

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 &amp; 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 &amp; 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

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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

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assertion   of   jurisdiction    over   Gerritse   in    this

indemnification action would still be unconstitutional.  

     Affirmed.                          

                                         Concurrence follows.                                                                         

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          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

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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

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law and flies in the teeth of binding precedent.

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