Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
The question presented on this appeal is the validity of service of process of a third-party complaint upon the New York agent of the third-party defendant, Randolph Mills, Inc., a North Carolina corporation. The original diversity action brought by plaintiffs, citizens of Maryland, against defendant New York corporations sought damages for personal injuries claimed to have been sustained by the infant plaintiff when a portion of a pajama outfit she was wearing "went up in flames." It is alleged that defendant Wendy Wilson, Inc., manufactured the pajamas out of fabrics converted and manufactured by defendant Jaftex Corporation. Thereafter Jaftex sought to implead the ultimate manufacturer, Randolph Mills, claiming that by reason of the latter's negligence and on its sale of the cloth to Jaftex it became liable over for any amounts which Jaftex might be required to pay plaintiffs. Service was made upon an officer of Iselin-Jefferson Co. - also named a third-party defendant - for itself and as "selling agent" for Randolph Mills. Randolph Mills moved to vacate the service and dismiss the third-party complaint for lack of valid service, and the district court, per Dimock, J., granted the motion in a detailed opinion, Shawe v. Wendy Wilson, Inc., D.C.S.D.N.Y., 171 F.Supp. 117. After an attempted appeal was dismissed by us, the district court reframed its order to include the finding required for an interlocutory appeal under 28 U.S.C. § 1292(b), and thereafter we granted the necessary appeal. Hence the matter is now before us on the issue framed below.*fn1
The activities of Iselin-Jefferson Co. on behalf of Randolph Mills in New York were set forth in affidavits of corporate officers presented by the parties. From these Judge Dimock concluded that Randolph Mills was doing business in New York through this agent sufficient so that there could be no doubt of the validity of the service under federal law, but that the result must be otherwise under New York law. Then he ruled that under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, the state law must be applied. Acknowledging a conflict in the cases, with the views of his colleagues being generally opposed, he yet thought the precedents following state law the weightier; additionally, applying Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079, 160 A.L.R. 1231, he held that if as a result of even procedural law, so-called, a plaintiff is barred from recovery in the state courts, application of the Erie principle bars recovery in the federal courts on the same claim. And he held that the situation here, with Jaftex unable to recover in the state courts on its claim against Randolph Mills, "makes the law for the federal courts."
It is our conclusion that the service was valid under either New York or federal law. Neither in our decisions nor in those of the New York Court of Appeals is there an admitted or defined distinction; this has to be found in the nuances of meaning read between the lines of judicial opinions. In fact the learned judge below found that in an earlier day the state rule tended to be more liberal in permitting service upon foreign corporations than was the federal rule. It seems to have been agreed that the appointment of a mere agent to solicit orders for the foreign corporation did not but New York early ruled that a settled and continuous relation of this kind might be adequate. Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915. The test appeared then to be a quantitative one depending upon the number of contacts had within the state; but L. Hand, J., led a revolt, bringing in the concept of reasonableness into holding a foreign corporation to local service. Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139. This was followed by the presently leading case of International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057, applying substantially a balancing of interests, referred to as the interest test. The furthest reach of the doctrine is apparently McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223, applying to insurance companies, while Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283, by a divided court shows a moderate retreat. All this has been often discussed by text writers, as, e.g., Comment, Developments in the Law - State-Court Jurisdiction, 73 Harv.L.Rev. 909-933 (1960); Kurland, The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts, 25 U. of Chi.L.Rev. 569 (1958); Reese, Judicial Jurisdiction over Non-Residents; The Impact of McGee v. International Life Insurance Company, 13 The Record 139 (1958); and other articles cited below.
This background of law on the territorial reach of service has bearing upon both federal and state rules which have developed along parallel lines, although the former is subject only to Congressional policy, while the latter has to satisfy constitutional requirements of due process. It seems to be agreed that solicitation of business alone is not enough to constitute presence in the state. Miller v. Surf Properties, 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874; MacInnes v. Fontainebleau Hotel Corp., 2 Cir., 257 F.2d 832. Yet comparatively little more is required where the business is substantial and continuous. Elish v. St. Louis Southwestern Ry. Co., 305 N.Y. 267, 112 N.E.2d 842, reargument denied 305 N.Y. 824, 113 N.E.2d 561; Sterling Novelty Corp. v. Frank & Hirsch Distributing Co., 299 N.Y. 208, 86 N.E.2d 564, 12 A.L.R.2d 1435; Melvin Pine & Co. v. McConnell, 298 N.Y. 27, 80 N.E.2d 137, affirming 273 App. Div. 218, 76 N.Y.S.2d 279, 10 A.L.R.2d 194; Jacobowitz v. Thomson, 2 Cir., 141 F.2d 72, 75; Bomze v. Nardis Sportswear, Inc., 2 Cir., 165 F.2d 33, 37; Schutt v. Commercial Travelers Mut. Acc. Ass'n of America, 2 Cir., 229 F.2d 158, certiorari denied Commercial Travelers Mut. Acc. Ass'n of America v. Schutt, 351 U.S. 940, 76 S. Ct. 836, 100 L. Ed. 1466. If conceivably there are small differences between state and federal law because New York may not yet have exhausted its entire constitutional power, as presently defined, yet these become of little moment, since Randolph Mills' contacts in the present case go far beyond the minimum as defined under either rule.
