MEMORANDUM AND ORDER
This is a products liability action which comes before the Court on the motion of defendant for summary judgment on the ground plaintiff’s claim is barred by the applicable statute of limitations. Oral argument has been heard on the motion, and the Court is prepared to rule.
This case raises difficult questions of jurisdictional theory and conflict of laws. Thus we will recount the procedural history of the case at some length. The complaint initiating this ease was filed June 16, 1977, in the Southern District of Mississippi. It alleges that plaintiff is a resident of Soldier, Kansas, who was injured near Soldier, Kansas by a product manufactured by defendant. Defendant is a Delaware corpora-; tion which has its principal business head- ! quarters in Wisconsin. The alleged injury took place June 22, 1971. At this juncture it is important to note that plaintiff’s claim would have been barred by the applicable 1 statutes of limitation had the action been brought in any venue of “residence” or in the district where the claim arose, the District of Kansas.
Mississippi, however, has six-year statutes of limitation governing tort and warranty actions. The action was filed in Mississippi six days before the six-year period had run. Service was had on defendant’s registered agent in Mississippi pursuant to Sections 79-1-27 and 79-1-29, Miss.Code 1972, which provide for such service upon any corporation “found doing business” in Mississippi, “whether the cause of action accrued in this state or not.”
On July 5,1977, defendant Allis-Chalmers moved for a change of venue pursuant to 28 U.S.C. § 1404. Defendant alleged generally the lack of any connection between the State of Mississippi and the cause of action or any party thereto, and requested transfer to the district of Kansas. On the same date defendant answered, challenging the jurisdiction of the Mississippi court and pleading various affirmative defenses.
*1082 On July 26, 1977, the motion for change of venue was overruled and denied by the district court. On August 4, defendant requested permission to take an interlocutory appeal from the denial of transfer, pursuant to 28 U.S.C. § 1292(b). This too was denied August 23 and discovery began. Defendant then filed a petition with the Fifth Circuit Court of Appeals for a writ of mandamus to force the requested transfer. This was granted by minute order September 13; the Mississippi district court was thus ordered to transfer the case to the District of Kansas. Copies of the Fifth Circuit mandate were filed in the Southern District of Mississippi September 15. On September 29 defendant filed a motion to have the district court comply with the appellate mandate and cause the case file to be sent to the District of Kansas. The motion was granted the same day, and all relevant materials were received by the clerk of this court October 3, 1977.
Upon transfer defendant made clear its intent to rely upon the Kansas statutes of limitation as a bar to the action and secured an order staying discovery pending resolution of the issue. Defendant filed an amended answer setting up the Kansas limitations statutes, and filed the present motion for summary judgment. Defendant’s argument is bifurcated: first, it challenges the existence of jurisdiction to adjudicate the case in Mississippi. Of course, if Mississippi could not have assumed jurisdiction, it could not have applied its statutes of limitation to plaintiff’s claim. Defendant’s second contention is that, even if jurisdiction were properly assumed by Mississippi, that state would nevertheless have applied the shorter Kansas statutes of limitation, K.S.A. §§ 60-513 and 84-2-725, and would have dismissed the action. Plaintiff argues that Mississippi would have assumed personal jurisdiction over defendant, and would have applied its six-year statutes, Sections 75-2-725 and 15-1-49, Miss.Code 1972.
We must preface our analysis of the issues raised by the present motion with a frank admission of our antipathy for plaintiff’s position. The necessary result of plaintiff’s argument, as it will be discussed below, is that a federal district court sitting in Kansas must entertain a suit which would have been dismissed out of hand had it been brought here, or brought in a Kansas state court and removed by the defendant. We are aware that this case appears on our docket only through the unilateral act of defendant in securing transfer; yet while this may in legal terms merely bestow upon us the functions of a Mississippi federal court sitting elsewhere, the practical effect of the ruling plaintiff urges is the defeat of the legislative policy of Kansas, as expressed in K.S.A. §§ 60-513 and 84-2-725, through utilization of the laws of a sister state apparently unconcerned with effecting such interference. Were this an isolated instance, a “fluke of the law,” our concern would be limited to the interests of the defendant in its attempt to avoid all liability. Yet we are cognizant that plaintiff’s counsel has employed similar arguments, and has succeeded in resurrecting a claim “stale” in Kansas, in at least one other
case
— Steele
v. G. D. Searle,
the various reported orders in which will be discussed below. This fact, and the ready availability of transfer as was effected in this case, raises the grim possibility that many such cases may appear on the dockets of Kansas federal courts, and that the effect of the Kansas limitations statutes may, by appropriate procedural maneuvering, be avoided time and again. It may fairly be called an aberration when the principles developed to accommodate the rule of
Erie R.R. Co. v. Thompkins,
*1083 I. THE LAW TO BE APPLIED: KLAXON AND THE EFFECT OF CHANGE OF VENUE
Plaintiff’s argument for the application of the Mississippi statutes of limitation in this court builds upon two hotly contested assumptions: that a hypothetical state court in Mississippi would have had jurisdiction to entertain this action originally, and that such a court would automatically apply its own limitations statutes to any case brought in Mississippi. Both of these points will be dealt with in detail below; for purposes of this section, however, we will assume both are true statements of the law. The argument proceeds that the process and personal jurisdiction of the federal district court in Mississippi is coextensive with that of the hypothetical state court, under general principles of federal diversity jurisdiction. With this there can be no quarrel, for we note that the citizenship of the parties and the amount claimed in apparent good faith by the plaintiff satisfies the statutory prerequisites for federal jurisdiction under 28 U.S.C. § 1832; the statutory requirements for venue are met under 28 U.S.C. § 1391(a) and the special “corporate venue” provisions of 28 U.S.C. § 1391(c).
