Lechoslaw v. Bank Of Am.

Decision Date30 August 2010
Docket NumberNo. 09-1425.,09-1425.
Citation618 F.3d 49
PartiesSzymas LECHOSLAW, Plaintiff, Appellant,v.BANK OF AMERICA, N.A., Bank Handlowy W Warszawie, SA, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

618 F.3d 49

Szymas LECHOSLAW, Plaintiff, Appellant,
v.
BANK OF AMERICA, N.A., Bank Handlowy W Warszawie, SA, Defendants, Appellees.

No. 09-1425.

United States Court of Appeals,
First Circuit.

Heard May 4, 2010.
Decided Aug. 30, 2010.


618 F.3d 50

COPYRIGHT MATERIAL OMITTED

618 F.3d 51
Timothy J. Burke, with whom Burke & Associates, was on brief for appellant.

Donn A. Randall, with whom Mary Ellen Manganelli and Bulkley, Richardson and Gelinas, LLP, were on brief for appellees.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

This is a case about a missing bank check. Appellant Szymas Lechoslaw (“Lechoslaw”) purchased a Fleet Bank (“BoA”) 1 bank check in Worcester, Massachusetts and attempted to cash it at a bank in Poland. The check was apparently lost in transit between Poland and BoA's offices in New Jersey and it took a few months before the money was finally in Lechoslaw's account in Poland. Claiming that the four-and-a-half month delay in receiving his $31,787.34 disrupted the construction of a motel and restaurant in Poland and caused him severe emotional distress, Lechoslaw sued to recover consequential damages for his loss. Following some procedural maneuvering, the case comes to us on appeal from a jury verdict as to some counts and a directed verdict as to others, all in favor of defendants. After due consideration, we affirm.

I. Facts 2 and Procedural History

On July 28, 2000, Lechoslaw visited a BoA bank branch in Worcester, Massachusetts. Lechoslaw testified that he wanted to transfer $31,787.34 to Poland. Adam Glass (“Glass”), the BoA customer representative who helped Lechoslaw with the transaction, testified that because Lechoslaw did not have all of the information necessary to send a wire transfer to Poland, an official bank check was his only option. Lechoslaw left the bank with an official check in the amount of $31,787.34. There was conflicting testimony at trial as to what transpired in the transaction. Lechoslaw testified that he asked Glass how long it would take to receive the funds from the check and stated that Glass said it would take seven to eight days to receive payment. Glass testified that he was never asked this question by Lechoslaw and that if he had, he would not have been able to answer it. According to Glass' testimony, had he been asked this question he would have directed Lechoslaw to inquire with the bank at which he intended to deposit the check.

On October 3, 2000, Lechoslaw presented the bank check for collection at Bank Handlowy w Warszawie (“Bank Handlowy”) in Poznan, Poland. At trial, Lechoslaw testified that he intended to use the proceeds of the check for a motel/restaurant project in Poznan, something that was not told to BoA or any of its agents prior to the sale of the check. While there was no testimony about this at trial, Lechoslaw

618 F.3d 52
wanted to introduce evidence that Bank Handlowy had sent the check to a BoA office in New Jersey for collection via the Polish mail system. No evidence was ever adduced that BoA actually received the check.

At some point in early December 2000, Bank Handlowy contacted BoA requesting information as to why the check had not been paid. On December 4, 2000, a BoA representative notified Bank Handlowy that they had no record of ever receiving the check, which was the reason it had not been paid. After some further communication between the banks, on December 21, 2000, Bank Handlowy sent BoA a faxed copy of the front and back of the check as well as an indemnity letter 3 as requested by BoA. On January 30, 2001, BoA forwarded the value of the check to Citibank New York in favor of Bank Handlowy. The funds were eventually deposited in Lechoslaw's account at Bank Handlowy on February 2, 2001.


A. Procedural History

Lechoslaw filed an action in Worcester Superior Court against BoA, Citibank, and Bank Handlowy on October 3, 2003.4 The Superior Court issued a tracking order on October 8, 2003, in which it established March 1, 2004 as the final date for parties to respond to Lechoslaw's complaint and to file motions under Massachusetts Rules of Civil Procedure 12, 15, 19, and 20. On November 23, 2003, Bank Handlowy answered Lechoslaw's complaint, asserting, among others, a defense of lack of personal jurisdiction. Nevertheless, Bank Handlowy became involved in discovery, specifically by: (1) filing its first set of interrogatories and First Request for the Production of Documents to Lechoslaw, (2) negotiating an extension of time to respond to Lechoslaw's discovery requests, and (3) requesting a confidentiality agreement from Lechoslaw. On May 28, 2004, Lechoslaw filed an unopposed motion to amend his complaint. In his amended complaint, Lechoslaw added a chapter 93A count against Bank Handlowy. See Mass. Gen. Laws ch. 93A. On July 20, 2004, Bank Handlowy sought leave from the Superior Court to file a motion to dismiss for lack of personal jurisdiction, citing Lechoslaw's amended complaint. The Superior Court denied Bank Handlowy's motion on August 23, 2004, but after reconsideration, allowed it. Bank Handlowy was dismissed from the case for lack of personal jurisdiction on December 2, 2004.

