Opinion
Civil Action No. 01-11005-RWZ
February 5, 2002
MEMORANDUM OF DECISION
Plaintiff, Oreste Tramonte ("Tramonte"), was a member of the Korean War Veteran's Association, Inc. ("KWVA"). He apparently developed serious disagreements with one or more members of the Executive Committee of the Association. As a result, the Association voted at a meeting in Tuscola, Illinois, in March 2001, to remove plaintiff from its board of directors and to expel him from the Association. Plaintiff then filed this action, asserting violations of New York law and KWVA by-laws, against the KWVA and those members who allegedly led the charge against him, Harley J. Coon, Sherman Pratt, Joseph Pirrello, and James F. Jones, Jr., (collectively, the "individual defendants"). Subsequently, plaintiff amended his complaint and commenced service of process on all defendants. KWVA and the individual defendants filed an answer and a motion to dismiss. The individual defendants also interposed a counterclaim. These responsive papers were all drafted, signed and submitted on behalf of all defendants by individual defendant Sherman Pratt, an attorney not admitted to practice before this Court. Because Mr. Pratt could not represent any other defendant, plaintiff filed a Motion for Default on August 24, 2001, arguing that the defendants had "failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the District of Massachusetts. . . ." That motion was allowed "unless defendants file a responsive pleading by 9/28/01."
On September 28, defendants did respond with a properly filed Motion to Dismiss for Lack of Personal Jurisdiction. Plaintiff's opposition argues (1) that defendants are precluded from contesting personal jurisdiction, as a result of several general appearances before this Court, and (2) even if they had not subjected themselves to this Court's power over their persons through general appearances, they would still fall within this court's jurisdiction under a due process analysis.
I. THE PARTIES
Plaintiff is a resident of Massachusetts. Defendant KWVA is incorporated in New York, with a principal place of business in Ohio. There are seven KWVA chapters in Massachusetts with a total membership of approximately 1,280 who contribute approximately $25,000 per year to the organization. All of the individual defendants live in states other than Massachusetts. They ran for, and were elected as officers of KWVA from their home states, but meetings of the board of directors and annual meetings of the membership are held in many places around the country. As noted earlier, the general meeting from which this lawsuit arose took place in Illinois. Letters alerting plaintiff to this meeting were sent by several of the individual defendants. None of these individuals, however, has ever lived, owned any real estate, or regularly conducted business in Massachusetts.
KWVA, in addition to having chapters in Massachusetts, distributes its publication, The Graybeards, here. It also maintains a website. However, Plaintiff does not allege that the KWVA has any bank accounts, offices, compensated employees or real property in Massachusetts. Nor does he allege that the KWVA is registered to do business in Massachusetts or that it has a registered agent for service of process.
II. WAIVER
Plaintiff's waiver argument is based on the outdated principle that a general appearance, that is, one in which a party becomes an actor in the suit by way of a pleading or motion, precludes the party from contesting the court's jurisdiction over his or her person. The advent of the Federal Rules, however, abolished the distinction between special and general appearances in federal practice. See Marcial Ucin v.SS Galacia v. Perez Y Compania, 723 F.2d 994, 997 (1st Cir. 1983) ("[i]t is well settled that a general appearance by a defendant does not constitute a waiver of the defense of lack of jurisdiction over the person"). Rather, the relevant inquiry is whether the defendant included the lack of personal jurisdiction defense in its "first defensive move, be it a Rule 12 Motion or a responsive pleading." Glater v. Eli Lilly Co., 712 F.2d 735, 738 (1st Cir. 1983); see Roque v. United States, 857 F.2d 20, 21 (1st Cir. 1988) (Under Rule 12(h)(1), "defense of [personal jurisdiction] is waived if not raised in the answer or in a motion filed prior to or contemporaneously with the answer") (emphasis in original).
Plaintiff asserts that none of Pratt's responsive pleadings, filed on behalf of the KWVA and individual defendants, included an objection based on personal jurisdiction. These pleadings, however, were considered null and void as a direct result of the decision allowing plaintiff's motion to default unless defendants filed a proper responsive motion by September 28, 2001. Defendants did, in fact, file a motion to dismiss by that date. This motion must therefore be considered the first responsive pleading, as contemplated by Rule 12(h)(1). Because defendants' first responsive pleading included, and in fact was completely based upon, a lack of personal jurisdiction, defendants have not waived their right to contest this issue.
