Canning v. Gunstock Area Com'n

• Decision Date: 21 September 1988
• Docket Number: Civ. A. No. 88-0490-C.
• Citation: 695 F. Supp. 602
• Parties: Heather J. CANNING and Joyce L. Canning, Plaintiffs, v. GUNSTOCK AREA COMMISSION, individually and d/b/a Gunstock Recreation Area, Defendant.
• Court: U.S. District Court — District of Massachusetts

695 F. Supp. 602

Heather J. CANNING and Joyce L. Canning, Plaintiffs, v. GUNSTOCK AREA COMMISSION, individually and d/b/a Gunstock Recreation Area, Defendant.

Civ. A. No. 88-0490-C.

United States District Court, D. Massachusetts.

September 21, 1988.

Robert C. Canning, Boyle Sorgi & Thrasher, Norwell, Mass. for plaintiffs.

Richard Shea, Melick & Porter, Boston, Mass., for defendant.

MEMORANDUM

CAFFREY, Senior District Judge.

The plaintiffs, residents of Massachusetts, have brought this negligence action against the Gunstock Area Commission ("Gunstock"), a New Hampshire corporation. Jurisdiction in this case is based on diversity of citizenship. The case is now before the Court on the defendant's motion to dismiss for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). The defendant asks, in the alternative, for a change of venue to the United States District Court for the District of New Hampshire, pursuant to 28 U.S.C. § 1404.

On March 7, 1987, the minor plaintiff, Heather Canning, was injured as a result of a fall while skiing on the defendant's premises in Laconia, New Hampshire. The plaintiffs argue that the injury was caused by defendant's alleged negligence, including a failure to provide adequate ski instruction and insufficient trail grooming. The defendant points out that the injury occurred exclusively within the state of New Hampshire, and argues that the plaintiffs' cause of action does not arise out of any business transaction, solicitation, or minimum contacts of the defendant with Massachusetts. The defendant accordingly asks the Court to dismiss plaintiffs' complaint for lack of personal jurisdiction over Gunstock.

In a diversity action where the defendant has challenged personal jurisdiction, the district court must look to the law of the forum state to determine whether the jurisdictional requirements are satisfied. Hahn v. Vermont Law School, 698 F.2d 48, 49 (1st Cir.1983); Morse v. Walt Disney World Co., 675 F.Supp. 42, 43 (D.Mass. 1987). The Massachusetts long-arm statute, Mass.Gen.L.Ann. ch. 223A § 3 (West 1985), imposes restraints on the Court's exercise of jurisdiction over a non-resident in addition to the due process requirements under the United States Constitution. Gray v. O'Brien, 777 F.2d 864, 866 (1st Cir.1985); Carlson Corp. v. University of Vermont, 380 Mass. 102, 105, 402 N.E.2d 483 (1980). A two-pronged analysis therefore applies: (1) does the long-arm statute authorize jurisdiction over the non-resident defendant, and (2) if so, would the exercise of jurisdiction under the circumstances be consistent with basic due process requirements mandated by the United States Constitution? Morse v. Walt Disney World Co., 675 F.Supp. at 43. Given that we find the plaintiffs have not established facts sufficient to support the valid exercise of jurisdiction under the Massachusetts long-arm statute, it is unnecessary to reach the question of whether such an exercise of jurisdiction would be consistent with due process requirements.¹American Freedom Train Foundation v. Spurney, 747 F.2d 1069, 1075 (1st Cir.1984).

It is well-established that when the defendant has challenged the court's in personam jurisdiction, the plaintiff has the burden of proving the court's jurisdiction. Gray v. O'Brien, 777 F.2d at 866; Catrone v. Ogden Suffolk Downs, Inc., 647 F.Supp. 850, 856 (D.Mass.1986). To establish personal jurisdiction, the plaintiff must go beyond the pleadings and make affirmative proof. Chlebda v. H.E. Fortna & Brother, Inc., 609 F.2d 1022 (1st Cir.1979). As the court in Val Leasing, Inc. v. Hutson, 647 F.Supp. 53 (D.Mass.1987), stated: "Through affidavits and other competent evidence, a plaintiff must make out a prima facie case for the existence of personal jurisdiction, demonstrating at a minimum that there is competent evidence to support each of the relevant jurisdictional prerequisites." Id. at 55. Though we recognize that this standard requires only a threshold showing, North American Video Corp. v. Leon, 480 F.Supp. 213, 215-16 (D.Mass. 1979), we find that the plaintiffs have failed to meet this burden in the present case.

Discovery regarding the issue of personal jurisdiction was to be completed by September 10, 1988. At the time the parties presented arguments before this Court at a jurisdictional hearing on September 15, plaintiffs' counsel had not conducted any discovery on the jurisdictional issue. In response to the defendant's motion to dismiss and the supporting memorandum, the plaintiffs submitted a memorandum in opposition to Gunstock's motion the day of the hearing. Plaintiffs' memorandum was not accompanied by affidavits or other competent evidence on the jurisdictional issue. The memorandum merely advanced bare allegations regarding the defendant's promotional activities, advertising, and ticket sales in Massachusetts.

Despite the September 10 discovery deadline on the jurisdictional issue, plaintiffs' memorandum asserted that subsequent pre-trial discovery would document the plaintiffs' allegations as to the Court's in personam jurisdiction over Gunstock. The plaintiffs failed to acknowledge that their discovery...