Levin v. Harned, CIV.A.01-11354-PBS.
| Citation | 292 F.Supp.2d 220 |
| Decision Date | 17 September 2003 |
| Docket Number | No. CIV.A.01-11354-PBS.,CIV.A.01-11354-PBS. |
| Parties | Mark LEVIN and Becky Levin, Plaintiff, v. Roger J. HARNED, d/b/a Roger Harned Designs, Dalva Brothers, Inc., Foster-Gwin, Inc., John J. Nelson Antiques, Ed Hardy Antiques, a/k/a Ed Hardy San Francisco, and Newel Art Galleries, Inc., Defendants. |
| Court | United States State Supreme Judicial Court of Massachusetts |
Hale & Dorr, LLP, Boston, MA, for Plaintiff.
Philip M. Chiappone, McCanliss & Early, L.L.P, New York, NY, Robert D. Hillman, Deutsch, Williams, Brooks, DeRensis, Holland & Drachman, Scott McConchie, Thomas F. Maffei, Griesinger, Tighe & Maffei, LLP, Jonathan D. Friedmann, Rudolph Friedmann, LLP, D. Lloyd Macdonald, Gregory R. Youman, Kirkpatrick & Lockhart LLP, Timothy C. Blank, Dechert LLP, Christopher P. Litterio, Ruberto, Israel & Weiner, P.C., Boston, MA, James J. Ficenec, Titchell, Maltzman, Mark & Ohleyer, San Francisco, CA, David Paul Steiner, David Steiner & Associates, Los Angeles, CA, Mark R. Kook, Hartman & Craven LLP, New York, NY, for Defendants.
Plaintiffs, Mark and Becky Levin ("the Levins") assert fraud, breach of contract, negligence, unfair and deceptive trade practices, and other common law claims against six defendants: Roger J. Harned, d/b/a Roger Harned Designs ("Harned"); Dalva Brothers, Inc. ("Dalva"); FosterGwin, Inc. ("Foster"); John J. Nelson Antiques ("Nelson"); Ed Hardy Antiques, a/k/a Ed Hardy San Francisco ("Hardy"); and Newel Art Galleries ("Newel").
The Levins hired Harned as an interior designer for their homes in Boston, Massachusetts and Middletown, Rhode Island. The five other defendants are all antique dealers that sold antiques to decorate the Levin homes. Plaintiffs claim that they relied on the deceptive descriptions of the items provided to Harned by the antiques dealers, in spending nearly five million dollars. Each of the five antiques dealers filed separate motions to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2).
On September 11, 2002, Magistrate Judge Cohen issued a Report and Recommendation on Motions to Dismiss for Want of In Personam Jurisdiction ("Report and Recommendation"). Judge Cohen recommended that the Court allow the motions to dismiss for lack of personal jurisdiction filed by the five antiques dealers: Dalva, Hardy, Foster, Nelson, and Newel. The Court assumes familiarity with that opinion. The Court adopts fully the analysis of the magistrate judge concerning general jurisdiction, and will not repeat it here.
After a hearing, supplemental jurisdictional discovery, and review of the voluminous briefing, the Court adopts the Report and Recommendation with respect to Nelson and Newel, both of which had little or no knowledge that the purchasers of the antiques resided in Massachusetts, or that they would receive the allegedly fraudulent descriptions of the antiques in Massachusetts. Thus, they did not purposely avail themselves of the forum. However, the Court declines to adopt the Report and Recommendation with respect to Dalva, Foster, and Hardy, and DENIES the motion to dismiss.
The following facts are gleaned from the allegations in the Amended Complaint construed "in the light most congenial to the plaintiff's jurisdictional claim." Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir.1998). The Court also considers the undisputed facts established during jurisdictional discovery. Id.
The Levins live in Boston and own a vacation home in Middletown, Rhode Island. They sought to furnish both homes with authentic and valuable antiques. The Levins hired Harned, an interior designer, to recommend and purchase antiques for both homes. On October 23 and 24, 2000, Harned met with the Levins in Boston to discuss his recommendations as to furnishings. He presented the Levins with photographs and descriptions of various antique items he recommended that they purchase, which he had received from the defendant antique dealers. On October 31, 2000, the Levins wired $4.9 million to Harned to buy antiques.
