*1 to make them plaintiffs cause
good. principles these suggest that
Plaintiffs affected law have been Alabama
of by alteration Ala- prospective immunity municipal law
bama Florence, City of by Jackson v. wrought
Ala., (1975). the rules Since 320 So.2d not involve the line rely which we do repudiated in authority reasoning
Jackson, remain we believe law.
good
AFFIRMED.
Mary SKIDMORE, M.
Plaintiff-Appellant, LABORATORIES, INC.,
SYNTEX Syntex Corporation,
Division of
Defendant-Appellee.
No. 74-3642. Appeals,
United States Fifth Circuit.
April
1245 Odessa, Tex., Dick Ramsey, apparently Max E. Defendants base their mo- Paso, Tex., plaintiff-ap- El tion on a Stengel, process argument due in that pellant. do not have sufficient ‘minimum contacts’ with Texas come under Amarillo, Sturdivant, Tex., Wayne P. the personal jurisdiction of this court. defendant-appellee. Based on at this time and opinion Sears, in Coulter v. Roe-
buck, (5th F.2d and 1315 1970),this court finds it has requi- jurisdiction.” (App. p. 42.) site BROWN, Judge, Before Chief RIVES GEE, Judges. Circuit 15th, Beginning August court August reconsidered and on RIVES, Judge: Circuit the motion to dismiss for diversity by This action was filed It is from that or- Texas, against Syn- a citizen of plaintiff, der that the present appeal prose- or- quote cuted. We length pertinent the laws of Delaware ganized under and parts of the supporting opinion of the having place its of business in principal district court: California,1 Syntex Corporation, Initially “. . . the motion to corporation organized the laws of under dismiss was denied order of this Panama principal place with its of busi- court dated December 1973 based ness than in the located elsewhere State upon the time that record at the deni- complaint alleged Plaintiff’s Texas.2 al was Subsequent entered. to such all that at relevant times the defendants discovery time considerable has been were engaged manufacturing dis- with the completed and filed court and tributing under again the defendants have renewed 80,+ Norinyl sought tradename of Accordingly their motion dismiss. recovery damages personal in- the attorneys the court advised for all juries suffered as the again it would consider contracep- result of her use of these oral the motion to dismiss and a tives. Lubbock, was held thereon in Texas on August 1974. addition to the The defendants moved to dismiss for dismiss, above-mentioned motions to personam jurisdiction lack of in defendants, over the the defendants have filed a motion for and on December summary judgment grounds the district court denied that motion in plaintiff’s complaint is barred reading an order in part: limitations, by the statute of but- in view of the action this court dis- “(1) Dismiss for Lack of Personal for lack missing Jurisdiction—-this hereby court DE- diction, ruling will be entered or NIES motions on behalf of both for summary made on the motions Syntex Laboratories, Inc. and judgment. Corporation and finds that based on “The affidavits which have been the record before the court at this case, to inter- this the answers time, this personal jurisdic- court has discovery docu- rogatories and other tion over the Defendants. There is any ments contradiction show without shown process service of on the Secre- following: tary of provided by State Texas as Laboratories, Long Statute, the Texas the Dela- Arm Tex.Rev. corporation, ware did not commence (1964). Civ.Stat.Ann. art. 2031b original complaint prayed Also described as a 2. The Division of Cor- “that the De- poration. fendants, LABORATORIES, SYNTEX CORPORATION, INC. and appear” SYNTEX be cited to (App. 3.) etc. 1972 and was in this state until ness transacted business by Syntex state on November tort committed in this Further, contraceptives question the record does Corporation. The oral case, by Syntex as contacts Cor- known 1 + not reveal Norinyl of Texas poration in or with State prescribed were Sep- taking satisfy them that would the due commenced *3 taking the ceased of the of the Unit- 1970 and clause Constitution tember Syntex before and lack of such minimum in March of ed States pills Laboratories, a motion of dis- ground contacts is doing cor- they commenced missal. Neither of the defendant and before showing subject porations case are There in this business. Syntex Labor- court under case of this record in this the any atories, applicable require- a successor Inc. was and the these facts might have Lanpar entity legal other ments of law. O’Brien pills the Tex. or distributed supra manufactured S.W.2d 1966].” [399 273-277.) question. (App. in does in the record interrogatory “An The district court’s reconsideration of are now question pills show began the to dismiss defendants’ motion Laboratories, Inc. product Syntex a hearing at a on 1974 of the indicates that nothing summary judg- defendants’ motion for pills that took these plaintiff the ment and a like motion filed the Laboratories, Syntex product was a plaintiff. The answers of defendant Inc., corporations, predecessor of its or Laboratories, Inc., a Division of “Syntex any of its affiliates. interrogatories Syntex Corporation” to on plaintiff the had been filed defendant, Syntex well understand Cor- March 1974. We can “The other corporation. attorneys the claim poration, is a Panama co-defendant, this defendant unintentional- they actually though Unlike its were a Interrogato- ly has been in business misled the answers to corporate charter