III. PERSONAL JURISDICTION
When a court's personal jurisdiction is contested, the plaintiff bears the burden of proving that jurisdiction is proper. Massachusetts School of Law at Andover, Inc. v. American Bar Association, 142 F.3d 26, 34 (1st Cir. 1998). To meet that burden, Plaintiff must show: (1) that the forum's long arm statute authorizes jurisdiction; and (2) that each defendant has sufficient minimum contacts with Massachusetts to satisfy general due process principles. Noonan v. The Winston Co., 135 F.3d 85, 89 (1st Cir. 1998).
A. Long Arm Statute
To establish jurisdiction over a defendant under the Massachusetts Long Arm Statute, a plaintiff must establish that the defendant either transacted business in Massachusetts, committed a tort in Massachusetts, or caused tortious injury in Massachusetts, and the plaintiff must show that the cause of action arose from defendant's conduct here. Mass. Gen. L. ch. 223A, § 3. Nothing in the complaint even suggests that defendants did anything in Massachusetts concerning plaintiff's claim. Therefore, the cause of action clearly did not arise from defendants' conduct here.
As to the first prong, the complaint is equally deficient. Plaintiff has not demonstrated that any of the defendants "transact business" here. Indeed, he does not even allege that the individual defendants conduct business here. As for the KWVA, it does not maintain an office or bank account, nor does it have paid employees here. See Stanton v. AM General Corp., 50 Mass. App. Ct. 116, 119-120 (2000) (upholding dismissal on personal jurisdiction grounds where corporate defendant was not registered to do business in Massachusetts, did not employ personnel in Massachusetts, did not have assets or property in Massachusetts and did not maintain an office or bank account in Massachusetts); Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 156-57 (1978) (finding insufficient contacts where corporate defendant placed advertisement in a newspaper distributed in Massachusetts, received phone calls from and corresponded with the plaintiff in Massachusetts, and shipped goods to the plaintiff in Massachusetts).
Plaintiff acknowledged in the complaint that the alleged tortious acts occurred in Illinois, and he fails to set forth any facts suggesting that such acts caused injury here. The allegations concerning the effects of plaintiff's expulsion in Illinois do not amount to injury in Massachusetts. See Cunningham v. Adrox, Inc., 40 Mass. App. Ct. 279, 282 (1996) (holding that manifestations, effects, and consequences of an out-of-state injury do not constitute "injury in this commonwealth," within the meaning of § 3(d)); Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D.Mass. 1976) (rejecting plaintiff's contention that the tortious injury occurred in Massachusetts because he received medical treatment here, endured pain and suffering here, and suffered impairment to his future earning capacity here after a bus accident in Maine). The Massachusetts Long Arm Statute therefore does not reach these defendants.
B. Minimum Contacts
The minimum contacts analysis proceeds in three parts: (1) whether the litigation arose from or relates to defendant's activities in the forum state; (2) whether the defendant purposefully availed itself of the privilege of conducting business in the forum state, invoking the benefits and privileges of that state, and making the defendant's presence before that state's court foreseeable; and (3) whether the court's jurisdiction over the defendant is reasonable. Mass. School of Law at Andover, Inc., 142 F.3d at 35.
As previously noted, none of plaintiff's allegations arose from any activity conducted in Massachusetts. Indeed, the termination of his membership in the KWVA, and any injury resulting from that termination, took place at the bi-annual meeting in Illinois. The complete lack of any business connection between the individual defendants and the Commonwealth of Massachusetts makes their presence before this court unforeseeable and unreasonable. As for the KWVA, the mere distribution of a national publication in Massachusetts and the posting of a web site do not rise to the level of substantial business contacts necessary to meet the purposeful availment requirement for minimum contacts. This requirement is designed to ensure that personal jurisdiction does not arise from random, isolated or fortuitous contacts with the forum state such as those listed by plaintiff. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
Finally, the sliding scale of the reasonableness prong tilts decidedly in defendants' favor. Given that none of the defendants reside, conduct substantial business, own property or maintain bank accounts in Massachusetts, requiring these elderly residents of Ohio, Virginia and New York to appear before a court in this state is unreasonably burdensome. The fact that plaintiff resides in Massachusetts does not create a state interest in the adjudication of his dispute substantial enough to trump the constitutional mandates of due process and general fairness.
Accordingly, defendants' motion to dismiss is allowed.