
USCA1 Opinion

	




          October 8, 1992                                 ____________________          No. 91-2238                       KIMBERLY CROCKER AND JULIAN H. CROCKER,                               Plaintiffs, Appellants,                                          v.                       THE HILTON INTERNATIONAL BARBADOS, LTD.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Torruella and Boudin, Circuit Judges,                                              ______________                             and Keeton,* District Judge.                                          ______________                                _____________________               Dianna  R.  Stallone,  with whom  Law  Office  of  Dianna R.               ____________________              __________________________          Stallone, was on brief for appellants.          ________               Robert  G. Eaton, with whom  Sloane and Walsh,  was on brief               ________________             ________________          for appellee.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA, Circuit Judge.   Kimberly and Julian Crocker                               _____________          ("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                                         -2-          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                                         -3-          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.                                         -4-                                          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.                                                            ___ ________          Best  Western Treasure  Island  Resort, 962  F.2d  126 (1st  Cir.          ______________________________________          1992); Marino  v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir. 1986).                 ______     ___________          In  this respect  the established  precedent  in this  circuit is          crystal clear,  of recent vintage,  and absolutely binding.   See                                                                        ___          Metcalf & Eddy v.  Puerto Rico Aqueduct and Sewer  Authority, 945          ______________     _________________________________________          F.2d 10 (1st Cir. 1991), cert. denied, 112 S. Ct. 1290 (1992).                                   _____ ______                    In Marino,  a Massachusetts resident  was injured  when                       ______          she  fell while staying at a Hyatt  Hotel in Hawaii.  Marino, 793                                                                ______          F.2d at 427.  Hyatt  owned and operated a hotel in  Massachusetts          and regularly  advertised and solicited  business there.   Id. at                                                                     ___          428.  Plaintiffs had made their reservations for the Hawaii Hyatt          through a  Massachusetts travel agency.   Id. at 428-29  n.3.  We                                                    ___          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          ___          slip  and  fall accident  in Hawaii  could  not "arise  from" the          reservation of a hotel room in Massachusetts.  Id. at 430.                                                         ___                    Similarly,  in   Fournier,  we  decided   that  another                                     ________          Massachusetts  resident  had  failed  to  establish  in  personam                                                               ____________          jurisdiction under   3(a).   The suit was against  a Grand Cayman                                         -5-          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,                                                                    ______          limited to solicitation of business.  Fournier, 962 F.2d at 127.                                                ________                    The holdings in Fournier  and Marino decide this issue.                                    ________      ______          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                                       ______     ________          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                                               ________     ______          manifestations,  however, are  no  different in  relation to  the          legal  issue  of  in  personam  jurisdiction  than  the pain  and                            ____________          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,                          ________ _____    ____________          771 (D.  Mass.  1985) (injury  occurs  where the  bodily  contact                                         -6-          occurs); Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D.                   _____    ____________________          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                                    _______                      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                                             ___  ____     ________________          Electric Corp., 370 F.2d 707 (1st Cir. 1966).  Nevertheless, this          ______________          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 . . . .                                         -7-          Id. at 711-12.1   The court  ruled in that  case that Section  38          ___          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          ___         ________ ___________     _______________________          F.2d 24, 28 (1st Cir.  1980); Howse v. Zinner Mfg. Co.,  757 F.2d                                        _____    _______________          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.                                                   ____                                          IV                    The  district court  did  not abuse  its discretion  in                                        ____________________          1    At oral  argument, appellants  relied  heavily on  Gunner v.                                                                  _________          Elmwood Doge, Inc.,  24 Mass. App. 96, 506 N.E.2d 175 (1987), for          __________________          the proposition  that  persistent solicitation  of  Massachusetts          residents can  suffice to  establish jurisdiction over  a foreign          corporation.     Gunner,  however,  involved   the  assertion  of                           ______          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,                                                                      ____          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.                           ___ ____                                         -8-          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                                                 ______          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                                                    ___________                      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          ______          intentional  interference  by  the  hotel owner  alleged  in  the          ___________          present case, but rather criminal acts by third parties.                      Appellants argue that Marino is distinguishable because                                          ______          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                                         -9-          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                                                                         __          personam  jurisdiction would not lie  to try these  new counts in          ________          Massachusetts, the district court  acted correctly in denying the          motion to amend the complaint.  Vargas v. McNamara,  608 F.2d 15,                                          ______    ________          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          ________     ______          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.                             ___                    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                                         -10-          services outside of Massachusetts.                    The orders appealed from are affirmed.                                                 ________                                         -11-