The argument proceeds that Mississippi state law would have bound the Mississippi federal court under the
Erie
doctrine, as interpreted in
Klaxon v. Stentor Elec. Mfg. Co., Inc.,
Plaintiff proceeds to argue that Mississippi’s presumed application of its own statutes of limitation to this action must be observed by this court following a transfer at the request of a defendant under 28 U.S.C. § 1404(a). For this proposition plaintiff relies upon
Van Dusen v. Barrack,
Defendant, however, points to the following qualifying language found in the Van Dusen opinion:
In so ruling, however, we do not and need not consider whether in all cases § 1404(a) would require the application of the law of the transferor as opposed to the transferee, State. We do not attempt to determine whether, for example, the same considerations would govern if a plaintiff sought transfer under § 1404(a) or if it was contended that the transferor state would simply have dismissed the action on the ground of forum non conveniens.
Id.,
This is not to say we have no qualms concerning- the application of the
Van Dusen
rule in the instant case, since plaintiff’s arguments lead to the application of a foreign statute of limitations to a case strongly identified with Kansas interests. See Currie,
Change of Venue and the Conflict of Laws: A Retraction, 2fl
U.Chi.L. Rev. 341, 350 (1960). We have undertaken some investigation of the language of § 1404 which allows transfer only to a jurisdiction where the action “might have been brought.” Of course, had the present case been brought in this court, it would have been subject to dismissal on limitations grounds. It may be argued by analogy to
Hoffman v. Blaski,
[T]he notion that a plaintiff who commences an action in federal court acquires rights to the application of certain state law is unpersuasive in a case where the plaintiff has chosen a forum that is improper ...
Note, Transfer of Venue, supra, at 160 n.57. We need not concern ourselves overmuch with the propriety of this suggestion, however, for if personal jurisdiction is lacking over defendant in the case before us, it will matter little to plaintiff whether the action is dismissed based on the statute of limitations and the suggested exception to Van Dusen, or based on a strict application of Van Dusen with resultant dismissal on purely jurisdictional grounds.
One further comment made in
Van Dusen
deserves mention. In a footnote to the passage cited by defendant, the Court reserves the possibility that the application of transferor-state law may be subject to constitutional limitations.
.Van Dusen,
supra,
II. PERSONAL JURISDICTION IN MISSISSIPPI
As we have noted, defendant’s motion concentrates chiefly upon an asserted lack of personal jurisdiction in Mississippi and the question whether, under Mississippi conflicts law, a Mississippi court would apply its longer statutes of limitation to the present case. We now examine the propriety of an assumption of personal jurisdiction over defendant by the courts
of
Mississippi. This necessitates a bifurcated analysis; first, the state must have statutorily authorized assumption of personal jurisdiction in the case, and second, such- assumption of jurisdiction must not offend constitutional proscriptions.
Time, Inc. v. Manning,
Defendant’s argument in opposition to the assumption of jurisdiction directs itself to the interpretation of Mississippi statutory jurisdictional provisions. Specifically, defendant claims that the act or omission giving rise to the cause of action must occur within the state of Mississippi if certain Mississippi statutes are to confer personal jurisdiction over a defendant. Defendant has submitted an uncontroverted affidavit in which it is claimed no agricultural equipment of the type here in issue has ever been manufactured in whole or part, designed, or tested in Mississippi. Since the injury was not sustained in Mississippi either, it can truly be said that none of the events giving rise to the instant action occurred within the territorial boundaries of Mississippi.
Plaintiff, on the other hand, argues that no such connection with the forum is necessary to sustain jurisdiction under the relevant Mississippi statute. Plaintiff has submitted certification from the Secretary of State of Mississippi that defendant has complied with the relevant law and has obtained a certificate of authority to do business in Mississippi. Defendant has appointed a registered agent for service of process in the state. In so qualifying to do business in Mississippi, plaintiff asserts defendant became “subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a domestic corporation of like character.” Section 79-3-213, Miss.Code 1972. It is not disputed that defendant was so qualified at the time the injury here sued upon occurred.
Plaintiff then points the court to Section 79-1-27, Miss.Code 1972, which reads in full:
Any corporation claiming existence under the laws of any other state or any other *1086 country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not.
Service in this case was effected upon both defendant’s appointed registered agent, the C.T. Corporation System, and upon an actual agent of defendant’s Mississippi plant. Either method is permissible under Mississippi law; see Section 79-1-29, Miss.Code 1972.
It is unquestionable that, on its face, the Mississippi statute provides for an assumption of jurisdiction in cases such as the one before us. At the hearing plaintiff repeatedly referred to defendant’s “actual presence” in Mississippi and the fact that (unlike Mississippi’s long-arm statute, which requires some connection between the cause of action and the forum) § 79-1-27 applies to any corporation found present in Mississippi regardless of where the operative events giving rise to the claim occurred. We might note that, in addition to plaintiff’s claim of “presence,” an element of “implied consent” to jurisdiction is extracted from corporations wishing to register in Mississippi. See Miss.Code 1972, § 79-3-213.
Plaintiff cites to the court cases applying § 79-1-27, or its precursors, to actions between nonresidents of Mississippi deriving from claims arising outside Mississippi.
Tri-State Transit Co. of La. v. Mondy,
Defendant claims
S & W Construction
and its precursors retain no vitality in Mississippi law in light of
Mladinich v. Kohn,
Defendant argues, however, that the significance of
Mladinich
lies in the fact it postdated
S & W Construction
and its “arising from” rule was extended to encompass § 79-1-27 in
Hyde Const. Co. v. Koehring Co., supra.
In that case, the Mississippi federal court discussed the precursor of Section 79-1-27 and commented that
Mladinich
“apparently negates or nullifies the last phrase of this statute” (i. e., the provision for assumption of jurisdiction “whether the cause of action accrued in this state or not”).
Hyde, supra,
In Davis-Wood Lumber Co., Inc. v. Ladner,210 Miss. 863 ,50 So.2d 615 (1951), we recognized that International Shoe [Internationa] Shoe Co. v. Washington,326 U.S. 310 [66 S.Ct. 154 ,90 L.Ed. 95 ] (1945)] in effect had discarded the fictions of presence within the state and consent to process.
