Little, Brown and Co.,(Inc.) v. Bourne

• Decision Date: 23 July 1980
• Docket Number: Civ. A. No. 79-2597-G.
• Citation: 493 F. Supp. 544
• Parties: LITTLE, BROWN AND COMPANY, (INC.), Plaintiff, v. Peter G. BOURNE, Defendant.
• Court: U.S. District Court — District of Massachusetts

493 F. Supp. 544

LITTLE, BROWN AND COMPANY, (INC.), Plaintiff, v. Peter G. BOURNE, Defendant.

Civ. A. No. 79-2597-G.

United States District Court, D. Massachusetts.

July 23, 1980.

John Taylor Williams, Barbara B. Williams, Haussermann, Davison & Shattuck, Boston, Mass., for plaintiff.

David J. Hatem, Parker, Coulter, Daley & White, Boston, Mass., Edward Ashworth, Charles Morgan Jr. & Assoc., Washington, D.C., for defendant.

MEMORANDUM AND ORDER

GARRITY, District Judge.

Plaintiff, Little, Brown and Company, a Massachusetts based publishing company, maintains this action to recover $18,500 advanced to the defendant, Peter G. Bourne, on a contract to write a book about Jimmy Carter's 1976 presidential campaign. Dr. Bourne, a resident of the District of Columbia, moved to dismiss for lack of personal jurisdiction or, if unsuccessful on that motion, to transfer the action to the District Court for the District of Columbia pursuant to 28 U.S.C. § 1404(a). We received supporting and opposing memoranda on these issues and heard oral argument. For reasons hereinafter stated both motions are denied.

Jurisdiction over the Person

Plaintiff's asserted basis for jurisdiction is the Massachusetts long arm statute, Mass. G.L. c. 223A, § 3, and specifically sections 3(a) and 3(b) of the statute. They read as follows:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's (a) transacting any business in this commonwealth; (b) contracting to supply services or things in this commonwealth; . . .

The plaintiff has the burden of proving the court's jurisdiction. Lizotte v. Canadian Johns Manville Co., 1 Cir. 1970, 387 F.2d 607, 608. Here, the question of personal jurisdiction turns on the nature and the extent of defendant's contacts with the Commonwealth during the course of his relationship with the plaintiff publisher. The following facts appear in affidavits filed by the parties.

In March, 1976, the defendant met in Boston with a Little, Brown editor to discuss the prospects for a book about Dr. Bourne's experiences on the Carter presidential campaign. Carter's political fortunes were at that point still unknown and the Bourne book had not advanced much beyond the planning stages. No contract resulted from this first meeting in Boston.

Later in the spring of 1976, the defendant retained the Sterling Lord Agency of New York to act as literary agent on the book. Thereafter, a proposal and outline were put out generally for bids, and in July, 1976, plaintiff received the five page proposal from the New York agent's office. Plaintiff bid on the book, the bid was accepted by the defendant, and on July 27, 1976 a contract was sent by plaintiff in Boston to the New York offices of Sterling Lord. Sterling Lord passed the contract on to the defendant in Washington who signed the contract and returned it to Boston through his agent. The contract called for an advance of $18,500 on signing, which amount plaintiff mailed to Sterling Lord on August 17, 1976.

There then followed an exchange of letters, outlines, and further proposals between the defendant in Washington, D.C., and Roger Donald, a Boston based editor at Little, Brown. In order to meet a spring 1977 deadline for listing the book as a new release, the parties began an accelerated process of editing by which defendant was to submit each chapter for editing as it was completed. The defendant mailed each installment directly to Little, Brown in Boston. Copies of the manuscript were there circulated to an editor, copy editor, and legal advisor; an initial edit followed, and the edited chapter was then returned to Dr. Bourne for review. As part of this process, plaintiff's editors spoke regularly by phone and corresponded with the defendant to discuss editorial changes, the progress of pending chapters, and the mechanics of delivering the manuscripts by the fastest method possible. At one point the defendant used plaintiff's courier service in Washington, D.C., to avoid the delay of regular mail service. By January or February of 1977, plaintiff had received six chapters of the book (roughly one-half of the total manuscript), and of these had edited five and typeset three in galley form.

With the spring deadline approaching and the book only half complete, the editor in charge, Mr. Donald, flew to Washington in late February to discuss the book with the defendant. On March 2, 1977 the book was dropped from the plaintiff publisher's spring list and the parties set about negotiating a revised schedule. Because the book had originally been framed as a campaign memoir, the delay in completing the book required also that the topic be restructured, perhaps to include the first year of the Carter presidency. Defendant submitted a proposal to that effect on March 29, 1977, which plaintiff's editors rejected. Thereafter, relations between the parties deteriorated. After a lapse of nearly a year Dr. Bourne submitted a new topic proposal but Little, Brown did not act on it. In the spring and summer of 1979, plaintiff sought to cancel the contract and asked the defendant to return the monies advanced.¹ Plaintiff commenced this action on December 31, 1979.

Under section 3(a) of the Massachusetts long arm statute, the court looks to the defendant's contacts with the forum state. Dr. Bourne was physically present in Massachusetts only once in connection with this book. In March of 1976 he visited Little, Brown offices in Boston with little more than an idea for a book. At most it can be said he was testing the waters, looking for encouragement to continue his efforts. No contract resulted from this meeting. Defendant followed quite a different course in his second effort to find a publisher. In July, 1976, with a more concrete proposal in hand, he put his book out for bids, presumably contacting a number of publishing houses around the country. In offering his book for bids, defendant's contacts with Massachusetts amounted only to mailing a proposal to Little, Brown through his New York agent. Plaintiff happened to be the high bidder (its bid submitted through Sterling Lord in New York) and a contract was successfully negotiated. Under the circumstances we view the one trip to Boston in March as distinct from and unrelated to the events surrounding the contract negotiations in July. Accordingly, for purposes of the long arm statute, this cause of action, which relates to the July contract, cannot be said to arise out of the defendant's transacting any business in Massachusetts when he came here in March.

From July 1976, when defendant's agent put his book out for bids, during the contract negotiations and until the alleged breach, defendant did not physically enter the Commonwealth. All contacts with the forum were through the mails and by telephone — both parties sharing in initiating or receiving the letters or phone calls. The publishing process requires frequent communications between author and editors. In this case drafts were received in Boston and circulated among the editors there, the manuscript was marked up for galleys in-house, and letters and outlines were exchanged between Boston and Washington as a part of the development of the theme and content of the book. Thus, by looking at the whole of defendant's relationship with the plaintiff publisher, and for purposes of literal fidelity to Section 3(a) of the long arm statute, we may conclude that even though defendant was physically absent, he can be held to have transacted business in Massachusetts. Our analysis depends, however, on the important constitutional limitations on our power to exercise jurisdiction over this case. See, Good Hope Industries, Inc. v. Ryder Scott, 1979 Adv.Sh. 1155, 1161-62, ___ Mass. ___, 389 N.E.2d 76. Were defendant's contacts with the forum such "that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice,'" International Shoe Co. v. Washington, 1945, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, and has defendant "purposely availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws?" Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.

Had Dr. Bourne only mailed a proposal to Massachusetts and received back a contract which he signed and returned to Massachusetts, there would have been no basis for asserting personal jurisdiction in Massachusetts. See "Automatic" Sprinkler Corp. of America v. Seneca Foods Corp., 1972, 361 Mass. 441, 280 N.E.2d 423, where the defendant's only contacts with the forum were to mail a purchase order and partial payment to plaintiff's division in Worcester. See also, Droukas v. Divers...