under a since 1957 ries 22 and 33: The of Panama. Republic from the prod- 22: Is the “Interrogatory No. respect evidence uncontradicted pills a Norinyl uct 1 + 80 birth control Syntex Corporation to the activities of product Syntex sideline of either Lab- question pills the show [sic] oratories, Syntex Corporation? Inc. or nor principal product were not prod- Norinyl “Answer: 1 + 80 is Corporation. by Syntex manufactured Laboratories, Syntex uct of Inc.” interrogatory, al- In answer to another (Record 93.) Appeal on it was though it was admitted “Interrogatory No. S3: When currently product of the co-defend- con- Norinyl 1 + 80 birth product ant, an- Syntex manufactured? pills initially trol it is even a swer fails to show (Record Appeal on “Answer: 1968.” defendant, Syn- product sideline 95.) Corporation. Again tex Laboratories, Syntex answers of to sus- After the burden has failed to meet plaintiff re- interrogatories, to 184 court. tain understanding of a clear according mained without Corporation, court, nothing Syntex Corporation had to the name of now before Interrogato- injuries. or distribu- be sued for her do with the manufacture inquired, “Is question ry No. 35 the tion of the citation could + way product Norinyl patented?” that service of 1 80 is no under this defendant and the defendant had answered perfected be “No.” V.A.T.S., 2031b, (R. 96.) this cause of plaintiff’s attorney as did Art. not question busi- know the elicit not arise out action does informa- ultimately argu- in oral tion disclosed “JUDGE But BROWN: sued appeal to the effect that either ment Labor- Syntex Corporation chartered in atories? Pan- or else different Panama “MR. STURDIVANT: sorta— Corporation” does have a pat- amanian No, sorta, “JUDGE BROWN: it’s ingredients of the birth ent on con- complaint, prayer— there is a 1968 to 1972 the trol from “MR. Right— STURDIVANT: corporation was distributing called right— “JUDGE All BROWN: Laboratories, U.S.A., a name very “MR. Actually, they STURDIVANT: similar to that of the corpora- Delaware Inc., sued a divi- tion sued. sion of—but don’t want—a division Sturdivant, attorney Mr. for the de- of Syntex, but I don’t want to fendants, stated in the of Au- misnomer, stand on kind of be- gust shortly before the entry of *4 cause we told time them and time mean, judgment: probably “I I rep- again about the misnomer and waived resent texes, whole conglomerate it— understand, you going but who is “JUDGE I don’t think BROWN: mis- judgment, this pay the stockholders of nomer is the problem. Syntex Corporation or the stockholders Syntex (R. 320.) argument In oral “JUDGE Syntex Corpora- GEE: Did —” appeal, on the plaintiff’s counsel relied tion manufacture any of these strongly on that of Mr. admission Sturdi- during period? this deny vant. Mr. did not such Sturdivant “MR. 1968 to ’72 STURDIVANT: representation. Further in his oral ar- or ’72 after that as the Panamanian gument appeal, on Mr. Sturdivant said: Corporation? No, Syntex Corpora- “JUDGE GEE: “MR. STURDIVANT: It’s real sim- tion, the other defendant. ple. We have a Syntex Panamanian “MR. Syntex STURDIVANT: No.- Corporation that patent has the Corporation Panamanian
ingredients goes into the [sic] right ingredients, they has a get pill. ingredients they from Panama and them, “JUDGE right they BROWN: have the sole have That’s what I thought. do, corporations other and there liability against Syntex be aas “MR. STURDIVANT: In 1968 to 1972 parent corporation. That’s a whole corporation we had a called itself, body parent of law in whether a Laboratories, U.S.A. That was the corporation is for the acts of liable marketing and producing corporation Argument subsidiary.” of Oral (Tape that should have been made the de- on Appeal.) In fendant. we Syntex Laboratories, created It appears, thus though not too clearly, Alto, their with nia, offices in Palo Califor- Corporation” Panamanian they took rights all of the to is a corporation different from the product of manufacturing and dis- named defendant “Syntex Corporation” and, course, there possibly tribution organized under the laws of liability be some assump- could an stated, Panama. As has been Mr. Stur- corporation, tion of another they but divant had made clear that 1968 to “[i]n proved not have if they could 1972 we had a corporation called gone They to trial. would have had a That U.S.A. was the mar- against verdict them directed because keting and producing corporation they did not have sufficient evidence should have been made the defendant.” to establish chain between the It may or not appear liability corporations. two proved can be against one or both of the event, In if so defendants. No, sir, named “MR. RAMSEY: but I think should be requested, permission will find this I say too and newor defend- to add a new defendant again I say it apologetically ants, as, Corpo- Panamanian such certainly because I am accusing Laboratories, U.S.A., ration, Mr. anything, Sturdivant of named precisely some other think the Court will find that this is Syntex- conglomerate law, member that the statute of limitations es. does not run in plaintiff— the event a misled, and not purposely even but if a entering its order of dismissal for inadvertently misled and I court im- give think I can the Court some law prayer the alternative plicitly denied on that. In other words— trial brief conclud- ed: “THE But have got COURT: be you misled the new defendant “WHEREFORE, PREMISES CON- bringing are in.
