Medical Spectroscopy, Inc. et al.
Ada Zamir No. 134246
14, 2016, Filed
MEMORANDUM AND ORDER ALLOWING DEFENDANTS MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
Kenneth W. Salinger, Justice
lawsuit concerns defendant Ada Zamir's participation in
an Israeli company called Medical Spectroscopy Ltd ("
MSL"), which in turn allegedly entered into a joint
venture with plaintiffs Applied Analytics, Inc. ("
AAI") and Medical Spectroscropy, Inc. ("
MSI"). The plaintiffs both do business in Massachusetts
and are controlled by Dr. Zamir's daughter and
son-in-law. AAI and MSI claim that Dr. Zamir breached
contractual and fiduciary duties that she allegedly owed them
under the " Founders Agreement" that established
MSL, and that in so doing she also violated G.L.c. 93A.
Zamir, who lives and works in Israel, has moved to dismiss
this action for lack of personal jurisdiction over her. For
the reasons discussed below, the Court will ALLOW her motion
and dismiss this action without prejudice.
have presented some evidence that, if believed, would
establish the following facts. MSL was established in October
2007 by Dr. Zamir and six other individuals, including her
son Dr. Gideon Zamir, her daughter Dr. Yael Barshad, and her
son-in-law Dr. Yoav Barshad. At the time the Barshads lived
in Massachusetts and the other four founders in MSL lived in
Israel. The contract establishing MSL stated that the
founders' aim was to engage in a joint venture between
MSL (in Israel) and AAI (in Massachusetts) to research and
develop a new method for measuring blood chemistry for human
and veterinary use. This Founders Agreement specified that
this project would be carried out through MSL.
alleged acts or omissions by Dr. Zamir that give rise to
Plaintiffs' claims are as follows. In their complaint,
Plaintiffs allege that: (1) in late 2009 Dr. Zamir falsely
told " the shareholders of MSL" that the technology
they had been trying to develop " would not work and
that therefore the Project would fail and should not be
pursued further"; (2) on the basis of that statement MSL
ceased operating, AAI stopped working on the joint venture
project, and MSI also ceased operating; (3) thereafter Dr.
Zamir used confidential information belonging to MSL to help
develop similar technology for competing companies. In their
opposition to Dr. Zamir's motion to dismiss, Plaintiffs
allege in the alternative that if Dr. Zamir's statement
that MSL's technology was in fact true, then she
nonetheless breached her alleged fiduciary duty to Plaintiffs
by failing to disclose that information in early 2008 when
she first became aware of it.
argue that the Court may exercise personal jurisdiction over
Dr. Zamir under G.L. 223A, § § 3(a) and 3(c).
Although Dr. Zamir is the moving party, AAI and MSI have
" the burden of establishing facts to show that the
ground relied on under § 3 is present." Roberts
v. Legendary Marine Sales, 447 Mass. 860, 863, 857
N.E.2d 1089 (2006), quoting Tatro v. Manor Care,
Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1994).
Plaintiffs do not assert, and therefore have waived, any
other basis under the long-arm statute for exercising
jurisdiction over Dr. Zamir.
establish personal jurisdiction under § 3(a) or 3(c),
Plaintiffs must present evidence that they have a cause of
action " arising from" Dr. Zamir's "
transacting business in Massachusetts" or from her
" causing tortious injury by an act or omission in this
commonwealth." See G.L.c. 223A, § 3 see also,
generally, Fern v. Immergut, 55 Mass.App.Ct. 577,
579, 773 N.E.2d 972, rev. denied, 438 Mass. 1102, 777 N.E.2d
1264 (2002) (" When, as here, the assertion of in
personam jurisdiction has been challenged under Mass.R.Civ.P.
12(b)(2), . . . a plaintiff must make a prima facie showing
of evidence that, if credited, would be sufficient to support
findings of all facts essential to personal
jurisdiction"). Like the substantively identical "
relatedness" requirement imposed by the due process
clause of the Fourteenth Amendment to the United States
Constitution, this requirement " is not met merely
because a plaintiff's cause of action arose out of the
general relationship between the parties; rather, the action
must directly arise out of the specific
contacts between the defendant and the forum state"
(emphasis in original). Fern, supra, at 583-84,
quoting Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st
have not met their burden under the long-arm statute because
they have presented no evidence that their claims arise from
or out of alleged misconduct by Dr. Zamir that took place in
Massachusetts. Dr. Yoav Barshad asserts in his affidavit that
in late 2009 Dr. Zamir " informed" him " that
the technology behind the project would not work." But
Plaintiffs have not presented any evidence regarding the
manner in which this communication took place or that any
part of it took place in Massachusetts. Although Barshad
further testifies that Dr. Zamir " confirmed this"
in an email dated February 11, 2010, the Complaint makes
clear that the actions against Dr. Zamir arise from the
alleged misrepresentation in late 2009, and not from any
subsequent confirmatory email. In any case, Plaintiffs have
not shown that the February 2010 email constituted the
intentional transaction of business or an intentional
misrepresentation within Massachusetts. Similarly, Plaintiffs
have neither alleged nor presented any evidence that Dr.
Zamir did anything in Massachusetts that constituted
competing with MSL or using confidential information
allegedly belonging to MSL.
Plaintiffs salvage this action through their new theory that
if Dr. Zamir was truthful when she said in late 2009 that
MSL's technology would not work, then she breached her
alleged fiduciary duty to AAI and MSI by not revealing that
fact much earlier. Since Dr. Zamir was living and working in
Israel, a mere alleged failure to disclose information would
not constitute causing tortious injury " by an act or
omission in Massachusetts, " and thus would not fall
within the scope of G.L.c. 223A, § 3(c). Cf.
Fern, 55 Mass.App.Ct. at 582-83 (claims arising from
alleged failure to disclose by lawyers working in New York
did not arise from transaction of business in Massachusetts).
focus primarily on contested evidence that Dr. Zamir was
present in Massachusetts from time to time and that she
participated in drafting a report on behalf of MSL while she
was in Concord, Massachusetts, once inspected equipment at
the AAI facility in Massachusetts, and once met in Boston
with officials from the federal Food & Drug Administration
regarding the MSL/AAI joint venture. This part of
Plaintiffs' argument is also unavailing. None of the
claims against Dr. Zamir arise from or out of any of these
alleged activities in Massachusetts. As a result, none of
these activities subject her to personal jurisdiction in
Massachusetts courts under G.L.c. 223A, § § 3(a) or
motion to dismiss this action for lack of personal
jurisdiction is ALLOWED. Final judgment shall enter