Labbe v. Nissen Corp.

Citation404 A.2d 564
PartiesEmilien Richard LABBE et al. v. NISSEN CORPORATION.
Decision Date19 July 1979
CourtSupreme Judicial Court of Maine (US)

Pierce, Atwood, Scribner, Allen, Smith & Lancaster by John J. O'Leary, Jr. (orally), Ralph I. Lancaster, Jr., Portland, for plaintiffs.

Thompson, Willard & McNaboe by Alan S. Polackwich (orally), Portland, for defendant.

Before POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

This appeal presents a significant jurisdictional issue, and for us a novel one. The issue is the amenability of a non-consenting foreign corporation to a suit brought by Maine citizens in a Maine court upon a cause of action which arose beyond the borders of our state.

In the winter of 1975 Emilien Richard Labbe, of Lewiston, Maine, was stationed at a United States Air Force Base in Woodbridge, England. Living with him on that base were his wife, Marcelle Labbe, and their twelve-year-old daughter. Mary Labbe. The three are the Plaintiffs in this action.

On March 17, 1975, while Mary Labbe was attending a seventh grade physical education class on that Air Force Base a trampoline manufactured by the Defendant, Nissen Corporation, unexpectedly slammed shut on the girl's arm, fracturing it in three places.

After their return to Maine some months later the Plaintiffs commenced this action in Superior Court in Androscoggin County on February 7, 1977. In separate counts they alleged negligence, breach of warranty and strict liability on the Defendant's part. For the daughter the Plaintiffs sought damages for pain and suffering, permanent injuries and impairment of earning capacity. For the parents they sought damages for medical, hospital and drug expenses and for the parents' loss of companionship. Pursuant to M.R.Civ.P. 4(e) the Defendant was properly served with process at its corporate headquarters in Cedar Rapids, Iowa.

When the Defendant failed to seasonably serve and file an answer or otherwise plead to this complaint, upon the Plaintiffs' application, the Clerk entered a default on March 11, 1977. Later that month after the Plaintiffs moved for judgment by default, the Defendant requested the court to set aside the default on the sole ground that the court lacked personal jurisdiction over it. After hearing and argument by counsel, on June 24, 1977, the Superior Court set aside the default for good cause shown. Upon the Defendant's subsequent motion to dismiss for lack of personal jurisdiction, on September 26, 1978, the Superior Court dismissed the complaint. From that dismissal the Plaintiffs bring the case here on appeal.

We sustain the appeal.

The facts relating to the ties between the respective parties and the State of Maine are not disputed.

The Defendant is an Iowa corporation, with registered offices in seven states, including Massachusetts but not including Maine. It manufactures and sells athletic and sporting goods. Its wares include trampolines as well as other gymnastic equipment.

Although the Defendant has no office or place of business in Maine, its wares are sold here through independent and non-exclusive dealers. The dealers send their orders to the Defendant, and it ships the items directly to the customers. The sales in Maine amounted to approximately $400,000 over the past five years, or about $80,000 a year. This represents only 0.7% Of the total sales of the Defendant's multi-state and multi-national business. Its largest source of customers here are Maine schools, to which the Defendant directly sends sales literature on a regular basis. In addition, the Defendant advertises in more than ten magazines which are distributed in Maine. It has no employees, agents or representatives in the state, nor does the Defendant have a telephone number, mailing address, bank account or real estate here. It does not appear on this record that the Defendant has had occasion to file a state tax return in Maine nor has it heretofore been a party to a lawsuit in Maine.

The Plaintiffs attack the dismissal of their complaint on two fronts. First they assert that under traditional common law rules, through the Defendant's business activities in the state it was "present" here. Alternatively, they assert that under Maine's "doing business" statute, 13-A M.R.S.A. § 1213, the Defendant had submitted itself to the personal jurisdiction in Maine courts.

With equal vigor the Defendant maintains that its contacts with Maine are so tenuous that it would be a denial of due process for Maine courts to assert jurisdiction over it. Alternatively, the Defendant urges that, under a correct interpretation of 13-A M.R.S.A. § 1213, no jurisdiction over it exists here.

Resolution of this controversy requires us to re-examine the interplay, if any, between the common law basis and the statutory basis of acquiring jurisdiction over foreign corporations.

