ALDISERT, Circuit Judge.
Four claims for damage to fresh meat shipments were brought by a shipper against two common carriers, the Penn Central Railroad and the Scott Truck Lines. Following a motion by the railroad to quash service on the grounds that the minimum contacts required for
in personam
jurisdiction in Colorado were
not present, the claims against Penn Central were dismissed. This appeal by both the shipper and the motor truck carrier
**presents three separate questions of jurisdiction:
(1) Whether Penn Central met the appropriate tests of doing business in Colorado to make it there amenable to service of process in a diversity suit based on negligence;
(2) Whether the alleged amount in controversy meets the, statutory requirement in diversity cases. 28 U.S.C. § 1332;
(3) Alternatively, whether liability of a carrier for damage to an interstate shipment is governed exclusively by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), thus immunizing Penn Central from suit in Colorado because it does not operate a line of railroad in that state.
The complaint charged that plaintiff delivered the chilled meat to Scott in Adams County, Colorado, where it was placed in Scott’s trailers and thence trucked to Chicago, Illinois, where the trailers were placed in Penn Central’s flatcars for shipment east; that the meat arrived at its destination in a “tainted, sour, or putrid condition,” (first claim), “partially frozen” (second claim); “dark in color, sticky in places, dull in appearance,” (third and fourth claims). Both defendants were charged with negligence in failing to provide the meat with proper refrigeration facilities while in transit (all claims); the railroad with use of defective flatcars and improper shifting thereof resulting in delivery delays (third and fourth claims). Although each claim sounded in negligence based on diversity jurisdiction against both defendants, it was additionally averred that plaintiff “relies in part” upon provisions of the Carmack Amendment and that the parties “have in their possession copies of all relevant documents relating to the subject matter of this claim including
linter alia]
the uniform order bill of lading.”
I.
The first question is whether the district court erred in finding insufficient contacts in Colorado to render Penn Central amenable to service in that state. Prom affidavits filed in support of the railroad’s motion to dismiss under Rule 12(b) and answers to interrogatories, it appears that Penn Central maintains a Denver, Colorado, office, which is listed in both the white and yellow pages of the telephone directory and is staffed by three
employees
— a district sales manager, a sales representative, and an office manager — who from there solicit business for the company in Colorado, Wyoming and Utah. In addition, the Denver staff keeps records, charts Colorado business trends and conditions, and, responds to inquiries relating to company services, including routings, rates, movements, and handling of freight. Office rent and staff salaries are paid by the railroad company, which also sends its vice-president and vice-president in charge of sales several times a year to visit Colorado on business. The railroad has 399 clients or accounts located in Colorado. Approximately 9,000 freight cars annually originate in that state destined for Penn Central carriage. Personal property taxes are paid by the railroad to the City and County of Denver.
There is formidable authority for the proposition that in diversity cases, state law determines whether a corporation is subject to process in the state and that federal decisions are important only in ascertaining whether the state law is within constitutional bounds. Arrowsmith v. United Press International, 320 F.2d 219 (2 Cir., 1963).
In
Arrowsmith,
the majority of the court,
en banc,
adopted the view originally propounded by
Judge Goodrich of the Third Circuit,
and overruled Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2 Cir. 1960), which had proclaimed a federal standard.
Jaf-tex
still commands the support of many commentators.
We do not perceive this interesting procedural question to remain open in this circuit. In Walker v. General Features Corp., 319 F.2d 583, 585 (10 Cir. 1963), the court, speaking through Judge Hill, said that the question of “doing business” must “be resolved by application of state or local law rather than federal law.” Moreover, the resolution of the state-federal issue would not be necessitated in the instant case because we are not convinced that there is a basic distinction between Colorado’s liberal jurisdictional tests, Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335 (1967); White-Rodgers v. District Court, 160 Colo. 491, 418 P.2d 527 (1966), and the landmark due process decisions of the Supreme Court, properly regarded also as expressions of federal amenability-to-process policy. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
Upholding jurisdiction under Colorado’s long arm statute in
Vandermee,
the court found minimum contracts present when a foreign corporation, though neither maintaining a sales office nor conducting direct sales within Colorado, nevertheless had a distributor who “has set up channels of sales promotion and distribution in Colorado for the purpose of selling products in Colorado.” Likewise jurisdiction was held to lie in
White-Rodgers,
where an agent maintained a company office in his home, listed his home telephone as that of his
company’s, solicited orders and forwarded correspondence in furtherance of his company’s interest. Indeed, the Colorado Supreme Court has expressly emphasized the liberality of the state’s jurisdictional policy in Safari Outfitters v. Superior Court, 167 Colo. 456, 448 P.2d 783
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ALDISERT, Circuit Judge.
