AJ Cunningham Pack. Corp. v. Florence Beef Co.

• Decision Date: 08 January 1982
• Docket Number: Civ. A. No. 80-2389-MC.
• Citation: 529 F. Supp. 515
• Parties: A. J. CUNNINGHAM PACKING CORP., Plaintiff, v. FLORENCE BEEF COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

529 F. Supp. 515

A. J. CUNNINGHAM PACKING CORP., Plaintiff, v. FLORENCE BEEF COMPANY, Defendant.

Civ. A. No. 80-2389-MC.

United States District Court, D. Massachusetts.

January 8, 1982.

Arnold E. Cohen, Malcolm D. Finks, Englander, Englander & Englander, Boston, Mass., for plaintiff.

Thomas D. Burns, Burns & Levinson, Boston, Mass., for defendant.

MEMORANDUM AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

McNAUGHT, District Judge.

This action came on to be heard on defendant Florence Beef Company's motion for summary judgment, predicated on an asserted lack of personal jurisdiction over the defendant, and upon asserted lack of proper service.

The plaintiff is a Massachusetts corporation. The defendant is incorporated under the laws of the State of Maryland. Plaintiff seeks damages allegedly resulting from the defendant's repudiation of an agreement to purchase beef products. Both parties submitted affidavits and memoranda of law in support of their respective positions.

We begin with the general proposition that "the burden of proving the facts necessary to sustain jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Chem Lab Products, Inc. v. Stepanek, 554 F.2d 371 (9th Cir. 1977); Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974)", Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir. 1980).

In December of 1979, four loads of boneless beef were ordered by the defendant from the plaintiff through the Lincoln Brokerage Corporation, Jenkintown, Pennsylvania. Florence Beef does no advertising within the Commonwealth of Massachusetts, has no office or warehouse within the Commonwealth of Massachusetts, has no sales representatives, agents or employees within the Commonwealth, and is not registered with the Secretary of State of the Commonwealth or any other agency. It has never been so registered.

(Affidavit of Marvin H. Weiner, Assistant Treasurer, Florence Beef Company, marked Exhibit A to defendant's memorandum).

Letters confirming the defendant's orders were sent by defendant to plaintiff December 28, 1979. The affidavit of plaintiff's operations manager contains the statement that Florence Beef on January 10, 1980 signed and returned to the plaintiff the confirmation orders which provided in paragraph 11 that: "The parties agree that at the option of the Seller (plaintiff here) the courts of Massachusetts shall have jurisdiction over the parties with respect to any controversy, claim or dispute arising out of this contract...". The defendant, acting through an employee, S. Barr, telephoned plaintiff to change the original terms of the order. Three of the confirmation orders were altered before the documents were returned to the plaintiff. On January 22, 1980 three loads of merchandise were delivered by plaintiff to defendant's business at Mt. Airy Cold Storage in Baltimore, and one load Ex-Dock, New York City. Defendant subsequently repudiated the agreement, claiming that the meat contained an excessive fat content, and transferring it from its own name to the plaintiff's name at the Cold Storage without plaintiff's consent. Defendant owns or controls Mt. Airy Cold Storage. Plaintiff, to regain possession, paid $4,473.60 in storage charges. Defendant also invoiced plaintiff the amount of $623.78 representing costs in shipping to Mt. Airy the meat plaintiff had delivered Ex-Dock, New York. Plaintiff also claims a loss of profit, having to resell at a lower price.

In connection with the refusal of defendant to accept the meat, defendant, through its employees, contacted plaintiff's place of business in Massachusetts on a number of occasions beginning January 28, 1980.

Plaintiff and defendant had made sales of meat products to each other prior to 1979. Plaintiff had sold to defendant substantial amounts of products in each year from 1975 through 1980, and defendant had sold to plaintiff during the years 1977, 1978 and 1979. Each of the transactions had resulted in transmittal by defendant to plaintiff in Massachusetts of hundreds of letters, invoices, order forms, and telephone calls. (See affidavit of Alexander Knight).

There are two sets of sales documents here actually, and they have apparently conflicting provisions regarding the law governing the contract, its place of execution, and the choice of forum. Exhibits A and B to defendant's answers to interrogatories (confirmation of sales documents) include among their terms that the contract "shall be deemed to have been entered into in the State of Maryland, and any controversy, claim or dispute arising out of the same, shall be governed by the laws of Maryland. The parties agree that at the option of the buyer, the courts of Maryland shall have jurisdiction over the parties with respect to any controversy, claim or dispute arising out of this contract...". As recited hereinbefore, exhibits to the affidavit of Alexander Knight (A-1 through A-4) entitled "Sales Confirmation Order" use the word "Massachusetts" instead of "Maryland". Ordinarily, it would seem that the court could give effect to the choice of forum chosen by the parties. Here, it is not clear what the parties agreed to, if anything. It was suggested by one of the parties that the provisions are not necessarily inconsistent; that buyer and seller could agree that the courts of both Maryland and Massachusetts should have jurisdiction over the parties. It is my opinion, and I therefore rule, that the conflicting provisions cancel each other out, by reason of the fact that they do not indicate an agreement on the part of the parties. Common sense indicates that although the word "exclusive" was not used, one party intended that Massachusetts courts should have jurisdiction, while the other intended that the courts of Maryland should have jurisdiction over the person.

Since...