787 F.2d 7 (1st Cir. 1986), 85-1766, Kowalski v. Doherty, Wallace, Pillsbury & Murphy, Attorneys at Law

Docket Nº:85-1766.
Citation:787 F.2d 7
Party Name:Linda KOWALSKI, N.K.A. Linda Larochelle, et al., Plaintiffs, Appellants, v. DOHERTY, WALLACE, PILLSBURY AND MURPHY, ATTORNEYS AT LAW, Defendant, Appellee.
Case Date:March 26, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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787 F.2d 7 (1st Cir. 1986)

Linda KOWALSKI, N.K.A. Linda Larochelle, et al., Plaintiffs,

Appellants,

v.

DOHERTY, WALLACE, PILLSBURY AND MURPHY, ATTORNEYS AT LAW,

Defendant, Appellee.

No. 85-1766.

United States Court of Appeals, First Circuit

March 26, 1986

Argued Jan. 9, 1986.

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Charles E. Dibble, Contoocook, N.H., for plaintiffs, appellants.

John V. Dwyer, Jr., with whom Hamblett & Kerrigan Professional Association, Nashua, N.H., was on brief, for defendant, appellee.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from a dismissal for lack of personal jurisdiction over defendant, a professional law firm corporation. New Hampshire residents Linda Kowalski, n/k/a Linda Larochelle (Larochelle), and her two children, brought this malpractice diversity suit in the United States District Court for the District of New Hampshire against the Massachusetts law firm of Doherty, Wallace, Pillsbury and Murphy in April 1985. Plaintiffs-appellants sought damages for the alleged wrongful dismissal of a wrongful death action against the man who, in October 1970, murdered Robert J. Kowalski, then Larochelle's husband. By order dated July 17, 1985, the district court granted defendant-appellee's Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. Final judgment was entered on July 23, 1985, and Larochelle appealed. We affirm the judgment below on the ground that plaintiffs failed to establish in personam jurisdiction over defendant under the New Hampshire long-arm statute pertinent to foreign corporations, N.H.Rev.Stat.Ann. Sec. 293-A:121 (formerly N.H.Rev.Stat.Ann. Sec. 300:14). 1

When the court's jurisdiction is contested, the plaintiff has the burden of proving that jurisdiction exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Dalmau Rodriguez v. Hughes Aircraft Co., 781 F.2d 9, 10 (1st Cir.1986); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980). Where there has been no evidentiary hearing and the court proceeds upon written submissions, plaintiff "need only make a prima facie showing that jurisdiction exists...." 2A J. Moore & J. Lucas, Moore's Federal Practice p 12.07[2.-2] (2d ed. 1985); 2 J. Moore, J. Lucas, H. Fink & C. Thompson, Moore's Federal Practice p 4.41-1 (2d ed. 1985). If jurisdiction is decided after an evidentiary hearing, there would be consideration of facts in evidence rather than on written submission. 2A Moore's Federal Practice at p 12.07[2.-2]. Here, there was no hearing. Plaintiffs' Statement of Evidence or Proceeding, relying on Federal Rule of Appellate Procedure 10(c) to supplement the record on appeal, is not properly before us. The rule only applies "[i]f no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable...." We consider only those written submissions of the parties before the district court when it rendered its decision.

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Plaintiffs' written allegations of jurisdictional facts are construed in their favor. Murphy v. Erwin-Wassey, Inc., 460 F.2d 661, 663 (1st Cir.1972); 2A Moore's Federal Practice at p 12.07[2.-2]. A showing of personal jurisdiction, however, must be based on specific facts set forth in the record in order to defeat a motion to dismiss. Chlebda v. H.E. Fortna and Brother, Inc., 609 F.2d 1022, 1024 (1st Cir.1979); Weller v. Cromwell Oil Co., 504 F.2d 927, 929-30 (6th Cir.1974). The facts derived from the pleadings and affidavits are as follows.

In November 1970, Larochelle retained the defendant law firm to represent her in various matters following the death on October 29, 1970, of her husband, Robert J. Kowalski. When she retained the firm, Larochelle was a resident of Chicopee, Massachusetts.

Richard J. Gagne, also a Massachusetts resident, was subsequently convicted of the second degree murder of Kowalski and was sentenced to life imprisonment. He remained incarcerated until paroled in 1984.

The law firm handled various matters for Larochelle, including the probate of Kowalski's estate, representing her interests in connection with the criminal investigation into her husband's death, and negotiating with the Internal Revenue Service and numerous creditors. All representation of Larochelle took place in Massachusetts. In September 1972, the firm filed suit in Hampden County Superior Court in Massachusetts on behalf of Larochelle and her two children against Gagne for the wrongful death of her husband.

At the time of filing the wrongful death action, Larochelle was a resident of Washington, New Hampshire. She has been a resident of New Hampshire continuously since June 1971. Construing the pleadings and affidavits most favorably to the plaintiff, we find that the defendant was aware of Larochelle's residency in New Hampshire at the time of bringing the lawsuit against Gagne.

On July 11, 1979, the Hampden County Superior Court dismissed the wrongful death action after carrying it on the "non-triable" list for several years. The gravamen of plaintiffs' claim is that they did not consent or agree to the dismissal of the wrongful death suit. The complaint further alleges that the defendant took no steps to set aside the dismissal subsequent to that date and that, at the time of the dismissal, the statutory period had passed for refiling a complaint against Gagne. The basis of the malpractice action is negligently allowing the complaint to be dismissed.

The defendant law firm is, and has been at all times since 1970, located in Springfield, Massachusetts. It incorporated in 1981 and has been a professional corporation since that time. The firm maintains no agent in New Hampshire. No member of the firm is a member of the New Hampshire Bar. The firm solicits no business in New Hampshire nor does it practice in the state's courts. The firm owns no property in New Hampshire.

The issue, then, is whether the defendant's knowledge of the fact that Larochelle was a resident of New Hampshire, while it undertook to represent her in Massachusetts on a Massachusetts cause of action, subjects it to the personal jurisdiction of the New Hampshire courts.

"In diversity actions where personal jurisdiction has been challenged...

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