Four claims for damage to fresh meat shipments were brought by a shipper against two common carriers, the Penn Central Railroad and the Scott Truck Lines. Following a motion by the railroad to quash service on the grounds that the minimum contacts required for
in personam
jurisdiction in Colorado were
not present, the claims against Penn Central were dismissed. This appeal by both the shipper and the motor truck carrier
**presents three separate questions of jurisdiction:
(1) Whether Penn Central met the appropriate tests of doing business in Colorado to make it there amenable to service of process in a diversity suit based on negligence;
(2) Whether the alleged amount in controversy meets the, statutory requirement in diversity cases. 28 U.S.C. § 1332;
(3) Alternatively, whether liability of a carrier for damage to an interstate shipment is governed exclusively by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), thus immunizing Penn Central from suit in Colorado because it does not operate a line of railroad in that state.
The complaint charged that plaintiff delivered the chilled meat to Scott in Adams County, Colorado, where it was placed in Scott’s trailers and thence trucked to Chicago, Illinois, where the trailers were placed in Penn Central’s flatcars for shipment east; that the meat arrived at its destination in a “tainted, sour, or putrid condition,” (first claim), “partially frozen” (second claim); “dark in color, sticky in places, dull in appearance,” (third and fourth claims). Both defendants were charged with negligence in failing to provide the meat with proper refrigeration facilities while in transit (all claims); the railroad with use of defective flatcars and improper shifting thereof resulting in delivery delays (third and fourth claims). Although each claim sounded in negligence based on diversity jurisdiction against both defendants, it was additionally averred that plaintiff “relies in part” upon provisions of the Carmack Amendment and that the parties “have in their possession copies of all relevant documents relating to the subject matter of this claim including
linter alia]
the uniform order bill of lading.”
I.
The first question is whether the district court erred in finding insufficient contacts in Colorado to render Penn Central amenable to service in that state. Prom affidavits filed in support of the railroad’s motion to dismiss under Rule 12(b) and answers to interrogatories, it appears that Penn Central maintains a Denver, Colorado, office, which is listed in both the white and yellow pages of the telephone directory and is staffed by three
employees
— a district sales manager, a sales representative, and an office manager — who from there solicit business for the company in Colorado, Wyoming and Utah. In addition, the Denver staff keeps records, charts Colorado business trends and conditions, and, responds to inquiries relating to company services, including routings, rates, movements, and handling of freight. Office rent and staff salaries are paid by the railroad company, which also sends its vice-president and vice-president in charge of sales several times a year to visit Colorado on business. The railroad has 399 clients or accounts located in Colorado. Approximately 9,000 freight cars annually originate in that state destined for Penn Central carriage. Personal property taxes are paid by the railroad to the City and County of Denver.
There is formidable authority for the proposition that in diversity cases, state law determines whether a corporation is subject to process in the state and that federal decisions are important only in ascertaining whether the state law is within constitutional bounds. Arrowsmith v. United Press International, 320 F.2d 219 (2 Cir., 1963).
In
Arrowsmith,
the majority of the court,
en banc,
adopted the view originally propounded by
Judge Goodrich of the Third Circuit,
and overruled Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2 Cir. 1960), which had proclaimed a federal standard.
Jaf-tex
still commands the support of many commentators.
We do not perceive this interesting procedural question to remain open in this circuit. In Walker v. General Features Corp., 319 F.2d 583, 585 (10 Cir. 1963), the court, speaking through Judge Hill, said that the question of “doing business” must “be resolved by application of state or local law rather than federal law.” Moreover, the resolution of the state-federal issue would not be necessitated in the instant case because we are not convinced that there is a basic distinction between Colorado’s liberal jurisdictional tests, Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335 (1967); White-Rodgers v. District Court, 160 Colo. 491, 418 P.2d 527 (1966), and the landmark due process decisions of the Supreme Court, properly regarded also as expressions of federal amenability-to-process policy. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
Upholding jurisdiction under Colorado’s long arm statute in
Vandermee,
the court found minimum contracts present when a foreign corporation, though neither maintaining a sales office nor conducting direct sales within Colorado, nevertheless had a distributor who “has set up channels of sales promotion and distribution in Colorado for the purpose of selling products in Colorado.” Likewise jurisdiction was held to lie in
White-Rodgers,
where an agent maintained a company office in his home, listed his home telephone as that of his
company’s, solicited orders and forwarded correspondence in furtherance of his company’s interest. Indeed, the Colorado Supreme Court has expressly emphasized the liberality of the state’s jurisdictional policy in Safari Outfitters v. Superior Court, 167 Colo. 456, 448 P.2d 783, 784 (Colo.1968): “By enacting the [long arm] statutes our legislature intended to extend the jurisdiction of our courts to the fullest extent permitted by the due process clause of the fourteenth amendment to the United States Constitution.”