Id.,
If we assume the statute might be so interpreted, however, we must still examine whether a literal application of the statute might violate constitutional precepts in the case before us. Indeed, the basis for such decisions as Mladinich was not mere statutory construction, but rather a recognition of due process limitations upon a state’s assumption of jurisdiction over nonresidents, as articulated in International Shoe, supra. There can be no question that a “power” theory of jurisdiction, relying on outmoded notions of “presence” or “consent,” has no place in a discussion of power to effect personal jurisdiction over a nonresident individual who did not act and caused no injury within the forum state. It has been suggested that the “contacts” or “fair play” analysis of International Shoe should be uniformly applied when any defendant is sued in a forum unconnected with the cause of action:
The Court [in International Shoe] emphasized that “the obligation which is here sued upon arose out of [the] . very activities” relied upon to “establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conceptions of fair play and substantial justice, to permit the state to enforce the obligations which appellant has incurred there.” This approach suggests that, absent the kind of total, close, and continuing relations to a community implied in incorporation or in the location of a head office within a state, jurisdiction over legal persons . . . should take the form of specific jurisdiction [i. e., jurisdiction over only those actions arising from activity taking place or having effect within the forum].
Von Mehren and Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966) [hereinafter Von Mehren and Trautman, Jurisdiction ].
Plaintiff claims “there can be no constitutional implication raised by the assumption of jurisdiction over [defendant] by Mississippi,” citing
Perkins v. Benguet Consolidated Mining Co.,
The essence of the issue here, at the constitutional level, is a like one of general fairness to the corporation. Appropriate .tests for that are discussed in International Shoe ... the amount and kind of activities which must be carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case. The corporate activities of a foreign corporation which, under *1088 state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test. ... On the other hand, if the same corporation carries on, in that state, other continuous and systematic activities as it did here . . . those activities are enough to make it fair and reasonable to subject that corporation in proceedings in personam in that state
The Restatement 2d, Conflict of Laws § 47(2) has codified the principle of Perkins :
A state has power to exercise judicial jurisdiction over a foreign corporation which does business in the state with regard to causes of action that do not arise from the business done in the state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.
Although
Perkins
does not treat qualification to do business in the forum state as a sufficient “contact” in and of itself to make a state’s assumption of jurisdiction reasonable, several courts have treated
Perkins
as the announcement of a “modern due process ‘presence’ test” under which statutory presence alone is sufficient. See
Wells Fargo & Co. v. Wells Fargo Exp. Co.,
In Perkins the corporation sued had in essence moved its principal place of business to Ohio, the forum state, during the Japanese occupation of the Philippines. The “continuous and substantial” activities of the defendant in Ohio, therefore, were tantamount to principal operation in Ohio; the defendant corporation held directors’ meetings and effected stock transfers from its Ohio base of operations. Thus Comment (f) to Restatement 2d, § 47(2), supra, notes “such jurisdiction is particularly likely to exist in situations where the corporation’s principal place of business is in the State.” Suit in such a forum would probably supply the “minimum contacts” to satisfy due process. We doubt, however, that Perkins should be interpreted to support a general “presence” theory of jurisdiction over corporations:
[The Perkins] case was decided under and seems to fall clearly within the test of reasonableness, although the unavailability of a more convenient forum was a significant factor in the decision. . Circumstances may exist in which a suit on a cause of action unrelated to activities within the forum would make it unreasonable and therefore unconstitutional to exercise jurisdiction over the defendant.
Goodrich & Scoles, Conflict of Laws 94th ed. (1964), § 76 at 134.
It should be noted . . . that the facts in Perkins were highly unusual. When sued, the defendant had its main office in the forum. Furthermore, if not amenable to suit in Ohio, it is unlikely that the defendant would be subject to suit any place while the occupation of the Philippines continued. Thus Perkins is not strong support for the proposition that doing business may be a generally affiliating basis for general jurisdiction.
Weintraub, Commentary on the Conflict of Laws, 108-9 (1971).
A reading of the Restatement’s formulation of
Perkins
must take into account “the background of increasingly refined thinking about specific jurisdiction to adjudicate . . . [t]he
Perkins
case should be regarded as a decision on its exceptional facts, not as a significant reaffirmation of obsolescing notions of general jurisdiction.” Von Mehren and Trautman,
Jurisdiction, supra,
at 1144. To the extent the ideas of “presence,” “implied consent,” and “general jurisdiction to adjudicate” derive from a “power” theory of a state’s “exclusive jurisdiction and sovereignty over persons and property within its territory,”
Pennoyer
v.
Neff,
After
Shaffer,
plaintiff cannot rely solely on the asserted fact of “presence” to sustain an exercise of jurisdiction in Mississippi, for “physical presence is no longer either necessary
or sufficient
for in personal am actions.” Casad,
Shaffer v. Heitner An End to Ambivalence in Jurisdiction
The-j
ory?,
26 Kan.L.Rev. 61, 77 (emphasis supplied) [hereinafter Casad,
An End to Ambivalence
]. Rather, the nature and quality of that “presence” must be evaluated, with an eye toward the interest of Mississippi in assuming jurisdiction and providing a forum for this particular action. See
Fisher Governor Co. v. Superior Court,
instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.
Id.,
Of course, a party may consent to jurisdiction and thereafter have no grounds for objections thereto. Plaintiff cites us to Section 79-3-213, Miss.Code 1972, quoted above, and Section 79-1-23, which provides that a corporation qualifying to do business in Mississippi and appointing an agent for service of process “shall ... be subject to all the duties, obligations, restrictions, liabilities, limits and penalties . imposed by the laws of this state upon similar corporations incorporated under the laws of this state.” Plaintiff has stressed “consent” as a basis for sustaining jurisdiction in Mississippi, and we discuss it here because of the hint in
Shaffer
that statutory exaction of consent as a prerequisite to commercial activity in the forum may obviate further constitutional analysis.
