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,
_________________

Stork Brabant,

with whom

Burns & Levinson

________________

B.V. and Stork Brabant,

was on

brief

Inc., defendants, third-pa

plaintiffs-appellants.

John T. Montgomery, with whom Jeffrey P. Trout, and Ropes & Gr

___________________
________________
__________

were on brief for Ing. Gerritse, B.V., third-party defendant-appell

____________________

December 11, 1995

____________________

Per Curiam.
__________

Stork Brabant B.V.

and Stork Brabant, Inc.

("Stork")

appeal

dismissing

contribution

facts

of the

from

third-party

against Ing.

judgment of

the

action

indemnification

for

district

court

Gerritse B.V. ("Gerritse").

and

The

are set out at length in the Report and Recommendation

magistrate judge; the

Massachusetts

legal issues

long-arm statute,

Mass. Gen.

3(d), authorizes the assertion of

Gerritse,

and,

jurisdiction

if

so,

is consistent

would normally decide the

the statute, in

L. ch.

whether

such

with due

an

process.

We therefore

of

Although we

basis of

as to how the

the statutory

of the constitutional issue

reasonably clear.

223A,

assertion

issue if possible on the

would decide

the

personal jurisdiction over

this case there is real doubt

Massachusetts courts

the resolution

are whether

issue, and

is, by contrast,

proceed to the

due process

analysis.

The

stage,

third-party

reveals

that

complaint,

Stork,

as a

machine from Gerritse; after

warranty producing

which

we

accept

distributor,

at this

ordered

negligently and/or in breach of

a defective machine, Gerritse

Massachusetts on Stork's instruction.

sent it to

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.

________________________

(1945), is

Washington,
__________

a very close call.

-2-2-

326

U.S. 310,

The arguments on

316

both sides

are ably set

forth in the

magistrate judge's report;

while

she concluded that minimum contacts were not present, and the

district court

would

agreed, we need

be especially

not decide the

difficult if

the injured

issue, which

plaintiff in

this case had brought suit against Gerritse.

But even if minimum

process further

contacts were arguably present, due

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.

cause

of action against Gerritse

indemnification.

that any

The parties

litigation between

Massachusetts;

selection

litigation.

indeed,

clause

them

would not

their

contract

designating

Holland

dispute

by Stork for

must reasonably have

More important,

indemnification

is an action

are

expected

take place

included

as

The sole

the

locus

in

forum

of

Massachusetts' interest in the

extremely

limited,

the

compensation of its citizen not being at stake.

Extensive discussion

this

phase of the case

is unnecessary because in our view

is directly governed

by Asahi Metal
___________

Industry Co. v. Superior Court,

____________
______________

There eight

480 U.S. 102, 113-16 (1987).

justices applied the "fair

play and substantial

justice" requirement to hold that jurisdiction was lacking in

quite similar circumstances.

were barely

present, a

Thus, even if minimum contacts

question we

-3-3-

decline to answer,

the

assertion

of

jurisdiction

over

Gerritse

in

indemnification action would still be unconstitutional.

Affirmed.
_________

this

Concurrence follows.
____________________

-4-4-

-5-5-

BOWNES, Senior Circuit Judge, concurring.

BOWNES, Senior Circuit Judge, concurring.
____________________

with

the result

reached

by the

court,

reservations about the short cut taken

basis of

Co.,
___

a head count of the

480 U.S. 102, the

determine

whether the

but I

I agree

have

to get there.

grave

On the

Justices in Asahi Metal Indus.

__________________

majority concludes that

defendant had

it need not

minimum contacts

with

Massachusetts "such that the maintenance of the suit does not

offend

'traditional

justice.'"

(1940)).

fair

play

and substantial

International Shoe Co. v. State of Washington,

_______________________________________________

326 U.S. 310, 316

463

notions of

In

(quoting Milliken v. Meyer, 311

_________________

Ashai there
_____

was a

holding

U.S. 457,

albeit by

plurality:

the facts "do not establish minimum contacts such

that the exercise of personal jurisdiction is consistent with

fair play and substantial justice . . . ."

That is the

only jurisdictional holding

not think we should, on the

as

prerequisite

"minimum contact"

has

been the

to

480 U.S. at 116.

in the case.

basis of a head count,

jurisdictional

analysis.

Up

required starting

I do

jettison

determination

until now such

front for

an analysis

a jurisdictional

determination.

The analysis as applied here, would run as follows:

The

question

contacts with

jurisdiction

is

whether

the forum

will not

Gerritse has

state, such

offend

play and substantial justice."

sufficient

that the

minimum

assertion of

"traditional notions

of fair

International Shoe, 326 U.S.

__________________

-6-6-

at

316.

The test

for the

jurisdiction is tripartite.

litigation must

contacts with

arise out

assertion of

specific personal

First, the claim underlying the

of or

the forum state.

relate to

the defendant's

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

conducting activities within

the

benefits and

Denckla,
_______

the forum state, thus

protections

357 U.S. 235, 253

itself of the privilege of

of

its

(1958).

laws."

Third,

invoking

Hanson v.
__________

the exercise of

jurisdiction must be reasonable in light of the five criteria

announced in

477 (1985):

forum state's

Burger King Corp. v. Rudzewicz, 471

_______________________________

U.S. 462,

(1) the defendant's burden of appearing, (2) the

interest in adjudicating the

plaintiff's

interest in

relief, (4)

the

dispute, (3) the

obtaining convenient

interstate judicial

system's

and effective

interest

in

obtaining the most efficient resolution of controversies, and

(5) the shared interest

of the several states in

furthering

fundamental substantive policies.

contacts"

especially

brought

do not agree with the majority that the "minimum

issue

difficult

suit

jurisdictional

signed

"is

if the

against

facts are

a contract

very

in the

close

injured

call"

plaintiff .

Gerritse."

as

follows.

The

Stork and

Netherlands under

-7-7-

and

"would

be

. had

undisputed

Gerritse

which Gerritse

would build

machines exclusively for Stork.

are headquartered

international

in

the Netherlands.

corporation that

world.

Under the

machines

manufactured

international

contract

market.

by

does

When

the

and arranged to

machine

transport the

business all

to

and sell

Stork's satisfaction, Stork supplied

label

Stork is

Stork agreed

Gerritse

Both companies

large

over the

purchase the

them

on

was finished

the

to

Gerritse with a mailing

machine to

the buyer.

Stork controlled all marketing, sales, and transporta-tion of

the machines.

Gerritse

did

had no

contacts with Massachusetts.

know from the order form

machine was

Shawmut

going to

Mills.

furnished it by Stork that the

Massachusetts.

Subsequent

machine,

Roland Dekens,

while on

a trip to the

an

It

to

It

the

was delivered

installation

engineer-employee of

United States as an

of

to

the

Gerritse,

agent of Stork,

inspected the machine at Shawmut Mills and submitted a report

to both Stork and Gerritse.

"minimum

think it

contacts"

is

clear that

analysis

there

under the

could

be

traditional

no

personal

jurisdiction over Gerritse.

But

majority

even if

the

issue is

states, that is no excuse

close one,

as

for not deciding it.

the

To

apply

the

"fair

play

without any "minimum

and

substantial

justice"

contacts" analysis ignores

-8-8-

law and flies in the teeth of binding precedent.

doctrine

established

-9-9-