author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America and Mortimer Todel, as Receiver of the funds, assets and property of Roosevelt Capital Corporation, Plaintiffs-Appellees, v. FRANKLIN NATIONAL BANK, Defendant-Appellant.
    Nos. 241, 487, Dockets 74-1062, 74-1816.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 12, 1974.
    Decided Feb. 24, 1975.

      Julius Berman, New York City (Kaye, Scholer, Fierman, Hays & Handler, Sidney Kwestel, New York City, on the brief), for defendant-appellant.
    Henry A. Brachtl, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. New York, on the brief), for plaintiffs-appellees.
    Before FRIENDLY, FEINBERG and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

Franklin National Bank (Franklin) appeals from a decision of the United States District Court for the Eastern District of New York, Leonard P. Moore, Senior Circuit Judge, awarding the United States and Mortimer Todel, the Receiver of Roosevelt Capital Corporation (Roosevelt), summary judgment for approximately $160,000 plus interest. On the present record, as will be seen below, there was no proper basis for jurisdiction in the Eastern District, although appellees Todel and the United States have suggested that this defect can be remedied in the district court. Therefore, we remand the case to the district court for further proceedings consistent with this opinion.

I

Roosevelt went into receivership because an unsavory group took it over and proceeded to dissipate its assets. In May 1964, the first step in the process began. The looters met with the then owners of Roosevelt in a meeting room at a Franklin branch office, which the Bank had offered as an accommodation to Roosevelt, a Franklin depositor. During the course of the meeting, arranged to effect the sale of the corporation, one of the buyers asked a Franklin official if he would draw two checks totalling $160,000 on the Roosevelt account, payable to the attorney and representative of the then owners of the stock of Roosevelt, so that the sale could be completed. Assuming that everything was proper, Franklin provided the checks and the sale was completed. The looters had managed to buy the corporation with its own money.

The interest of the United States stems from the fact that Roosevelt was a “small business investment company” under 15 U.S.C. § 681 et seq., indebted to the United States for approximately $150,000. When it became clear that Roosevelt had breached the conditions of its loan, the United States brought suit against Roosevelt in the United States District Court for the Southern District of New York to recover on its loan, and also asked that a receiver for Roosevelt be appointed pendente lite under 15 U.S.C. § 687c(b). Mortimer Todel was so appointed in March 1965, and given broad powers to collect and preserve the assets of Roosevelt. In August 1966, the United States recovered a default judgment in the action against Roosevelt. Since the dispersion of assets was thorough, the judgment remains unsatisfied.

In his effort to collect assets of Roosevelt, the Receiver brought this action against Franklin in May 1967 to recover the money paid out by Franklin to the former owners of Roosevelt at the looters’ behest. The United States joined as co-plaintiff. The suit was filed in the Eastern District of New York and alleged as jurisdictional grounds 28 U.S.C. § 1345 and 15 U.S.C. § 687c for plaintiff United States and 28 U.S.C. § 1331 and the federal receivership appointment for plaintiff Todel. The complaint prayed alternatively for $160,000 for Todel as Receiver of the assets of Roosevelt or for $150,000 for the United States and $10,-000 for Todel. After pre-trial discovery, including the deposition of the bank officer who approved drawing the checks, plaintiffs moved for summary judgment. Judge Moore granted the motion, and it is from this decision that Franklin appeals.

II

The parties did not raise the issue of jurisdiction in the district court, or in this appeal. Franklin did question the presence of the United States as a co-plaintiff since the Receiver had already been appointed, but Judge Moore found that problem unnecessary to decide because the Receiver was a party to the suit and “his power to bring this action has not been challenged. . . . ” It was not until oral argument before us, when Judge Friendly raised the question in open court, that the parties focused on the jurisdictional issue. They also furnished us with post-argument briefs on the subject. Based on these submissions and our own research, we have come to the conclusion that on this record there was no jurisdiction over this action in the Eastern District of New York.

If the United States were a proper party plaintiff, then there would be no question that jurisdiction would' lie. 28 U.S.C. § 1345. But we believe that the United States is not properly in this action. While we have found no cases raising this issue in which a receiver had been appointed under 15 U.S.C. § 687c(b), there are sufficiently analogous situations from which we may draw. For example, in a suit by minority stockholders against a corporation’s officers to recover money fraudulently converted, the Supreme Court stated:

If the corporation becomes insolvent, and a receiver of all its estate and effects is appointed by a court of competent jurisdiction, the right to enforce this and all other rights of property of the corporation vests in the receiver and he is the proper party to bring suit, and, if he does not himself sue, should properly be made a defendant to any suit by stockholders in the right of the corporation.

Porter v. Sabin, 149 U.S. 473, 478, 13 S.Ct. 1008, 1010, 38 L.Ed. 815 (1893). See also Schmidt v. Esquire, Inc., 210 F.2d 908, 912 — 13 (7th Cir.), cert. denied, 348 U.S. 819, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Coyle v. Skirvin, 124 F.2d 934, 938 (10th Cir.), cert. denied, 316 U.S. 673, 62 S.Ct. 1044, 86 L.Ed. 1748 (1942); Klein v. Peter, 284 F. 797, 799 (8th Cir. 1922); 3 R. Clark, The Law and Practice of Receivers § 786.1 (3d ed. 1959) (hereafter Clark). But see Hanna v. Brictson Mfg. Co., 62 F.2d 139, 143 (8th Cir. 1932). A similar rule prevails in bankruptcy proceedings. 2A Collier, Bankruptcy H 47.05 at 1745 (14th ed. 1968).

The original purpose of the receivership here was to collect assets to pay creditors, including the United States. Even the complaint in this action against Franklin impliedly recognizes this in its prayer for relief which calls for, at a minimum, a separate $10,000 recovery for Todel. To collect the assets, Todel was directed to

take possession, control and custody of ' all funds, assets, and property of Roosevelt Capital Corporation, wherever located, including but not limited to claims and choses in action, and . . . take all such action as may be deemed necessary or advisable to collect, preserve and protect such assets and to enforce and recover upon any such claims and choses in action by the institution of appropriate legal proceedings or otherwise.

Thus, to hold that the creditor United States could still prosecute Roosevelt’s action against Franklin would be inconsistent with the terms of Todel’s original appointment in March 1965. If we allowed the United States as a creditor of the corporation to join as a co-plaintiff then there would be no reason to refuse other creditors in other actions the right to join receivers’ suits until the resulting confusion brought chaos to the administration of receiverships. Cf. In re American Fidelity Corp., 28 F.Supp. 462, 471-72 (S.D.Cal.1939), and the cases cited therein. It is true that the default judgment obtained in August 1966 by the United States against Roosevelt directed the Receiver to continue his efforts to recover assets “for the purpose of satisfying the judgment entered herewith.” From this, the United States argues that Todel was merely a “receiver-in-aid-of-judgment,” so that the cases cited above do not apply. We need not consider whether this argument would be persuasive if Todel’s powers were so limited. They were not; the default judgment relied upon by the United States also continued “in full force and effect” the original order appointing the Receiver with the "broad powers specified therein.

Ill

Since the United States is not properly a party, any jurisdictional support for bringing the action must be furnished by the Receiver alone. The complaint alleged that such jurisdiction was based on Todel’s status as a receiver appointed by the federal courts and on 28 U.S.C. § 1331, the federal question statute. We will first discuss the federal receivership appointment as a basis for jurisdiction.

Prior to the amendment of Fed.R. Civ.P. 66 in 1946 (carried forward as an amendment to 28 U.S.C. § 754 in 1948), a receiver appointed in one federal district could not even bring suit in another district without undergoing the bothersome procedure of preliminary ancillary appointment. See 7 J. Moore, Federal Practice H66.07[l] at 1983-34 (2d ed. 1948) (hereafter Moore). But 28 U.S.C. § 754 now provides that a federal receiver “shall have capacity to sue in any district without ancillary appointment ..” The comments of the Advisory Committee on Rules for Civil Procedure on the then new Rule 66 make clear that giving the receiver automatic capacity to sue was only intended to streamline federal practice, and do not mention any change in the law with respect to jurisdiction. U.S.Code Cong.Serv., 79th Cong., 2d Sess., 1946 at 2365. Thus, the earlier learning with respect to jurisdiction over actions brought by receivers is still relevant.

