United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE
Tony P. Hsu a/k/a Tony Taofu Hsu (“Hsu”) has
moved to dismiss Plaintiff's complaint under Federal Rule
of Civil Procedure 12(b)(2) for lack of personal
jurisdiction. Dkt. no. 13. This Report and Recommendation
issues pursuant to District Judge Hillman's referral of
Hsu's motion, which is fully briefed and ripe for
adjudication. Dkt. no. 22 (Order of reference); see
also dkt. no. 13 (motion to dismiss); dkt. no. 14
(memorandum supporting dismissal); dkt. no. 17 (opposition);
dkt. no. 23 (reply in further support of dismissal). Oral
argument was heard on April 12, 2019. Dkt. no. 27. In
consideration of the above and for the reasons that follow,
the undersigned RECOMMENDS that Hsu's motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(2) be GRANTED.
approximately 3:30 p.m. on September 12, 2018, Sean E. Yi
(“Yi”), a California resident and employee of
Jackymoon Corp. (“Jackymoon”), a corporation
organized under the laws of, and having a principal place of
business in, California, was driving north on Route 146
through Millbury, Massachusetts in a tractor trailer owned by
Jackymoon. Complaint ¶¶ 2-3, 8- 9. Yi was operating
the tractor trailer at a speed in excess of the posted limit,
and unsuitable for the weather and road conditions.
Id. ¶ 10. As a result, Yi lost control of the
tractor trailer, which crashed into and crossed the median
dividing the north and southbound traffic on Route 146.
Id. ¶ 11.
same time, Plaintiff, a Sutton, Massachusetts resident, was
driving southbound on Route 146 in a vehicle owned by his
father. Id. ¶¶ 1, 7. After the Jackymoon
trailer crossed the median, it collided with Plaintiff's
car. Id. ¶ 12. An investigation following the
collision by the Massachusetts State Police
(“MSP”) determined that the tractor trailer was
speeding upon entering a construction zone and committed a
marked lanes violation. Id. ¶ 14. Plaintiff
alleges that the investigation also unearthed irregularities
in the tractor trailer's logs, in violation of the
Federal Motor Carrier Safety Regulations. Id. He
claims the logs were falsified. Id.
November 21, 2018, Plaintiff filed a negligence complaint
against Yi, Jackymoon, and Hsu (together,
“Defendants”) pursuant to 28 U.S.C. §
1332. Defendants were served on January 22,
2019. Dkt. nos. 7, 8, 9. Yi and Jackymoon each answered the
complaint on February 22, 2019. Dkt. nos. 11, 12. On the same
day, Hsu moved to dismiss for lack of personal jurisdiction.
Dkt. no. 13.
Motion to Dismiss Under Fed.R.Civ.P. 12(b)(2)
are three competing standards of review when analyzing a
motion to dismiss for lack of personal jurisdiction.
World Depot Corp. v. Onofri, No. 16- 12439-FDS, 2017
WL 6003052, at *7 (D. Mass. Dec. 4, 2017). The most
conventional-the prima facie method- allows the court
“to consider only whether the plaintiff has proffered
evidence that, if credited, is enough to support findings of
all facts essential to personal jurisdiction.”
Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145 (1st Cir. 1995) (quoting Boit v. Gar-Tec
Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). The
“plaintiff must make the showing as to every fact
required to satisfy ‘both the forum's long-arm
statute and the due process clause of the
Constitution.'” Boit, 967 F.2d at 675
(quoting U.S.S. Yachts, Inc. v. Ocean Yachts, Inc.,
894 F.2d 9, 11 (1st Cir. 1990)). “[T]he court . . .
must accept the plaintiff's (properly documented)
evidentiary proffers as true.” Foster-Miller,
46 F.3d at 145. The plaintiff may not rely on unsupported
allegations: “[t]he prima facie showing of
personal jurisdiction must be based on evidence of specific
facts set forth in the record.” Boit, 967 F.2d
at 675 (emphasis in original) (citing Kowalski v.
Doherty, Wallace, Pillsbury & Murphy, Att'ys at
Law, 787 F.2d 7, 9 (1st Cir. 1986)). The showing must
indicate that the defendant is subject to the jurisdiction of
the court under the state long-arm statute and that the
exercise of jurisdiction does not offend due process
considerations. Rissman Hendricks & Oliverio, LLP v.
MIV Therapeutics Inc., 901 F.Supp.2d 255, 260 (D. Mass.
second standard, the preponderance-of-the-evidence method,
may be invoked when a court determines that
in the circumstances of a particular case it is unfair to
force an out-of-state defendant to incur the expense and
burden of a trial on the merits in the local forum without
first requiring more of the plaintiff than a prima
facie showing of facts essential to in personam
jurisdiction. A court may so determine, for example, when the
proffered evidence is conflicting and the record is rife with
contradictions, . . . or when a plaintiff's affidavits
are ‘patently incredible[.]'
Boit, 967 F.2d at 676 (emphasis in original)
(citations omitted). Under this method, the Court “is
to embark on a fact finding mission in the traditional way,
taking evidence and measuring the plaintiff's
jurisdictional showing against a
Kalika, LLC v. Boston & Me. Corp., No.