It is true that Iselin-Jefferson Co. was an agent soliciting business for Randolph Mills (as for others also) on a commission basis and that Randolph Mills had a formal right to decline contracts of purchase submitted to it. But against this was the extent of activity Iselin-Jefferson had carried on in New York for Randolph Mills regularly and continuously for more than six years. It took orders and processed them for Randolph Mills; it received and acted upon, by investigation, response, and otherwise, all complaints; and it provided the money at once for its principal by factorizing the contracts through its own subsidiary. Moreover, the claim against Randolph Mills arises out of these very activities conducted by Iselin-Jefferson. As the district court succinctly says, D.C.S.D.N.Y., 171 F.Supp. 117, 118-119:
"On any non-technical construction of the English language, one would have to say that Randolph was doing business in New York through its agent, Iselin-Jefferson. All of Randolph's business with New York purchasers originated with Iselin-Jefferson. Iselin-Jefferson solicited the orders, passed upon the purchasers as credit risks which it would accept, submitted the orders to Randolph and then, by communication in New York with the customer, either accepted or rejected each order. At the instant of acceptance of an order the claim for the purchase price was automatically assigned by Randolph to Iselin-Jefferson Financial Co., Inc., a subsidiary of Iselin-Jefferson, and complaints as to shortages, defects in quality, etc. were thereafter made by the purchasers to Iselin-Jefferson Financial Co., Inc."
So the court concludes that there was adequate service on federal principles. But then it registers doubt under the New York rule, though stating: "In view of the factoring operations undertaken for Randolph in the case at bar it might plausibly be argued that enough was added to the mere status of sales representative to qualify under the restrictive New York rule." But it finds a determinative fact to the contrary in that "the Iselin-Jefferson organization had a veto power over each order because of its purchase of each account receivable." 171 F.Supp. 117, 119. This is not clear to us, nor is it made clear by the record. Presumably Iselin-Jefferson could decline to factorize an account from a poor credit risk; but this possible measure of independence does not measurably reduce Randolph Mills' New York contacts through Iselin-Jefferson and may even be thought to round out and complete them by placing Randolph Mills' control of its local credit relations also in New York.
Since in our view the service is valid in any event, we perhaps might leave the question of governing power undecided. But in view of the very great confusion attending this subject, notably in the Southern District of New York, and against the possibility that this case may go higher, it seems incumbent upon us to decide this further issue. Two of the federal rules are pertinent, though it must be noted that they deal with the manner of service upon corporate defendants, rather than with their amenability to process. F.R. 4(d) (3) provides for personal service upon a foreign corporation by delivering a copy of the summons and complaint to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." And F.R. 4(d) (7) provides that service according to the law of the state in which the service is made shall also be sufficient. Thus if Randolph Mills is suable below, the manner of service had was sufficient under either rule.
As we shall note below, the Supreme Court has not passed upon the application of the Erie principle to this particular problem. It is our conclusion in the absence of definitive direction that the policy we here deal with is to be considered so much a part of the make-up of a federal court that it is not lightly to be superseded, and the settled policy that federal courts should apply state substantive law in diversity cases does not go to the extent of requiring the contrary. The requirement of personal service in the district (except for the special exceptions made by Congress) is an old one going back to the Judiciary Act of 1789, § 11, 1 Stat. 79, and continued in Rev.Stat. § 739, Judicial Code § 51, and the former 28 U.S.C. § 112. During all this period the requirements as to service and venue were treated together, a not unnatural course in view of their close connection. With the revision of Title 28, United States Code, the provisions were separated, the venue requirements going to 28 U.S.C. § 1391*fn2 and the service requirements going to 28 U.S.C. § 1693. The latter act seems particularly important as bringing the original requirements of 1789 down into modern law.*fn3 At any rate the requirement has been steadily applied and as yet has been changed by Congress and the Rules in only limited and particular ways.*fn4 See Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S. Ct. 621, 69 L. Ed. 1119, also Toland v. Sprague, 12 Pet. 300, 37 U.S. 300, 330, 9 L. Ed. 1093; Big Vein Coal Co. of West Virginia v. Read, 229 U.S. 31, 33 S. Ct. 694, 57 L. Ed. 1053; Ex parte Railway Co., 103 U.S. 794, 26 L. Ed. 461; Rorick v. Devon Syndicate, 307 U.S. 299, 310, 59 S. Ct. 877, 83 L. Ed. 1303. Wholly consistent and apparently required by this background is the parallel condition that a corporation must be "present," i.e., doing business, within the district in order to be subject to suit there. Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 122, 47 S. Ct. 308, 71 L. Ed. 569; cases and other authorities cited in 2 Moore's Federal Practice 969 (2d Ed. 1948).