Whether a receiver appointed in one federal district need allege an independent jurisdictional basis to maintain a suit in another federal district remains a question that has not been decided authoritatively. Had Todel been able to maintain this action in the Southern District where he had been appointed receiver, however, no independent jurisdictional ground would have been needed for

such action or suit is regarded as ancillary so far as the jurisdiction . is concerned; and we have repeatedly held that jurisdiction of these subordinate actions or suits is to be attributed to the jurisdiction on which the main suit rested .

Pope v. Louisville, N. A. & C. Ry., 173 U.S. 573, 577, 19 S.Ct. 500, 501, 43 L.Ed. 814 (1899). See also Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 142-43 (2d Cir. 1964); Roof v. Conway, 133 F.2d 819, 823 (6th Cir. 1943); 7 Moore, If 66.07[3] at 1938. This rule is well settled, and the reasons for it are clear. The ancillary suit is cognizable in the court of the main suit regardless of the citizenship of the parties or the amount in controversy because the res over which the receiver took control is already before the court. Murphy v. John Hofman Co., 211 U.S. 562, 569, 29 S.Ct. 154, 53 L.Ed. 327 (1909); White v. Ewing, 159 U.S. 36, 38-39, 15 S.Ct. 1018, 40 L.Ed. 67 (1895). Thus, since the receivership was already before the Southern District, there would have been jurisdiction in that court. But this reasoning does not apply to this suit brought in the Eastern District. The treatise writers seem to agree. Discussing this analysis, Professor Moore states “Whether these theories of ancillary jurisdiction will support an action by or against the receiver in a federal court other than the receivership court is doubtful.” 7 Moore 166.07 [3] at 1940. Similarly, Professors Wright and Miller state that “a federal receiver appointed under Rule 66 may sue in any district court without any need for the appointment of an ancillary receiver, provided, of course, that the court has subject matter jurisdiction,” and that “It is uncertain whether ancillary jurisdiction only exists in the appointing court, although this probably is the case.” 12 C. Wright and A. Miller, Federal Practice and Procedure § 2984 at 31, § 2985 at 45 (1973) (footnotes omitted). To the same effect, see 1 Clark § 320(h).

What case analysis we have found also supports this result. The Supreme Court has not spoken directly on the issue but has hinted that an independent jurisdictional basis is necessary. In Gableman v. Peoria, D. & E. Ry., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900), a receiver appointed in the Southern District of Illinois tried to remove a suit brought against him in the Indiana state courts to the Circuit Court for the District of Indiana. The Supreme Court denied removal, holding that the case was not one that arose under the laws or Constitution of the United States merely because of the presence of a federally appointed receiver. In Raphael v. Trask, 194 U.S. 272, 24 S.Ct. 647, 48 L.Ed. 973 (1904), the question presented was whether an action could be maintained in the Southern District of New York without diversity on the theory that it was ancillary to a pending suit in the Utah Circuit Court. The Court said that:

[W]e are unable to find any precedent in the reported cases or text books which will maintain this bill in that aspect. Ancillary bills are ordinarily maintained in the same court as the original bill is filed, with a view to protecting the rights adjudicated by the court in reference to the subject-matter of the litigation, and in aid of the jurisdiction of the court, with a purpose of carrying out its decree and rendering effectual rights to be secured or already adjudicated.

194 U.S. at 278, 24 S.Ct. at 649. In Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934), the Court held that where the primary receivership was in a state court there must be independent jurisdictional grounds for an action for appointment of an ancillary federal receiver. It also posed the question whether the same rule applied when the primary receivership was in the federal court. While the Court did not answer, it noted in a footnote that Raphael v. Trask “intimated that the jurisdiction of a federal court cannot be based upon an original suit in another federal court,” 293 U.S. at 243 n. 3, 55 S.Ct. at 165, and that the lower courts were divided on the question.

Since Mitchell, the lower courts are less divided. The most recent case we have found that directly treats the issue is Kelley v. Queeney, 41 F.Supp. 1015 (W.D.N.Y.1941). Plaintiffs in that case, who were trustees appointed in the Eastern District of Pennsylvania, sued in New York to remove defendants as voting trustees of the corporation. In the face of defendants’ motion to dismiss for lack of diversity, plaintiffs asserted that the district court in New York had “jurisdiction over this action as ancillary” to the district court in Pennsylvania, and thus there need not be diversity of citizenship. The district judge disagreed:

Without showing diversity of citizenship, ancillary action can be brought only in the court in which the main action was brought wherein the plaintiffs were appointed trustees, and this was the Eastern District of Pennsylvania. In Sullivan v. Swain, C.C., 96 F. 259, it was said: “Where a receiver * * * brings an action in the court which appointed him, such court has jurisdiction of the action * * *; but in such a case the jurisdiction is upheld on the ground that the action is but auxiliary to * * * the original suit * * *. This ground of jurisdiction, however, manifestly does not exist where the receiver sues in a jurisdiction other than that of his appointment.”

41 F.Supp. at 1018.

While this court has not decided the point, in United States ex rel. Sutton v. Mulcahy, 169 F.2d 94 (2d Cir. 1948), cert. denied, 337 U.S. 956, 69 S.Ct. 1526, 93 L.Ed. 1755 (1949), a habeas action attacking a contempt order on the ground that the charging court was without jurisdiction, we strongly indicated that an independent jurisdictional ground would be necessary. The lower court, in Menashe v. Sutton, 71 F.Supp. 103, 105 (S.D.N.Y.1947), an action ancillary to a Hawaii receivership, had held that the presence of a federally appointed receiver was sufficient grounds for jurisdiction, and later held Sutton in civil contempt. In the habeas action, we held that jurisdiction, once litigated, was ordinarily immune from collateral attack and affirmed the denial of the writ. 169 F.2d at 96. In two separate opinions, however, Judge Clark, concurring, and Judge Frank, dissenting, both stated that they believed the district court had been incorrect in allowing the suit without an independent basis for jurisdiction. 169 F.2d at 96, 97 n.l. Apparently, Judge Rif kind agreed, for when the case was thereafter assigned to him for defendants’ motion to dismiss for lack of jurisdiction, he allowed the complaint to be corrected nunc pro tunc to show diversity. Menashe v. Sutton, 90 F.Supp. 531, 533 (S.D.N.Y.1950).

Even if the Eastern District court did not have general ancillary jurisdiction over the claim of this federally appointed Receiver, the United States argues that this case “is so imbued with the interest of the Government” that it arises under the laws of the United States and therefore jurisdiction is available under 28 U.S.C. § 1331. We do not agree. As we noted above, Gableman v. Peoria, D. & E. Ry., supra, makes clear that the presence of a federally appointed receiver does not make the case one arising under the laws of the United States. See also 7 Moore If 66.07[3] at 1940 n.9, H66.07[4] at 1942. Nor does Todel’s claim against Franklin for an “improper and unlawful” payment from Roosevelt’s account raise any issues of federal law.

The statute under which Todel was appointed, see note 5 supra, does not seem to expand his rights beyond those of other equity receivers. 15 U.S.C. § 687c(a) gives the Small Business Administration authority to apply to the district court for an injunction or other relief for violation of the provisions of the small business investment program and it states that “such courts shall have jurisdiction of such actions . . ..” Subsection (b), on the other hand, only permits the court “as a court of equity” in such proceedings to take jurisdiction of the small business investment company and its assets and to “appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed.” The section says nothing about the power of the receiver to invoke the jurisdiction of the federal courts in general. The legislative history of subsection (b), added in 1961, does not indicate the contrary. See 2 U.S. Code Cong. & Admin.News, 87th Cong., 1st Sess. 1961 at p. 3064 (S.Rep. No. 801). The drafters noted that subsection (a) continued “the existing authority of the Administration to apply to Federal district courts for injunctions . . ..” They said that the new subsection (b) provided “specific authority (not contained in the present act) for the court in such a proceeding to appoint a trustee or receiver to take control of the small business investment company where the court deems it necessary.” There was not a word about the jurisdiction of other federal courts to entertain receivers’ suits. Thus, we hold that Todel's second ground for jurisdiction, 28 U.S.C. § 1331, must also fail.

