in a truck, resided. The plaintiff, insurer of the truck driver which

collided with a Greyhound bus in California, deposited the full limits of the policy in

court in Oregon. Injured bus passengers, including both Canadians and Americans,

had already instituted actions in California, claiming more than $1,000,000 in

damages. Plaintiff insurer sought a declaration of no coverage and, in the alternative,

a discharge from liability beyond the policy limits already deposited. In addition, the

insurer sought discharge from the duty to defend the truck driver and an order

requiring all claimants to establish liability in the Oregon proceeding and no other. A
preliminary injunction against the nonresident claimants prosecuting their claims

elsewhere was issued, and later was broadened at Greyhound's request to include suits
against it and its driver.

81386 U.S. 533-34.

The fact that State Farm had properly invoked the interpleader
jurisdiction under § 1335 did not, however, entitle it to an order both

enjoining prosecution of suits against it outside the confines of the

interpleader proceeding and also extending such protection to its insured,

the alleged tortfeasor. Still less was Greyhound Lines entitled to have that
order expanded so as to protect itself and its driver, also alleged to be

tortfeasors, from suits brought by its passengers in various state or federal

courts. Here, the scope of the litigation, in terms of parties and claims, was
vastly more extensive than the confines of the "fund," the deposited proceeds
of the insurance policy. In these circumstances, the mere existence of such a
fund cannot, by use of interpleader, be employed to accomplish purposes that

exceed the needs of orderly contest with respect to the fund.

There are situations, of a type not present here, where the effect of

interpleader is to confine the total litigation to a single forum and

proceeding. One such case is where a stakeholder, faced with rival claims to
the fund itself, acknowledges—or denies—his liability to one or the other of
the claimants. In this situation, the fund itself is the target of the claimants.

It marks the outer limits of the controversy. It is therefore, reasonable and
sensible that interpleader, in discharge of its office to protect the fund,

should also protect the stakeholder from vexatious and multiple litigation. In
this context, the suits sought to be enjoined are squarely within the language

of 28 U.S.C. § 2361 ....
(footnote omitted) (emphasis added).



1977] FEDERAL LONG-ARM 501

Lower federal courts have often recognized the difference
between the nature of the jurisdiction and the nature of the relief as
between the first and second stages. It has been said that the relief to
the stakeholder is not in rem,^^ and that the jurisdiction is neither in
rem nor in personam.^^ The relief to the stakeholder against and
among the claimants has been to adjudicate only the interest in the
res.

There is no case imposing personal liability on a claimant
"personally served" under nationwide service when that claimant
was not otherwise subject to personal jurisdiction, such as by entering
an appearance or filing a counterclaim. The only holdings are to the
contrary. In Hallin v. C.A. Pearson, Inc.^'^ the court, in denying a
cross-claim, summarized the law as follows:

It has been held that one defendant-claimant in such an

interpleader action may not assert an in personam cross-
claim against another defendant-claimant, who is a non-
resident of the state in which the action is brought and thus
not otherwise subject to process, where the non-resident
defendant, although served, did not appear in the action to
assert any claim to the interpleader fund. Stitzel-Weller
Distillery v. Norman, 39 F.Supp. 182 (W.D.Ky. 1941); Hagan

^2"The payment of the amount of the debt into court does not make interpleader a
proceeding in rem, but it is merely a condition precedent to relief from double vexation

" Chafee, Interstate Interpleader, 33 Yale L.J. 685, 711 (1924). See Humble Oil &
Ref. Co. V. Copeland, 398 F.2d 364 (4th Cir. 1968) and Commercial Security Bank v.
Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972). In Knoll v. Socony Mobil Oil
Co., 369 F.2d 425 (10th Cir. 1966), the court stated it had no jurisdiction to enjoin the

claimants from making other claims elsewhere with reference to the same transaction.
It stated its jurisdiction was in personam only as to the fund. The case is a strong one,
for it does not appear that nationwide service of process was availed of, and in any
event the claimants had already filed a counterclaim for the fund, thus arguably

submitting themselves to jurisdiction of the court. It is not clear whether the court was

referring to subject matter jurisdiction or personal jurisdiction. In this regard the

relief requested was not dissimilar from that disallowed in Tashire. See notes 80 & 81
supra.

