Chlebda v. H. E. Fortna and Bro., Inc., 79-1138

• Decision Date: 29 November 1979
• Docket Number: No. 79-1138,79-1138
• Parties: Rose CHLEBDA, Administratrix of the Estate of Joseph Chlebda, Plaintiff, Appellant, v. H. E. FORTNA AND BROTHER, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1022

609 F.2d 1022

Rose CHLEBDA, Administratrix of the Estate of Joseph Chlebda, Plaintiff, Appellant, v. H. E. FORTNA AND BROTHER, INC., Defendant, Appellee.

No. 79-1138.

United States Court of Appeals, First Circuit.

Argued Oct. 3, 1979.

Decided Nov. 29, 1979.

Marc S. Alpert, Boston, Mass., with whom Terry K. Mond was on brief, for plaintiff, appellant.

Robert A. Curley, Jr., Boston, Mass., with whom Curley & Curley, Boston, Mass., was on brief, for defendant, appellee.

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

ALDRICH, Senior Circuit Judge.

In her third amended complaint plaintiff, administratrix of one Joseph Chlebda, sought damages for Chlebda's conscious suffering and wrongful death, allegedly as a result of the negligent design of a forklift, or sideloader manufactured by defendant Raymond Corporation, against defendant appellee H. E. Fortna and Brother, Inc. for its failure to warn of the defect. ¹ The suit was brought in the District Court for the District of Massachusetts; plaintiff and Chlebda were Massachusetts citizens; Raymond, a New York corporation, was doing business in Massachusetts, and Fortna was a Pennsylvania corporation. Fortna moved to dismiss for lack of personal jurisdiction, and some days later filed an affidavit in support. This affidavit stated that Fortna had conducted no business in Massachusetts; was not registered, licensed or qualified to do business in Massachusetts; maintained no office or place of business in Massachusetts; engaged in no advertising, marketing or sales activities in Massachusetts; had sold no product and derived no revenue from sales in Massachusetts, and had had no connection with the Raymond sideloader in question.

Plaintiff filed no counter-affidavit, but simply a motion as follows:

"Plaintiff opposes defendant's motion to dismiss. Plaintiff reserves the right to file opposing memorandum, affidavits, interrogatories, after plaintiff receives defendant's affidavits and memorandum."

Apparently this motion was filed while defendant's affidavit and memorandum were in the mail. Plaintiff did not request a hearing pursuant to Local Rule 12(c)(1), but filed a memorandum in opposition to defendant's motion to dismiss, and a week later filed interrogatories and a request for production of documents. The court granted the motion to dismiss. In a short opinion it stated,

"(The discovery sought would) go to the merits of (plaintiff's) claim rather than to the jurisdictional issues. Nothing in the plaintiff's filings contradicts the defendant's affidavit and there is no indication in any of plaintiff's filings that she could meet her burden . . . of showing . . . the minimum contacts which are a prerequisite to obtaining personal jurisdiction over the defendant under the Massachusetts long arm statute, Mass.G.L. c. 223A, § 3(c)."

The claim against Raymond Corporation having been disposed of, plaintiff appeals.

In her statement of issues on appeal plaintiff puts, in various forms, the question whether jurisdiction exists where defendant by "act of omission or commission done outside of Massachusetts" causes foreseeable injury in Massachusetts. As a final issue, she complains that the court dismissed her complaint without waiting for discovery "designed to elicit facts establishing personal jurisdiction."

Abandoning her original statement that the act of omission took place outside of Massachusetts, plaintiff's brief proceeds by claiming under Mass. G.L. c. 223A, § 3(c), for "causing tortious injury by an act or omission In this commonwealth," (emphasis added), asserting that the omission occurred where the unwarned person resided. This somewhat metaphysical contention can best be tested by considering whether an omission, viz., a failure to act, may be thought to furnish the minimum contact with that state that is needed to confer jurisdiction. It seems clear that it could not be. The whole thrust of plaintiff's claim is that there was no contact at all.

It is not to be forgotten that jurisdiction is power, and that originally jurisdiction in personam required presence of the person. While power and presence have become largely symbolic, there still must be some form of submission to the state.

"(I)t is essential in each case that there be some act by which the defendant purposefully avails...