Singer v. PIAGGIO & C., 7353.

• Decision Date: 07 January 1970
• Docket Number: No. 7353.,7353.
• Citation: 420 F.2d 679
• Parties: B. Stephen SINGER, PPA, et al., Plaintiffs, Appellants, v. PIAGGIO & C. (s.p.a.), Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

420 F.2d 679 (1970)

B. Stephen SINGER, PPA, et al., Plaintiffs, Appellants, v. PIAGGIO & C. (s.p.a.), Defendant, Appellee.

No. 7353.

United States Court of Appeals First Circuit.

Heard October 6, 1969.

Decided January 7, 1970.

Albert P. Zabin, with whom Joseph Schneider and Schneider & Reilly, Boston, Mass., were on brief, for plaintiffs-appellants.

Andrew B. Goodspeed, with whom Goodspeed & Stramondo, Boston, Mass., was no brief, for defendant-appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

The plaintiff,¹ a citizen of Pennsylvania, purchased there a Vespa motor scooter made in Italy by defendant Piaggio & C. (s. p. a.) and subsequently was injured in Florida due, allegedly, to a manufacturing defect. Asserting that the defendant is doing business in Massachusetts, plaintiff brought suit in the federal court in that district, and when, thereafter, Massachusetts passed a long arm statute, Mass.G.L. c. 233A (1968), made a second service thereunder. The district court granted defendant's motion to dismiss for lack of jurisdiction, on the ground that defendant is clearly not doing business in Massachusetts and that the 1968 Massachusetts long arm statute is not retrospective. The holding denying retrospectivity was error. Diamond Crystal Salt Co. v. P. J. Ritter Co., 419 F.2d 147, 1 Cir., 12/30/69.² We consider, therefore, whether defendant's activities satisfy any of the statute's provisions.

At the time of plaintiff's injury, and prior thereto, defendant sold its scooters under a franchise agreement to a Massachusetts corporation, Vescony, Inc., whose principal place of business was in that state. Except for Sears, Roebuck & Co., Vescony had an exclusive franchise for forty states, including all of the eastern seaboard. It purchased the scooters from the defendant f. o. b. Genoa, Italy, landed them in various United States ports, including Massachusetts, and warehoused them in various cities. The evidence does not warrant a finding that the scooter purchased by the plaintiff was ever in Massachusetts.

Defendant had no interest, direct or indirect, in Vescony. Its sole right was to cancel the franchise if Vescony did not meet stated quotas. This was not sufficient control to make Vescony its agent, as plaintiff concedes.

Plaintiff relies upon the following provisions of the Massachusetts long arm statute.

"§ 3. Transactions or conduct for personal jurisdiction

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person\'s

(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;"

Taking the latter subsection first, the phrase "contracting to supply services or things in this commonwealth" must be read together with the prior phrase, "cause of action arising from. * * *" Plaintiff's cause of action did not arise from and was not connected with any shipment into or services within the commonwealth. It would be an unwarranted extension of the statute to include shipments elsewere merely because, under the same contract, goods unrelated to the cause of action may have been introduced into the commonwealth.

Plaintiff fares no better under subsection (a). Even if we were to assume that defendant's activities constituted the transaction of business in the commonwealth, but see Standard Wine & Liquor Co. v. Bombay Spirits Co., 1967, 20 N.Y.2d 13, ...