D'Almeida v. Stork Brabant B.V.

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 -2- -2-

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 -3- -3-

assertion of jurisdiction over Gerritse in this

indemnification action would still be unconstitutional.

Affirmed.

Concurrence follows.

-4- -4- -5- -5- 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.

-6- -6-

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 -7- -7-

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 -8- -8-

law and flies in the teeth of binding precedent.

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