This evinces a deliberate and longavowed federal practice with reference to the basis of federal judicial action. Thus it seems to us without the Erie principle for the reasons we advanced recently in Iovino v. Waterson, 2 Cir., 274 F.2d 41, certiorari denied Carlin v. Iovino, 362 U.S. 949, 80 S. Ct. 860, 4 L. Ed. 2d 867, with reference to the substitution of parties. Indeed one federal judge has already found an answer by the Supreme Court to this very problem. See K. Shapiro, Inc. v. New York Cent. R. Co., D.C.E.D.Mich., 152 F.Supp. 722, commenting upon the brief decision in Riverbank Laboratories v. Hardwood Products Corp., 350 U.S. 1003, 76 S. Ct. 648, 100 L. Ed. 866, reversing 7 Cir., 220 F.2d 465, to uphold service upon a foreign corporation. But the Court's opinion is too brief and cryptic to make such a conclusion assured. See Note, Federal and State Precedents on Doing Business: Jurisdiction over Foreign Corporations under Erie, 67 Yale L.J. 1094, 1097, 1098 (1958); Kurland, Mr. Justice Frankfurter, the Supreme Court and the Erie Doctrine in Diversity Cases, 61 Yale L.J. 187, 211-212, n. 120 (1957).
Perhaps a surer basis is the decision in Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 537-540, 78 S. Ct. 893, 900, 2 L. Ed. 2d 953, where the Court in a diversity case upheld federal trial by jury against a state policy of determination of a certain defense (based on the state Workmen's Compensation Act) by the judge. The Court conceded that "were 'outcome' the only consideration," a strong case for following state practice would appear. Nevertheless it found affirmative countervailing considerations. "The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction." Then continuing, it said, "It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts." And it relied on Herron v. Southern Pac. Co., 283 U.S. 91, 51 S. Ct. 383, 75 L. Ed. 857, as holding that even state statutes or constitutional provisions "could not disrupt or alter the essential character or function of a federal court." Finally it held doubtful that a federal trial by jury supervised by the greater powers of the federal judge would necessarily have a substantial effect upon the outcome of the litigation. See Comment, The Supreme Court, 1957 Term, 72 Harv.L.Rev. 77, 147-150 (1958), for the significant development this case represents in making more flexible the outcome-determinative test for the application of the Erie doctrine.
We think these principles soundly applicable here. The federal and state rules are certainly not so mutually at odds that the federal decision will seriously damage state polity. On the other hand, so long as Congress opens the national courts to cases "between citizens of different States," U.S.Const. Art. III, § 2, it would seem that they are entitled to the essentials of a trial according to federal standards. See Biggs, C.J., concurring in Partin v. Michaels Art Bronze Co., 3 Cir., 202 F.2d 541, 545; Barrow S.S. Co. v. Kane, 170 U.S. 100, 111, 18 S. Ct. 526, 42 L. Ed. 964. The opposite view proves too much; it would mean, inter alia, that a federal litigant must be deprived in various parts of the country of the remedy of the declaratory judgment or of federal interpleader and that he cannot have the benefit of transfer to a more convenient forum. See 67 Yale L.J. 1094, n. 3 (1958). On the opposite side of the coin he may, contrary to present federal policy, be subjected to a labor injunction or to suit in some foreign district where his car has been attached or a debt due him garnisheed. Ibid.; Report of Proposed Amendments, October 1955, 10-15. Further, the question here in reality is which federal court Jaftex may enter, not as to its total exclusion. For it can surely press its claim in Randolph Mills' home district in North Carolina in a court formed in the same way and subject to the same ...