DocketNumber： 91-2238
Filed Date： 10/8/1992
Status： Precedential
Modified Date： 9/21/2015
October 8, 1992
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No. 91-2238
KIMBERLY CROCKER AND JULIAN H. CROCKER,
Plaintiffs, Appellants,
v.
THE HILTON INTERNATIONAL BARBADOS, LTD.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella and Boudin, Circuit Judges,
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and Keeton,* District Judge.
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Dianna R. Stallone, with whom Law Office of Dianna R.
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Stallone, was on brief for appellants.
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Robert G. Eaton, with whom Sloane and Walsh, was on brief
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for appellee.
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* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Circuit Judge. Kimberly and Julian Crocker
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("Appellants") sued the Hilton International Barbados, Ltd.
("Appellee"), a hotel located in Bridgetown, Barbados, for
damages resulting from the rape of Kimberly Crocker while she and
her husband of less than a year were guests at that lodging.
Appellants allege that when Kimberly Crocker was walking through
the hotel premises alone, she was attacked at knifepoint and
raped. The complaint alleges counts for negligence and loss of
consortium, and claims that the assault was perpetrated by a
person who was neither a guest at the hotel nor a hotel employee.
Appellee challenged the personal jurisdiction of the
district court through a Motion to Dismiss, which was granted
notwithstanding appellants' opposition. The district court also
disallowed appellants' motions to amend the complaint to add as
defendants Hilton Hotel Corporation and Hilton International,
Ltd. In addition the motion sought to add claims for breach of
contract and warranty, which request was also denied. Appellants
attempted to stay the jurisdictional ruling pending discovery but
this move was rejected by the trial court. These rulings are all
the subject of this appeal.
Appellants make a three-fold claim of personal
jurisdiction over appellee: (1) they allege that the sexual
assault in Barbados arose out of appellee's transaction of
business in Massachusetts within the meaning of Mass. Gen. Laws
ch. 223A, 3(a); (2) they claim that some of the damages
resulting from the rape in Barbados, namely a diagnosed delayed
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post traumatic stress syndrome, as well as the loss of
consortium, constitute a tortious injury in Massachusetts
pursuant to Mass. Gen. Laws ch. 223A, 3(d); and (3) they
contend that appellee's activities in Massachusetts were
sufficient to warrant the exercise of jurisdiction under Mass.
Gen. Laws ch. 223, 37 and 38.
Chapter 223A, 3(a), Mass. Gen. Laws states 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 . . . .
Section 3(d), thereof allows personal jurisdiction over
a person
causing tortious injury in this
commonwealth by an act or omission
outside the commonwealth if he regularly
does or solicits business, or engages in
any other persistent course of conduct,
or derives substantial revenue from goods
used or consumed or services rendered, in
this commonwealth.
Section 37 of Chapter 223 establishes the procedure for
service of process on corporations, with Section 38 specifically
dealing with the application of said measures to foreign
corporations.
The following facts arise from the record. Appellee is
a corporation organized under the laws of Barbados, with its sole
place of business therein. It conducts no business in
Massachusetts except for the solicitation of business, as will be
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described hereinafter. It has no offices, agents or employees in
the commonwealth. Nor does appellee pay taxes, have any process
agent, or is it listed as having a Massachusetts telephone number
or address.
Appellants booked their hotel room through a travel
agency located in Massachusetts, Village Tour and Travel
("Village Tours"). This agency had received an advertising
brochure about appellee's hotel from its parent company, Hilton
International. Village Tours placed appellants' booking through
Go Go Tours, an affiliate of a New Jersey travel management
company known as Lib/Go Travel, Inc. ("Lib/Go"). Lib/Go has an
agreement with appellees pursuant to which it is given preference
on a certain number of rooms at a discount rate. Thus,
appellants made a down payment to Village Tours, Village Tours
paid Go Go, and Go Go paid the hotel in Barbados.
Hilton International maintains an "800" number (1-800-
Hiltons), as well as a Boston area telephone number, whereby
reservations can be made for any Hilton hotel worldwide. These
telephone numbers are also listed in a brochure distributed in
Massachusetts by Hilton International, a copy of which was
acquired by Kimberly Crocker in that state. Together with six
other hotels, appellee was listed in a Boston Globe advertisement
sponsored by Hilton International and American Airlines. In
addition, there is some evidence to the effect that the Barbados
Hilton was represented on one occasion at an annual Caribbean
Tourism Association trade show in Massachusetts.
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I
The crucial question to be answered under the two-part
analysis required by Section 3(a) of the Massachusetts long arm
statute is whether appellants' causes of action arose out of
business conducted in Massachusetts by appellee. See Fournier v.
