The opinion of the court was delivered by: Will, District Judge.
Since the jurisdiction of a federal court on removal is a
derivative jurisdiction, Lambert Run Coal Co. v. Baltimore &
Ohio R. R. Co., 1922, 258 U.S. 377, 382, 42 S.Ct. 349, 66
L.Ed. 671, if the State Court lacked jurisdiction of the
defendant, this Court acquired none on removal. Freeman v. Bee
Machine Co., Inc., 1943, 319 U.S. 448, 449, 63 S.Ct. 1146, 87
L.Ed. 1509. Therefore, an inquiry into the sufficiency of
service of process prior to removal is proper. Garden Homes v.
Mason, 1 Cir. 1956, 238 F.2d 651, 653.
Defendant's principal contention is that service was invalid
because no tortious act had been committed by it within
Illinois. This argument, however, was carefully considered and
rejected by the Illinois Supreme Court in a remarkably similar
recent decision, Gray v. American Radiator and Standard
Sanitary Corporation et al., 22 Ill.2d 432, 176 N.E.2d 761
(rehearing denied September 20, 1961), which supersedes the
various earlier decisions cited in defendant's brief. This
Court is, of course, bound by the latest applicable decision
of the Illinois Supreme Court on the subject. Rockwell v.
United States Fidelity & Guaranty Co., D.C.M.D.Pa., 1955,
137 F. Supp. 317.
In the Gray case, as alleged here, plaintiff was injured by
an instrumentality manufactured and sold outside the state by
a company whose only contact with Illinois in the transaction
was the presence of its product at the occurrence of the
accident. There, as here, defendant's affidavit stated that it
did no business in Illinois, and that it had no agent
physically present within the state.
Notwithstanding, the Illinois Supreme Court denied
defendant's motion to quash service of summons, reversing the
lower court ruling. It held that the term "tortious act" as
used in Section 17(1)(b) of the Illinois Civil Practice Act
refers to an act which causes injury, and that technical
distinctions between the word "tort" and "tortious" would not
avail to defeat or obscure the intention of the legislature to
extend the reach of the state's process as far as possible
consistent with the limitations of the Fourteenth Amendment.
It further held, after an exhaustive review of state and
federal cases involving the question of minimum contact for
purposes of service, that when the alleged liability arises
from the manufacture of products presumably sold in
contemplation of possible use in Illinois, even where the
initial sale is to an out-of-state purchaser who subsequently
ships into the state, the manufacturer can be said to have the
requisite minimum contact, deriving as he does the benefits
and protection of Illinois law in the marketing of his
In the instant case, defendant makes no claim that it did
not contemplate the use of its product in Illinois. Indeed,
its own affidavit reveals that "all sales of tools by
Penncraft Tool Company, Inc. to Illinois purchasers thereof
are made f. o. b. Inkster, Michigan."
Since the Gray case, supra, disposes of defendant's
contentions, the motion to quash is denied. Defendant is
directed to answer or otherwise plead within twenty days of
the date hereof.
An order consistent with the foregoing will be entered.
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