15-14043-GAO, 2019 WL 1276099, at *3 (D. Mass. Mar. 20, 2019)
(quoting Foster-Miller, 46 F.3d at 145). The
standard requires an evidentiary hearing. Kalika,
2019 WL 1276099, at *3. Finally, the “likelihood”
standard, applicable only where an assertion of jurisdiction
is bound up with the claim on the merits, allows a court to
“merely find whether the plaintiff has shown a
likelihood of the existence of each fact necessary to support
personal jurisdiction.” Boit, 967 F.2d at 677;
see also Foster-Miller, 46 F.3d at 146.
motion to dismiss should be assessed under the prima facie
standard of review. Use of the more demanding
preponderance-of-the-evidence method is unwarranted. The
record is not “rife with contradictions, ” the
parties do not dispute material facts, and Plaintiff's
evidence is not patently incredible. See Boit, 967
F.2d at 676. Rather, as discussed below, this evidence simply
fails to satisfy the prima facie standard. And because
Plaintiff's assertion of jurisdiction over Hsu is not
bound up with the merits of his claims, the likelihood
standard too is inapplicable. See id. at 677.
are two types of personal jurisdiction: general and specific.
Ace Am. Ins. Co. v. Oyster Harbors Marine, Inc., 310
F.Supp.3d 295, 303 (D. Mass. 2018) (citing United Elec.,
Radio & Mach. Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1088 (1st Cir. 1992)). General
jurisdiction exists when the litigation is not directly
founded on the defendant's forum- based contact, but the
defendant, either as a domiciliary of the forum or due to
some significant and continuous activity within the forum
state, is considered “at home” in the forum
state. Daimler AG v. Bauman, 571 U.S. 117, 137
(2014). To establish specific jurisdiction, a plaintiff must
show that ‘the cause of action arises directly out of,
or relates to, the defendant's forum-based
contacts.'” Ace, 301 F.Supp. at 303
(quoting Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.
1994)). Specific jurisdiction over a non-resident must
comport with the requirements of the Massachusetts long-arm
statute and the Fourteenth Amendment's Due Process
Clause. See Moura v. New Prime, Inc., 337 F.Supp.3d
87, 92-93 (D. Mass. 2018) (citing World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 290 (1980)). “In
determining whether a non-resident defendant is subject to
its jurisdiction, a federal court exercising diversity
jurisdiction is the functional equivalent of a state court
sitting in the forum state.” Moura, 337
F.Supp.3d at 92 (quoting Sawtelle v. Farrell, 70
F.3d 1381, 1387 (1st Cir. 1995)).
argues Hsu purposefully established minimum contacts with
Massachusetts such that he can reasonably anticipate being
haled into court here. Hsu, on the other hand, maintains he
has no contacts with Massachusetts, that he never
purposefully availed himself of the privilege of conducting
activities in Massachusetts by invoking the protections of
its laws, and that being subject to suit in Massachusetts is
neither foreseeable nor reasonable. He avers that he has
worked and resided in California since 1985; has never owned,
rented, or leased property in Massachusetts; has never
maintained employment in Massachusetts; and has never been
registered, licensed, or otherwise authorized to do business
in Massachusetts. Dkt. no. 14-2. Hsu further argues that
specific jurisdiction over individual corporate officers,
like himself, cannot be based merely on jurisdiction over the
corporation; and that no independent basis for jurisdiction
defendant lodges a jurisdictional challenge, the burden to
demonstrate the existence of personal jurisdiction rests with
the plaintiff. Carp v. XL Ins., 754 F.Supp.2d 230,
232 (D. Mass. 2010) (citing Astro-Med, Inc. v. Nihon
Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009))
(“On a motion to dismiss for want of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that jurisdiction is 1) statutorily authorized and 2)
consistent with the Due Process Clause of the United States
Constitution.”). This burden first requires
satisfaction of the Massachusetts long-arm statute. See
Rissman, 901 F.Supp.2d at 260.
Massachusetts Long-Arm Statute
Massachusetts long-arm statute identifies eight grounds on
which a nonresident defendant may be subjected to personal
jurisdiction by a court within the forum. Mass. Gen. Laws ch.
223A, § 3; Moura, 337 F.Supp.3d at 93. Relevant
here, “[j]urisdiction over the individual officers of a
corporation under the Massachusetts long arm statute may not
be based on jurisdiction over the corporation.”
Levesque v. Schroder Inv. Mgmt. N. Am., Inc., No.
17-12380-NMG, 2019 WL 1383591, at *2 (D. Mass. Mar. 27, 2019)
(citing Johnson Creative Arts, Inc. v. Wool Masters,
Inc., 573 F.Supp. 1106, 1111 (D. Mass. 1983)). Rather,
there must be an independent basis for jurisdiction over the
corporate officer. LaVallee v. Parrot-Ice Drink Prods. of
Am., Inc., 193 F.Supp.2d 296, 300 (D. Mass. 2002)
(citing Johnson, 573 F.Supp. at 1111). No.
Massachusetts court has recognized the so-called
“fiduciary shield doctrine” as a limitation
on the exercise of personal jurisdiction over corporate
officers, so the “requirement for an independent
jurisdictional basis may be satisfied when a corporate
officer transacts in-forum business either in his
personal capacity or solely on behalf of the
corporation.” Interface Grp.- Mass., LLC
v. Rosen, 256 F.Supp.2d 103, 105 (D. Mass. 2003)
(emphasis in original) (citing Yankee Grp., Inc. v.
Yamashita, 678 F.Supp. 20, 22 (D. Mass. 1988)).
state long-arm statute “asserts jurisdiction over the
person to the constitutional limit only when some basis for
jurisdiction enumerated in the statute has been
established.” Good Hope Indus., Inc. v. Ryder Scott
Co., 389 N.E.2d 76, 80 (Mass. 1979). To that end,
“courts should consider the long-arm statute first,
before approaching the constitutional question.”
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