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Best Western Treasure Island Resort, 962 F.2d 126 (1st Cir.
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1992); Marino v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir. 1986).
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In this respect the established precedent in this circuit is
crystal clear, of recent vintage, and absolutely binding. See
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Metcalf & Eddy v. Puerto Rico Aqueduct and Sewer Authority, 945
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F.2d 10 (1st Cir. 1991), cert. denied, 112 S. Ct. 1290 (1992).
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In Marino, a Massachusetts resident was injured when
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she fell while staying at a Hyatt Hotel in Hawaii. Marino, 793
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F.2d at 427. Hyatt owned and operated a hotel in Massachusetts
and regularly advertised and solicited business there. Id. at
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428. Plaintiffs had made their reservations for the Hawaii Hyatt
through a Massachusetts travel agency. Id. at 428-29 n.3. We
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ruled that it was not enough "that a defendant transact business
in Massachusetts. The cause of action itself must "'aris[e]
from' the defendant's transacting of business in Massachusetts."
Id. at 428. We concluded that a personal injury action for a
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slip and fall accident in Hawaii could not "arise from" the
reservation of a hotel room in Massachusetts. Id. at 430.
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Similarly, in Fournier, we decided that another
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Massachusetts resident had failed to establish in personam
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jurisdiction under 3(a). The suit was against a Grand Cayman
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Island hotel for injuries suffered there when that plaintiff was
struck by a motor boat while she was snorkeling. Plaintiff also
had made her travel arrangements in Massachusetts, but
defendant's activities in Massachusetts were, as in Marino,
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limited to solicitation of business. Fournier, 962 F.2d at 127.
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The holdings in Fournier and Marino decide this issue.
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The district court correctly ruled that it lacked jurisdiction
under Section 3(a).
II
Appellants' argument under Section 3(d) fares no
better. Although appellants' post trauma and consortium-related
injuries may have been experienced upon their return to
Massachusetts, here, as in Marino and Fournier, the plaintiffs
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sued for damages stemming from the out-of-state incident.
Furthermore, the injury to which Section 3(d) refers is the
sexual assault itself, not the manifestations or effects of that
injury as claimed by appellants. The complaint in this case may
be understood as alleging manifestations or effects more severe
than were alleged in cases such as Fournier and Marino. These
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manifestations, however, are no different in relation to the
legal issue of in personam jurisdiction than the pain and
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suffering of the plaintiffs in those cases, in which the accident
took place elsewhere, but plaintiffs convalesced in Massachusetts
and suffered most of the effects of the out-of-state injuries in
Massachusetts. See also Mello v. K-Mart Corp., 604 F. Supp. 769,
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771 (D. Mass. 1985) (injury occurs where the bodily contact
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occurs); Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D.
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Mass. 1976).
The injury occurred in Barbados. Thus appellee cannot
be subjected to personal jurisdiction in Massachusetts under
Section 3(d) in the circumstances of this case.
III
Neither do Sections 37 and 38 of Chapter 223 Mass. Gen.
Laws provide a basis for personal jurisdiction over appellee.
Section 38 states that:
In an action against a foreign
corporation . . . which has a usual place
of business in the commonwealth, or, with
or without such usual place of business,
is engaged in or soliciting business in
the commonwealth, permanently or
temporarily, service may be made in
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accordance with the provision[] of
[Section 37] relative to service on
domestic corporations . . . .
Emphasis supplied.
Although this language would appear to principally deal
with the mechanical aspects of acquiring jurisdiction, it has
been interpreted more broadly. See Caso v. Lafayette Radio
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Electric Corp., 370 F.2d 707 (1st Cir. 1966). Nevertheless, this
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provision has never been extended to encompass appellants'
contentions. In fact it has been
regularly found [that] more than "mere
solicitation" [is required] . . . .[E]ven
when [the Supreme Judicial Court of
Massachusetts] has found solicitation
plus some other activity, it has not
extended jurisdiction when the cause of
action did not arise out of the
activities in Massachusetts . . . .
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Id. at 711-12.1 The court ruled in that case that Section 38
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jurisdiction would attach only if
(a) . . . the corporation's activities
affect the commerce of Massachusetts
substantially so that the state has an
interest in regulating the general
conduct of those activities . . . or (b)
whenever the corporation's activities in
Massachusetts have so affected the
particular transaction at issue that it
is appropriate to have the claim in a
Massachusetts court . . . .
Id. at 712; see also Mas Marques v. Digital Equipment Corp., 637
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F.2d 24, 28 (1st Cir. 1980); Howse v. Zinner Mfg. Co., 757 F.2d
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448, 450 (1st Cir. 1983).