Apparently recognizing that we might find no jurisdictional basis for a suit in the Eastern District, appellees have urged that we not order outright dismissal. Instead they ask us only to remand to the district court for possible dismissal there so that the pleadings might be amended to cure the jurisdictional defect. They suggest that the receivership might be discontinued, thus leaving the United States as the sole plaintiff and the suit properly in the Eastern District. Or, they note that under 15 U.S.C. § 687c(c), enacted in 1966 (after Todel was appointed as receiver) and reproduced in the margin, the Small Business Administration can act as a receiver for a small business investment company. They claim that the Administration could now be appointed nunc pro tunc to replace Todel as receiver and the action then continued in the Eastern District under 28 U.S.C. § 1345.

We express no view on these suggestions or on others appellees may offer, leaving them for the district court to consider. At this time we hold only that on the record before us the United States District Court for the Eastern District of New York did not have jurisdiction over this suit, and we remand for further action consistent with our opinion.

      . Sitting by designation as a district judge in the Eastern District of New York.

      . Some of the culprits have been convicted of criminally misapplying Roosevelt’s funds. United States v. Crosby, 69 Cr. 404 (S.D.N.Y., judgments of conviction Mar. 26, 1971), aff’d in open court, 71-1516 (2d Cir. Sept. 16, 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 938, 30 L.Ed.2d 786 (1972).

      . This official is no longer employed by Franklin.

      . United States v. Roosevelt Capital Corp., 65 Civ. 162 (S.D.N.Y. Aug. 3, 1966).

      . At the time of Todel’s appointment, § 687c provided:
      (a) Whenever, in the judgment of the Administration, a licensee or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, or of any order issued under this chapter, the Administration may make application to the proper district court of the United States or a United States court of any place subject to the jurisdiction of the United States for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, rule, regulation, or order, and such courts shall have jurisdiction of such actions and, upon a showing by the Administration that such licensee or other person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order, shall be granted without bond. The proceedings in such a case shall be made a preferred cause and shall be expedited in every way.
      (b) In any such proceeding the court as a court of equity may, to such extent as it deems necessary, take exclusive jurisdiction of the licensee or licensees and the assets thereof, wherever located; and the court shall have jurisdiction in any such proceeding to appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed.

      . There had been a prior civil suit by the Receiver and the United States against several defendants, Franklin among them, attempting to recover the monies looted from Roosevelt. Franklin successfully moved to dismiss the claim against it because of improper venue in the Southern District. See United States v. Crosby, Memorandum of Jan. 23, 1967, 66 Civ. 2026 (S.D.N.Y.).

      . Cf. United States v. D’Amato, 507 F.2d 26 (2d Cir. 1974).

      . Todel tried to but was blocked because of venue problems. See note 6 supra.

      . The cases cited for the proposition that the receiver needed an independent jurisdictional basis included Winter v. Swinburne, 8 F. 49 (C.C.E.D.Wis.1881), and Sullivan v. Swain, 96 F. 259 (C.C.S.D.Cal.1899). A case cited for the contrary conclusion was Bluefields S.S. Co. v. Steele, 184 F. 584, 587 (3d Cir. 1911). There, plaintiff sought the appointment of an ancillary receiver to prosecute Bluefield’s antitrust suit. While the court stated that it had the power to appoint the receiver regardless of a showing of diversity, the language was purely dictum since the parties were of diverse citizenship and the court refused to make the appointment anyway on the basis that the grounds for the appointment were insufficient.

      . Section 687c(c) provides:
      The Administration shall have authority to act as trustee or receiver of the licensee. Upon request by the Administration, the court may appoint the Administration to act in such capacity unless the court deems such appointment inequitable or otherwise inappropriate by reason of the special circumstances involved.

      . Weinmann, Receiverships Under the Small Business Investment Act, 25 Bus. Law. 237 (1969).

      . We note that even if the district court must dismiss this action plaintiffs are not without a remedy in the state courts. Even if the statute of limitations has otherwise run, N.Y.C.P.L.R. § 205(a) (McKinney 1972) allows the parties six months to begin anew. See Brown v. Bullock, 17 A.D.2d 424, 235 N.Y. S.2d 837, 840 (1962).


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    William and Denise BYNES, on behalf of themselves and their infant child, Terrance Bynes, et al., Plaintiffs-Appellees, v. John S. TOLL, Individually and in his capacity as President of the State University of New York at Stony Brook, and Roger V. Phelps, Individually and in his capacity as Director of Housing of the State University of New York at Stony Brook, Defendants-Appellants.
    No. 544 Docket 74-2433.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 12, 1974.
    Decided Feb. 6, 1975.

      Stephen Dobkin, Brooklyn, N. Y. (Brooklyn Legal Services, John C. Gray, Jr., Brooklyn, N. Y., Ellen Zweibel, New York City, on the brief), for plaintiffsappellees.
    A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellants.
    Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   MULLIGAN, Circuit Judge:

This appeal raises the question whether the State University of New York at Stony Brook is constitutionally required to allow married students with children to live in dormitory suites provided for married students without children.

The plaintiffs are married students at Stony Brook who instituted a civil rights action under 42 U.S.C. § 1983 on November 27, 1973 in the United States District Court, Eastern District of New York, challenging a University residency requirement, incorporated in all housing agreements between the University and the students, which bars children of students from living in married-student suites. The defendants are the President and the Director of Housing of the said University, respectively. The gravamen of the complaint is that the ban on children’s residence on campus constitutes a denial of equal protection and a compulsory waiver of the parents’ right of marital privacy and the right to raise their children as they see fit.

On June 26, 1974 District Judge Orrin G. Judd denied plaintiffs’ motion for a preliminary injunction and also denied the defendants’ motion to dismiss. After a trial on the merits, Judge Judd in a memorandum of decision dated October 31, 1974 enjoined the defendants from enforcing against any of the plaintiffs the provisions of any residency agreement which would prohibit children from residing in married couples’ suites in the University. On November 6, 1974 a panel of this court granted the defendants’ motion for a stay pending appeal. On November 14, Judge Judd entered an order granting a permanent injunction and also granted the plaintiffs a priority in moving back into married students’ suites. At this time all the named plaintiffs have moved to off-campus housing. Moreover, by reason of increased demand for this housing by single students, the University has announced that all on-campus married-student housing will be eliminated starting in September, 1975. This would in effect render this appeal moot except that the plaintiffs have also sought money damages in the aggregate of $54,000. We therefore turn to the merits of the appeal.

I. FACTS

The residence units at Stony Brook include suites, consisting of two or three bedrooms, a common living room, and a private bath with shower but no tub. Though originally intended to accommodate single students of the same sex, some of the suites were made available on a temporary basis to married students in the fall of 1972, when the demand for them by single students declined.

Each residence building has basement laundry facilities. Many floors contain lounge areas, which, while not originally intended for use by children, were used by them in the past with no apparent interference to students. Cooking is now permitted in dormitory rooms, on small appliances (e. g., hot plates) furnished by the students themselves. The University has promulgated regulations for cooking in rooms, in an attempt to minimize fire hazards, but there have still been 53 fires in dormitory rooms during the period January 1, 1973 — June 30, 1974. The dormitories are fireproof and all suites are equipped with automatic fire alarms and extinguishers. Lastly, there is a day-care center on campus.

It is not disputed that children of the faculty and staff are permitted to live on campus; however they do not reside in student suites but in special apartments built as family quarters in the dormitories. Children of students may visit their parents on campus until 9 p. m. There is no evidence of complaints by other students to the presence of live-in children in the dormitories.

Off-campus housing is available for married students, though at a significant increase in rent over on-campus housing; in addition, many off-campus housing facilities do not permit children at all.

All the plaintiffs concededly signed the University’s form residence agreement, which incorporated the ban on children living in married-student housing. Threatened with eviction and other penalties for violation of the ban, plaintiffs were forced either to vacate their on-campus housing or to board their children off-campus. As a result they instituted this action in November 1973.

