Noonan v. Colour Library Books, Ltd.

• Decision Date: 06 December 1996
• Docket Number: Civil Action No. 94-11071-RGS.
• Citation: 947 F.Supp. 564
• Parties: George F. NOONAN and Anne Marie Noonan v. COLOUR LIBRARY BOOKS, LTD.
• Court: U.S. District Court — District of Massachusetts

947 F.Supp. 564

George F. NOONAN and Anne Marie Noonan v. COLOUR LIBRARY BOOKS, LTD.

Civil Action No. 94-11071-RGS.

United States District Court, D. Massachusetts.

December 6, 1996.

Judith Kemp, Milton, MA, Michael D. Lurie, Alex H. MacDonald, H. Bissell Carey, III, Robinson & Cole, Boston, MA, for George F. Noonan, Ann Marie Noonan.

David R. Friedman, Susan Murphy, Palmer & Dodge, Boston, MA, Robert M. Callagy, Satterlee, Stephens, Burke & Burke, New York City, for Winston Company, R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco, International, Inc., Lintas: Worldwide, Lintas: Paris, Worldwide Brands, Inc.

Walter H. Mayo, III, Casner & Edwards, Boston, MA, Ralph Gregory Elliot, Tyler, Cooper & Alcorn, Hartford, CT, for Colour Library Books Ltd.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION TO ESTABLISH JURISDICTION

STEARNS, District Judge.

This case was previously before the court on a motion to dismiss the Complaint for want of personal jurisdiction. After a hearing, the court dismissed all defendants except Colour Library Books, Ltd. ("CLB"), a United Kingdom corporation with a principal place of business in Surrey, England. The court granted the plaintiffs, George and Anne Noonan, a 120 day period of discovery to develop their jurisdictional claims against CLB. The Noonans now seek a court ruling establishing jurisdiction over CLB on two grounds, that it regularly solicits and conducts business in Massachusetts, and that it derives substantial revenues from the sales of books "used or consumed" in Massachusetts. The claim is one of general, not specific, jurisdiction.¹ In the alternative, the Noonans ask that the court presume jurisdiction as a sanction for CLB's failure to comply fully with its discovery obligations.

FACTS

The Amended Complaint is premised upon the 1992 publication in France of an advertisement promoting Winston cigarettes featuring a photograph of the plaintiff, George F. Noonan, a City of Boston mounted patrol officer.² Noonan, who had not given permission for the use of his photo, is an ardent opponent of smoking. The offending picture was taken in the spring of 1979 by Neil Sutherland, a CLB staff photographer, while Noonan was in uniform and seated on his horse in front of Faneuil Hall. CLB intended to use the picture in a book entitled Boston: City of Many Dreams. The photograph ultimately appeared in another CLB book, An American Moment, which was distributed in Europe and the United States.

In March of 1992, CLB sold what it represented as its "rights" to the Noonan photograph to the defendant Lintas: Paris (Lintas). Lintas told CLB that it wanted to use the photograph in a "Winston advertising campaign." Lintas published the picture as part of a full page print advertisement promoting "The Winston Way," an information retrieval service available through an interactive French telephone network (Le Minitel).³ The ad was aimed exclusively at French consumers, but some three hundred copies of French magazines containing the ad found their way to Massachusetts. Also, a few Massachusetts residents encountered the ad while travelling in France during the summer of 1992. Several of Noonan's acquaintances brought the ad to his attention.⁴

Noonan filed this suit on May 26, 1994, naming CLB, Lintas, and a number of Winston-affiliated tobacco companies as defendants. On September 25, 1995, the court allowed a motion to dismiss for lack of personal jurisdiction as to all defendants, except CLB. The court granted the Noonans' request to allow discovery on the issue of the court's jurisdiction over CLB (and perhaps others).⁵ The Noonan's efforts in this regard yield the following additional facts.

Neil Sutherland, the CLB photographer, was in Massachusetts perhaps five times between 1978 and 1994. Sutherland Dep., at 13-14, 42-43. In 1979, Sutherland spent four days in Boston taking photographs for CLB, including the picture of Noonan.⁶ Id. at 14-15 27-28, 37-40, 44. On his other four trips, Sutherland passed through Boston on his way elsewhere. Id. at 41-43.

In November of 1993, Derek Murray, then CLB's commercial director, met with plaintiff's counsel in Boston regarding this lawsuit. Murray also met with Danny Gurr, an executive at Lauriat bookstores. Murray Dep., at 64. Murray and Gurr discussed business possibilities over lunch, and later exchanged letters. Nothing of any substance resulted. Id. at 60-63. Sometime in 1993, Murray called Little Brown and Company, a Massachusetts publisher, to solicit business, but was referred to Little Brown's New York office. Id. at 74.