We are persuaded that the facts presented in the instant case amply met the tests of
Vandermee
and
White-R.odgers
under a state amenability-to-process standard coextensive with federal standards and constitutional due process tests. We hold that the district court erred in its conclusion that there were insufficient minimal contacts to subject Penn Central to service of process.
II.
Apart from its attack on jurisdiction over the person, Penn Central advances a second contention designed to defeat subject matter jurisdiction. It argues that since the complaint consists of four separate claims, not one of which exceeds $10,000,
plaintiff failed to meet the amount in controversy requirement of 28 U.S.C. § 1332.
In contending that a single plaintiff bringing a multi-count complaint in a diversity action may not aggregate claims to satisfy this requirement, Penn Central seems to be arguing against a proposition that appears to have the persuasion of settled law both in this circuit, Kimel v. Missouri State Life Ins. Co., 71 F.2d 921 (10 Cir. 1934), and elsewhere.
In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), the landmark case prohibiting the aggregation of claims by two or more plaintiffs, even members of a class, the court was careful to observe: “Aggregation has been permitted * * * in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant. * * * ” Professor Wright comments: “If a single plaintiff is suing a single defendant, Rule 18 permits the plaintiff to join as many claims as he may have against the defendant, regardless of their nature, and the value of all the claims is added together in determining whether the jurisdictional amount is met,” Wright, at 121. The only distinction between this principle and the instant case is that here there is a single plaintiff and two defendants. We perceive this to be a distinction without a difference where, as here, liability is asserted against both defendants in all four claims. We accept the conclusion reached in Siegerist v. Blaw-Knox Co., 414 F.2d 375, 381 (8 Cir. 1969), that the claims “were
pressed against the [defendants] jointly and the aggregate value of these claims is the proper measure for determining jurisdiction under 28 U.S.C. § 1332(a). 1 Moore’s Federal Practice, ¶ 0.97 [2] (2d ed. 1964).”
III.
For its final argument Penn Central presents a second attack on jurisdiction over the person, contending that the Carmack Amendment to the Interstate Commerce Act
has preempted other
substantive law in this field, and that, under its provisions, Penn Central may not be subject to process in Colorado because it does not operate a line of railroad in that state.
It is settled that the Carmack Act is constitutional, Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167 (1911), that it supersedes any state legislation on the same subject, Adams Express Co. v. Cronin-ger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913) and that any “rule, regulation, or other limitation of any character whatsoever” purporting to limit its effect are by its terms declared null and void, Missouri Pacific R.R. v. El-more and Stahl, 377 U.S. 134, 136, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194 (1964).
Relying on certain language contained in these cases, Penn Central advances the sweeping suggestion that no action may be brought against a railroad for damage to an interstate shipment except under the provisions of this act. It anchors its contention on such statements as “the liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions. The Carmack Amendment (1906) makes carriers liable.”
Missouri Pacific, supra,
377 U.S. at 137, 84 S.Ct. at 1144.
The railroad reads too much into the language of the decisions and the statute. By its very terms the statute did not intend to preempt every cause of action brought by a shipper against a carrier for damage to its interstate shipment. The Carmack Amendment was not designed as a comprehensive restatement of the law, redefining with encyclopedic breadth and detail all rights and responsibilities of interstate freight shippers and carriers. Rather, the Act confines itself to a statement of the rights of a legal holder of a receipt or bill of lading issued by a carrier upon receiving property for interstate transportation and the responsibilities of a carrier to such holder. The Act requires a “common carrier, railroad, or transportation company” to is
sue such receipt or bill of lading and makes the carrier, with certain exceptions not pertinent here, liable to such holder “for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered * * * notwithstanding any limitation of liability” imposed by “contract, rule, regulation, or in any tariff” filed with the Interstate Commerce Commission or promulgated by state law.
Adams Express Co., supra.
It explicitly provided that “nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law.” This court has held that “[t]he Carmack Amendment does not change the common law rule.” L. E. Whitlock Truck Service, Inc. v. Regal Drilling Co., 333 F.2d 488, 491 (10 Cir. 1964), and that it “continues in effect the common law applicable to the liability of carriers.”.
