Lizotte v. Canadian Johns-Manville Company, 6975.
| Decision Date | 05 December 1967 |
| Docket Number | No. 6975.,6975. |
| Citation | 387 F.2d 607 |
| Parties | Charles LIZOTTE, Plaintiff, Appellant, v. CANADIAN JOHNS-MANVILLE COMPANY, Ltd., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Daniel J. Hourihan, Boston, Mass., for appellant.
Stephen A. Hopkins, Boston, Mass., and Sherburne, Powers & Needham, Boston, Mass., on the brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
The plaintiff Lizotte, a citizen of Massachusetts, was injured in Massachusetts unloading a freight car allegedly negligently loaded by defendant Canadian Johns-Manville Co., Ltd., a Canadian corporation. He brought suit in the district court for the district of Massachusetts, making service upon the Secretary of the Commonwealth pursuant to Mass. Gen.Laws c. 181, § 3A. The defendant moved to dismiss for lack of jurisdiction, maintaining that it was not doing business in Massachusetts and subject to such service. The burden on this issue is, of course, upon the plaintiff. Aro Mfg. Co. v. Automobile Body Research Corp., 1 Cir., 1965, 352 F.2d 400, cert. denied 383 U.S. 947, 86 S.Ct. 1199, 16 L.Ed.2d 210. After a hearing, at which evidence was presented, the court made findings and granted defendant's motion. Plaintiff appeals.
The following facts were disclosed. Defendant from time to time ships abestos from Canada into the Commonwealth. It maintains no place of business here, no office, or other facilities, and no regular employees. It sells to ultimate consumers and to middlemen, or jobbers. The jobbers solicit orders for asbestos from local buyers and then in turn order, as purchasers who acquire title, from defendant or some other supplier. Defendant's only activity is shipping goods in response to orders and occasionally sending an employee who confers with local jobbers, urging them to increase their sales efforts,* and, as to one jobber, to pay its bills. The jobbers, so far as appeared, do not sell on commission, are subject to no control by defendant, and buy outright at defendant's price.
On this showing the district court found that the defendant "does not solicit any business in Massachusetts." Alternatively, it stated "the occasional visits by agents of the defendant to * * * jobbers is not the kind of solicitation of business which is considered to be `doing business' in Massachusetts."
Although we agree with the court's result, we do not concur in its reasoning. While not, perhaps, the more usual type of...
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Division of Triple T Service, Inc. v. Mobil Oil Corp.
...continued beyond the expiration date (New York Tel. Co. v. Jamestwon Tel. Corp., 282 N.Y. 365, 26 N.E.2d 295; see Lizotte v. Canadian Johns-Manville Co., 1 Cir., 387 F.2d 607). Accordingly, it would appear that unless plaintiff has some statutory cause of action he cannot prevail on this Pl......
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...F.2d 9, 10 (1st Cir.1986); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980); Lizotte v. Canadian Johns-Manville Company, 387 F.2d 607, 608 (1st Cir.1967). This burden, absent an evidentiary hearing, 1 is a threshold requirement. If the plaintiff makes a prima faci......
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Walsh v. National Seating Co., Inc.
...have the burden of proving that this court has in personam jurisdiction over the instant defendants. Lizotte v. Canadian John Manville Co., Ltd., 387 F.2d 607, 608 (1st Cir. 1967); Aro Manufacturing Co., Inc. v. Automobile Body Research Corp., 352 F.2d 400, 403 (1st Cir. 1965), cert. denied......
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Gray v. O'Brien, 85-1434
...jurisdiction when challenged. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980); Lizotte v. Canadian Johns-Manville Co., 387 F.2d 607, 608 (1st Cir.1967); Aro Manufacturing Co. v. Automobile Body Research Corp., 352 F.2d 400, 403 (1st Cir.1965), cert. denied, 383 U......