II. CONSTITUTIONAL CONSIDERATIONS

We agree with the court below that the appropriate “test” to be applied to the constitutional claim involved here is the traditional “limited scrutiny” standard. In discussing this standard, Chief Justice Warren stated in McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) with respect to the equal protection clause:

The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

To the same effect is his opinion in McDonald v. Board of Election Comm’rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

Regardless of academic suggestions that the Supreme Court was in the process of adopting an intermediate equal protection test, which we have recently discussed in Noel v. Chapman, 508 F.2d 1023, 1028 (2d Cir. 1975), it seems clear that the traditional limited scrutiny test is applicable here. The most recent formulation of this test appears in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), which involved a village zoning regulation directed against the housing of unmarried people in single family dwellings. In that case the Court upheld the ordinance despite the claim that it violated equal protection rights. The Court held that the ordinance was “reasonable, not arbitrary” and that it bore “ ‘a rational relationship to a [permissible] state objective.’ ” 416 U.S. at 8, 94 S.Ct. at 1540 (citations omitted).

There is no claim that the classification here is made on any “suspect” basis. Moreover it is well established that the right to housing is not a fundamental interest which would require the more stringent “compelling state interest” test. Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Appellants have urged that the right of marital privacy and the right to raise their children as they see fit somehow change the issue here. We cannot agree. The same argument might well be raised in every case where housing is denied or occupancy is sought beyond the terms of the lease. The Court in Lindsey v. Normet, supra, 405 U.S. at 74, 92 S.Ct. at 874, was explicit:

But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement.

The relevant regulation here of course precluded occupancy by children of married students; each of the plaintiffs in this case signed agreements in which they pledged to abide by this and other University Housing Regulations and so must have recognized that their failure to abide by them subjected them to appropriate University sanctions.

The University here is not interfering with the marital privacy of the plaintiffs or their unquestioned natural right to bring up their children. They are totally free to procreate and educate their offspring — the only question is whether the University is constitutionally mandated to provide them campus housing to perform their protected prerogatives. A comparable argument was recently made by resident aliens who complained that the deportation of their spouses precluded their constitutional right to live together in marriage. This claim was rejected in Noel v. Chapman, supra, as it had been in Silverman v. Rogers,. 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971), and Swartz v. Rogers, 103 U.S. App.D.C. 1, 254 F.2d 338, cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1372 (1958). In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) the argument was made in dissent that a $250 maximum per family welfare grant, regardless of the size of the family or its computed need, would encourage families to live apart. Rejecting this position, the Court upheld the regulation, stating:

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”

Id. at 485, 90 S.Ct. at 1161.

In addition to all of this, the housing involved in this case is that which is provided by an educational institution which traditionally has been accorded a plenary exercise of discretion in the governance of the academic community. Thus, in a three-judge court opinion authored by Augustus Hand, it was held that the Board of Trustees of the State University of New York could ban national fraternities and sororities from the campus:

A state may adopt such measures, including the outlawing of certain social organizations, as it deems necessary to its duty of supervision and control of its educational institutions.

Webb v. State University of New York, 125 F.Supp. 910, 912 (N.D.N.Y.), appeal dismissed for lack of a substantial federal question, 348 U.S. 867, 75 S.Ct. 113, 99 L.Ed. 683 (1954). The Supreme Court has also consistently recognized the broad power of a school authority to formulate and implement educational policy. ' Thus the Court in Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) said:

By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values (footnote omitted).

To similar effect are Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Tinker v. Des Moines Indept. Community School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Presidents Council, Dist. 25 v. Community School Bd. No. 25, 457 F.2d 289, 291 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972).

In a recent Eighth Circuit case, students at a state university contended that a housing regulation requiring all single freshman and sophomore students to live in university residence houses encroached upon their right of privacy and denied them equal protection of the law. In rejecting their contention the court commented:

. we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right [citing Village of Belle Terre v. Boraas, supra]. . . . Fundamental to our reasoning is the fact that we are dealing with education, an area in which “[s]chool authorities are traditionally charged with broad power to formulate and implement educational policy [citing Swann v. Board of Educ., supra].

Prostrollo v. University of South Dakota, 507 F.2d 775, at 781 (8th Cir. 1974), rev’ing 369 F.Supp. 778 (D.S.D.1974). .

In light of this abundant precedent it is clear that Judge Judd’s adoption of the limited scrutiny test of Boraas is sound and that the appellees’ espousal of a compelling interest test because of alleged interference with marital and child-rearing rights is unfounded.

Therefore we turn now to the application of the proper test to the facts before us.

III. RATIONAL BASES

The state urges, as one rational basis for the promulgation of its regulation, the safety of the children who will be housed in quarters which concededly were not designed for family living. The danger to children includes such disasters as fire, a menace which is real and not invented by the University as an excuse to bar children. As we have indicated, there have been 53 fires on campus between January 1, 1973 and June 30, 1974. The record indicates that 25 of these were the result of cooking accidents involving grease or hot plates, which are employed to provide makeshift cooking arrangements in space not designed for such purposes. The court below conceded that “[s]afety has admittedly been sacrificed to some extent by the permission of cooking in resident facilities.” Although the buildings are fireproof and have fire alarm equipment, Dr. Ackley, an assistant to the president of the University, testified that the University was especially concerned with the inability of children to leave their quarters in emergencies since there was no direct emergency exit from each of the suites as there might be from an apartment. He also expressed the view that the University does want to provide facilities for married students who have children but that budgetary requests have been rejected annually. The attitude of the University seems to be that until facilities adequate to special family needs are provided, children should not be permitted to live on campus in present quarters. Dr. Ackley further testified that there were traffic problems and risks because of excessive construction work on campus which the University would have to approach differently if children were permitted to live on campus. It is not disputed that campus housing at Stony Brook was designed for full-time single student occupancy and that the use of suites for married students without children was on a trial basis.

In its answer to the complaint, the University also claimed that the habitual presence of children on campus in the housing then available would interfere with the academic environment and further that there was a lack of supportive community facilities on campus for family living. However, the court below found that there was no evidence to support the proposition that the presence of children would adversely affect the academic atmosphere and we cannot characterize this finding as clearly erroneous. With respect to supportive facilities such as play areas, the court found that this constituted a reason for planning a family housing building, but not for preventing married students from bringing their children into the existing buildings. The court concluded that the regulation in question is not reasonably related to any college goal and is therefore invalid.

IV. CONCLUSION

Although the court below purported to apply the appropriate limited scrutiny or rational relationship test, we find as a matter of law that the test was distorted and improperly applied. At the outset of the discussion the court stated: “It is understandable that the administration desired to provide thoroughly adequate facilities before offering them to families. The question for the court is whether this desire furnished a rational basis for excluding the children of couples who are willing ‘to make do’ with what is available.” In view of the broad discretion vested in the University to fashion educational policy and to regulate the conduct of its students, the question is whether under the circumstances the University’s concern for the safety of children habitually residing there is rational. The willingness and indeed the anxiety of parents to have the economic advantages as well as the convenience of this housing despite the risks are understandable but their preferences cannot usurp the jurisdiction and the responsibility of the University to make decisions so long as they have a rational basis. The court below in its opinion stated that “Parents should be able to judge the safety requirements of their children as well as the college administration.” Whatever vitality the hoary axiom “Mother knows best” still may retain, it is submitted that it is irrelevant in the context of the rational basis test. The question is not whether mother or even the court knows what is best but whether the University’s decision to keep children from living on campus until appropriate housing was available represented an arbitrary or irrational decision.

We think that it was not and that the willingness of parents to “make do” with facilities which the court found less than optimal for even childless cou pies is not pertinent. Initially, we face the fact that the University has no obligation, academically or legally, to house any nonstudents. There is no case cited to us and none found which would compel a university to provide housing for the children of its students. The fire hazard here alone would, in our view, provide a rational basis for the University position. When “make-do” cooking facilities precipitate grease fires, the fact that adults in the past have escaped injury is hardly predictive that infant children will possess sufficient physical coordination and mental acuity to avoid injury, particularly in housing with insufficient means of egress. This approach is pejoratively characterized by the court below as a “perfectionist attitude;” even if this view is justified, the University position is hardly an irrational or unreasonable one. With a campus which has parking problems, no traffic lights and heavy construction in progress (one student fell to his death through an uncovered manhole), it is rational for the University, which will be legally responsibile for its negligence, to postpone the residence of children until such time, if ever, that it can provide the housing it (and not the parents) deems adequate. There is no hint of bad faith on the part of the University, which is obviously trying to be responsive to the housing needs of its students. Finally we note that the plaintiffs here agreed in writing to abide by the regulations which clearly barred children’s residence.

