American Paper Recycling, Inc.
Renew Bahamas, Ltd. et al.  No. 135031
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT RENEW
BAHAMAS, LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION AND FORUM NON CONVENIENS
A. Hopkins, Justice
American Paper Recycling, Inc. (" American") filed
this action alleging that Renew Bahamas, Ltd. ("
Renew") breached a contract to provide American with
certain quantities of cardboard, mixed paper, plastic
bottles, and used beverage cans. This matter is before the
court on Renew's Motion to Dismiss for Lack of Personal
Jurisdiction and Forum Non Conveniens. For the reasons
discussed below, that motion is DENIED .
is a Massachusetts corporation with a principal place of
business in Mansfield, Massachusetts. Renew is a corporation
in the Bahamas with a principal place of business in Nassau,
New Providence, Bahamas. On June 4, 2014, American and Renew
signed a written letter of intent whereby Renew agreed to
provide American with all of its baled fibre and polymer
products prior to the installation and commissioning of
permanent baler machines. Thereafter, Renew would provide
American with the greater of 45, 000 tons or 50% of the total
annual tonnage of cardboard, mixed paper, mixed plastic
bottles, and used beverage cans produced at the site, which
American would then market and sell to other sources. The
parties formalized and finalized their agreement on December
27, 2014 with a written Marketing and Services Agreement
(" the Agreement"). The Agreement provides that
Renew will sell American 50% of the total output of
cardboard, mix paper, and plastic polymer grades and 100% of
the aluminum can grades. For any tons not shipped through
American, Renew will pay a buyback commission of $6.00 per
ton for any shortfall weight.
complaint filed on November 12, 2015, American alleges that
Renew failed to ship the required tonnage from its plant in
the Bahamas and failed to pay any buyback commission. Renew
knew that American had committed to resell the materials and
that certain mills were waiting for shipments of recyclate
from Renew through American, including America Chung Nam
Holdings, Inc. in City of Industry, California; International
Forest Products, LLC in Foxboro, Massachusetts; and Coastal
Recycling, Inc. in Miami, Florida. Instead of shipping
recyclate to American or on its behalf, Renew shipped the
materials directly to these mills. On October 20, 2015,
counsel for American sent Renew a demand letter pursuant to
General Laws Chapter 93A. Renew, which owes American at least
$90, 000, failed to respond with a reasonable settlement
offer. Count I of American's complaint alleges breach of
contract and Count II alleges violation of Chapter 93A. Count
III asserts the statutory remedy of reach and apply pursuant
to G.L.c. 214, § 3 against America Chung Nam Holdings,
Inc., while Count IV asserts the common-law remedy of reach
and apply. Count V asserts the G.L.c. 214, § 3 reach and
apply remedy against International Forest Products, LLC,
while Count VI asserts the common-law remedy of reach and
apply. Count VII asserts the G.L.c. 214, § 3 reach and
apply remedy against Coastal Recycling, Inc., while Count
VIII asserts the common-law remedy of reach and apply.
support of its motion to dismiss, Renew has filed the
affidavit of Michael Cox (" Cox"), its Chief
Operating Officer. Cox avers that Renew is incorporated in
the Bahamas and has its principal place of business there.
Renew focuses on sustainable waste management for the Islands
of the Bahamas. Its goal is to minimize the amount of waste
in landfills by converting waste into valuable resources.
Renew does not have and has never had an office or any
employees in Massachusetts. Renew does not own, rent, or use
property in Massachusetts. Renew does not advertise in
Massachusetts, nor has it ever shipped any goods or materials
to Massachusetts for any reason. Renew's representatives
have never traveled to Massachusetts.
avers that in early June of 2014, American drafted a Letter
of Intent (" LOI") and emailed it to Renew in the
Bahamas for review. American and Renew exchanged changes to
the LOI before finalizing it. Renew then signed the LOI in
the Bahamas. Pursuant to the LOI, American agreed to make
available, ship, install and commission horizontal and
vertical balers at Renew's principal place of business in
the Bahamas. Renew was authorized to operate these balers in
the Bahamas to produce a certain amount of recycled product.