Shaffer, supra,
Consent statutes are based on the notion that a state may condition the entry of a foreign corporation on such conditions, including consent to service of process, as it feels necessary. See
Paul v. Virginia,
*1090 A principal function of the [corporate qualification] statutes was to assure the subjection of foreign corporations to the jurisdiction of local courts in actions on claims arising out of business done locally. The new long-arm statutes take care of this business more efficiently . . .
Leflar, supra, § 258 at 518.
[T]he operating principle of [consent] laws is now outdated, sustained by inertia but not by currently acceptable jurisprudence.
Walker, Foreign Corporation Laws: The Loss of Reason, 47 N.C.L.Rev. 1, 30 (1968). It has been suggested that the requirements of consent to process and appointment of a registered agent are only useful when the forum has no other contacts with the litigation, and in that situation may pose an unreasonable burden on interstate commerce. Walker, Foreign Corporation Laws: A Current Account, 47 N.C.L.Rev. 733 (1969). Of course, this presupposes that the forum has enacted a suitable long-arm statute applicable by its terms to corporations. We are aware that the Mississippi long-arm statute exempts qualified corporations. But we are here concerned with the constitutional application of whichever statute purports to confer jurisdiction over the present defendant, and our belief that such “consent” statutes as those relied upon by plaintiff must be interpreted to incorporate a “minimum contacts” test in which the defendant’s activities in the forum, if they are entirely unrelated to the cause of action, play a minimal role at best. We have no doubt Mississippi can apply its “doing business” statute to many situations entirely consistent with the Due Process Clause. Yet we are not convinced such an application to the facts of the present case can be free from objection:
[C]onsent statutes . . . are a fictional outgrowth of the jurisdictional framework derived from Pennoyer v. Neff, a framework being rejected by the court in Shaffer. Under general due process principles and the minimum contacts test, such an implied consent statute should not be valid unless the requisite contacts were found to exist. If such contacts were present . . . jurisdiction would be established, regardless of the presence or absence of a consent statute.
Comment,
The Expanded Scope of the Sufficient Minimum Contacts Standard: Shaffer v. Heitner,
63 Iowa L.Rev. 504, 523 (1977); see
Shaffer, supra,
If we reject such mechanical or quantitative evaluations of the propriety of assuming jurisdiction as “presence” and “consent,” and approach our inquiry as a “question of reasonableness,”
Shaffer, supra,
We do not believe an assumption of jurisdiction over the present case meets the standards set forth in
“International Shoe
and its progeny,” including
Perkins
and its “continuous and substantial” test. Defendant does business nationwide and even in
*1091
ternationally. Its manufacturing activities in Mississippi are limited to the production of large “breakers” for use by electric utility companies. It is incorporated in Delaware and carries on its principal business in Wisconsin; nothing plaintiff has placed before us indicates that its activities in Mississippi are any more “continuous and substantial” than those in which it engages in any number of other states. We hold that plaintiff’s attempted invocation of jurisdiction in Mississippi over the present case must fail a due process analysis. Plaintiff’s interpretation of
Perkins
would lead to the ultimate result a corporation which extends; its operations nationwide, and complies' with state requirements for qualification to do business (thereby also submitting to tax- > ation by the state), must pay for its success! and compliance with the laws by finding) itself subject to suit everywhere, at the behest of any plaintiff, for claims uncon-; nected with its activities in the forum. Noj) reliance on corporate “presence,” or extrae-; tion of fictional “consent,” can obscure thej fact such a result is fundamentally unfair, j Under such a theory the state with the¡ longest statute of limitations, if it mechani-j cally applies its statute to all suits filed in * the state, becomes the standard of defend-'' ant’s liability everywhere, even though it has absolutely no connection with, or interest in, the action. Although corporations by their nature may be subject to jurisdiction in cases where an individual would not, see
Shaffer, supra,
III. CHOICE OF LAW IN MISSISSIPPI
We spoke earlier of the
Steele
v.
G. D. Searle & Co.
case with which plaintiff’s counsel has been involved. In
Steele
a Kansas resident was injured by a product of defendant, a corporation doing business in Mississippi, and suit was brought in Mississippi after the action was foreclosed in Kansas by K.S.A. 60-513. Plaintiff asserted jurisdiction through the attachment, pursuant to Mississippi statute, of debts owed defendant by Mississippi domiciliaries. The district court denied attachment was a valid ground for securing jurisdiction, but the Court of Appeals for the Fifth Circuit reversed, albeit reluctantly, being unwilling “to assimilate
in rem
and
in personam
actions for the purpose of judging the constitutionality of a state exercise of jurisdiction.”
More important for our purposes, however, are the two subsequent district court opinions in
Steele
dealing with choice of law and the Mississippi and Kansas statutes of limitations. After remand from the Fifth Circuit, the defendant in
Steele
moved for summary judgment on the basis the Kansas limitations statute applied and barred the action in Mississippi.
*1092 Plaintiff’s argument originates with a principle of common law codified in Restatement 2d, Conflict of Laws § 142(2):
An action will be maintained if it is not barred by the statute of limitations of the forum, even though it would be barred by the statute of limitations of another state
This principle rests upon the more general notion that no forum should be compelled to adopt procedural mechanisms foreign to it. This is an entirely defensible rule:
Sound sense and practical reasons dictate that a suit on a foreign cause of action should be processed and tried according to the procedural rules of the forum state. It would be an impossible task for the court of such a state to conform to procedural methods and diversities of the state whose substantive law is to be applied. The determination of that law is a difficult enough burden to impose upon a foreign tribunal.
