Roch v. Mollica ( 2019 )

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SJC-12517
CAROLINE ROCH vs. DAVID J. MOLLICA & another.1
Worcester. October 2, 2018. - January 4, 2019.
Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
Jurisdiction, Personal, Nonresident. Due Process of Law,
Jurisdiction over nonresident. Practice, Civil, Motion to
dismiss.
Civil action commenced in the Superior Court Department on
April 11, 2017.
A motion to dismiss was heard by James G. Reardon, Jr., J.,
and a motion for reconsideration was considered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Traver Clinton Smith, Jr., for the plaintiff.
Paul E. Mitchell for the defendants.
Jennifer A. Creedon & Meghan L. Morgan, for Massachusetts
Defense Lawyers Association, amicus curiae, submitted a brief.
1 Donna Z. Mollica.
2
LOWY, J. The plaintiff, Caroline Roch, a New Jersey
resident, sued defendants David and Donna Mollica, New Hampshire
residents, in Superior Court for negligence. The claim arose
out of an incident in Florida. A deputy sheriff served both
defendants with in-hand process in Worcester. The defendants
moved to dismiss for lack of personal jurisdiction pursuant to
Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). A Superior
Court judge allowed the motion to dismiss; the plaintiff
appealed. The judge also denied the plaintiff's motion for
reconsideration. We transferred the appeal from the Appeals
Court on our own motion.2
We conclude that, as a matter of both State common law and
due process, Massachusetts courts have personal jurisdiction
2 Judgment on the defendants' motion to dismiss was entered
on August 8, 2017. On August 15, 2017, the plaintiff served on
the defendants a motion for reconsideration of defendants'
motion to dismiss. On August 28, 2017, the plaintiff filed the
motion for reconsideration of the motion to dismiss and a notice
of appeal. The motion for reconsideration was decided in
September 2017. Because the plaintiff did not file a new notice
of appeal after the motion for reconsideration had been decided,
she failed to comply with Mass. R. A. P. 4 (a), as amended, 464
Mass. 1601 (2013). We nevertheless decide the appeal. On the
compressed time frame here, the concerns underlying rule 4 (a)
are not implicated: no action on the appeal had yet been taken
before the motion for reconsideration was decided. See Anthony
v. Anthony, 21 Mass. App. Ct. 299, 301 (1985) ("There [is]
little point in having an appeal work its way up the ladder from
a judgment which might be altered"). The appeal has been
briefed and argued, and we transferred it here to address the
important issue that it presents.
3
over nonresident individuals who are served with process while
intentionally, knowingly, and voluntarily in Massachusetts.3
Because the defendants here were served under these
circumstances, we reverse the judge's order allowing the
defendants' motion to dismiss and remand to the Superior Court
for proceedings consistent with this opinion.4
Background. "When a defendant moves to dismiss for lack of
personal jurisdiction, the plaintiff bears the burden of
adducing facts on which jurisdiction may be found. . . . In
considering a motion to dismiss for lack of personal
jurisdiction, we accept as true the essential uncontroverted
facts that were before the judge" (citation, alteration, and
quotations omitted). SCVNGR, Inc. v. Punchh, Inc., 478 Mass.
3 Our holding applies only to individuals. We do not
address whether presence in the forum State when served with
process confers personal jurisdiction over corporations. Cf.
Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) (finding that
foreign corporation was not "subject to suit [in forum State] on
claims by foreign plaintiffs having nothing to do with anything
that occurred or had its principal impact in [forum State]");
Brown v. Lockheed Martin Corp., 814 F.3d 619, 637 (2d Cir. 2016)
("federal due process rights likely constrain an interpretation
that transforms a run-of-the-mill registration and appointment
statute into a corporate 'consent' . . . to the exercise of
general jurisdiction by [S]tate courts"); Martinez v. Aero
Caribbean, 764 F.3d 1062, 1071 (9th Cir. 2014), cert. denied,
135 S. Ct. 2310 (2015) ("Burnham [v. Superior Court of Cal., 495
U.S. 604 (1990),] does not authorize tag jurisdiction over
corporations").
