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05/04/78 PETER DROUKAS v. DIVERS TRAINING ACADEMY

May 4, 1978

PETER DROUKAS, JR.
v.
DIVERS TRAINING ACADEMY, INC.



Plymouth. Civil action commenced in the Superior Court on March 19, 1976. The case was heard by Collins, J., on a motion to dismiss. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Jurisdiction, Nonresident, Under long-arm statute. Sale, Manner of delivery.

The opinion of the court was delivered by: Quirico

The contacts with Massachusetts of the defendant in an action brought here, which consisted merely of the placement of an advertisement in a publication distributed in the Commonwealth, the receipt in Florida of a telephone call from the plaintiff in Massachusetts in regard to the purchase of two marine engines, the sending of correspondence to the plaintiff confirming the sale, and the shipment of the engines "collect" to the plaintiff in Massachusetts, were insufficient to confer on the Massachusetts court personal jurisdiction over the defendant under G. L. c. 223A, § 3 (a). [153-157]

Where the defendant in an action under G. L. c. 93A agreed to ship two marine engines from Florida to the plaintiff, but there was no evidence that the defendant specifically contracted to deliver or supply the engines in Massachusetts, the contract between the parties was merely a shipment contract and the defendant did not contract to "supply . . . things in this commonwealth" so as to confer on the Massachusetts court personal jurisdiction over the defendant under c. 223A, § 3 (b). [157-160]

The plaintiff appeals from a judgment entered following the allowance of the defendant's motion, under Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974), to dismiss the action for lack of personal jurisdiction. The plaintiff challenges the order of a Judge of the Superior Court allowing the motion, arguing that G. L. c. 223A, §§ 3 (a) and (b) (the long arm statute), conferred personal jurisdiction over the defendant. *fn1 We disagree with this contention and affirm the judgment.

The procedural background of the case is as follows. On March 19, 1976, the plaintiff, a resident of Massachusetts, commenced an action under G. L. c. 93A, inserted by St. 1967, c. 813, § 1, against the defendant, a Florida corporation. The complaint sought recovery for an alleged breach of warranty by the defendant in the sale of two marine engines which the plaintiff contends were defective by reason of salt water damage. The plaintiff sought treble damages, attorney's fees, and any other relief deemed appropriate by the court. Service of process was made on the defendant in Florida by certified mail, return receipt requested, in accordance with G. L. c. 223A, § 6 (a) (3).

The defendant filed a motion to dismiss the action for lack of "personal jurisdiction" over it within the meaning of the statute. The motion was supported by an affidavit of the defendant's president alleging facts bearing on the issue of jurisdiction. The plaintiff submitted an affidavit controverting in certain respects the defendant's affidavit and alleging facts in support of jurisdiction. After a hearing the Judge allowed the motion and judgment was entered dismissing the action. The plaintiff appealed therefrom to the Appeals Court, and we ordered direct appellate review.

Confronted with a motion under Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974), a plaintiff "has the burden of establishing the facts upon which the question of personal jurisdiction over a defendant is to be determined." Nichols Assocs. v. Starr, 4 Mass. App. Ct. 91, 93 (1976), and authorities cited. See J.W. Smith & H.B. Zobel, Rules Practice § 12.9 (1974). The facts alleged by the plaintiff in his affidavit in support of his claim of jurisdiction are essentially as follows. In September of 1971, the plaintiff saw the defendant's advertisement for the sale of two marine engines in a nautical publication entitled "Boats and Harbors," which was distributed in Massachusetts. The plaintiff, in Massachusetts, telephoned the defendant's place of business in Florida, spoke with its president, and ordered the engines. Thereafter, the plaintiff forwarded a check for the purchase price to the defendant. The defendant's president sent a letter to the plaintiff in Massachusetts confirming the sale. Several other letters sent by the defendant relative to the sale were received by the plaintiff in Massachusetts. Subsequently, the defendant shipped the engines from Florida to Massachusetts. On receipt of the engines the plaintiff discovered that, contrary to the defendant's prior representation of their perfect condition, the engines had sustained salt water damage before shipment. *fn2

The Judge, in ruling on the motion to dismiss, filed a memorandum in which, for the purposes of the motion, he accepted the assertions contained in the plaintiff's affidavit as true. The Judge recited the facts as detailed above, adding only that the bill of lading for the shipment of the engines to the plaintiff stated that the shipping "charges are to be collect." The Judge ruled that the plaintiff did not "show sufficient contacts by Defendant with Massachusetts to enable its courts to exercise personal jurisdiction over the Defendant to the limits allowed by the Constitution of the United States," citing G. L. c. 223A, § 3 (a) and (b).

General Laws c. 223A, § 3, as amended by St. 1969, c. 623, *fn3 provides in part that " court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's (a) transacting any business in this commonwealth; (b) contracting to supply services or things in this commonwealth." *fn4 In " Automatic" Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. 441, 443 (1972), we viewed the function of the long arm statute as "an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States." See Ross v. Ross, 371 Mass. 439, 441 (1976); Nichols Assocs. v. Starr, supra at 92. In construing such limits, the United States Supreme Court has held that personal jurisdiction over a nonresident defendant requires "certain minimum contacts with [the State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial Justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting in part from Milliken v. Meyer, 311 U.S. 457, 463 [1940]). See Saporita v. Litner, 371 Mass. 607, 618 (1976); Ross v. Ross, supra; "Automatic" Sprinkler, supra at 444; Shaffer v. Heitner, 433 U.S. 186, 207-212 (1977); Hanson v. Denckla, 357 U.S. 235, 250-251 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). Amplifying on this, the Court has stated that in order for a nonresident defendant to be subject to jurisdiction, there must be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, supra at 253. See Ross v. Ross, supra; "Automatic" Sprinkler, supra. With these constitutional limitations in mind, we address below each of the defendant's jurisdictional claims under G. L. c. 223A.

1. Transacting Any Business.

General Laws c. 223A, ยง 3 (a), gives rise to jurisdiction if the defendant either directly or through an agent transacted any business in Massachusetts, and if the alleged breach of warranty arose from such transaction of business. From the scant and almost inadequate record before us, it appears that the defendant's only contacts with Massachusetts were the placement of an advertisement in a publication distributed in the Commonwealth, the receipt in Florida of a telephone call from the plaintiff in Massachusetts in regard to the purchase of two engines, the sending of correspondence to the plaintiff confirming the sale, and the shipment of the engines "collect" to the plaintiff in Massachusetts. It is undisputed that the defendant's principal place of business is in Florida. It maintains no office in Massachusetts, nor does it own any property within the Commonwealth. It appears that neither the defendant, its corporate president, nor any of its agents has previously done business within the Commonwealth or had any contact here other than that detailed ...


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