Heavner v. Uniroyal, Inc.,
The theory underlying the lex fori doctrine is that statutes of limitations bar only the remedy in the state where they are applied; a plaintiff can enforce his right to recover, which continues to exist elsewhere if a remedy can be found. This right-remedy distinction goes hand-in-hand with the characterization of limitation statutes as “procedural.” Dissatisfaction with this formulation, and the odd results it effects in certain cases, has led to the formulation of two exceptions to the rule: the court-made theory of “built-in” limitations statutes, and the legislative enactment of “borrowing statutes.”
The Supreme Court has held that statutes of limitation may fairly be characterized as “substantive,” and hence applied by the “foreign forum,” if defendant’s liability and plaintiffs remedy are created by the same statute or statutes,
The Harrisburg,
An action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy.
Restatement 2d, Conflict of Laws § 143. See Milhollin, Interest Analysis and Conflicts Between Statutes of Limitation, 27 Hastings L.J. 1, 3-4 (1975) [hereinafter Milhollin, Interest Analysis]. That the courts of the state whose law is to be applied in tort cases rarely have the slightest interest in whether their statutes of limitation bar rights or mere remedies, since the distinction is generally immaterial for their purposes, does not argue against the salutory effects of the “built-in” exception to the lex fori rule, for the exception as formulated functions as “an escape device that allows the forum court, in a limited number of cases, to avoid the harsh results of the general rule.” Comment, Multistate Products Liability, supra, at 1136.
Mississippi recognizes this exception to the common law, and will apply another state’s statute of limitations to an
*1093
action governed by the substantive law of that state unless the statute acts as “a procedural bar to legal remedies and not as an extinguisher or qualifier of a . cause of action,”
Cummings v. Cowan,
Mechanical application of the
lex fori
with regard to statutes of limitation may also be avoided by the application of “borrowing statutes,” which usually provide that another state’s limitations statute will apply to an action brought in the forum state if the parties do not reside in the forum or the cause of action arose elsewhere; most such statutes contain exceptions in favor of resident plaintiff. Anno.
When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state . . . where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state.
A quite literal reading of the disjunctive phrasing would lead one to believe Mississippi would not apply its own statute of limitations to an action barred where it arose
or
where the defendant previously resided. See Vernon,
Statutes of Limitation in the Conflict of Laws: Borrowing Statutes,
32 Rocky Mtn.L.Rev. 287, 295 (1960) [hereinafter Vernon,
Statutes of
Limitations]. Yet, the Mississippi statute has been construed to benefit only a nonresident who comes to Mississippi to reside after a claim against him is barred where he was previously subject to suit. Although a corporation may partake of the protection of the statute,
Stavang v. American Potash & Chem. Corp.,
Since neither the accepted exceptions to the lex fori rule is applicable to this case, we proceed to examine whether Mississippi would indeed apply its statute of limitations to the case before us. Although the jurisdictional issue is alone dispositive of this case, and “the evils of forum shopping may best be confronted with use of rules of jurisdiction . . . ,” Comment, Multistate Products Liability, supra, at 1146, we feel nevertheless that the choice-of-law issues raised by this case deserve extended comment for policy reasons beyond the isolated factual situation here presented.
We have spoken of the necessity that a forum apply its own procedural rules to a “foreign” cause of action coming before it. However, a characterization of statutes of limitation as “procedural” for choice-of-law purposes is more a matter of convenience than necessity; indeed, “convenience” may be the only justification for the rule, and *1094 this is scant reason indeed for application of a principle which leads to such curious results. Vernon, Statutes of Limitation, supra, at 288-89; Comment, Multistate Products Liability, supra, at 1135. Although an attempt to comply with the purely procedural rules of another jurisdiction would invite chaos, “[t]he time bar does not deal with the method in which facts are presented to the court, as do procedural rules, but with the legal effect of a fact, the lapse of time, upon the plaintiff’s rights.” Note, An Interest-Analysis Approach to the Selection of Statutes of Limitation, 49 N.Y.U.L.Rev. 299, 301 (1974) [hereinafter Note, Interest-Analysis]. Nor are statutes of limitation or other jurisdictions particularly difficult to locate or apply.
Nor does the right-remedy analysis traditionally used as a basis for the mechanical application of a forum’s statute of limitations provide convincing support for the rule, for it is a technical rationalization only. “[C]an a right be truly said to exist . when all remedy upon it is legally extinguished?” LeRoy v. Crowinshield, 15 Fed.Cas. No. 8,269, p. 362 (C.C.Mass.1820). A right which can no longer be enforced is truly “shorn of its most valuable attribute.” Lorenzen, The Statute of Limitations and the Conflict of Laws, [hereinafter Lorenzen, The Statute of Limitations], 28 Yale L.J. 492, 497 (1919). The right-remedy distinction “does not make very good sense,” Leflar, supra, § 127 at 253, and if the artificial distinction were abolished for conflicts purposes, it is doubtful it would have any continued utilization in other areas. Sedler, The Erie Outcome Test as a Guide to Substance and Procedure in the Conflict of Laws, 37 N.Y.U.L.Rev. 813, 846 n.148 (1962) [hereinafter Sedler, The Erie Outcome Test].