4 We acknowledge the amicus brief submitted by the
Massachusetts Defense Lawyers Association.
4
324, 325 n.3 (2017), quoting Miller v. Miller, 448 Mass. 320,
321 (2007).
The uncontested facts are as follows.5 The plaintiff was a
freshman member of the Worcester Polytechnic Institute softball
team. The defendants are the parents of the team's head coach.
During a spring training trip to Florida, the team and coaches
visited with the defendants at a house the defendants had
rented. The house had a swimming pool. As part of an
initiation ritual, without warning, upperclassmen members of the
team pushed the freshman members into the pool. The plaintiff
hit and injured her shoulder on the edge of the pool. According
to the complaint, the defendants "negligently allowed a
dangerous act of initiation or hazing to be imposed upon" the
plaintiff and "negligently failed to obtain or seek immediate
medical attention and/or medical advice for" her. The
defendants were served with process while attending a softball
game at Worcester State College in Worcester.
The judge held a nonevidentiary hearing on the defendants'
motion to dismiss. At the hearing, plaintiff's counsel
contended that the Superior Court had personal jurisdiction over
the defendants because the defendants were served in
5 We take these facts from the complaint and, to the extent
they are favorable to the plaintiff, from the defendants'
memorandum in support of their motion to dismiss.
5
Massachusetts. The judge responded that service of process is
conceptually distinct from personal jurisdiction, and suggested
that personal jurisdiction was improper here because the
plaintiff's case had no connection to Massachusetts. The judge
allowed the defendants' motion to dismiss in a summary order,
reasoning, "Personal service on the Defendants does not confer
jurisdiction on the court."
Discussion. Massachusetts courts have personal
jurisdiction over any person "domiciled in" the Commonwealth,
G. L. c. 223A, § 2, and, in certain circumstances, over
nonresidents. The plaintiff argues that under the common-law
rule of transient jurisdiction, a nonresident defendant's mere
presence in the forum State when served with process confers
personal jurisdiction over the defendant.6 See Burnham v.
6 The plaintiff also contends that there is a statutory
basis for transient jurisdiction here. We disagree. The
Legislature has codified transient jurisdiction in the context
of support orders and parentage disputes. See G. L. c. 209D,
§ 2-201 (a) (1). But other statutes that seem to confer
jurisdiction over nonresident defendants present in
Massachusetts are inapposite, as they pertain to venue or
service of process. See G. L. c. 223, § 1 ("If neither party
lives in the commonwealth, the action may be brought in any
county"); G. L. c. 223, § 2 (district courts "shall have
jurisdiction of a transitory action against a defendant who is
not an inhabitant of the commonwealth, if personal service or an
effectual attachment of property is made within the
commonwealth; and such action may be brought in any of said
courts in the county where the service or attachment was made");
G. L. c. 227, § 1 ("A personal action shall not be maintained
against a person not an inhabitant of the commonwealth unless he
6
Superior Court of Cal., 495 U.S. 604, 629 n.1 (1990) (Brennan,
J., concurring) (defining "transient jurisdiction" as
"jurisdiction premised solely on the fact that a person is
served with process while physically present in the forum
State"). We recognized common-law transient jurisdiction as
early as the Nineteenth Century. In Peabody v. Hamilton, 106
Mass. 217, 220 (1870), we observed, "When the party is in the
state, however transiently, and the summons is actually served
upon him there, the jurisdiction of the court is complete, as to
the person of the defendant." This was identified as "the
general rule of the common law." Id. See Ehrenzweig, The
Transient Power of Personal Jurisdiction: The "Power" Myth and
Forum Conveniens, 65 Yale L.J. 289, 293-294 (1956) (contesting
transient jurisdiction's historical origins but conceding that
"there was true transient jurisdiction" in Peabody v. Hamilton).
See also Wright v. Oakley, 5 Met. 400, 402 (1843) (defendant
"personally within [the State's] jurisdiction" is "liable to the
jurisdiction of a court of the State").