SIDERED,
requests that
Plaintiff
De-
Summary Judg-
fendant’s Motion
know,
“MR. RAMSEY:
I don’t
respects,
in all
and in
course,
ment be denied
what relation—
alternative,
if Defendants are con-
“THE COURT: There is a reversion
tending
product Norinyl
provision
back
in the limitations.
manufactured, mar-
1 + 80 was neither
“MR.
right.
RAMSEY: That’s
Of
any way by
keted or distributed
course, I am assuming now that in this
of Texas
either Defendant
State
*5
conglomerate
about,
talking
that he is
in Plaintiff’s Peti-
alleged
conglomerate
going
now is
tion,
so furnish this
that Defendant
up
wind
and be a
spin-offs
series of
Plaintiff, or alterna-
information to
and break-offs and these sort of things
upon
tively,
relying
if Defendants are
purposes
for tax
and that there will be
change
corporate
subterfuge by
relationship
some
where I think the
reorganization
escape
structure or
responsibility of one is
to include
going
information be
jurisdiction, that
one,
the responsibility of another
but I
Plaintiff.”
furnished to
sorry
am
just
that —I
didn’t under-
denied,
implicitly
either
or ex-
Also
answers,
stand
certainly
his
but
pressly,
pleas
plain-
were the earnest
of
permit
would like
us to
the Court
argument
tiff’s counsel on oral
go
321-323.)
into it.” (App.
district court:
It
appear
does
to us that the
[plaintiff’s
“MR. RAMSEY
counsel]: plaintiff’s attorney was at fault in hav
quite possible
liability
It
is
ing failed earlier to discover the facts
just
per cent
one hundred
and I
event,
revealed.
under all of
just asking
give
am
the Court to
us
plain
circumstances of this case the
permission
go
into these matters so tiff
penalized
should not be
for the error
action, if she
lady’s
that this
cause of
Fuller,
of her attorney.
Wallin v.
See
action,
present-
can be
has a cause of
1204, 1211;
Cir.
476 F.2d
Ferrell v.
ed.
Trailmobile,
5 Cir.
223 F.2d
sympa-
“THE
I am in
COURT:
698.3
tossing
thy
just
with not
although I
technicality
out on some
We hold that
the district court
technicality
saying
am not
this is
acted too drastically in entering its order
here,
know.
of
we don’t
dismissal
giving
without
may
person
of
should not be con-
sponte
3. Jurisdiction
tion
be asserted
the court sua
subject
appellate
matter
A de-
fused with
time
Wright
or at the
level. 5
voluntarily
Miller,
may
appear
Procedure,
fendant
without serv-
&
Federal Practice and
Civil
process.
person
ice of
Jurisdiction of the
1350.
§
subject
jurisdic-
matter
be waived but lack
further opportunity
discovery
knew or should
that,
have known
amendment of her
so as
for a
mistake concerning the identity
proper
have the
defendants before
of the proper
party,
action would
strikingly
court.
aIn
similar case the
have been brought against him.
Supreme Court of Texas has held that
“The delivery or mailing
purpose
of the Texas statute of limi-
to the United States Attorney, or his
tations
been
fulfilled when the prop-
designee, or the Attorney General of
er defendant had full
op-
notice and an
States,
United
or an agency or
suit,
to defend the
portunity
sired,
if it so de-
officer who would have been a proper
plaintiff’s position
as to the
named,
defendant
if
satisfies the re-
running of the
statute
limitations was
quirement
of clauses
and (2) hereof
preserved as of the
filing
date of the
respect
to the United States or
plaintiff’s suit.
Southern
Continental
any agency or officer thereof to be
Lines,
Hilland, Tex.1975,
Inc. v.
brought into the action as a defend-
S.W.2d
ant.”