Appellants' claim does not arise out of the
solicitation of business in Massachusetts, but rather out of the
action of a third party after appellants had lodged in the
Barbados Hilton and, at most, the alleged negligence of the
Barbados Hilton in failing to provide appropriate security. No
jurisdiction attaches under Section 38. Caso, 370 F.2d at 712.
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IV
The district court did not abuse its discretion in
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1 At oral argument, appellants relied heavily on Gunner v.
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Elmwood Doge, Inc., 24 Mass. App. 96, 506 N.E.2d 175 (1987), for
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the proposition that persistent solicitation of Massachusetts
residents can suffice to establish jurisdiction over a foreign
corporation. Gunner, however, involved the assertion of
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jurisdiction under section 3(a) of the long-arm statute -- that
is, over a cause of action assumed by the court to arise out of
the corporation's contacts with the state. In this case, as we
have explained above, appellants' cause of action does not arise
out of appellee's contacts with Massachusetts. As noted in Caso,
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significantly more by way of contacts is required where the cause
of action does not arise out of the foreign defendant's contacts
with the state. See Caso, 370 F.2d at 711-12.
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denying appellants' motion to amend the complaint. Appellants
sought to include additional claims grounded on breach of
contract and breach of warranty theories. The breach of contract
claim alleged that appellee contracted with appellants in
Massachusetts to provide safe and habitable premises at its
hotel, and that appellee breached that contract by failing to
maintain safe and habitable conditions. Similarly, the breach of
warranty claim alleged that appellee impliedly warranted that its
premises were safe and habitable, and that appellee breached that
warranty because its premises were unsafe. Again, these claims
are foreclosed by our rulings in Marino. In considering
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plaintiff's breach of contract argument we stated:
[T]o proceed in contract against a hotel
owner for the infliction of personal
injury [requires] intentional
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interference with the hotel guest's right
to the quiet enjoyment of his room . .
. .
Marino, 793 F.2d at 430 (emphasis in original). There is no
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intentional interference by the hotel owner alleged in the
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present case, but rather criminal acts by third parties.
Appellants argue that Marino is distinguishable because
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in that case only a reservation had been made; here, appellants
had paid $1,600 in advance and had been assigned a "room
category." We conclude, however, that the implied covenant
pertaining to safety of occupied premises arises when the guest
checks in, is assigned some specific space, and receives a key or
other means of access to that space.
Thus the claims in the amendments sought would have
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arisen in this case, not when the reservation was made in
Massachusetts through the travel agent, but in Barbados when
appellants checked in as hotel guests. Therefore, since in
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personam jurisdiction would not lie to try these new counts in
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Massachusetts, the district court acted correctly in denying the
motion to amend the complaint. Vargas v. McNamara, 608 F.2d 15,
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18 (1st Cir. 1979).
This conclusion is of equal application to the
amendment seeking to add Hilton International and Hilton Hotel
Corporation as defendants.
V
Trial courts have broad discretion to decide whether
discovery is required on the issue of personal jurisdiction.
Santiago v. Fenton, 891 F.2d 373, 379 (1st Cir. 1989). A ruling
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will be overturned "only upon a clear showing of manifest
injustice, that is, where the lower court's discovery order was
plainly wrong and resulted in substantial prejudice to the
aggrieved party." Id.
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The information sought by appellants deals with the
amount of revenue derived by appellee from Massachusetts
customers, whether appellee's employees travelled to this state
to participate in a Caribbean Tourism Association trade show, and
whether appellee has "letters of agreement" with other
Massachusetts tour promoters. None of this information is
relevant to the issue before us as it deals either with mere
solicitation of business, or involves the provision of goods or
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services outside of Massachusetts.
The orders appealed from are affirmed.
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Hector Santiago v. Paul J. Fenton, Etc. , 891 F.2d 373 ( 1989 )
Cynthia Fournier v. Best Western Treasure Island Resort , 962 F.2d 126 ( 1992 )
harold-vargas-v-robert-c-mcnamara-iii-v-sidmar-enterprises-inc , 608 F.2d 15 ( 1979 )
Adolph Caso v. Lafayette Radio Electronics Corporation , 370 F.2d 707 ( 1966 )
Mary Marino and Thomas Marino v. Hyatt Corporation , 793 F.2d 427 ( 1986 )
Mello v. K-Mart Corp. , 604 F. Supp. 769 ( 1985 )
Gunner v. Elmwood Dodge, Inc. , 24 Mass. App. Ct. 96 ( 1987 )
Walsh v. National Seating Co., Inc. , 411 F. Supp. 564 ( 1976 )