Ernest William Davis, Etc., Plaintiff-appellant, v. Pyrofax Gas Corporation, Etc., and Goss, Inc., Etc.,defendants-appellees, 805 F.2d 370 (11th Cir. 1986)

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US Court of Appeals for the Eleventh Circuit - 805 F.2d 370 (11th Cir. 1986) Dec. 3, 1986

John W. Tanner, P.A., Daytona Beach, Fla., for plaintiff-appellant.

William E. Johnson, Robert A. Hannah, Jonathan C. Hollingshead, Orlando, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida; Elizabeth A. Kovachevich, Judge.

Before HATCHETT and CLARK, Circuit Judges, and STAFFORD* , Chief District Judge.


The Florida Supreme Court has answered in the affirmative the question certified by us to that court in this case. For our question and attendant opinion, see 753 F.2d 928 (11th Cir. 1985). For the answer by the Supreme Court of Florida and its attendant opinion, see 492 So. 2d 1044 (Fla.1986).

The decision by the Florida Supreme Court disposes of the issue of jurisdiction over the two defendants in this case. The second issue on appeal related to the matter of the district court's dismissal of the complaint for insufficient service of process. That order should have quashed the service of process with leave to amend for proper service. We remand this issue to the district court for treatment in accordance with the holding in Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63 (5th Cir. 1981) (non-binding, and the cases cited therein which are binding.) See also Stanga v. McCormick Shipping Corp., 268 F.2d 544, 554 (5th Cir. 1959). See also Vorhees v. Fisher & Krecke, 697 F.2d 574 (4th Cir. 1983).

This case is REVERSED with respect to the jurisdictional issue and REMANDED with respect to the service of process issue.

REVERSED in part and REMANDED in part.


Honorable William H. Stafford, Chief U.S. District Judge for the Northern District of Florida, sitting by designation