As
noted Welch v. Louisiana Power
It makes no difference here that
Light Co.,
supra, at
the institution of the action that he hold that the should be given a will prejudiced not be in maintaining reasonable opportunity for any needed his merits, defense on the and discovery, and for the amendment of her lengthy also Instructive be a connection, Annotation In that it seems to us that the 6-188, in 8 especially A.L.R.2d part and that Sears, case of Coulter Co., Roebuck and 5 discussing the origi- effect “the 1970, of fact that the 426 F.2d relied on the dis nal defendant and the substituted defendant trict court in its order of December is agents employed had the same or the point same much more in than Lanpar O’Brien v. attorneys way preju- hence were in no Tex. 399 S.W.2d on which it diced the 163; p. substitution.” A.L.R.2d relied in order its of dismissal. also, Government, see as to the concluding the paragraph 15(c), of F.R.Civ.P., quoted Rule su- pra. F.2d — (2) out of which in Texas a tort de- mitted proper name the so as complaint fendants, (3) neither arose and action cause of possible, her necessary and and, if in business regular place of newly maintained served to be for ' agent. appointed resident state nor the defendant. added had was therefore citation of Service Defend- Secretary of State. Texas the REMANDED. AND REVERSED the court denied ants) repeatedly Specifical- personam in (dissenting): Judge GEE, Circuit in having engaged busi- ly, each denied the in to concur myself unable I find alleged the at the time in Texas ness de- the reverses opinion, majority at first trial court occurred. tort unassigned for court the district of cision dismiss motion defendant’s denied suggesting seriously without error con- finally but was jurisdiction lack Plaintiff’s it is incorrect. subsequent vinced June 1973. was prejudice. without motion the interrogato- hundred two almost after me clear that It seems hearings two discovery, ries, other that, at least determined correctly court jurisdic- subject of the on tion, dismissed, jurisdiction he the time as of the case court dismissed the mo- hearing on the At the lacking. de- parties the over want developed it to dismiss tion Corporation we ruling, our As I understand fendant. nor does produced, never permit order to reverse and that pills produce, who to discover efforts further make proper Laboratories, produce Inc. does is, because not defendant or not now but be- basis for any serious affords record Ms. anywhere doing business par- present is either that it lief no There is pills. took her Skidmore ties. Laboratories, is proof that Skidmore us, plaintiff-appellant Before of the producer successor as: sole issue phrased injured' Ms. Skidmore. allegedly dismissing erred court The trial Skidmore is Thus, problem of action cause appellant’s pills or of the the maker misnamed toas grounds Rather, it complaint. in her defendant Laboratories, or unknown either is the maker is fact view exists, Ms. Skidmore longer is a reflects affirmatively that either prove of de- name misnomer technical legally longarm statute via cited fendant, Syntex mak- answerable substitutable have been should appellant whereby failed, as the Thus, she er’s actions. *7 discovery and additional allowed a make even requires, Texas statute Complaint. amend essential showing of an prima facie however, it. This, misstates cited party that either fact: dictional Texas. tort in committed “Syn- cite attempted to Ms. Skidmore burdens in this circuit a Division The law tex person federal apparent- proof she by which Corporation,” elements Long Texas Laborato- based (1) Syntex jurisdiction cite am intended ly Pro in Product corporation) is outlined (a Delaware ries, Inc. Statute Arm Cousteau, F.2d (a motions, Panamanian v. (2) 1974) Jetco Elec alleges (5th Cir. Her 489 — 91 corporation). Gardiner, Industries, v. defendant(s) produced tronic 1973). (5th pur- For citation 1232-35 injured her. F.2d cases those purposes) law of applying (in poses statute, here, that Ms. Skidmore appears longarm Texas facts invoked showing of facie “prima defendants) com- to make claiming that pred- on which facts icated” under the Texas statute. Cous-
teau at 491. Ms. had had over Skidmore get position in which in a to do year
a so, panoply the full dis- federal
covery procedures ready to hand. I her join
am able to conclusion judge abused his discretion precipitately
or acted these circum- join in majority’s
stances. Nor can I limitations, which regarding
observations prejudg- to me in the nature of
seem neither
ments an issue presented
passed on below nor to us. respectfully dissent.
therefore HARBOR,
The CITY OF SAFETY Municipal Corp., Rigsby, and Claude
Plaintiffs-Appellants, BIRCHFIELD, Brown,
William Herbert Kiser, Douglas S. Curtis Roach and Whitson, Jr., Defendants-Ap Edmund pellees.
No. 74-3845.
United States Court Appeals, Fifth Circuit.
April