However, we also have stated that, "[f]or a nonresident to
be subject to personal jurisdiction in Massachusetts, there must
be a statute authorizing jurisdiction and the exercise of
jurisdiction must be 'consistent with basic due process
or his agent . . . has been served with process in the
commonwealth . . .").
7
requirements mandated by the United States Constitution.'"
Bulldog Investors Gen. Partnership v. Secretary of the
Commonwealth, 457 Mass. 210, 215 (2010), quoting Intech, Inc. v.
Triple "C" Marine Salvage, Inc., 444 Mass. 122, 125 (2005).
Caplan v. Donovan, 450 Mass. 463, 465, cert. denied, 553 U.S.
1018 (2008), quoting Good Hope Indus., Inc. v. Ryder Scott Co.,
378 Mass. 1, 5-6 (1979) ("[j]urisdiction is permissible only" if
both "authorized by statute" and "consistent with basic due
process requirements"). The only personal jurisdiction statute
that could possibly apply here is the long-arm statute, G. L.
c. 223A, § 3, which requires that the "cause of action . . .
aris[e] from" at least one of a list of acts or omissions
related to Massachusetts.7 But, as the plaintiff in essence
conceded in oral argument, the long-arm statute does not confer
personal jurisdiction here. Instead, the plaintiff contends
that the long-arm statute need not be satisfied because the
defendants were served with process in Massachusetts.
7 Other statutes conferring personal jurisdiction over
nonresident defendants are scattered throughout the General
Laws. See, e.g., G. L. c. 104, § 9 (personal jurisdiction over
nonresident wholesalers); G. L. c. 110A, § 414 (h) (personal
jurisdiction over those who violate Uniform Securities Act);
G. L. c. 159C, § 12 (personal jurisdiction over nonresidents who
violate telemarketing solicitation laws); G. L. c. 201A, § 2 (b)
(personal jurisdiction over custodians under Uniform Transfers
to Minors Act); G. L. c. 203B, § 4 (c) (personal jurisdiction
over custodial trustees under Uniform Custodial Trust Act);
G. L. c. 209D, § 2-201 (a) (personal jurisdiction over
nonresidents in support order and parentage proceedings).
8
The Appeals Court has implicitly addressed the tension
between common-law transient jurisdiction, on the one hand, and
the requirement that personal jurisdiction be conferred by
statute, on the other, by stating that the long-arm statute does
not apply when there is in-State service of process. See
Schinkel v. Maxi-Holding, Inc., 30 Mass. App. Ct. 41, 45 (1991)
("There is no need to predicate jurisdiction over [defendant] on
the long-arm statute. Jurisdiction over his person was
conferred by service of process in Boston"). Because we have
not yet addressed this tension ourselves, we take the
opportunity to clarify that, as a matter of both State common
law and due process, Massachusetts courts have personal
jurisdiction over nonresident individuals who are served with
process while intentionally, knowingly, and voluntarily in
Massachusetts.8
1. Legislative intent. We first consider whether the
numerous statutes that address personal jurisdiction have
supplanted the common-law rule of transient jurisdiction and
8 Our personal jurisdiction cases, which address the due
process clause but not the Massachusetts Constitution, indicate
that the Massachusetts Constitution provides the same level of
protection as the due process clause with regard to personal
jurisdiction. See, e.g., Exxon Mobile Corp. v. Attorney Gen.,
479 Mass. 312, 314 (2018) (not mentioning Massachusetts
Constitution and stating that personal jurisdiction over
nonresident defendant "must satisfy . . . the requirements of
the due process clause of the Fourteenth Amendment to the United
States Constitution").
9
conclude that they have not. "[W]e should not interpret a
statute 'as effecting a material change in or a repeal of the
common law unless the intent to do so is clearly expressed.'"
Brear v. Fagan, 447 Mass. 68, 72 (2006), quoting Pineo v. White,
320 Mass. 487, 491 (1946), superseded on other grounds by G. L.
c. 209, § 1. We are not aware of a statute that expressly
repeals common-law transient jurisdiction, and "[w]e decline to
interject such an intent into the plain language of" the
jurisdictional statutes. Page v. Commissioner of Revenue, 389
Mass. 388, 392 (1983) (discussing Uniform Commercial Code).9 We
acknowledge that an intent to repeal the common law "need not be
explicitly stated in the statute." Reading Co-Op. Bank v.
