D'Almeida v. Stork Brabant B.V. , 71 F.3d 50 ( 1995 )

January 11, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1513
JOSE D'ALMEIDA,
Plaintiff,
v.
STORK BRABANT B.V. AND STORK BRABANT, INC.,
Defendants/Third Party Plaintiffs-Appellants,
v.
GERRITSE PROJECTEN, TEXMACH, B.V.,
AND ING. GERRITSE, B.V.,
Third Party Defendants-Appellees.
ERRATA SHEET
The opinion of this court issued on December 11, 1995, is
amended as follows:
Page 7, line 2: Change "Stork" to "Gerritse."
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1513
JOSE D'ALMEIDA,
Plaintiff,
v.
STORK BRABANT B.V. AND STORK BRABANT, INC.,
Defendants/Third Party Plaintiffs-Appellants.
v.
GERRITSE PROJECTEN, TEXMACH, B.V.,
AND ING. GERRITSE, B.V.,
Third Party Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
Boudin, Circuit Judge.
John J. McGivney, with whom Burns & Levinson was on brief for
Stork Brabant, B.V. and Stork Brabant, Inc., defendants, third-party
plaintiffs-appellants.
John T. Montgomery, with whom Jeffrey P. Trout, and Ropes & Gray,
were on brief for Ing. Gerritse, B.V., third-party defendant-appellee.
December 11, 1995
Per Curiam. Stork Brabant B.V. and Stork Brabant, Inc.
("Stork") appeal from a judgment of the district court
dismissing a third-party action for indemnification and
contribution against Ing. Gerritse B.V. ("Gerritse"). The
facts are set out at length in the Report and Recommendation
of the magistrate judge; the legal issues are whether the
Massachusetts long-arm statute, Mass. Gen. L. ch. 223A,
3(d), authorizes the assertion of personal jurisdiction over
Gerritse, and, if so, whether such an assertion of
jurisdiction is consistent with due process. Although we
would normally decide the issue if possible on the basis of
the statute, in this case there is real doubt as to how the
Massachusetts courts would decide the statutory issue, and
the resolution of the constitutional issue is, by contrast,
reasonably clear. We therefore proceed to the due process
analysis.
The third-party complaint, which we accept at this
stage, reveals that Stork, as a distributor, ordered a
machine from Gerritse; after negligently and/or in breach of
warranty producing a defective machine, Gerritse sent it to
Massachusetts on Stork's instruction. Whether this course of
conduct gave Gerritse "minimum contacts" with the forum state
as to satisfy the requirements of the due process clause, see
International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945), is a very close call. The arguments on both sides
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are ably set forth in the magistrate judge's report; while
she concluded that minimum contacts were not present, and the
district court agreed, we need not decide the issue, which
would be especially difficult if the injured plaintiff in
this case had brought suit against Gerritse.
But even if minimum contacts were arguably present, due
process further imposes a requirement that the assertion of
jurisdiction be "consistent with traditional notions of fair
play and substantial justice" International Shoe, 326 U.S. at
316, and this additional requirement controls here. The sole
cause of action against Gerritse is an action by Stork for
indemnification. The parties must reasonably have expected
that any litigation between them would not take place in
Massachusetts; indeed, their contract included a forum
selection clause designating Holland as the locus of
litigation. More important, Massachusetts' interest in the
indemnification dispute are extremely limited, the
compensation of its citizen not being at stake.
Extensive discussion is unnecessary because in our view
this phase of the case is directly governed by Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102, 113-16 (1987).
There eight justices applied the "fair play and substantial
justice" requirement to hold that jurisdiction was lacking in
quite similar circumstances. Thus, even if minimum contacts
were barely present, a question we decline to answer, the
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assertion of jurisdiction over Gerritse in this
indemnification action would still be unconstitutional.
Affirmed.
Concurrence follows.
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BOWNES, Senior Circuit Judge, concurring. I agree
BOWNES, Senior Circuit Judge, concurring.
with the result reached by the court, but I have grave
reservations about the short cut taken to get there. On the
basis of a head count of the Justices in Asahi Metal Indus.
Co., 480 U.S. 102, the majority concludes that it need not
determine whether the defendant had minimum contacts with
Massachusetts "such that the maintenance of the suit does not
offend 'traditional notions of fair play and substantial
justice.'" International Shoe Co. v. State of Washington,
326 U.S. 310, 316 (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)). In Ashai there was a holding albeit by a
plurality: the facts "do not establish minimum contacts such
that the exercise of personal jurisdiction is consistent with
fair play and substantial justice . . . ." 480 U.S. at 116.
That is the only jurisdictional holding in the case. I do
not think we should, on the basis of a head count, jettison
as a prerequisite to a jurisdictional determination a
"minimum contact" analysis. Up until now such an analysis
has been the required starting front for a jurisdictional
determination.
The analysis as applied here, would run as follows:
The question is whether Gerritse has sufficient minimum
contacts with the forum state, such that the assertion of
jurisdiction will not offend "traditional notions of fair
play and substantial justice." International Shoe, 326 U.S.
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at 316. The test for the assertion of specific personal
jurisdiction is tripartite. First, the claim underlying the
litigation must arise out of or relate to the defendant's
contacts with the forum state. See Helicopteros Nacionales
de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Second,
"it is essential in each case that there be some act by which
the defendant purposefully avails itself of the privilege of
conducting activities within the forum state, thus invoking
the benefits and protections of its laws." Hanson v.
Denckla, 357 U.S. 235, 253 (1958). Third, the exercise of
jurisdiction must be reasonable in light of the five criteria
announced in Burger King Corp. v. Rudzewicz, 471 U.S. 462,
477 (1985): (1) the defendant's burden of appearing, (2) the
forum state's interest in adjudicating the dispute, (3) the
plaintiff's interest in obtaining convenient and effective
relief, (4) the interstate judicial system's interest in
obtaining the most efficient resolution of controversies, and
(5) the shared interest of the several states in furthering
fundamental substantive policies.
I do not agree with the majority that the "minimum
contacts" issue "is a very close call" and "would be
especially difficult if the injured plaintiff . . . had
brought suit against Gerritse." The undisputed
jurisdictional facts are as follows. Stork and Gerritse
signed a contract in the Netherlands under which Gerritse
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would build machines exclusively for Stork. Both companies
are headquartered in the Netherlands. Stork is a large
international corporation that does business all over the
world. Under the contract Stork agreed to purchase the
machines manufactured by Gerritse and sell them on the
international market. When the machine was finished to
Stork's satisfaction, Stork supplied Gerritse with a mailing
label and arranged to transport the machine to the buyer.
Stork controlled all marketing, sales, and transporta-tion of
the machines.
Gerritse had no contacts with Massachusetts. It
did know from the order form furnished it by Stork that the
machine was going to Massachusetts. It was delivered to
Shawmut Mills. Subsequent to the installation of the
machine, Roland Dekens, an engineer-employee of Gerritse,
while on a trip to the United States as an agent of Stork,
inspected the machine at Shawmut Mills and submitted a report
to both Stork and Gerritse.
I think it is clear that under the traditional
"minimum contacts" analysis there could be no personal
jurisdiction over Gerritse.
But even if the issue is a close one, as the
majority states, that is no excuse for not deciding it. To
apply the "fair play and substantial justice" doctrine
without any "minimum contacts" analysis ignores established
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law and flies in the teeth of binding precedent.
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