83United States v. Coumantaros, 146 F. Supp. 51 (S.D.N. Y. 1956); Metropolitan

Life Ins. Co. v. Skov, 45 F. Supp. 140 (D. Ore. 1942). See also Traynor, As This Conflict

Really Necessary, 37 Tex. L. Rev. 657, 663 (1959), urging complete elimination of the

distinction between in rem and in personam actions. Compare Aetna Life Ins. Co. v.
DuRoure, 123 F. Supp. 736 (S.D.N. Y. 1954), in which the claimants were nationals of
France and the United States. Claimants sought interest on the theory plaintiff

unreasonably delayed paying the fund into court. The court held the delay justified
because the French claimants did not come to the United States until shortly before the
interpleader action and the teaching of Dunlevy prevented the stakeholder from

converting its personal obligation into an in rem proceeding by depositing the sum into
court. While the court stated in personam jurisdiction was needed over the claimants,

it is not clear that it meant the kind of jurisdiction necessary to impose liability.
8434 F.R.D. 499 (N.D. Cal. 1963).



502 INDIANA LAW REVIEW [Vol. 10:480

V. Central Avenue Dairy, 180 F.2d. 502, 17 A.L.R.2d 735 (9th
Cir. 1950); Great Lakes Auto Ins. v. Shepherd, 95 F.Supp. 1
(W.D.Ark. 1951).

It has also been held, however, that in such case an
appearing defendant-claimant, against whom an in personam
cross-claim has been asserted by another appearing defen-
dant-claimant may waive any objection which it might
otherwise have had thereto. Coastal Air Lines v. Dockery,
180 F.2d 874 (8th Cir. 1950).85

Subsequent cases have cited Hallin and followed it.^^ To the
argument that the court must entertain the cross-claim because it

arises out of the same "transaction or occurrence"^^ the only court
specifically addressing itself to that issue said the rule's application

would run counter to the policy of Congress of encouraging adverse
claimants to come and assert their interests in the interpleaded
property, and it should not be used as a tool to expand jurisdiction
over nonresidents.^^

IV. Justification Other Than Nationwide Service of Process

The ALI proposals for extending diversity jurisdiction to the
multi-state, multi-party situation are bottomed on the broad prin-

ciple of the availability of nationwide service of process in diversity

cases. While the Supreme Court in dicta has said such was
permissible, there is only one case upholding the imposition of

liability when the issue was squarely raised, and that was in a district
court.^^ In all other cases the courts disclaimed jurisdiction to impose

personal liability on the nonresident defendant.^^ In other words,

^Hd. at 501-02. The Shepherd case, ironically, is the one relied on by the ALI in its
Supporting Memorandum B. See note 14 supra.

86Mahaney v. Doering, 260 F. Supp. 1006 (E.D. Pa. 1966); Marine Bank & Trust
Co. V. Hamilton Bros., 55 F.R.D. 505 (M.D. Fla. 1972).

87FED R. Civ. P. 13(g).
ssMarine Bank & Trust Co. v. Hamilton Bros., 55 F.R.D. at 507. The interpleaded

fund was a $15,000 escrow account to be paid a nonresident claimant on completion of
successful repairs to the second claimant's boat. The second claimant's cross-claim of
$50,000 for damages to the boat was disallowed. Only one case has allowed a cross-

claim. Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949), but that was a
proceeding under Rule 22 interpleader in which there was already in personam
jurisdiction, since personal service of the claimants must have been made under
Federal Rule 4. Because of the lower jurisdictional amount and the necessity of only
minimal diversity. State Farm Fire & Cas. Co, v. Tashire, 386 U.S. 523, the only
procedural advantage of Rule interpleader is the availability of cross-claims. However,

in Preferred Risk Mut. Ins. Co. v. Greer, 289 F. Supp. 261 (D.S.C. 1968) cross-claims in

Rule interpleader were disallowed because the interpleader jurisdiction even there

was held to be in rem.
^^See text accompanying note 36 supra.

^See text accompanying notes 84-86 supra.



1977] FEDERAL LONG-ARM 503

those situations which lend support to the legitimacy of nationwide
service of process are those that bind absent plaintiffs, cases over

which a state court could have exercised jurisdiction, through the
devices of reifying a chose in action for quasi in rem jurisdiction, or of
representation in the class action.^^ This latter assertion, of course,

assumes Dunlevy does not survive and the limiting distinctions in
Atkinson do not stand.

Another potential barrier to the exercise of state court jurisdic-
tion is the other aspect of Dunlevy mentioned earlier: assuming the
attachment of quasi in rem jurisdiction to the chose in action, where
may that be accomplished when the debtor is a corporation present in
many jurisdictions at once? Under statutory interpleader the
stakeholder may locate it by depositing it in a federal court where a
claimant is found. There may be some question whether a state court
has that power. Western Union Telegraph Co. v. Pennsylvania^"^
suggests the continuing validity of Dunlevy by focusing on the terri-
torial nature of state sovereignty, and the state's inability under the
due process clause in some circumstances to locate the situs of the res.
Pennsylvania was attempting to escheat some unclaimed funds from
undelivered and unreturned money orders in the hands of Western
Union, some of which had already been escheated by New York. The
Supreme Court said that since several states could claim in rem
jurisdiction over the funds Pennsylvania did not have the power to
protect Western Union from any other claim by another state since
its judgment would not be entitled to full faith and credit as against
those other claimant states.^^