Suffolk Constr. Co., 464 Mass. 543, 549 (2013). However, we
9 The Legislature has eliminated expressly transient
jurisdiction in the context of modifying support orders.
General Laws c. 209D, § 2-201 (a) (1), codifies transient
jurisdiction with regard to support orders and parentage
disputes. However, G. L. c. 209D, § 2-201 (b), states that
"[t]he bases of personal jurisdiction set forth in subsection
(a) or in any other law of the commonwealth may not be used to
acquire personal jurisdiction . . . to modify a child support
order of another state unless" other statutory requirements are
met. That the Legislature has limited the use of transient
jurisdiction with regard to modifying support orders is evidence
that it has not eliminated transient jurisdiction as a general
matter.
10
have not found any authority implicitly repealing transient
jurisdiction.10
2. The common-law rule. We also decline to repeal our
common-law rule as it applies to defendants who are
intentionally, knowingly, and voluntarily in the Commonwealth.
See Burnham, 495 U.S. at 627-628 (opinion of Scalia, J.)
(affirming lower court's exercise of transient jurisdiction as
matter of due process but observing that "[n]othing we say today
prevents individual States from limiting or entirely abandoning
the in-state-service basis of jurisdiction").
10The Legislature did not implicitly repeal common-law
transient jurisdiction when it enacted the long-arm statute in
1968. See St. 1968, c. 760. The long-arm statute established a
list of ways to exercise personal jurisdiction over nonresident
defendants, and presence in Massachusetts was not included on
that list. However, statutes conferring personal jurisdiction
through implied consent and presence already existed when the
Legislature enacted the long-arm statute. See, e.g., G. L.
c. 90, § 3B, inserted by St. 1923, c. 431, § 2 (implicitly
appointing in-State agent for service of process for any driver
involved in an "accident or collision" in Massachusetts); G. L.
c. 223, § 38, inserted by St. 1906, c. 269 (discussing service
of process on foreign corporations). If the Legislature
intended the long-arm statute to be comprehensive, it would have
been effectively abolishing these other statutes. But the
Appeals Court has held, and we agree, that at least one of these
laws continues to provide a basis for personal jurisdiction.
See Campbell v. Frontier Fishing & Hunting, Ltd., 10 Mass. App.
Ct. 53, 55 (1980) ("[G. L. c. 223, § 38,] is independently
viable and has not been supplanted by G. L. c. 223A"). See also
In re Lupron Mktg. & Sales Practices Litig., 245 F. Supp. 2d
280, 300 n.43 (D. Mass. 2003) ("Massachusetts provides an
alternative statutory basis for asserting jurisdiction over a
foreign corporation through its 'soliciting business' statute,
[G. L.] c. 223, § 38"). Therefore, we do not read the long-arm
statute to be an exclusive list.
11
"[T]he mere longevity of the rule does not by itself
provide cause for us to stay our hand if to perpetuate the rule
would be to perpetuate inequity. When the rationales which gave
meaning and coherence to a judicially created rule are no longer
vital, and the rule itself is not consonant with the needs of
contemporary society, a court not only has the authority but
also the duty to reexamine its precedents rather than to apply
by rote an antiquated formula." Lewis v. Lewis, 370 Mass. 619,
628 (1976). Nevertheless, "adhering to precedent is our
preferred course" (quotation omitted). Shiel v. Rowell, 480
Mass. 106, 108 (2018), quoting Payne v. Tennessee, 501 U.S. 808,
827 (1991). A consistent common law creates predictability,
Shiel, supra, and predictability is especially important in
areas, such as personal jurisdiction, "in which reliance upon
existing judicial precedent often influences individual action"
(citation omitted). Id. at 109.
According to the United States Supreme Court, the rule of
transient jurisdiction is well established across the country.