It is well settled that a state need not provide its courts with jurisdiction over every action which under the Due Process Clause of the Federal Constitution 1 could conceivably be brought in that state. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 440, 72 S.Ct. 413, 415, 96 L.Ed. 485, 490 (1952); Missouri Pac. R. R. Co. v. Clarendon Boat Oar Co.,257 U.S. 533, 535, 42 S.Ct. 210, 211, 66 L.Ed. 354, 356 (1922); Caso v. Lafayette Radio Electronics Corp., 370 F.2d 707, 710 (1st Cir. 1966). While on the one hand a court's reach over non-residents can fall short of the outer boundaries of due process, on the other hand it cannot overstep those boundaries. Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683, 705 (1977); Perkins v. Benguet Consol. Mining Co., supra; Bowman v. Curt G. Joa, Inc., 361 F.2d 706, 714 (4th Cir. 1966).

Our first task, then, is to determine whether the statute here invoked, 13-A M.R.S.A. § 1213, confers jurisdiction on Maine courts as broadly as the Fourteenth Amendment and the Due Process Clause of Maine's Constitution 2 would permit, or whether this statute further limits that jurisdiction in a manner not constitutionally mandated. The provisions of the two constitutions are couched in terms identical in meaning. Green v. State, Me., 247 A.2d 117, 119 (1968).

13-A M.R.S.A. § 1213 provides in pertinent part:

Every foreign corporation which does any business in this State without having been authorized to do business in this State thereby submits itself to the jurisdiction of the courts of this State, and also thereby designates the Secretary of State as its agent upon whom any process, notice or demand upon it may be served in any action or proceeding arising out of or in connection with the doing of any business in this State.

The Plaintiffs contend that under this statute Maine courts have jurisdiction over the Defendant because it is a foreign corporation which does "any business" in this state without having been authorized to do business in Maine. The Defendant maintains, on the contrary, that the statute, read in its entirety, confers jurisdiction on Maine courts only where the action "arises out of" or is in "connection with" business transacted in this state.

The determination of legislative intent is the fundamental rule in the interpretation of a statute. State v. Hussey, Me., 381 A.2d 665, 666 (1978); State v. Tullo, Me., 366 A.2d 843, 848 (1976). In seeking legislative intent the court must first look to the language of the statute itself. In re Spring Valley Development, Me., 300 A.2d 736, 742 (1973); Lewiston-Auburn United Grocers, Inc. v. Johnson, Me., 253 A.2d 338, 339 (1969).

In examining the language of this statute, it appears to be comprised of two parts. The first part reads: "Every foreign corporation which does any business in this State without having been authorized to do business in this State thereby submits itself to the jurisdiction of the courts of this State . . . ." Separated from this part of the statute by a comma, and introduced by the words "and also," is a second clause which reads:

"and also thereby designates the Secretary of State as its agent upon whom any process, notice or demand upon it may be served in any action or proceeding arising out of or in connection with the doing of any business in this State."

Nothing in a statute may be treated as surplusage if a reasonable construction supplying meaning and force is otherwise possible. Finks v. Maine State Highway Comm'n, Me., 328 A.2d 791, 799 (1974); National Newark & Essex Bank v. Hart, Me., 309 A.2d 512, 520 (1973).

The word "and" is ordinarily a conjunction connecting words or phrases and expressing the idea that the latter is to be added to, or taken along with, the former. Hailey v. County Board of School Trustees, 21 Ill.App.2d 105, 157 N.E.2d 570, 574 (1959); In re Rapid Film Service, Inc., 181 Neb. 1, 146 N.W.2d 563, 565 (1966). The word "also" means among other things "in addition," "in like manner," or "besides." Carr v. District of Columbia, 177 U.S.App.D.C. 432, 543 F.2d 917, 922 (1976); Brady v. Nichols, 308 S.W.2d 100 (Tex.Civ.App.1957).

Although punctuation is to be subordinated to the text, it is plainly a proper guide in the interpretation of statutes. Taylor v. Town of Caribou, 102 Me. 401, 405, 67 A. 2 (1907). A comma is generally used to indicate the separation of words, phrases, or clauses from others not closely connected in the structure of the sentence.

Taken as a whole, this linguistic and grammatical analysis indicates that the two parts of 13-A M.R.S.A. § 1213 are to be read separately, and the one distinguished from the other. The first half creates a general sanction against the doing of unauthorized business in Maine; the second provides for a simplified service of process in those instances where the cause of action arises out of the corporation's business activity in Maine.

Without changing its meaning one whit, the statute could be rewritten as follows:

Every foreign corporation which does any business in this state without having been authorized to...

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