The same sort of problem would seem to be present under

^'^See also Note, Consumer Class Actions With a Multi-State Class: A Problem of
Jurisdiction, 25 HASTINGS L.J. 1411 (1974). Federal class actions do not purport to
bind the absent members through personal service. The provision for service on the
absent corporation under 28 U.S.C. § 1695 (1970) can also be viewed as permitting the

minority stockholder to turn the corporation's potential claim into a chose in action for

quasi in rem jurisdiction. Of similar effect is defendant's transfer under 28 U.S.C.
§ 1404(a) (1970).

92368 U.S. 71 (1961).

^^Statutory interpleader would be unavailable to Western Union because of the

eleventh amendment. See note 19 supra. The solution is to require an action by the
claiming state in the original jurisdiction of the United States Supreme Court for a
declaration of rights against other claiming states and the stakeholder. The Supreme
Court has subsequently decided that the location of the res is at the last known address
of the creditor, although it acknowledged that such a rule was not produced by
"statutory or constitutional provisions or by past decisions, nor is it entirely one of

logic. It is fundamentally a question of ease of administration and of equity." Texas v.

New Jersey, 379 U.S. 674, 683 (1965). When there is no such address available, the
state of incorporation of the stakeholder may escheat. Pennsylvania v. New York, 407
U.S. 206 (1972).



504 INDIANA LAW REVIEW [Vol. 10:480

proceedings similar to that in Seider v. Roth.^'^ That case arose from
an accident in which a New Yorker was injured by a non-New
Yorker whose liability carrier was doing business in New York. The
insurance company's obligation to its insured was attached in New
York as the quasi in rem jurisdictional base for adjudicating the New
Yorker's claim against the non-New Yorker.^^ On the surface this
judicially enacted direct action statute is like Harris and unlike
Dunlevy in that the garnishee admits an obligation to an out of stater,
albeit an inchoate or contingent one. However, the location of the
obligation is problematical. The insurance company does business in
more than one state and, unlike under statutory interpleader, has not
attempted to reify the obligation by depositing a sum with the court.
Suppose a Pennsylvanian was also injured in the same accident by
the same insured and the insurance company was attached in
Pennsylvania where it was also doing business. The New York Court
of Appeals, in response to a due process challenge, merely cited
Harris for the proposition that when there is in personam juris-
diction there is in rem jurisdiction.^^ Here, however, the eleventh
amendment would be no bar to statutory interpleader by the
insurance company.^^ The interest of no other state in its sovereign
capacity would be infringed by permitting a state court to localize a
chose in action in interpleader as federal courts sitting in diversity

may do. The claimant to the fund never had a right to anticipate that
the fund would be located or could be reified in his own state unless,
of course, the fund is deemed located in the state where the accident
took place. In that case both the insurance company and the
insured—the alleged debtor of the claimant to the fund—would be
subject to in personam jurisdiction there,^^ so quasi in rem jurisdic-
tion would be unnecessary.

In any event, should Dunlevy remain a bar in state courts,
provision for the reification and location of choses in action held by
multi-state corporations can be made by Congress.^^ Other devices,
without resort to nationwide service of process, could be employed.

9^7 N.Y.2d HI, 216 N.E.2d 312, 269 N.Y.S.2d 99 (1966).
95Watson V. Employers Liab. Assur. Corp., 348 U.S. 66 (1954) differs in

that it was a choice of law case permitting Louisiana to enforce its direct action statute
against an insurer qualified to do business in Louisiana for an accident occurring
there, even though the contract of insurance had a "no action" clause valid under the
law of the state where it was written.

96Simpson v. Loehmann, 21 N.Y.2d 305, 234 N.E.2d 669, 287 N.Y.S.2d 633 (1967).
Western Union was not mentioned.

^^Interpleader would not, however, force the Pennsylvanian to litigate liability in
New York. See note 80 supra.