In Burnham, 495 U.S. at 628, the Supreme Court upheld as
constitutional the exercise of personal jurisdiction over a
nonresident defendant who was served with process while visiting
the forum State. Although the Supreme Court issued multiple
opinions in the Burnham case, none of which garnered a majority
or a plurality of votes, all nine Justices agreed that transient
12
jurisdiction is widely accepted among the States.11 See id. at
610 (opinion of Scalia, J.) ("Among the most firmly established
principles of personal jurisdiction in American tradition is
that the courts of a State have jurisdiction over nonresidents
who are physically present in the State"); id. at 635-636
(Brennan, J., concurring) ("however murky the jurisprudential
origins of transient jurisdiction, . . . American courts have
announced the rule for perhaps a century"); id. at 640 (Stevens,
J., concurring) (basing opinion in part on "the historical
evidence and consensus identified by Justice Scalia").
In addition, we are unwilling to repeal the common-law rule
because, where personal jurisdiction is based solely on a
defendant having been served with process while intentionally,
knowingly, and voluntarily in the Commonwealth, a judge still
has discretion to protect a defendant by dismissing the case
under the doctrine of forum non conveniens, thereby allowing a
case to be tried elsewhere. See Oxford Global Resources, LLC v.
Hernandez, 480 Mass. 462, 472-473 (2018) (describing forum non
conveniens); Pulte Computer Corp. vs. Debus, Boston Mun. Ct.,
App. Div. No. 132666 (Dec. 14, 1990) (considering forum non
11Justice Scalia's opinion of the Court was joined by two
Justices in whole and by Justice White in part. Justice White
wrote his own concurring opinion, as did Justice Stevens.
Justice Brennan wrote a concurring opinion joined by three other
Justices.
13
conveniens after finding personal jurisdiction based on
defendant's presence in Massachusetts when served with process).
See also Burnham, 495 U.S. at 639 (Brennan, J., concurring)
("any burdens that do arise [from transient jurisdiction] can be
ameliorated by a variety of procedural devices").12
Furthermore, we are not persuaded by the argument that
transient jurisdiction is an outdated vestige of the era in
which personal jurisdiction was based solely on State control
over people and property within its territory. Under this view,
personal jurisdiction is now based on fairness, and transient
jurisdiction is not "fair." Here, the defendants argue that
"the plaintiff urges the Court to turn back the clock . . . and
bow to tradition, disregarding contemporary notions of due
process requiring that litigation in the forum be foreseeable by
12The defendants here argue for dismissal on grounds of
forum non conveniens. But they did not raise this issue below,
and the forum non conveniens inquiry is fact-intensive. See
W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. 572,
577 (1990) ("A decision whether to dismiss an action under the
doctrine of forum non conveniens . . . depends greatly on the
specific facts of the proceeding before the court"). Therefore,
we do not address this argument on the limited record before us.
See Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass.
730, 734-735 (1992) ("A prevailing party is . . . entitled to
argue on appeal that the judge was right for the wrong reason,
even relying on a principle of law not argued below. If,
however, the new argument depends on facts not established in
the record, we cannot accept the new argument on appeal"). Cf.
Gianocostas v. Interface Group-Mass., Inc., 450 Mass. 715, 716,
723-727 (2008) (conducting forum non conveniens analysis when
issue was raised below and relevant affidavits were in record).
14
the defendant." However, transient jurisdiction is no more
onerous than the Massachusetts long-arm statute, the validity of
which the defendants here do not question. A nonresident
defendant who is subject to the jurisdiction of Massachusetts
courts under the long-arm statute will suffer the same hardship
as a nonresident defendant who must litigate in Massachusetts
after being served with process in the Commonwealth.
Additionally, we adopt Justice Brennan's approach to "the
fairness of the prevailing in-state service rule" in the Burnham
case. Burnham, 495 Mass. at 629 (Brennan, J., concurring).
Although Brennan's analysis occurred in the due process context,
it explains why transient jurisdiction is fair to defendants.