After continued discovery, on January 18, 2007, BoA removed the case to the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. §§ 1441 and 1446 and 12 U.S.C. § 632. On January 31, 2007, Lechoslaw filed a motion for entry of separate judgment under Federal Rule of Civil Procedure 54(b) against Bank Handlowy and in the alternative, requesting that the District Court reverse the dismissal of Bank Handlowy from the case for lack of personal jurisdiction. The District Court denied the motion on July 23, 2007.

Lechoslaw and BoA filed cross motions for summary judgment in the District Court, which treated BoA's motion as a motion for reconsideration on the issues previously decided by the Superior Court, and as a motion for summary judgment otherwise. After consideration of both

618 F.3d 53
motions, the District Court denied Lechoslaw's motion and allowed BoA's motion as to some of the claims, eventually letting proceed against BoA Lechoslaw's claim for negligence grounded on § 4-202 of the Uniform Commercial Code, a claim for negligent misrepresentation, and the chapter 93A claim.

In November 2008, Lechoslaw filed a motion for issuance of a trial subpoena to Bank Handlowy seeking to invoke the provisions of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Convention”). 23 U.S.T. 2555, 1972 WL 122493 (1968). The District Court denied the motion on December 18, 2008.

On January 12, 2009, after a request by Lechoslaw, the District Court granted leave for Lechoslaw to file an amended complaint. On February 21, 2009, Lechoslaw filed his amended complaint alleging seven counts against BoA: (1) negligence in the handling of the check; (2) breach of contract in the sale of the check; (3) breach of contract generally; (4) breach of the implied covenant of good faith and fair dealing; (5) deceit/intentional misrepresentation; (6) negligent misrepresentation, and (7) violation of chapter 93A.5,6 In his amended complaint, Lechoslaw essentially added an intentional misrepresentation claim against BoA.

On February 5, 2009, Lechoslaw served and filed his final witness list, identifying BoA's counsel, Donn Randall and Mary Ellen Manganelli, as witnesses.7 BoA filed a motion in limine to strike BoA's counsel from the witness list. After oral argument, the District Court granted BoA's motion in limine on February 13, 2009.

Trial began on February 23, 2009 and continued through February 27. During the trial, the District Court entered directed verdicts for BoA on amended counts 1, 2, 3, and 4, to the extent that summary judgment was not already granted. The District Court let the claims on negligent and intentional misrepresentation (claims 5 and 6) go to the jury, which returned a verdict for BoA on both claims. The District Court then directed a verdict in favor of BoA on the 93A claim (claim 7). Lechoslaw now appeals the dismissal of Bank Handlowy as a party to the litigation as well as various evidentiary and procedural rulings by the District Court which Lechoslaw claims precluded him from making his case.

II Discussion
A. Lechoslaw's Claims Against Bank Handlowy

Lechoslaw appeals the dismissal of Bank Handlowy from the case for lack of personal jurisdiction claiming that the trial court had both general and specific jurisdiction over Bank Handlowy, and in the alternative, that Bank Handlowy waived objections to any lack of personal jurisdiction over it.


1. Personal Jurisdiction

We begin with Lechoslaw's argument that Bank Handlowy's contacts with Massachusetts are sufficient for personal jurisdiction under its long arm statute.

618 F.3d 54
Mass. Gen. Laws ch. 223A, § 3(a) and (d). “When a court's personal jurisdiction over a defendant is contested, the plaintiff has the ultimate burden of showing by a preponderance of the evidence that jurisdiction exists.” Adams v. Adams, 601 F.3d 1, 4 (1st Cir.2010); Conn. Nat'l Bank v. Hoover Treated Wood Prods., Inc., 37 Mass.App.Ct. 231, 638 N.E.2d 942, 944 (1994). As there was no hearing on the jurisdictional question, we normally assume that the court used the prima facie method in deciding the jurisdictional question. Adams, 601 F.3d at 4. This inquiry asks “whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008). “We proceed directly to the constitutional analysis, because the Supreme Judicial Court of Massachusetts has interpreted the state's long-arm statute as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.” Id. (internal quotation marks and citations omitted). “We review the court's...

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