Commentators have been nearly unanimous in calling for the demise of the lex fori rule when its effect is to allow suit upon a cause of action barred where it arose and in other forums with which the parties have substantial contacts. See Wurfel, Statutes of Limitations in the Conflict of Laws, 52 N.C.L.Rev. 489 (1974) [hereinafter Wurfel, Statutes of Limitations]; Milhollin, Interest Analysis, supra; McDonnold, Limitation of Actions, supra; Lorenzen, The Statute of Limitations, supra. One suggested alternative has been an “interest analysis test” wherein the statute of limitations of the state whose policies are most at stake is applied. See Weintraub, Commentary on the Conflict of Laws (1971). We believe Kansas has the greatest interest in the present action. A suggested alternative has been the “controlling state rule,” which mandates the application of the time bar of the state whose substantive law controls plaintiff’s cause of action. Note, Interest-Analysis, supra, at 299. In the present case, this would be the law of Kansas. An “outcome-determinative” test has been suggested, wherein the forum would adopt as much of the law of the state where the action arose “as is likely to bear materially on the ultimate outcome.” Sedler, The Erie Outcome Test, supra, at 821. In situations such as that before us, the statute of limitations of the “locus,” the state where the injury occurred or the action arose, will always be “outcome-determinative.” No matter what test is suggested as a replacement for strict application of lex fori in statute of limitations cases, all such theories would reach the same result in the present case: the Kansas limitations statute would bar this action. This is so because all proposals to scrap the lex fori rule “at bottom, consider the statute of limitations as basically substantive.” Comment, Multistate Products Liability, supra, at 1139; see McDonnold, Limitation of Actions, supra, at 112. For this reason, we will for our purposes lump all these suggested alternatives under the heading “lex loci,” referring to the law of the place where the action arose, the law of the state whose substantive law would apply, the law of the state with the most substantial interest in the outcome of the case — in short, the law of Kansas.
The
lex fori
rule would not invade the interests of the “locus” state unduly if the only purpose of statutes of limitation were the prevention of the assertion of claims arbitrarily considered “stale” and hence
*1095
likely to involve obscure evidence and mnemonic failures. The Restatement lists this as the sole basis for limitations statutes. Restatement 2d, Conflict of Laws § 142, comment (d); see
Bott v. Equitable Life Assur. Soc. of U. S.,
Another problem with strict application in the
lex fori
rule is that, in theory, “[t]he purpose of the conflict-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum.”
Lauritzen v. Larsen,
[The lex fori rule] increases caseloads, solicits older cases with stale evidence, and denies the defendant a definitive indication as to when his potential liability has expired ... [T]he mechanical simplicity of the lex fori rule, based on the fiction that the statute of limitations is a procedural matter, undermines the principal aims of conflicts doctrine and frustrates the legislative purposes which underlie statutes of limitation .
Note,
Interest-Analysis,
supra, at 302-03. The
lex fori
rule is “neither justifiable by common law tradition, nor by modern rationalizations,” Ehrenzweig, Conflicts of Law (2d ed. 1962) § 160 at 430, and this decade has seen the beginnings of a judicial shift away from the rule. See
Dindo v. Whitney,
In choosing the law most favorable to the plaintiff, the choice should be limited to those jurisdictions that have had one or more relevant contacts with the case, specifically, the place of manufacture, sale, or injury.
Comment, Multistate Products Liability, supra, at 1145.
*1096
Mississippi’s choice-of-law rules concerning the substantive law applied by Mississippi courts are quite modern. Ten years ago, in
Mitchell v. Craft,
This Court believes, in great part due to the congestion of the court dockets in Mississippi, that the state ultimately may adopt the argument of defendant here, that is, that Mississippi will, on facts akin to those here, find that its center-of-gravity rules applies to the statute of limitations of the state with the most interest in the litigation, particularly when it is obvious that a plaintiff has selected a Mississippi forum solely in order to use its comparatively long period of limitations for tort actions.
Plaintiff rests his argument that Mississippi would not abandon
lex fori
upon the case of
Vick v. Cochran,
(1) Mississippi rules of the road should apply to questions of alleged negligence in the actual driving of the truck and (2) the period of limitations, by ancient precedent, is governed by the law of the forum.
Vick, supra,
Mississippi can have no such concern with the present case. It can have no interest in the protection of a plaintiff who does not reside in Mississippi, and whose only apparent connection with the state has been the retention of Mississippi counsel. Mississippi can have no more than a general “humanitarian” interest in punishing the defendant for manufacturing an allegedly defective product, since none of defendant’s activities in the state have the remotest connection with the injury or the offending device.
On the other hand, Mississippi may be interested in keeping such actions out of its courts, since an influx of actions unconnected with the state certainly poses a burden upon local taxpayers and crowds court dockets, making it more difficult for actions legitimately brought in Mississippi to be heard expeditiously. Further, corporations may not think it wise to qualify for business in Mississippi if doing so might subject them to extended liability under the state’s longer limitations period for injuries sus *1097 tained anywhere their products might wind up.
Thus, we are inclined to believe that, given the facts now before us and the progressive thinking of Mississippi courts on choice-of-law problems as exhibited in
Mitchell v. Craft, supra,
Mississippi would very likely abandon the strict
lex fori
rule. The rather perfunctory reference to “ancient precedent” in the
Vick
case, and the fact that other cases of adherence to
lex fori
predate
Mitchell
v.
Craft
[see, e. g.,
Guthrie
v.
Merchants Nat’l Bank of Mobile,
We referred earlier to possible constitu-, tional limitations on a state’s choice of law. Certainly, if such limitations exist they f might be persuasive in influencing a state to abandon a conflicts policy which may impair the constitutional rights of some litigants. The parties have touched upon this matter in their briefs, but we must note at the outset that this is an area of law “by no means settled.”
Shaffer, supra,
The Shaffer decision’s elimination of the i power theory in the realm of jurisdiction, ■ however, may portend a similar fate for the territorialist approach to choice of law. It may be a step toward a coherent national theory of choice of law .