We think that the injunctive relief granted below rested on a mistaken application of the constitutional test and was improvident; therefore, it is reversed and the complaint is dismissed.

      . Plaintiffs also asserted below due process violations and a breach of their residency agreement with the University. Both of these claims have been abandoned on this appeal.

      . For every floor of suites there is a separate “tub room” in the hall.

      . For this assertion we rely on plaintiffs’ sole witness, Carolyn Woods, in fact one of the named plaintiffs herself. She was a married student living on campus with her child, who was approximately 18 months old at the time of their residence.

      . Rents off-campus are in the range of $235/month for a family with one child. By comparison, two and three-bedroom on-campus suites rented for $158.75 and $191.15, respectively, for the period in question here.

      . The testimony of Dr. Daniel Giovanetti, chief program coordinator for the Dormitory Authority, State of New York, indicated that, for dormitories, the rule is that no door shall be more than 100 feet from an exit stair; however, in housing for families, “the design would require that the exit stair [be] a lot closer than that to an entrance to an apartment.”

      . The opinion does not mention shopping facilities; however the plaintiffs’ only witness did testify that she had to shop in town.

      . Note that there are several cases which uphold a disparity in treatment between children and adults. E. g., Ginsberg v. New York, 390 U.S. 629, 640, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968) (statute making it unlawful to sell pornography to minors under 17, but not to adults, held constitutional. “ ‘It is altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults’ ” (citation omitted).); Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944) (state child labor law that prohibited the sale by minors (boy under 12 or girl under 18) of periodicals in streets or other public places held constitutional. “The state’s authority over children’s activities is broader than over like actions of adults.”). See also Waugh v. Duke Corp., 248 F.Supp. 626, 629 (M.D.N.C.1966) (“the duty of an innkeeper to a guest who is an infant is a greater duty than that owing to his adult guests and he is bound to consider whether his premises, although safe enough for an adult, present any reasonably avoidable

      . Quaere: if such housing were mandated could unmarried students claim that the exclusion of their offspring also presented an equal protection question? Could the lonesome freshman successfully petition for a suite for his parents?

      . The fact that children are permitted to visit the campus until 9 p. m. does not strike us as respresentative of an inconsistent University position. Habitual residence and sleeping in the quarters we have described present a greater menace and danger to life and limb than mere visiting during hours of wakefulness.


author: LYNNE, District Judge:

text:
    M. C. EDWARDS, Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant-Appellee.
    No. 74-2018.
    United States Court of Appeals, Fifth Circuit.
    April 25, 1975.

      Stephen C. Edds, Ralph E. Rood, Columbus, Miss., for plaintiff-appellant.
    William J. Threadgill, Columbus, Miss., Walter S. Mack, Jr., Richard N. Win-field, New York City, for defendant-appellee.
    Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.
   LYNNE, District Judge:

This case raises, once more, the question of the length of Mississippi’s long-arm statute. The trial court concluded that the Mississippi courts would not require defendant Associated Press (“AP”) to submit to their jurisdiction on the facts presented here. 371 F.Supp. 333 (N.D.Miss.1974). We disagree and hold, furthermore, that the statute as construed does not offend the due process clause of the Fourteenth Amendment. Accordingly, we reverse.

Plaintiff’s libel complaint is predicated upon the publication by AP upon its wire services of a false report, characterized by AP as the result of an “inadvertent transposition,” that plaintiff’s request for a rehearing in a marijuana case had been denied by this Court. The report originated with an AP correspondent in New Orleans, Louisiana, was sent to Atlanta, Georgia, then back to New Orleans. From there it was transmitted into Mississippi, where it was broadcast by an AP member in Lowndes County, Mississippi, where plaintiff resides and where, as duly elected Sheriff, he is in the business of law enforcement and security.

Plaintiff obtained service upon defendant through the provisions of the Mississippi long-arm statute, Miss.Code Ann., § 13-3-57 (1972) [Miss.Code Ann., § 1437 (1972 Cum.Supp.)], which reaches “any foreign . . . corporation who shall make a contract with a resident of this state to be performed in whole or in part by any party in [Mississippi], or who shall commit a tort in whole or in part in [Mississippi] against a resident . . . shall by such act or acts be deemed to be doing business in Mississippi.” Plaintiff relies solely upon the commission by defendant of a tort in Mississippi to sustain in personam jurisdiction there. He argues that even if the tort was initiated in New Orleans, the damage to him occurred in Lowndes County, Mississippi, so that the tort was committed “in part” there. This, he contends, satisfies the statute.

Defendant argues, and the district court agreed, that the statutory language does not reach it, since the tort was committed outside Mississippi. It also argues, and the district court agreed, that the Mississippi Supreme Court would not uphold jurisdiction on these facts. Finally, it argues that the intersection of First Amendment with due process considerations here prohibits assertion of jurisdiction.

We naturally look to state law for the rules of decision in this diversity case. Unfortunately, the ratio decidendi we must discern has not yet been precisely articulated by the state court of highest jurisdiction in Mississippi.

Uncertainty about the reach of Mississippi’s long-arm statute has continued since its amendment in 1964, whereby the “making a contract” and “committing a tort” jurisdictional bases were added. The confusion stems largely from two cases decided by the Mississippi Supreme Court nearly contemporaneously with the adoption of the statute, Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964) [“Mladinich I”], and Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965).

Mladinich I was decided after legislative adoption of the amendment to the long-arm statute but a few weeks before the effective date of the amendment. The attempted service had been made before passage of the amendment. The court sustained dismissal by the trial court of an action in slander brought by a resident of Mississippi against a resident of Louisiana for a speech the defendant made in Mississippi. In sustaining the dismissal, the court adopted the “three factor” analysis: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

While this “three factor” analysis has been utilized to define the outer reaches of permissible state power, in Mladinich I the Mississippi Supreme Court nevertheless seems to have engrafted an additional, restrictive requirement upon the analysis, namely, the requirement of “doing business” in Mississippi. See Smith v. Temco, Inc., 252 So.2d 212, 215 (Miss.1971). Despite the fact that Mladinich I expressly disclaimed any interpretation of the amendments to the long-arm statute, its analysis, including the restrictive “doing business” gloss on the three-factor analysis, was applied in subsequent cases dealing with the amended statute.

In Breckenridge v. Time, Inc., supra, 253 Miss. 835, 179 So.2d 781, the court held that jurisdiction of a libel suit against Time, Inc., was unwarranted. The court first assumed that the amended statute applied to the facts before it, but nevertheless held that the corporation had not purposefully done any act in Mississippi and that jurisdiction would offend “traditional notions of fair play and substantial justice.” 253 Miss, at 843, 179 So.2d at 784. This rationale, however, was based upon federal constitutional considerations, not upon statutory construction. The Mississippi Supreme Court later characterized Breckenridge as a federal, constitutional holding in Mladinich v. Kohn, 186 So.2d 481, 484 (Miss.1966) [“Mladinich II”]:

In Breckenridge v. Time, Inc., [253 Miss. 835], 179 So.2d 781 (Miss.1965), the Court assumed, but did not decide, that [the amended long-arm statute] applied retroactively. The case went off on another issue, namely, that Mississippi courts had no in personam jurisdiction over defendant because it had no minimal contacts in this state, [emphasis supplied].

Further support that Breckenridge was not a case of statutory construction may be drawn from Smith v. Temco, Inc., supra, 252 So.2d 212, where the court, in discussing the amended statute, notes:

The statute, as amended in 1964, has not been construed previously by this Court. In Dawkins v. White Products Corporation, 443 F.2d 589, decided by the United States Court of Appeals for the Fifth Circuit on May 20, 1971, the Court of Appeals . . . correctly concluded that this Court had never passed upon the effect of the 1964 amendments.