Renew was obligated to provide all general plant, equipment
and personnel needed to load, operate and unload the balers
in the Bahamas. Renew also agreed to sell various recyclate
products to American or to third parties on American's
behalf. However, the LOI did not obligate Renew to supply any
goods in Massachusetts. American sent a staff member to the
Bahamas to train Renew to use the balers, oversee and manage
the baler operations, confirm quality assurance, and provide
advice on other issues.
avers that in December of 2014, American representatives
traveled to the Bahamas to discuss its business relationship
with Renew and to see Renew's headquarters. During this
visit, American and Renew negotiated business terms for
moving forward and executed the Agreement. The Agreement
states that it is to be governed by the laws of
Massachusetts. Pursuant to the Agreement, Renew was required
to sell American a certain percentage of its cardboard, mix
paper, plastic polymer grades, and aluminum can grade. Renew
sold two shipments of recyclate to American at the Nassau,
Bahamas port. Cox believes that the vessel carrying the
recyclate departed Nassau and traveled to its destination in
India. Renew sent American two invoices for these shipments
via email and American sent payment to Renew in the Bahamas.
Renew never issued any payment to American in Massachusetts.
Renew has never shipped any recyclate to American or to any
other company in Massachusetts.
has filed the affidavit of its President, Ken Golden ("
Golden"), who avers that in May of 2014, Cox called him
seeking baler machines for use in his recycling company in
the Bahamas. Cox told Golden that he had conducted a Google
search for a company who might provide the equipment and
found American located in Mansfield, Massachusetts. Golden
avers that the Agreement, which is printed on American
letterhead, originated in Massachusetts. In an email dated
May 19, 2014, Cox stated that he wanted the balers sent from
American's Mansfield office to the Bahamas. In emails
dated May 27, 2014, June 4, 2014 and November 24, 2014, Cox
asked Katie Partridge (" Partridge"),
American's Director of Export in Mansfield, to send an
employee from Mansfield to the Bahamas to install the balers
and train Renew's employees. American shipped the balers,
which were stored in Mansfield, to the Bahamas from Boston.
Cox sent a crew from Mansfield to the Bahamas to install the
balers and train Renew's employees.
avers that Renew agreed to export recyclate to Mansfield and
discussed this with Partridge via email. Golden further avers
that Renew made two or three shipments of corrugated material
from Nassau to Boston. American sent a number of invoices to
Renew from Mansfield for payment. Finally, Golden avers that
Renew has transacted business with and sent materials to
International Forest Products, LLC, a Foxboro, Massachusetts
the court to exercise personal jurisdiction over a
nonresident defendant, the long-arm statute must authorize
jurisdiction and the exercise of jurisdiction must be
consistent with basic due process requirements. Bulldog
Investors Gen. P'ship v. Secretary of the
Commonwealth, 457 Mass. 210, 215, 929 N.E.2d 293 (2010);
Fletcher Fixed Income Alpha Fund Ltd. v. Grant Thornton
LLP, 89 Mass.App.Ct. 718, 720, 54 N.E.3d 570 (2016).
Once jurisdiction is challenged, the plaintiff bears the
burden of production as to jurisdictional facts. Bulldog
Investors Gen. P'ship v. Secretary of the
Commonwealth, 457 Mass. at 219; Roberts v. Legendary
Marine Sales, 447 Mass. 860, 863, 857 N.E.2d 1089
(2006). Where the court does not hold an evidentiary hearing
but decides the motion to dismiss solely on the basis of
affidavits and other documentary evidence, it applies a prima
facie standard requiring the plaintiff to proffer enough
evidence which, if credited, supports a finding of personal
jurisdiction. Cannonball Fund Ltd. v. Dutchess Capital
Mgmt., LLC, 84 Mass.App.Ct. 75, 97, 993 N.E.2d 350, rev.
den., 466 Mass. 1106, 996 N.E.2d 473 (2013); Cepeda v.
Kass, 62 Mass.App.Ct. 732, 737, 819 N.E.2d 979
(2004). The court views the relevant facts in
the light most favorable to the plaintiff. Tatro v. Manor
Care, Inc., 416 Mass. 763, 765, 625 N.E.2d 549 (1994);
Cepeda v. Kass, 62 Mass.App.Ct. at 738.
parties dispute whether this Court has specific jurisdiction
over Renew. The Massachusetts longarm statute
provides, in relevant part:
A 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; (c) causing tortious
injury by an act or omission in this commonwealth; [or] (d)
causing tortious injury in this commonwealth by an act or
omission outside this commonwealth if he regularly does or
solicits business, or engages in any other ...