In this vein, defendant claims the application of the longer Mississippi statutes of limitation in the present case, in view of the lack of contacts between the forum and the case itself, is so unfair as to violate the Due Process Clause of the Constitution. Defendant’s argument builds upon the Dick case, wherein the Supreme Court refused to allow the state of Texas to impose a statute extending the time to sue upon the law of Mexico, where most of the “contacts” relevant to the action were situated. Although the Texas statute involved in Dick was in a sense “procedural,” the Court held that the limitations period in that context was a substantive matter, and its operation deprived the defendant of property without due process of law. This aspect of the due process clause has not been developed, however, perhaps because of expanding notions of procedural due process in the jurisdictional area; if a state lacks the requisite contacts necessary to support an assumption of jurisdiction, the conflicts question need never be reached. Thus due process limitations on choice of law may have no meaning if personal jurisdiction is properly assumed, except when a state “has no other contact with the parties or with the facts except that it is the forum.” Weintraub, Due Process and Full Faith and Credit Limitations on a State’s Choice of Law, 44 Iowa L.Rev. 449, 464 (1959). This, we believe, is such a case. The present case certainly invites application of due process limitations to Mississippi’s choice of law:
It should be a violation of procedural due process for a forum, by the device of affixing a “procedural” label, to avoid the application of another state’s rule, if the policies underlying the other state’s rule would be advanced by applying that rule to the case at bar, the rule is of a kind which has high potential for affecting the outcome on the merits, the forum rule is not inordinately difficult for the forum to find and apply, and application of the forum’s different rule will not advance *1098 any rationally applicable policy of the forum.
Weintraub,
The Erie Doctrine and State Conflict of Laws Rules,
39 Ill.L.J. 228, 243 (1964) [hereinafter Weintraub,
The Erie
Doctrine]. Such an application of due process principles would do much to discourage interstate forum-shopping of the type encountered in the present case. However, we believe our interpretation of
Perkins, supra,
largely obviates the need to develop any such doctrine. It is difficult to envision a situation in which a state has sufficient “contacts” with an action to make its assumption of personal jurisdiction reasonable and fair, and yet has no interest in the litigation which would make application of its conflicts rules to the case permissible under a due process theory of choice of law. Should the Supreme Court later retreat from the clear import of its remarks in
Shaffer,
supra, further consideration might need to be given to a due process analysis of choices of law. We note that in such a situation plaintiff’s attempt to distinguish
Dick
would not be persuasive to this court. Plaintiff, in his brief at p. 37, dismisses
Dick
on the grounds that the statute there in question was “substantive” and, in language by now familiar, purported to bar the right as well as the remedy. There is dicta in
Dick
supporting such a distinction;
Defendant also claims any attempt by Mississippi to apply its longer limitations statutes would be an affront to the Full Faith and Credit Clause of the Constitution. The analysis of this claim must rest upon the respective rights of the states concerned, rather than the rights of the defendant itself:
[T]he litigant’s right to the “proper” choice of law is often the right of a state other than the forum, which, for purposes of practicality and convenience, he is allowed to represent. Freedom from an improper assertion of judicial jurisdiction, however, is almost always the litigant’s personal right.
Martin, Constitutional Limitations, supra, at 203. Dick and its progeny dealing with international conflicts are outside the scope of such analysis, since full faith and credit applies only between the states, and is an expression of a need for national uniformity. It has been suggested that while due process, with its focus upon the relationship between the state and the individual, will almost never be effective in limiting a state’s choice of law once the requisites of personal jurisdiction are satisfied, some implicit constitutional limitations can be gleaned from principles of full faith and credit:
When the approach that allows a state to apply its own law in marginal cases is augmented by expanded bases of personal jurisdiction . . . the combination raises the specter of massive invasions by one state into the policies of another, rigidly enforced by the rules of full faith and credit to judgments.
Martin, Constitutional Limitations, supra, at 230. We might add that such an affront may also result from forum-shopping by plaintiff for a favorable statute of limitations, followed by forum-changing by the defendant under 28 U.S.C. § 1404, with the result which plaintiff urges upon us today. Only the fact this case has been “routed *1099 through” a foreign forum prevents this Kansas district court from dismissing this action in concordance with the legislative wishes of the state of Kansas, without further ado.
Plaintiff cites
Wells v. Simons Abrasive Co.,
On the other hand, the forum’s application of its longer statute of limitations to an action barred where it arose cannot be justified in terms of forum interest, at least where the parties’ connection with the forum is no more than tangential. In the Wells situation, the forum has an interest in preventing the prosecution of an action its own legislature would characterize as stale; in the situation before us it is highly unlikely any of Mississippi’s interests would be served by sustaining a cause of action longer than the state which created it. That the language of Wells rests upon a sound logical base only in fact situations analogous to that encountered by the Court in Wells has not gone unnoticed by the commentators:
In the final analysis, [We/Is] does not represent a satisfactory approach to the problem of the application of the forum’s statutes of limitations. Although the case involved only a refusal by the forum to apply the foreign jurisdiction’s longer statute of limitations, little of the Court’s language reflects any awareness that the issues might be different when the forum rejects the foreign jurisdiction’s shorter statute of limitations. One might therefore suggest a simple constitutional rule with respect to the statutes of limitations in cases where the forum has no substantive interests: The forum may be justified in using its own statute of limitations to bar a cause of action that is still good in the state which created it, but a state should be forbidden from entertaining a cause of action after it is dead in the state which created it.
Martin, Constitutional Limitations, supra, at 220-21.
Application of a forum’s limitations rule to bar suits on admittedly valid and existent extrastate claims has a different theoretical justification [than use of the forum’s longer statute]. Access to forum courts is a matter for forum law to determine. Any state may bar suits on extrastate claims on the same limitations grounds it uses to bar suits on domestic claims. The full faith and credit clause is not violated by exclusions, and certain social policies may be served by them. The forum’s limitations rules represent its policy on the enforcement of stale claims, and a policy of repose may be relevant to all lawsuits filed in the forum’s courts regardless of where the claims arose.
Leflar, supra, at 304. Thus we believe Wells and similar cases should be distinguished from that before us; indeed, even some commentators who have urged adoption of the lex loci rule when the statute of the “locus” is shorter than that of the forum argue for the Wells result when the forum statute is shorter. See, e. g., Lorenzen, The Statute of Limitations, supra, at 497-98.