Even were we to read Breckenridge as a case construing the amended long-arm statute, the result would be no different. In Breckenridge, Time, Inc., had no employees or agents in Mississippi, while AP has five news correspondents and a technician who work from office space “loaned” to AP by two of its member papers. More significantly, the Mississippi Supreme Court found that Time, Inc., “did not purposefully do any act or consummate any transaction in this state, . . . .” 253 Miss, at 843, 179 So.2d at 784. Here, however, AP beamed its erroneous report into Mississippi only, for the purpose of disseminating it in the logically relevant market.

Appellee’s strong reliance upon Breckenridge and upon Mladinich I, then, is misplaced. Neither of those cases provides the authoritative construction of Mississippi’s amended long-arm statute which Erie requires this Court to seek and follow.

The more pertinent authority here is Smith v. Temco, Inc., supra, 252 So.2d 212, where the Supreme Court of Mississippi upheld jurisdiction over a nonresident manufacturer in a suit based upon injuries suffered by a purchaser of one of the manufacturer’s products. The court, construing the amended statute for the first time as we have seen, holds:

By the [amendments], there can be no doubt that the intention of the Legislature was to broaden the scope of the statute and to enlarge the jurisdiction of the Mississippi courts so as to reach nonresident defendants in two new and distinct categories: (1) The nonresident defendant who shall make a contract with a resident to be fulfilled in the State in whole or in part, and (2) the nonresident defendant who shall commit a tort, in whole or in part, in this State against a resident of the State.

Although Smith is a products liability case, there is nothing in it to indicate that this Court should restrict the expansive reading given the amended statute. We are therefore inclined to follow the clear language of the statute. See Dawkins v. White Products Corp. of Middleville, Mich., 443 F.2d 589, 594 (5th Cir. 1971).

We must now turn to the question whether the tort was committed “in whole or in part” in Mississippi. Mississippi has adopted the “single publication” rule for purposes of venue in defamation suits. Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469 (1943). Appellee argues that this rule requires a finding that the tort alleged here was complete in New Orleans where AP first published the report. It would follow that the tort occurred neither wholly nor partially in Mississippi, so that the terms of the long-arm statute would not apply to this tort. We disagree.

Forman treats the question of proper venue in a libel action against a foreign corporation qualified to do business in Mississippi and domiciled in Hinds County, Mississippi. The defendant published and first circulated the allegedly libelous article in Hinds County, but the plaintiff filed suit in Sunflower County, where he resided and where the paper was later circulated. Forman holds that, under the applicable statute, which required venue in the county “where the cause of action may occur or accrue,” the proper venue for libel by the publication of a newspaper is in the county where the paper is first published or circulated. The court reasons that this “single publication” rule would prevent a new cause of action arising with each new reader. Moreover, the court concludes that, since the gravamen of the offense is not the knowledge of the plaintiff or the injury to his feelings but is rather the damage to his reputation, the right accrues as soon as the article is exhibited to third persons; under this analysis, further publication increases the potential injury, but does not spawn new causes of action.

Whether the Mississippi Supreme Court would incorporate the venue rule of Forman into its amended long-arm statute is doubtful. In Breckenridge, supra, 253 Miss, at 842, 179 So.2d at 783, the court specifically holds the question open:

[W]hether we should apply the more limited venue rule of the single publication doctrine, stated in Forman v. Mississippi Publishers Corporation, 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469 (1943), to multistate defamation is a complex issue not appropriate to be decided here, .

We are inclined to think that the Mississippi Supreme Court, regardless of how it would decide the venue question in a suit such as this, would not incorporate the single publication rule into its amended jurisdictional statute. Forman makes it clear that the cause of action in defamation is “enlarged by an expanding circulation” of the defamatory matter. 195 Miss, at 105, 14 So.2d at 346, 148 A.L.R. at 472. Since the long-arm statute embraces torts committed in whole or in part in Mississippi, its plain language encompasses at least that part of the enlarged tort created by the distribution of the allegedly defamatory matter in Mississippi.

Our unwillingness to cramp the statutory language is buttressed by the Mississippi Supreme Court’s decision in Smith v. Temco, Inc., supra, 252 So.2d 212, upon which we again place strong reliance:

In 86 C.J.S. Torts § 21, p. 937 (1954), it is stated:
Damage resulting from a breach of a duty and invasion of a right is a necessary element of a tort.
In addition to the elements of tort heretofore discussed, a third element requisite thereto is damage resulting from the breach of duty and invasion of right.
The tort is not complete until the injury occurs, and if the injury occurs in this State, then, under the amended statute, the tort is committed, at least in part, in this State, and personam [sic] jurisdiction of the nonresident tort feasor is conferred upon the Mississippi court. 252 So.2d at 216.

While in Smith the entire injury accrued in Mississippi, although the allegedly defective machine was manufactured elsewhere, we nevertheless feel that Smith indicates an intention by the Mississippi Supreme Court to read broadly the “in part” language of Mississippi’s long-arm statute.

Indeed it would be anomalous to hedge in the sweeping statutory language of § 13 — 3 — 57 with the restrictions of the single publication rule, as appellee would have us do and as was done in Insull v. New York World-Telegraph Corp., 172 F.Supp. 615, 632-4 (N.D.Ill), aff’d, 273 F.2d 166 (7th Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 807, 4 L.Ed.2d 770 (1960).

Unlike the posture of the case before us, the Seventh Circuit rendered the Insull decision without the benefit of a prior authoritative construction of the Illinois long-arm statute. That statute has since been broadly construed in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). The sharp conflict between Insull and Gray has been noted, and the Second Circuit and an Illinois District Court have refused to follow this aspect of Insull. In the absence of any contrary indication from the Mississippi Courts, and instructed by the broad scope of the language of Smith v. Temco, supra, 252 So.2d 212, we are likewise unpersuaded by the Insull reasoning with respect to the single publication rule and decline to engraft a restrictive construction upon the Mississippi long-arm statute.

We therefore conclude that the Mississippi long-arm statute by its terms confers jurisdiction over AP upon the district court below.

Resolution of this issue does not, however, settle the question before us. Appellee contends that applying the Mississippi long-arm statute to confer jurisdiction over it will contravene federal constitutional requirements of due process, and the district court so held. Again, we disagree.

While the scope of a state’s power to call foreign entities before its courts has broadened considerably in the past three decades, there are nevertheless constitutional limits to a state’s power. In 1945, the Supreme Court traced the general outlines of the due process determination in jurisdictional disputes;

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) [citations omitted].

Twice since rendering its seminal opinion, the Supreme Court has made a significant effort to add content to the flexible standards of International Shoe. In McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Court declared that due process did not prohibit California’s entertaining a suit against a nonresident based upon the issuance of a single insurance contract in the forum and the receipt of premium payments mailed from the forum. A year later, Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), suggested that due process would not be satisfied unless the defendant had “purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”

Analysis of our own cases reveals that we have woven, in regard to entities clothed with First Amendment protections, a tighter due process net around state power than is true with regard to other entities. Our initial stitch was inserted in Walker v. Saveli and the Associated Press, 335 F.2d 536, 544 (5th Cir. 1964), but it was New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966), which completed the pattern.

In Connor, the Court was confronted with the specter of “newspapers with even one copy circulating within a state [being] subjected to libel actions and the risk of large judgments at the hands of local juries incensed by the out-of-state newspaper’s coverage of local events.” Id., at 572. In order to afford some degree of protection to publishers against such an abuse of state power, Connor holds that “First Amendment considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activity.” Id.

Appellee here insists that the “rule” of Connor requires the quashing of the service obtained on it. Confronted with an analogous contention, Judge Learned Hand wisely commented that “[i]t is quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass. . One may look from one end of the decisions to the other and find no vade mecum.” Hutchinson v. Chase & Gilbert, 45 F.2d 139, 142 (2d C.C.A.1930); accord, Dooly v. Payne, 326 F.2d 941, 943 (5th Cir. 1964).

