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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.