*1100
The difficulties, both constitutional and conceptual, in applying the
Wells
rule to a case akin to that before us today were articulated by Justice Jackson in his dissent in
Wells,
[T]he essence of the Full Faith and Credit Clause of the Constitution is that uniformities other than just those within the state are to be observed in a federal system. The whole purpose and the only need for requiring full faith and credit to foreign law is that it does differ from that of the forum . . Application of the Full Faith and Credit Clause prevents . . . disparity by requiring that the law where the cause of action arose will follow the cause of action in whatever forum it is pursued.
Justice Jackson goes on to postulate just the situation before us today:
Suppose the plaintiff might have obtained service of process in several different states . . . she could choose from as many varieties of law as of forums . The life of a cause of action is then determined by the fortuitous circumstances that enable her to make service of process in a certain state or states.
We believe these fears have been realized in the present case.
It does not follow, however, that the Full Faith and Credit Clause should be applied by federal courts in pursuit of uniformity regardless of the locus of litigation. It must be realized that such action would entail the abandonment of the rule of Klaxon, supra, and would have serious repercussions within the federal system. The Supreme Court felt the Klaxon principle necessary in light of the concerns of Erie, i. e., the avoidance of forum-shopping between state and federal courts within a given state. On the other hand, as the case before us demonstrates, Klaxon invites interstate forum-shopping due to the vagaries of the choice-of-law rules of the states. Klaxon has been criticized on this ground. See Horowitz, Toward a Federal Common Law Choice of Law, 14 U.C.L.A.L.Rev. 1191 (1967) [hereinafter Horowitz, Federal Common Law]; Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 513-15 (1954). Yet it must be realized that as long as the states have divergent choice-of-law rules, no litmus-paper test applied by the federal courts will eliminate forum-shopping both within a state and between the states.
It has been suggested that one way to avoid the lack of uniformity resulting from dissimilar state choice-of-law rules would be a federalization of conflicts rules, based on the power inherent in the Full Faith and Credit Clause. Horowitz, Federal Common Law, supra. While such action might have a salutory effect in the choice-of-law field, it would certainly have a less-than desirable effect on the federal system. In order to eliminate both interstate and intrastate forum-shopping, such a change would have to be binding, not only upon the federal courts, but also upon the courts of each state. It cannot be blandly assumed that each state judiciary would welcome a new doctrine which would make every choice-of-law decision of constitutional magnitude. Such a step is not to be taken impulsively.
As long as the states are to be afforded some measure of independence in formulating choice-of-law rules affecting state-created rights (and it must be remembered that federal diversity jurisdiction to hear cases affecting such rights is limited, derivative, and itself not free from attack), some measure of forum-shopping is inevitable, and the choice remains that between interstate abuse and intrastate abuse. Perhaps expanding concepts of personal jurisdiction, and the increasingly interstate nature of actions (the rapidly-escalating incidence of products liability cases, such as that before us, is a case in point), combine to make forum-shopping between states the greater of the two evils. On the other hand, it may be argued that interstate forum-shopping may be held in check by due process circumscription of personal jurisdiction, and hence of available forums, and by the slow but inevitable tendency of the states to adopt uniform and enlightened choice-of-law principles. Mississippi, for example, has nothing to gain but docket *1101 congestion from application of its longer limitations statute to the case before us. In any event, the Supreme Court has spoken in Klaxon, and no nationwide uniformity in conflicts principles based upon the Pull Faith and Credit Clause may be effected while the case stands. We must therefore decline defendant’s invitation to hold Full Faith and Credit principles dispositive of the choice-of-law issue before us.
We do not believe our decision of Full Faith and Credit has been an exercise in futility from defendant’s point of view, however. “[T]he fact that there is a case to be made for developing ... a federal common law of choice of law should be a factor in the development by state courts of their conflicts doctrine.” Horowitz, Federal Common Law, supra, at 1210. We believe the constitutional considerations discussed above would provide added impetus for the adoption of a “lex loci” conflicts rule by Mississippi, at least in the situation where an action is barred in the state where it arose.
Plaintiff bids us remember our place as a Kansas federal court, sitting as a Mississippi federal court, applying the law developed in Mississippi state courts; he notes we are “bound and obligated” to follow the statutory and legislative system of Mississippi “without deviation.” Plaintiff’s brief at 31. Indeed, the Mississippi federal district court in Steele, supra, although fully cognizant of the drawbacks of the lex fori rule, declined to apply the bar of Kansas because it had been unable to find a state court decision doing so.
We do not believe the rules of
Erie
and
Klaxon
are so strict as plaintiff would contend. The danger of intrastate forum-shopping, with which
Erie
and
Klaxon
are concerned, would continue to exist if federal courts must always apply the last relevant state decision, while state courts are free to change the law. Weintraub,
The Erie Doctrine,
supra, at 244-46. Thus, in the face of confusion, doubts, or ambiguities in state law a federal court may choose the rule the state court is likely in the future to adopt. See
Bernhardt v. Polygraphic Co. of America,
We will admit to some unfamiliarity with the Mississippi judiciary and its methods of reaching decisions, Wright, supra, § 59 at 271, and that there is an element of presumption in forecasting alteration of the law of another state by judicial fiat. However, the cases cited by plaintiff must be accounted the weakest of precedent, and such prognostication by a “foreign” federal court is not entirely unprecedented. See, e. g.,
Mason v. American Wheel Works,
IV. CONCLUSION
We are not insensitive to the grievous injury plaintiff claims to have suffered, or to the possibility defendant’s conduct has been highly blameworthy in its design and manufacture of the offending product. However, we firmly believe plaintiff through delay has forfeited his right to ask recompense in any proper forum. Plaintiff’s argument is built upon a chain of jurisdictional and choice-of-law principles which, although established by precedent and capable of reasonable application in many cases, lead to an unjustifiable result upon the facts of this case. If limitations statutes and the policies underlying them are to count for anything at all, plaintiff cannot be allowed to proceed with this action.
Accordingly, defendant’s motion for summary judgment will be granted, and the complaint of plaintiff dismissed.
IT IS SO ORDERED.