His reminder is apt for the case before us. Connor indicates not so much a rule as it expresses a cautionary note. When a court attempts to assess whether jurisdiction over a defendant is reasonable, First Amendment considerations are a significant factor to be weighed. As Judge Thornberry stated for the Court in Curtis Publishing Co. v. Golino, 383 F.2d 586, 592 (5th Cir. 1967):

Certainly the language in Connor does not stand for the proposition that, because of the constitutional protection of the dissemination of ideas, a publisher may never be sued for a libel in a state other than that of publication. Rather, Connor indicates that first amendment considerations are a factor relevant to a determination of the jurisdictional question; and, the discussion of that factor in Connor must be viewed in its factual context.

Our cases, then, generally require that the defendant engage in sufficient local activity, or cause a consequence, in the forum state sufficient “to indicate a purposeful enjoyment of the benefits and protection of that state’s law,” Benjamin v. Western Boat Building Corp., 472 F.2d 723, reh. denied, 474 F.2d 1347, 1348 (5th Cir.), cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973); Eyerly Aircraft Co. v. Killian, 414 F.2d 591 (5th Cir. 1969), the cause of action sued upon usually must stem from the defendant’s activities in the local forum, Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966), Turner v. Jack Tar Grand Bahama, Ltd., 353 F.2d 954 (5th Cir. 1965), and the acts of the defendant or the consequences caused by the defendant must have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant comport with elemental notions of fairness, Curtis Publishing Co. v. Golino, supra, 383 F.2d 586; Buckley v. New York Times Co., 338 F.2d 470 (5th Cir. 1964). It is in the third assessment that First Amendment considerations have played a part.

AP’s activities in Mississippi indicate that AP has engaged in sufficient local activity to justify, under the due process clause, Mississippi’s exercise of its jurisdiction. AP maintains five news correspondents in Mississippi as well as a maintenance employee. Moreover, these employees occupy an office in the state, although the office is offered without rent by two AP members and it is not designated as an AP office in the building directory. More significantly, the news report upon which plaintiff’s libel action is predicated was aimed exclusively at Mississippi. In our prior cases, the publications were addressed either to a primary market, distant from the locale in which the greatest injury was alleged, or to a national market. Here, however, defendant’s transmission was purposefully and specifically aimed at Mississippi, as surely as if the proverbial gunman had stood in Alabama and fired into a crowd in Mississippi.

Having established that the defendant’s activities reveal a purposeful connection with Mississippi, we need not delay long over the requirement that the cause of action stem from the defendant’s activities in Mississippi. While the activities of the six employees may have had little direct relation to the averred libel, the communication at issue grew out of the defendant’s purposeful transmission of the message into Mississippi.

We also conclude that it is reasonable to exercise jurisdiction over AP on these facts. Mississippi has a strong interest in allowing its resident to vindicate his claim in its courts. See von Mehren and Trautman, The Law of Multistate Problems 599 — 601 (1965); cf. Curtis Publishing Co. v. Birdsong, supra, 360 F.2d at 346-7. Moreover, given the number of permanent employees in Mississippi, its members there, and the continuous stream of transmissions into and out of the state, AP can claim no sense of surprise, of expectations disappointed, in being called into Mississippi’s courts. In another and more appropriate case, such expectations might form a legitimate source of unfairness to a nonresident of the forum state.

That AP is a non-profit association does not, under the circumstances here, warrant a finding of unreasonableness. It is an instrumentality established by its constituent members who are engaged in a commercial business for profit.

First Amendment considerations, while important, do not change the course we have charted. We have already demonstrated that AP’s contacts with Mississippi in this case are much more significant than those of the New York Times with Louisiana, in Buckley v. New York Times, supra, 338 F.2d 470, and with Alabama, in New York Times v. Connor, supra, 365 F.2d 567. Of primary importance, however, we are of the opinion that whatever burden defense of this suit may place upon AP’s exercise of its First Amendment rights, that burden is justified by AP’s many contacts with Mississippi, particularly its deliberate choice of the Mississippi market as the place for distributing the controverted message.

In conclusion, we reaffirm the First Amendment protections we have woven into our prior in personam jurisdictional analysis, but we find, upon consideration of the factors involved here, that the fabric of that analysis is neither torn nor stretched by assertion of jurisdiction over AP. Having put on the mantle of Mississippi’s benefits and privileges, AP may not in good conscience complain of the needle of litigation.

Reversed and remanded.

      . The statute reads in part:
      Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee.

      . Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.ct. 817, 82 L.Ed. 1188 (1933); Walker v. Saveli and Associated Press, 335 F.2d 536 (5th Cir. 1964).

      . Chapter 320, Miss.Laws 1964, § 1.

      . See, e. g., In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972).

      . See, e. g., Collins v. Truck Equipment Sales, Inc., 231 So.2d 187 (Miss.1970); Dawkins v. White Products Corp. of Middleville, Mich., 317 F.Supp. 53 (N.D.Miss.1970), rev’d, 443 F.2d 589 (5th Cir. 1971).

      . The decision itself makes this clear since it cites as support for dismissal of jurisdiction three cases based squarely upon federal due process considerations, Buckley v. New York Times Co., 338 F.2d 470 (5th Cir. 1964), Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and Century Brick Corp. v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963).

      . 252 So.2d at 215. The Dawkins court, speaking through Judge Tuttle, characterizes Breckenridge both as a “doing business” case in the Mladinich I vein and as a federal constitutional decision. 443 F.2d at 593. Dawkins refused to follow Breckenridge as a guide to the proper construction of the amended statute.

      . This information is before us in the form of affidavits submitted by AP in support of its motion to dismiss. Consideration of affidavits and, where necessary, the taking of testimony are appropriate means for resolving jurisdictional disputes. See 5 Wright and Miller, Federal Practice and Procedure § 1351, at 565 (1969); cf. Gibbs v. Buck, 307 U.S. 66, 71-2, 59 S.Ct. 725, 83 L.Ed. 1111 (1939).

      . The following colloquy occurred during oral argument by counsel for appellee:
      Q: Tell us how this dispatch reached the State of Mississippi and where else it went.
      A: * * * it [the story] . . . was transmitted via leased line from New Orleans to Atlanta, where there is a computer, retransmitted back to New Orleans and then transmitted within a matter of microseconds into Mississippi. The Q: Was it transmitted anywhere else other than Mississippi?
      A: No, your Honor.

      . Walker v. Saveli and Associated Press, 335 F.2d 537 (5th Cir. 1964), does not require a different conclusion. That case treated only the shortened reach of Mississippi’s long arm statute before the 1964 amendments, and this Court held that AP was not “doing business” for jurisdictional purposes under the Mississippi statute. The decision provides no guidance as to whether AP has made a contract or committed a tort in Mississippi, for purposes of the present long-arm statute. The prediction in Walker, that the Mississippi courts might restrict the reach of the statute where First Amendment considerations are involved, has received no explicit support in the subsequent decisions by the Mississippi Supreme Court.

      . Id., 252 So.2d at 215.

      . Additional support for applying the statute to AP may be drawn from Mladinich II, where the Mississippi Supreme Court determined that the amendments to the long-arm statute were not to be applied retrospectively. The case involved a slander by the nonresident defendant during a speech he gave as a guest speaker to a convention in Harrison County, Mississippi. The speech was his sole contact with the state. Nevertheless, the court notes by way of dictum:

      Since it is not necessary to this decision, we assume without deciding that, if Kohn had committed the alleged slander in this state after the effective date of [the amended statute], it would suffice to give a Mississippi court in personam jurisdiction over him. 186 So.2d at 482.

      . This question was pretermitted by the court below, since it found that the statute was inapplicable, on the authority of Breckenridge, supra.

      . It should not be overlooked that Forman deals with a state statute fixing venue in a single county within a state, while a tort with multistate elements may present more than one appropriate forum for redress. Furthermore, Forman was concerned only “with the centripetal forces which fix venue at [the injury’s] axis or center of origin,” 195 Miss, at 105, 14 So.2d at 347, 148 A.L.R. at 472, not with whether the suit could be entertained at all by the courts of Mississippi.