CLB creates, designs and packages books for wholesale distribution. Murray Dep., at 7-8; Noonan App., Ex. 7, at 9. CLB personnel directly solicit business worldwide, including in the United States. Murray Dep., at 35-36, 42. Approximately four months prior to the filing of the Noonan's Complaint in May of 1994, CLB began a business relationship with World Publications, Inc. (WPI), a "remainder house" located in North Dighton, Massachusetts.⁷ Press Dep., at 6-8, 17. As a remainder house, WPI purchases overstock which it then sells at a discount to book retailers. Id. at 7-8. The Noonans allege that by May of 1994, CLB had negotiated $600,000 of sales to WPI.⁸ Press Dep., at 36; Noonan App., Ex. 9. Because the Noonans' claim of general jurisdiction is based entirely on CLB's dealings with WPI, it is worth reciting the pertinent facts in some detail.

In January or February of 1994, CLB's director of North American sales, Keith Allen-Jones called Jeffrey Press, WPI's President, at WPI's office in North Dighton, Massachusetts. Press Dep., at 17-19. During this conversation, Allen-Jones invited Press and his wife Gail (WPI's Vice-President) to a meeting during the March London Book Fair. Id. at 20-21. On March 18, 1994, Allen-Jones faxed the Presses a list of CLB titles. Noonan App., Ex. 2. On March 22, 1994, the Presses met Allen-Jones in London. They also travelled to CLB's offices in Surrey to meet Barry Austin, CLB's President. Press Dep., at 20-22, 25. During the meeting with Austin, the Presses tentatively agreed to purchase four of CLB's titles. Id. at 21-24. Austin gave the Presses some CLB sample books to take back to Massachusetts. Id. Later in the week, the Presses met with other CLB representatives attending the Book Fair. Press Dep., at 27.

On March 23, 1994, Allen-Jones sent a letter to the Presses confirming WPI's agreement to purchase 125,000 books for a total of $295,550.⁹ The books were to be shipped to Massachusetts by CLB. Allen-Jones also offered WPI four other book titles.¹⁰ Noonan App., Ex. 2. On March 30, 1994, WPI returned purchase orders to CLB for 40,000 books totaling $66,500. Noonan App., Ex. 10. On April 1, 1994, Press wrote to Allen-Jones agreeing to the further purchase of 15,000 copies each of twelve titles of the Cooking in Colour Series for $225,000, and 15,000 copies of The Step by Step Cookbook for $75,000. Noonan App., Ex. 11. Allen-Jones responded with a request that WPI also confirm the purchase of 15,000 copies of The Good Food Cookbook for $87,000.¹¹ Id.

On April 4, 1994, WPI completed and returned CLB's Customer Information Form and a Production & Shipping Details Form. Noonan App., Ex. 9. On April 6, 1994, Jeffrey Press wrote to Allen-Jones regarding problems with three of the titles and asked that Allen-Jones convey his concerns to Austin. Noonan App., Ex. 12. On April 8, Press and Allen-Jones spoke by telephone. Press Dep., at 56; Noonan App. Ex. 29, at 51. On April 19, 1994, WPI submitted purchase orders in the amount of $300,000 for the Cooking in Colour Series and The Step by Step Cookbook. Noonan App., Ex. 13. On April. 27 and 28, 1994, CLB and WPI exchanged facsimiles regarding the order. Noonan App., Ex. 14 and Ex. 15.

On May 4, 1994, Gail Press faxed Allen-Jones expressing her displeasure with the format of the exemplar of the Step by Step Cookbook provided by CLB. Noonan App., Ex. 16. Allen-Jones responded by fax asking Gail Press to call him.¹² Id. On May 5, 1994, Allen-Jones sent Press a fax (with a copy to Austin) confirming WPI's purchase orders for 305,000 books at a cost of $520,550. Noonan App., Ex. 18. These books were eventually delivered to Massachusetts and paid for by WPI. Press Dep., at 27-32, 44, 54. Allen-Jones also told the Presses that he had new samples to show them at an upcoming U.S. booksellers' show. Id. at 51.

On May 11, 1994, Allen-Jones sent a facsimile to WPI discussing The Step-by-Step Cookbook and a new title, Classic Motorcycles. Noonan App., Ex. 3. On May 15, 1994, CLB sent WPI a $33,743.65 invoice for the motorcycle books. Noonan App., Ex. 19.¹³ On May 17, 1994, Allen-Jones sent some additional sample books to WPI and solicited orders for 10 additional titles. Noonan App., Ex. 20.

On May 19, 1994, Allen-Jones sent a copy of The Astrology Yearbook to WPI and solicited an order for 12,000 copies in the amount of $30,000. Noonan App., Ex. 21. WPI ordered and received these books. Press Dep., at 53-54. Between March 1, 1994, and May 26, 1994, Allen-Jones met at least twice with the Presses at WPI in Massachusetts on CLB business. Id. at 47. To sum up this somewhat complicated history, by May 26, 1994, WPI had placed orders for $584,293.65 of various CLB titles, of which none had been delivered, although $52,493.65 worth of CLB books were on a boat to North Dighton.

LEGAL STANDARDS

When considering a motion to dismiss, the court accepts the facts alleged in the Amended Complaint as true and views any reasonable inference implicit in the pleadings in the light most flattering to the nonmoving party. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989). To make out a prima facie showing of in personam jurisdiction, however, a plaintiff's reliance on the bare allegations of the Amended Complaint is not enough. Chlebda v. H.E. Fortna & Bro., Inc., 609 F.2d 1022, 1024 (1st Cir.1979). "The ...