
USCA1 Opinion

	




          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.                                         -9-                                         -9-