      . In Dawkins v. White Products Corp. of Middleville, Mich., 443 F.2d 589 (5th Cir. 1971), this Court notes:
      In Breckenridge the tort of defamation alleged against Time, Inc., would, under the Mississippi decision of Forman v. Mississippi Publishers Corporation, 195 Miss. 90, 14 So.2d 344, have occurred where Life Magazine was published. 443 F.2d at 593.
      This statement is dictum, since the basis of distinction relied upon in Dawkins was that the Mississippi court in Breckenridge either had applied a restrictive “doing business” analysis or had found that jurisdiction over Time, Inc., would not pass due process scrutiny. See note 7, supra.

      . Even if the single publication rule be applied to a multi-state defamation, it is not yet settled in Mississippi whether the actionable publication must be made to persons outside the corporate entity initiating the defamatory matter. Cf. An Examination of Publication and Choice of Law Problems in Multi-State Libel, 56 N.W.L.Rev. 823, 825 n. 21 (1962); see also Prosser, Law of Torts § 113 (4th ed. 1971). Under such a rule, the publication in the case before us would not have occurred (a) until the erroneous story was received by AP’s members, or (b) until one of its members actually broadcast the story to persons unconnected with AP. Cf. Casano v. WDSUTV, Inc., 313 F.Supp. 1130 (S.D.Miss.1970). Because of the disposition we make of this case, we do not pass upon these intricate questions.

      . This is true even if AP is found liable only for that portion of damage, if any, attributable to the transfer of the erroneous report from AP to its members in Mississippi and not for any subsequent damage.

      . Compare Margoles v. Johns, 157 U.S.App.D.C. 209, 483 F.2d 1212 (1973) (construing the narrower District of Columbia long-arm statute).

      . The goal of the single publication rule as to venue is to protect the defendant from a multiplicity of suits, from a continuous tolling of the statute of limitations, and from the application of diverse laws to a single event. See Prosser, Law of Torts § 113 (4th ed. 1971). Rather than accomplish these necessary goals through the jurisdictional statutes, however, they may be more logically effectuated through requiring the plaintiff to collect all his damages in a single action, measuring the running of the statute of limitations from the initial publication, see, e. g., Forman, supra, 195 Miss, at 107, 14 So.2d at 347, 148 A.L.R. at 473, and choosing the law of a single jurisdiction to govern substantive issues. See Restatement (2d), Conflict of Laws § 150 (1971); Curtis Publishing Co. v. Golino, 383 F.2d 586, 594 n. 19 (5th Cir. 1967); Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966).

      . Gray was cited by the Mississippi Supreme Court with approval in Smith v. Temco, Inc., 252 So.2d at 216.

      . See, e. g., Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966) (Rives, J., concurring).

      . Buckley v. New York Post Corp., 373 F.2d 175, 180, 20 A.L.R.3d 942, 950 (2d Cir. 1967).

      . Novel v. Garrison, 294 F.Supp. 825, 830-2 (N.D.Ill.1969); Process Church of Final Judgment v. Sanders, 338 F.Supp. 1396, 1398-1401 (N.D.Ill.1971).

      . This Court, of course, has followed Insult’s reasoning insofar as the “doing business” jurisdictional base is concerned. Buckley v. New York Times Co., 338 F.2d 470, 474 (5th Cir. 1964).

      . In reaching this conclusion, we are not unmindful of our duty to construe statutes narrowly to avoid constitutional problems. See, e. g., Benjamin v. Western Boat Building Corp., 472 F.2d 723, 725, reh. denied, 474 F.2d 1347, 1348 (5th Cir.), cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973); New York Times Co. v. Connor, 291 F.2d 492, 496 (1961), vacated, 310 F.2d 133 (5th Cir. 1962). This duty, however, cannot bind us to ignore clear trends in a state’s application of its own law. Cf. Dawkins v. White Products Corp. of Middleville, Mich., 443 F.2d 589 (5th Cir. 1971); Eyerly Aircraft Co. v. Killian, 414 F.2d 591 (5th Cir. 1969).

      . The district court assumed arguendo that the statute applied and then held, in the alternative:
      The Court concludes that to permit the maintenance of this action against defendant would offend “traditional notions of fair play and substantial justice.” This is especially true in light of the freedoms which are protected by the First Amendment. 371 F.Supp. at 338.

      . AP is protected by the First Amendment to the same extent as is a newspaper. Cf. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 57 S.Ct. 650, 81 L.Ed. 953 (1937).

      . Connor was decided by a divided court. However, the dissenter there, the writer of the present opinion, agreed that publishers required more protection than that afforded by the “minimal contacts” analysis alone. 365 F.2d at 582.

      . This decision has not been greeted with enthusiasm. Buckley v. New York Post Corp., 373 F.2d 175, 182-4 (2d Cir. 1967); McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166, 1171 n. 3 (D.Conn.1973); Johnston v. Time, Inc., 321 F.Supp. 837, 846 (M.D.N.C.1970), modified on other grounds, 448 F.2d 378 (4th Cir. 1971); Origoni v. Bulletin Co., 258 F.Supp. 359, 361 (D.D.C.1966) (by implication), rev’d on other grounds, 128 U.S. App.D.C. 282, 387 F.2d 240, cert. denied, 389 U.S. 928, 88 S.Ct. 287, 19 L.Ed.2d 278 (1967); Comment, Long-Arm Jurisdiction Over Publishers: To Chill a Mocking Word, 67 Colum. L.Rev. 342, 355-64 (1967); Note, 52 Iowa L.Rev. 1034, 1041 (1967).
      The Supreme Court was invited to decide, but did not reach, the issue in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), because of an adequate state ground for asserting jurisdiction. Id., at 264 n. 4, 84 S.Ct. 710.

      . Judge Thornberry was also the organ of the Court in Connor.

      . Contrast with this fact the “stringers” and temporarily-assigned employees which were held to be insufficient contacts in Buckley v. New York Times Co., 338 F.2d 470 (5th Cir. 1964), and in New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966).

      . Eleven of AP’s 1260 newspapers located in the United States, or approximately 1%, are located in Mississippi. This is not so trivial a representation as in Buckley, supra, or Con-nor, supra. Moreover, the facts before us do not disclose whether any other media representatives in Mississippi are AP subscribers.

      . See note 9, supra.

      . Buckley v. New York Times Co., supra; New York Times Co. v. Connor, supra; Wolfson v. Houston Post Co., 441 F.2d 735 (5th Cir. 1971) (per curiam).

      . Curtis Publishing Co. v. Golino, supra, 383 F.2d 586.

      . It may appear odd that we should hold AP in part because it did not choose to give this story nationwide coverage. Our inquiry here, however, is whether AP became involved with the state through actions freely and intentionally done. Surely, one gauge of that intention — and thus of AP’s expectations about where it might be called to defend a suit — is the specificity with which a given story is broadcast.

      . As we remarked in n. 17, supra, AP may ultimately be held liable for only a small portion of the damages, even if liability be established. Nevertheless, AP’s function is to place the news at its members’ disposal. Thus, AP’s transmitting the report only to Mississippi is significant, regardless of who may be responsible for further transmission. We, of course, intimate no opinion as to the latter issue.

      . While this requirement has a constitutional dimension, Curtis Publishing Co. v. Birdsong, supra, 360 F.2d 344, it is also a requirement under the Mississippi long-arm statute. See note 1, supra.

      . Had the only contact of defendant with Mississippi been its employees and office space, the averred libel occurring for example only in New York, this would be a difficult case. See Birdsong, supra, n. 38.

      . Cf. New York Times Co. v. Connor, supra, 365 F.2d at 570; Associated Press v. National Labor Relations Board, 301 U.S. 103, 128, 57 S.Ct. 650, 81 L.Ed. 953 (1937). AP’s assertion that it “is not organized to produce financial profit, gain or benefit for its members,” simply defies logic. For what purpose do its members exchange news and photographs if not to enhance their various products, and hence their profits?

      . Indeed, First Amendment considerations are mitigated in this case, since AP is able, according to its affidavits, to apportion the costs of defending suits such as this among a number of its subscribers. Thus, the hazard of encountering lawsuits upon entry into a particular news market is diluted.