In
Whitlock,
333 F.2d at 491, this court summarized the liability of a carrier at common law:
At common law a common carrier undertook to carry the shipment safely, and it was liable for all loss or injury excepting only that due to acts of God, public enemy, and those arising from the inherent nature of the goods transported or resulting from the fault of the shipper. It was also a rule of common law that as to these excepted causes of damage the carrier could nevertheless be held liable if it were negligent. The carrier was liable for damages whether negligent or not if the loss was not due to the excepted causes. Therefore a carrier could not escape liability by a showing of the absence of negligence on its part. Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659.
Despite this seemingly tractable burden of proof, a shipper was nonetheless exposed to peculiar problems when more than one carrier was used, since he was frequently unable to prove that his loss occurred while the goods were in the possession of a particular carrier. See Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 199-203, 31 S.Ct. 164, 55 L.Ed. 167 (1911). Thus, in addition to codifying the cómmon-law rule of liability, the Carmack Amendment was enacted to eliminate from a shipper’s burden of proof the often insurmountable hurdle of demonstrating damage at the hands of a specific carrier. N.Y. Philadelphia & Norfolk R. Co. v. Peninsula Produce Exchange, 240 U.S. 34, 37, 36 S.Ct. 230, 60 L.Ed. 511 (1916). As we said in
Whitlock, supra,
333 F.2d at 490, “its principal function is to
permit
a shipper in interstate commerce to bring an action against the initial carrier to recover for damages to the shipment whether such damages occurred while the goods were in the hands of the initial carrier or connecting carriers.” (Emphasis supplied.)
Thus, though the Carmack Amendment allows a shipper to enjoy the elimination of this one element in his burden of proof, it does not compel him to avail himself of the opportunity. The more difficult road of common-law action against a carrier is still open to a shipper wishing to traverse it. The common-law action is conceptualized on contractual principles with tort overtones, and is a special refinement of the general law of bailment. However, at common law a bailor has a choice of remedies where a bailee has damaged the bailed property or breached the bailment contract, Green v. Hertz Drivurself System, 130 Colo. 238, 274 P.2d 597 (1954). If, due to the bailee’s negligence the bailed property is damaged, the bailor need not proceed
ex contractu.
He may also bring an action in negligence. Burroughs Corp. v. Rocky Mountain Prestress, Inc., 431 F.2d 1185 (10 Cir. 1970). If he chooses to do so, “to establish a prima facie case the bailor need only show that the goods were delivered to the bailee in good condition and that the bailee returned the goods
m a damaged condition,
Burroughs, supra,
431 F.2d at 1187. This creates a rebuttable presumption of negligence on the part of the bailee: “[t]here is, however, no shift in the burden of proof, which still remains with the plaintiff,” Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700, 701 (1968).
Thus, the existence of a contractual remedy at common law does not prevent the shipper from bringing an action based solely on negligence. To be sure, in such an action, a greater burden is imposed on the plaintiff, for he must prove more than the fact of damage to the goods in shipment by the defendant; he must also prove that negligence of the defendant was the proximate cause of the damage claimed. To say that such a remedy exists is not to say that it is often utilized by a bailorshipper against a bailee-common carrier. The relative ease of proving a case in contract, either at common law or under the Carmack Amendment, militates against its use, and is, to be sure, the more practical, available remedy. But here we are not dealing with the practicability of a remedy in negligence or the advisability of using it. Our inquiry is limited to a determination that such a remedy exists, apart from the contractual remedy offered by the Car-mack Amendment.
We are persuaded, therefore, that while the Carmack Amendment preempted state law and made the “liability of a carrier for damage to an interstate shipment * * * a matter of federal law controlled by federal statutes and decisions,” in actions based exclusively on the holder of a receipt or a bill 'of lading issued by a common carrier,
qua
holder, Missouri Pacific RR Co. v. El-more and Stahl, it did not oust all other remedial rights of shippers.
Nor does the somewhat awkward averment that “[i]n bringing this action, Plaintiff relies in part, upon the provisions of 49 U.S.C.A. § 20(11)” render the complaint fatally inconsistent. We recognize, of course, that because Penn Central does not maintain lines in Colorado, venue does not lie against it in an action based on the Carmack Amendment.
But with two common carriers named as defendants, it is possible that plaintiff intended to proceed against Penn Central in negligence and against Scott Truck Line for breaching duties owed a holder of a receipt or bill of lading.
This would be permissible, as would alternative pleadings in negligence against Scott, F.R.Civ.P. 8(a). At this stage of the proceedings in the district court, plaintiff was not required to make an election.
The order of the district court dismissing plaintiff’s complaint against Penn Central and the cross-claim of Scott Truck Lines Inc. against Penn Central is reversed.