Aldabe v. Atl. Int'l Bank Ltd.

• Citation: 100 Mass.App.Ct. 1124,182 N.E.3d 343 (Table)
• Decision Date: 16 February 2022
• Docket Number: 21-P-400
• Parties: Fermin ALDABE v. ATLANTIC INTERNATIONAL BANK LIMITED & others.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1124

182 N.E.3d 343 (Table)

Fermin ALDABE

v.ATLANTIC INTERNATIONAL BANK LIMITED & others.¹

21-P-400

Appeals Court of Massachusetts.

Entered: February 16, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment dismissing his complaint for lack of personal jurisdiction pursuant to Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). On appeal, the plaintiff no longer contests dismissal, but argues that we should amend the judgment to qualify the dismissal as being "without prejudice." We decline to do so, and affirm the judgment.

Background. As alleged in the complaint and affidavits submitted in support of the motion to dismiss, the facts are as follows. See Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 n.4 (1989). The plaintiff incorporated Palma Efuus Ltd. (Palma) in Belize, naming his wife Elizabeth M. Braun as its sole shareholder and director.³ Palma opened an account with defendant Atlantic International Bank Limited (AIB), a Belizean bank. Both the plaintiff and Braun are Massachusetts residents.

In connection with litigation brought in 2018 by the Federal Trade Commission (FTC) in the United States District Court for the District of Maryland, AIB's assets were frozen. As a result, Belizean authorities, including the individual defendants, revoked AIB's banking license and proceeded to liquidate AIB's assets. The United States Bankruptcy Court for the Southern District of Florida subsequently recognized the Belizean liquidation proceeding. In January 2020, in the Belizean liquidation proceeding, the plaintiff filed a claim on behalf of Palma, which the Belizean liquidator allowed.⁴

In April 2020, the plaintiff filed the complaint in this case in the Middlesex Superior Court. As amended, it alleged that AIB had defrauded its depositors, and that the individual defendants’ conduct in liquidating AIB's assets constituted a conspiracy with AIB and the FTC to defraud AIB's depositors. The defendants moved to dismiss for lack of personal jurisdiction, requesting that the complaint be dismissed "with prejudice." The judge allowed the motion, concluding that, because none of the defendants had transacted any business or contracted to supply services or things in Massachusetts, the court lacked personal jurisdiction over them under the long-arm statute, G. L. c. 223A, § 3. Judgment entered for the defendants, but the judgment did not specify whether the dismissal was with or without prejudice.

On the same day that judgment entered, the plaintiff filed a request for clarification.⁵ The judge endorsed it, "No Action Taken as this motion does not comply with Rule 9A." See Rule 9A of the Rules of the Superior Court (2018).⁶ The plaintiff also filed a timely notice of appeal from the judgment of dismissal.

The plaintiff then filed a "motion to correct error arising from oversight or omission in the ruling to dismiss," requesting pursuant to Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974), that the judge specify that the judgment of dismissal entered without prejudice. That motion stated that it was filed "[p]ursuant to Rule 9A (a) (2)," but it was not accompanied by an affidavit showing that the plaintiff had complied with the requirement that he serve the motion on the defendants and give them the opportunity to respond before filing the motion in court.⁷ See rule 9A (b) (2) (ii). The judge endorsed the motion, "DENIED without prejudice. It does not comply with Rule 9A." The plaintiff did not file a notice of appeal from that ruling.

Discussion. Although the plaintiff does not contest the merits of the judge's dismissal of the complaint, we note the following. "Where, as here, [the trial] court dismisses a case for lack of personal jurisdiction based on the prima facie record, rather than after an evidentiary hearing or factual findings, our review is de novo." C.W. Downer & Co. v. Bioriginal Food & Science Corp., 771 F.3d 59, 65 (1st Cir. 2014). When personal jurisdiction has been challenged under Mass. R. Civ. P. 12 (b) (2), the plaintiff bears the burden of adducing facts on which personal jurisdiction may be found. See Roch v. Mollica, 481 Mass. 164, 165 (2019). Based on the allegations in the complaint and affidavits from each of the individual defendants, the judge concluded that neither the defendants nor AIB had transacted any business in Massachusetts or contracted to supply services or things in Massachusetts within the meaning of G. L. c. 223A, §§ 3 (a ) and (b ). AIB's banking relationship with Palma, a Belizean corporation, did not amount to transacting business in Massachusetts merely because Palma's sole shareholder and director, Braun, and her husband, the plaintiff, are Massachusetts residents. See Welford v. Nobrega, 411 Mass. 798, 805-806 (1992) (no personal jurisdiction shown for Connecticut bank which executed and administered trust in New Hampshire containing Massachusetts lottery proceeds). Compare von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 490 (2019) (personal jurisdiction shown for Swiss bank where its agent repeatedly traveled to Massachusetts, including with plaintiff, to advise her about private equity investments here). The judge did not err in dismissing the complaint for lack of personal jurisdiction.

The plaintiff argues that we should direct the Superior Court to amend its judgment to specify that the dismissal of the complaint was without prejudice. The relevant rule provides: "[U]nless the court in its order for dismissal otherwise specifies," a dismissal for lack of jurisdiction does not operate as an adjudication on the merits. Mass. R. Civ. P. 41 (b) (3), as amended, 454 Mass. 1403 (2009). See North Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009) ("dismissal for lack of personal jurisdiction is ordinarily without prejudice").⁸

The plaintiff moved to amend the judgment of dismissal pursuant to Mass. R. Civ. P. 60 (a), which provides that the judge on his own initiative or upon motion of any party may correct "[c]lerical mistakes in judgments ... arising from oversight or omission." See, e.g., Franchi Mgt. Co. v. Flaherty, 93 Mass. App. Ct. 418, 422 (2018). The scope of rule 60 (a) is limited to the correction of clerical errors to reflect the intent of the trial court. See Haffey v. Rock, 75 Mass. App. Ct. 686, 689-690 (2009) (where, in 1989, judge ordered entry of judgment dismissing complaint with prejudice unless parties’ settlement agreement was filed within thirty days, another judge properly corrected judgment under rule 60 [a] decades later to conform to first judge's intent). Compare Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 395-401 (1994) (eight years after divorce judgment entered, another judge properly declined to amend it to include parcel of land, where first judge had retired and his intent could not be determined).

Here, unlike in Haffey and Gagnon, the judge who entered the judgment is available to clarify any ambiguity in its meaning. Where the plaintiff did not comply with the service and filing...