Gunner v. Elmwood Dodge, Inc.

• Decision Date: 17 April 1987
• Parties: Jerald M. GUNNER v. ELMWOOD DODGE, INC.
• Court: Appeals Court of Massachusetts

Page 175

506 N.E.2d 175

24 Mass.App.Ct. 96

Jerald M. GUNNER v. ELMWOOD DODGE, INC.

Appeals Court of Massachusetts,

Bristol.

Argued Dec. 9, 1986.

Decided April 17, 1987.

Jerald M. Gunner, Fall River, pro se.

Daniel M. McDonald, Fall River, for defendant.

Before DREBEN, QUIRICO and KASS, JJ.

KASS, Justice.

What the parties present for decision, a question of jurisdiction under the "long-arm" statute (G.L. c. 223A), was raised by the allowance of a motion to dismiss the action under Mass.R.Civ.P. 12(b)(2), 365 Mass. 755 (1974).

An affidavit and a deposition submitted by the plaintiff in opposition to the motion to dismiss (see Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 3, 389 N.E.2d 76 [1979]; Balloon Bouquets, Inc. v. Balloon Telegram Delivery, Inc., 18 Mass.App.Ct. 935, 466 N.E.2d 523 [1984]; Smith & Zobel, Rules Practice § 12.9 [1986 Supp.] ), and the facts pleaded in the complaint (taken for these purposes as true) may be said to have established that the defendant, a Dodge automobile sales agency, had its sole place of business in East Providence, Rhode Island, one-half mile from the Massachusetts border, and that its contacts with Massachusetts were the following: it frequently advertised in the Fall River Herald News, a daily paper; it advertised in The Providence Journal, a newspaper with circulation in southeastern Massachusetts; it advertised on television stations whose signals originated in Rhode Island but were widely received in southeastern Massachusetts; it advertised on a Fall River radio station; and it mailed advertising circulars to Massachusetts residents. Nothing in the record suggests that the defendant owns any property in Massachusetts, sends in any employees or agents, or performs any work in Massachusetts. More precisely put, then, the issue in the case is: Does the dissemination, on a persistent basis, of advertising, print and electronic, aimed at cultivating a market area in Massachusetts, without any other contact in Massachusetts, constitute transacting business for purposes of G.L. c. 223A, § 3(a )? ¹ We think it does.

The underlying transaction was the purchase of a 1985 Dodge Omni automobile. Gunner, the plaintiff, a resident of Fall River, saw numerous advertisements placed by Elmwood Dodge in the Fall River Herald News. As a result of seeing the advertisements, he called Elmwood Dodge on the telephone and asked the price for a 1985 Omni, dressed with the options the plaintiff wanted. A salesman called back and gave the plaintiff a price. The plaintiff made the short trip to East Providence, where on October 15, 1984, he signed a purchase agreement. On December 27, 1984, the plaintiff took delivery at the defendant's place of business. If there was any honeymoon between the new owner and his car, it was extremely short. Gunner took the car back to the dealer's service department in East Providence nine times: on December 31, 1984; January 17, 1985; January 21, 1985; February 5, 1985; February 12, 1985; March 4, 1985; May 24, 1985; June 6, 1985; and June 19, 1985. The dealer's ministrations, the complaint alleges, made things worse, producing among other things, sudden surges of acceleration, a dented hood, and a stained seat and rug. Ultimately the plaintiff took up his troubles with the manufacturer, which arranged for repairs at another agency, and not at the plaintiff's expense. Some defects persisted and the plaintiff alleges various damages, including loss of income while waiting at the defendant's place of business. The plaintiff is a lawyer; he is not, apparently, prepared to write the time off to continuing education.

If a Massachusetts court is to exercise jurisdiction over a nonresident defendant, it must determine the existence of "minimum contacts" with the would-be defendant. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Those contacts must be such that requiring the nonresident to defend in the forum State will not offend "traditional notions of fair play and substantial justice." Ibid. In each case there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, and, thereby, invokes the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). These fundamental precepts of State jurisdiction in a Federal system are restated in Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). The long-arm statute constitutes an assertion of jurisdiction to the limits of the United States Constitution, Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 152, 376 N.E.2d 548 (1978), but there are limits. Id. at 157, 376 N.E.2d 548. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In any particular case it is necessary to weigh the facts to determine whether the necessary "affiliating circumstances" pertain. Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). Even if constitutional requirements are satisfied, "the circumstances of the particular case [must] come within one of the specific subsections of c. 223A, § 3." Burtner v. Burnham, 13 Mass.App.Ct. 158, 161-163, 430 N.E.2d 1233 (1982). See also Hahn v. Vermont Law School, 698 F.2d 48, 50 (1st Cir.1983).

Advertisements in general trade magazines which happen to circulate in the forum State, but which are not aimed at customers in a particular area, do not effect the requisite minimum contact. So, for example, an advertisement for marine engines placed by a Florida corporation in a magazine which circulated in Massachusetts was not a sufficient basis for bringing the Florida corporation before a Massachusetts court. Droukas v. Divers Training Academy, Inc., 375 Mass. at 153, 376 N.E.2d 548. Similarly, an advertisement by a Massachusetts corporation in a magazine directed to refurbishers of automobiles did not confer jurisdiction on a Michigan court to entertain a grievance against the Massachusetts corporation by a Michigan customer. Splaine v. Modern Electroplating, Inc., 17 Mass.App.Ct. 612, 619-620, 460 N.E.2d 1306 (1984). In both Droukas, 375 Mass. at 154, 376 N.E.2d 548, and Splaine, 17 Mass.App.Ct. at 620, 460 N.E.2d 1306, the courts emphasized the isolated nature of each transaction.

By contrast, the defendant Elmwood Dodge, located one-half mile from the Massachusetts-Rhode Island border, sought a more consistent market in Fall River and environs. Even were we to decide that advertisements in The Providence Journal and on a Providence television station only incidentally reached a Massachusetts market, the advertisements in the Fall River Herald News and the radio spot advertisements on a Fall River radio station aimed squarely at Massachusetts targets. The ads were directed, in part, at establishing ongoing relationships with Massachusetts consumers through a one-year warranty on cars sold and the promotion of five-year lease arrangements, relationships made possible by the proximity of Elmwood Dodge to the Massachusetts border. Small advertisements in the Herald News ran daily and a larger ad ran periodically. The record does not disclose how often the radio spots aired. Similarly, we cannot tell from the record how widespread Elmwood Dodge's direct mail campaign was in Fall River, but the existence of a sample solicitation directed to a potential Massachusetts...