"The transient rule is consistent with reasonable
expectations . . . ." Id. at 637. "By visiting the forum
State, a transient defendant actually avails himself . . . of
significant benefits provided by the State. His health and
safety are guaranteed by the State's police, fire, and emergency
medical services; he is free to travel on the State's roads and
waterways; he likely enjoys the fruits of the State's
economy . . ."; and he may sue in the State's courts (quotation
omitted). Burnham, supra at 637-638, quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 476 (1985). There is nothing unfair
about subjecting to the State's judicial processes someone who
benefits from these services. Id. at 638 ("Without transient
15
jurisdiction, an asymmetry would arise: A transient would have
the full benefit of the power of the forum State's courts as a
plaintiff while retaining immunity from their authority as a
defendant"). Finally, "modern transportation" and "procedural
devices" such as forum non conveniens, discussed supra, mean
that "[t]he potential burdens on a transient defendant are
slight" (alteration and quotation omitted). Id. at 638-639,
quoting Burger King Corp., supra at 474.
On balance, the weakness of the arguments in favor of
abolishing transient jurisdiction, our general reluctance to
modify the common law, the United States Supreme Court's
analyses of transient jurisdiction among the States, and the
availability of forum non conveniens result in our decision to
reaffirm the common-law rule of transient jurisdiction for
defendants who are intentionally, knowingly, and voluntarily in
the Commonwealth. See Shiel, 480 Mass. at 112 (declining "to
fell judicial precedent"). Here, the defendants were served
with process while attending a softball game in Massachusetts.
Therefore, they were served while knowingly and voluntarily
visiting the Commonwealth for a particular purpose, namely, to
attend a sporting event. Personal jurisdiction over them was
proper as a matter of State law.
3. Due process. Finally, we address whether exercising
personal jurisdiction over the defendants satisfies due process.
16
See SCVNGR, Inc., 478 Mass. at 330 (clarifying that
constitutional inquiry should follow, rather than precede,
State-law analysis). Guided by the United States Supreme
Court's decision in the Burnham case, we conclude that it does.
In the Burnham case, 495 U.S. at 628, the Supreme Court
unanimously affirmed the lower court's exercise of personal
jurisdiction "based on the fact of in-state service of process."
The reasoning of the various opinions makes clear that at least
eight of the Justices on the Burnham court would uphold the
constitutionality of transient jurisdiction over defendants who
are intentionally, knowingly, and voluntarily in the forum State
when served with process. See id. at 619 (opinion of Scalia,
J.) ("jurisdiction based on physical presence alone constitutes
due process because it is one of the continuing traditions of
our legal system"); id. at 628 (White, J., concurring) ("claims
in individual cases that the [transient jurisdiction] rule would
operate unfairly as applied to the particular nonresident
involved need not be entertained. At least this would be the
case where presence in the forum State is intentional, which
would almost always be the fact"); id. at 640 (Brennan, J.,
concurring) ("In this case, it is undisputed that petitioner was
served with process while voluntarily and knowingly in the State
17
of California. I therefore concur in the judgment").13 As
already discussed, the defendants here were served while
intentionally, knowingly, and voluntarily in Massachusetts to
watch a softball game. Therefore, personal jurisdiction over
them also satisfies due process.14
Conclusion. Because personal jurisdiction over the
defendants comports with both State law and due process, the
order of the Superior Court allowing the defendants' motion to
dismiss is reversed, and the matter is remanded to the Superior
Court for proceedings consistent with this opinion.
So ordered.
13Because Justice Stevens did not base his conclusion on
any particular doctrinal framework, we do not address his
analysis. See Burnham, 495 U.S. at 640 (Stevens, J.,
concurring).
14Although not necessary to our decision, other undisputed
connections between the defendants and Massachusetts are
apparent from the record. The defendants hosted the softball
team of the Worcester Polytechnic Institute (WPI), which is
located in Massachusetts, at the defendants' property in
Florida, and the alleged tort occurred during the team's visit.
The WPI team had traveled to Florida during a "similar" trip in
the past, although it is unclear whether they visited the
defendants on that earlier trip. The defendants' daughter
coached the WPI team at the time of the alleged tort. And the
defendants were served with process while attending a softball
game at Worcester State College.