(concurring).
I agree with Judge Hartigan’s opinion to the effect that Nuodex cannot be held to have waived its objection to the jurisdiction. I also concur in Judge Harti-gan’s conclusion on the merits of the jurisdictional issue, though I am not sure that I would have put the matter just as he has done.
The basis of a state’s personal jurisdiction over a foreign corporation has given rise to much dubious theorizing. On the foundation of “doing business” within a state, the earlier explanations of “implied consent” to the service of process, or of corporate “presence,” have come to be recognized as fictitious forms of statement. Now it is fashionable to say that we must consider the extent of the corporate activities manifested within the state to answer the query whether the exercise of personal jurisdiction over the foreign corporation would offend traditional notions of fair play and substantial justice — if it would, then the exercise of such personal jurisdiction is forbidden by the due process clause of the Fourteenth Amendment. See the discussion in International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
Of course it is true that a state is free to impose additional “requirements” to the exercise of personal jurisdiction over foreign corporations, beyond the minimal requirements of the due process clause. However, I fail to find in the New Hampshire statute or in the New Hampshire court decisions any indication that New Hampshire has undertaken, as a matter of local law, to impose any such additional requirements. The important point is one of federal constitutional law, as the International Shoe case pointed out. That is to say, the manifested activities within the state by a foreign corporation may amount to a “doing business” of so continuous and systematic a nature as reasonably to permit the state to subject the foreign corporation to service of process with respect to any cause of action, wheresoever arising. On the other hand, a much lesser manifestation of activity within the state may, consistently with due process, justify a state to exercise personal jurisdiction over the foreign corporation, sued on a cause of action having some connection with or arising out of those activities within the state.
I doubt whether the underlying facts in the case at bar would warrant the ultimate conclusion that Nuodex was “doing business” within the State of New Hampshire of so continuous and systematic a character as to subject itself to the exercise of personal jurisdiction by the state on account of any and all causes of action, wheresoever arising. But as Judge Hartigan’s opinion points out, Nuodex did make some efforts through a New Hampshire representative to promote the sales of its products in New Hampshire. The particular “Super Ad-It” which was alleged to have caused the harm in the present case was not sold by Nuodex in New Hampshire, but Nuodex in New Jersey put out in commerce a poisonous chemical, some of which it no doubt hoped and expected would eventually find its way into New Hampshire as an ingredient of paint products sold by others. That is what happened here; a salesman of codefendant King sold to the plain*123tiff in New Hampshire some paint containing Nuodex Super Ad-It as an ingredient. This sale was rendered lawful under the New Hampshire law only because Nuodex had registered its poisonous chemical under the New Hampshire Economic Poisons Act. The subsequent use by the plaintiff of such paint product is alleged to have resulted in the tangible harm, inflicted in New Hampshire, upon the property of the plaintiff, a citizen of New Hampshire; and it is this tangible harm which is the subject of the cause of action now sued on. I have no doubt that under the Fourteenth Amendment the State of New Hampshire has power to subject the foreign corporation to a reasonable mode of personal service (as was the service here) in order to compel Nuodex to answer in the New Hampshire courts to the aforementioned local complaint. Cf. Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. If this complaint had been brought in a New Hampshire state court, service of process could have been made upon the Secretary of State, who would have had the duty, under the local statute, to give notice of the pendency of the cause of action to the foreign corporation. That being so, equivalent service of process is good under Rules 4(d) (3) and 7 of the Federal Rules of Civil Procedure.