98Hess V. Pawloski, 274 U.S. 352 (1927).
^^See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (commerce clause) and

Katzenbach v. Morgan, 384 U.S. 641 (1966) (fourteenth amendment). In some



1977] FEDERAL LONG-ARM 505

Indeed, most of the cases granted transfer by the Panel on
Multidistrict Litigation are those involving federal question juris-

diction in which Congress could grant nationwide service of process
or in which a state could reach the case through use of its long arm.^oo
The fact that a state might decline to extend personal jurisdiction as
far as the due process clause would allow is no bar to authorizing a
federal court sitting in diversity to do so.^"^

V. Conclusion

The American Law Institute has made a modest proposal for
expansion in diversity jurisdiction that contemplates nationwide

service of process imposing personal liability on defendants outside

the forum district. Authority for such process is seen in the article III
provision establishing the lower federal courts and vesting original
diversity jurisdiction in them. Reliance is placed on Supreme Court
dicta and two statutes so authorizing. These authorities involve
actual or potential federal question jurisdiction, and situations in
which a state court might exercise its power over absent parties
through long arm or variants of in rem jurisdiction. Subsequent to
the ALI proposal, various other practices and procedures have been
authorized which lend colorable support to the existence of such
power, but these, with one exception, ^^^ could similarly be provided

for in state courts or under federal question jurisdiction. However,

instances, but by no means all, a state might have the interest and the contacts to
declare itself the situs. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306 (1950).

''^'^As of January 10, 1974, there were 148 groups of multidistrict litigation in
which transfer was granted, broken down into the following types:

Antitrust (35); Securities (28); Mass Disaster (28); Patent/Copyright (11);
Products Liability (1); Contract (1); Environmental (2); Consumer Class Actions (1);
Miscellaneous (5).

Note, The Judicial Panel and the Conduct of Multidistrict Litigation, 87 Harv. L. Rev.
1001, 1003-04 (1974). Cases arising arguably outside the scope of the commerce clause,
such as mass disasters or contracts, could be reached by a state long arm. If a state
may reach a defendant because the cause of action arose there, why may it not reach a
prospective plaintiff? See McCoid, A Single Packagefor Multiparty Disputes, 28 Stan.
L. Rev. 707 (1976). The "typical litigation situations" involving necessary parties
under Rule 19 have been put under twelve headings in 7 C. Wright & A. Miller,
Federal Practice and Procedure §§ 1613-24 (1972). They are:

Contracts (Joint obligations. Assignments, Partnership and Agency); Copyrights,
Patents and Trademarks; Corporations and Shareholders; Declaratory Judgments;

Federal, State and Local Governments; Funds, Property Rights, Trusts, and Estates;
Insurance; Labor Management Relations; Real Property; Superior and Subordinate
Public Officials; Torts and Workmen's Compensation; Miscellaneous Cases.
Again, it appears that the great bulk of these cases could be reached under federal

question jurisdiction or by a state through a long arm or quasi in rem jurisdiction.
"^^Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963) (en banc).

io2Pierce v. Globemaster Baltimore, Inc., 49 F.R.D. 63 (D. Md. 1969).



506 INDIANA LAW REVIEW [Vol. 10:480

common to most of the situations is a "quasi" quasi in rem
adjudication of the existing interests of absent plaintiffs. The

imposition of liability on distant defendants, of concern to the ALI,

raises questions about the source of the power so to act, as well as the

issue of a fifth amendment due process limitation—a concern of lower
federal courts which the proposal did not consider. i*^^ xhe ability of a

court in Maine to impose liability on a defendant in California or

Hawaii on a non-federal cause of action in which the defendant does

not have sufficient minimal contacts with Maine to satisfy fourteenth

amendment due process requirements suggests a basic reordering in
federal-state relationship and individual rights. ^^^ While there may
be only a very small number of defendants who could not otherwise
be reached under any state's long arm or any federal question
jurisdiction, so that the inconvenience of traveling across the country

would reach only a few additional defendants, it is the correspond-

ingly small number of parties who would be benefited that suggests
action on the proposal be put off further. ^^^ So small a benefit is not

worth validating so far-reaching a principle. It may be that this
doubtful proposition is an idea whose time has passed.

^''^Compare again the recognition of this distinction by the Supreme Court in
Christopher v. Brusselback, 255 U.S. 356 (1921).

lo^This is not to suggest that the exercise of such power creates problems under

Erie as suggested by Professor Abraham. See Note 13 supra. The concurrence of Mr.
Justice Harlan in Hanna v. Plumer, 380 U.S. 460, 474 (1965) is persuasive on that
score.

lo^A small number would undercut an argument of jurisdiction by necessity.
Judge Friendly believes further study is needed on these proposals, especially in light
of development of state court jurisdiction via long arms. H. Friendly, Federal
Jurisdiction: A General View 150 (1973). See also Currie, The Federal Courts and
the A.L.I., 36 U. Chi. L. Rev. 1, 29-32 (1968). Indeed, California seems to have gone the
whole route, extending jurisdiction where it seems fair, without reference to a nexus in
the state with the cause of action. See Cornelison v. Chaney, 16 Cal. 3d 143, 545 P.2d 264

(1976), in which the California Supreme Court upheld constructive service of process
over a Nebraska freight hauler who made about 20 trips a year to California and who
was involved in an accident with a California driver in Nevada.