Dalva Brothers is an antique dealer that specializes in fine 18th-century French furniture and art. It is a New York corporation with a principal place of business in New York City. When Harned met with the Levins in Boston in October 2000, he presented them with photographs and descriptions of several items from Dalva Brothers, including what was described as an "exceptionally rare" Regence grandfather's clock made in France during the 18th century with a purchase price of $550,000. None of the written or oral descriptions indicated that it had undergone a restoration of any kind. Allegedly, the clock is neither authentic nor valuable. Although the case may have originated in the 18th century, the clock was drastically restored in the mid-19th century and the fair market value of the clock is in the range of only a few thousand dollars.
Similarly, Harned showed the Levins photographs and descriptions of two commodes, worth $110,000 and $90,000, which failed to show that the items had undergone significant restorations. Allegedly, the commodes had been so recently and extensively restored that their value has been substantially decreased.
Relying on the misrepresentations conveyed during their meeting in Boston, the Levins told Harned in Boston to purchase all three items. On November 6, 2000, Dalva Brothers provided three invoices to Harned acting on behalf of the Levins for the antiques. The items were picked up in New York by a Massachusetts-based trucking company and delivered to a Massachusetts warehouse in Avon, Massachusetts, before being sent to Middletown.
The Levins also purchased items from Dalva Brothers for their home in Boston. In February 1999, the Levins purchased a pair of vases, a marble table, and a majolica inkwell, totaling more than $100,000 with commissions, for the Levins' Boston home.
Dalva sold items to the Levins in 1997, 1999 and 2000, and received more than $765,000 from the 1999 and 2000 transactions. Dalva's files from as early as 1997 contain documents indicating that Dalva knew the Levins lived in Massachusetts, was aware that the Levins were the purchasers of the items sold, and that all of the items were shipped to Massachusetts. The 1997 delivery receipt states "Mr. & Mrs. Levin, Boylston Street, Boston, MA." Further, the 1999 and 2000 delivery documents received from a shipping company in Avon, Massachusetts, also name the Levins. Lastly, a check to Dalva in 2000 for payment of goods, names the Levins in the description heading of the document.
Dalva dealt in New York with Harned, an agent of the Levins, and not directly with the Levins. Harned, not Dalva, made the shipping arrangements with the Massachusetts shipper to the Commonwealth. Although Dalva gave Harned pictures and descriptions that it knew he would give to the Levins in Massachusetts, it never communicated directly with the Levins. The defendant made no direct in-forum contacts (via fax, telephone or mail) related to the allegedly fraudulent sale of antiques.
Dalva is not "authorized" to do business in Massachusetts, has no employees or agents in Massachusetts, owns no real or personal property in the Commonwealth, does not advertise in any publications directed to residents of Massachusetts, and does not solicit business in Massachusetts.
Foster-Gwin is a California corporation, specializing in period furniture from Europe, with a principal place of business in San Francisco, California.
In February 1999, the Levins purchased several items from Foster-Gwin for their home in Boston totaling $600,000. The items included commodes, a secretary, and a mirror. With one exception, none of the written or oral descriptions indicated that these items had undergone a restoration of any kind. The items, which were purchased for the Levins by Harned, were shipped from California to Boston.
When Harned met with the Levins in Boston in October 2000, he presented them with photographs and descriptions of several items: an "extremely rare pair of Italian baroque period red painted credenza" for $365,000; an "Unusual Italian Empire Period Cream Painted Chaise lounge" for $44,000; and a "South German Baroque period blue-painted Commode" for $37,000. None of the written or oral descriptions from Foster-Gwin indicated that they were of recent manufacture or had undergone a restoration of any kind (except with respect to the feet of the blue commode). In reliance on these representations, the Levins purchased the goods from their home in Boston. Some of the items were delivered to Massachusetts prior to being delivered to Middletown.
Allegedly, the red painted credenzas are nothing more than assemblages of old wood from other sources and the fair market value is within a range of $4,000 to $8,000; the cream chaise is actually not from the early 19th century, as represented, but a modern 20th century piece of furniture with a value of less than $1,000; and the blue-painted commode is not from the Baroque period but is a recycled artifact of the late 20th century with a range of $750 to $1,250. The Levins also claim that several of the items purchased for the Levins' home in Boston are not authentic or valuable, such as the alleged 18th century Sicilian commode.
Foster-Gwin sold antiques to the Levins in 1997, 1999, and 2000. Although Harned paid for the items with his own checks, Harned told Foster-Gwin that he was acting on behalf of Mark and Becky Levin. Foster-Gwin dealt only with Harned who arranged for the shipping of the furniture to Boston. As of February 1999, S. Collier Gwin, the President, knew that the items were being shipped to Harned's clients in Boston, and by October-November 2000, he knew that Harned's clients were named...
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