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    Rose Chlebda, Administratrix of The Estate of Joseph Chlebda v. H. E. Fortna and Brother, Inc., 609 F.2d 1022, 1st Cir. (1979)

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    This document is a court case summary. A Massachusetts administratrix sued a Pennsylvania company, Fortna, for failing to warn of an alleged defect in a forklift manufactured by another company. Fortna argued the court lacked personal jurisdiction over it. The court agreed, finding that Fortna had no contacts with Massachusetts - it did no business there, was not registered there, and was not involved in the sale of the specific forklift. The court dismissed the suit against Fortna for lack of jurisdiction.

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    Rose Chlebda, Administratrix of The Estate of Joseph Chlebda v. H. E. Fortna and Brother, Inc., 609 F.2d 1022, 1st Cir. (1979)

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    45 views4 pages
    This document is a court case summary. A Massachusetts administratrix sued a Pennsylvania company, Fortna, for failing to warn of an alleged defect in a forklift manufactured by another company. Fortna argued the court lacked personal jurisdiction over it. The court agreed, finding that Fortna had no contacts with Massachusetts - it did no business there, was not registered there, and was not involved in the sale of the specific forklift. The court dismissed the suit against Fortna for lack of jurisdiction.

    Original Description:

    Filed: 1979-11-29 Precedential Status: Precedential Citations: 609 F.2d 1022 Docket: 79-1138

    Original Title

    Rose Chlebda, Administratrix of the Estate of Joseph Chlebda v. H. E. Fortna and Brother, Inc., 609 F.2d 1022, 1st Cir. (1979)

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    This document is a court case summary. A Massachusetts administratrix sued a Pennsylvania company, Fortna, for failing to warn of an alleged defect in a forklift manufactured by another company. Fortna argued the court lacked personal jurisdiction over it. The court agreed, finding that Fortna had no contacts with Massachusetts - it did no business there, was not registered there, and was not involved in the sale of the specific forklift. The court dismissed the suit against Fortna for lack of jurisdiction.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    45 views4 pages

    Rose Chlebda, Administratrix of The Estate of Joseph Chlebda v. H. E. Fortna and Brother, Inc., 609 F.2d 1022, 1st Cir. (1979)

    Uploaded by

    Scribd Government Docs
    This document is a court case summary. A Massachusetts administratrix sued a Pennsylvania company, Fortna, for failing to warn of an alleged defect in a forklift manufactured by another company. Fortna argued the court lacked personal jurisdiction over it. The court agreed, finding that Fortna had no contacts with Massachusetts - it did no business there, was not registered there, and was not involved in the sale of the specific forklift. The court dismissed the suit against Fortna for lack of jurisdiction.

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    of 4

    609 F.

    2d 1022

    Rose CHLEBDA, Administratrix of the Estate of Joseph


    Chlebda, Plaintiff, Appellant,
    v.
    H. E. FORTNA AND BROTHER, INC., Defendant, Appellee.
    No. 79-1138.

    United States Court of Appeals,


    First Circuit.
    Argued Oct. 3, 1979.
    Decided Nov. 29, 1979.

    Marc S. Alpert, Boston, Mass., with whom Terry K. Mond was on brief,
    for plaintiff, appellant.
    Robert A. Curley, Jr., Boston, Mass., with whom Curley & Curley,
    Boston, Mass., was on brief, for defendant, appellee.
    Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.
    ALDRICH, Senior Circuit Judge.

    In her third amended complaint plaintiff, administratrix of one Joseph Chlebda,


    sought damages for Chlebda's conscious suffering and wrongful death,
    allegedly as a result of the negligent design of a forklift, or sideloader
    manufactured by defendant Raymond Corporation, against defendant appellee
    H. E. Fortna and Brother, Inc. for its failure to warn of the defect.1 The suit was
    brought in the District Court for the District of Massachusetts; plaintiff and
    Chlebda were Massachusetts citizens; Raymond, a New York corporation, was
    doing business in Massachusetts, and Fortna was a Pennsylvania corporation.
    Fortna moved to dismiss for lack of personal jurisdiction, and some days later
    filed an affidavit in support. This affidavit stated that Fortna had conducted no
    business in Massachusetts; was not registered, licensed or qualified to do
    business in Massachusetts; maintained no office or place of business in
    Massachusetts; engaged in no advertising, marketing or sales activities in
    Massachusetts; had sold no product and derived no revenue from sales in
    Massachusetts, and had had no connection with the Raymond sideloader in

    question.
    2

    Plaintiff filed no counter-affidavit, but simply a motion as follows:

    "Plaintiff opposes defendant's motion to dismiss. Plaintiff reserves the right to


    file opposing memorandum, affidavits, interrogatories, after plaintiff receives
    defendant's affidavits and memorandum."

    Apparently this motion was filed while defendant's affidavit and memorandum
    were in the mail. Plaintiff did not request a hearing pursuant to Local Rule 12(c)
    (1), but filed a memorandum in opposition to defendant's motion to dismiss, and
    a week later filed interrogatories and a request for production of documents.
    The court granted the motion to dismiss. In a short opinion it stated,

    5
    "(The
    discovery sought would) go to the merits of (plaintiff's) claim rather than to
    the jurisdictional issues. Nothing in the plaintiff's filings contradicts the defendant's
    affidavit and there is no indication in any of plaintiff's filings that she could meet her
    burden . . . of showing . . . the minimum contacts which are a prerequisite to
    obtaining personal jurisdiction over the defendant under the Massachusetts long arm
    statute, Mass.G.L. c. 223A, 3(c)."
    6

    The claim against Raymond Corporation having been disposed of, plaintiff
    appeals.

    In her statement of issues on appeal plaintiff puts, in various forms, the question
    whether jurisdiction exists where defendant by "act of omission or commission
    done outside of Massachusetts" causes foreseeable injury in Massachusetts. As
    a final issue, she complains that the court dismissed her complaint without
    waiting for discovery "designed to elicit facts establishing personal
    jurisdiction."

    Abandoning her original statement that the act of omission took place outside
    of Massachusetts, plaintiff's brief proceeds by claiming under Mass. G.L. c.
    223A, 3(c), for "causing tortious injury by an act or omission In this
    commonwealth," (emphasis added), asserting that the omission occurred where
    the unwarned person resided. This somewhat metaphysical contention can best
    be tested by considering whether an omission, viz., a failure to act, may be
    thought to furnish the minimum contact with that state that is needed to confer
    jurisdiction. It seems clear that it could not be. The whole thrust of plaintiff's
    claim is that there was no contact at all.

    It is not to be forgotten that jurisdiction is power, and that originally


    jurisdiction in personam required presence of the person. While power and
    presence have become largely symbolic, there still must be some form of
    submission to the state.

    10

    "(I)t 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, 1958, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283.

    11

    Here the very complaint is that defendant did nothing.

    12

    Alternatively, plaintiff relies on section 3(d), 2 asserting that even though it was
    a Pennsylvania dealer not connected with the sale of this particular machine,
    defendant was part of a national dealer network, all of whose members derived
    benefits from each other. Thus defendant "(e)ngaged in a . . . persistent course
    of conduct" within the commonwealth. For this assertion, which would seem
    contradicted by a portion of defendant's affidavit, plaintiff initially relies on the
    complaint. "These allegations must be taken as proven for purposes of
    resolving the issue of personal jurisdiction." This is an elementary mistake to
    establish personal jurisdiction plaintiff must go beyond the pleadings and make
    affirmative proof. Murphy v. Erwin-Wasey, Inc., 1 Cir., 1972, 460 F.2d 661;
    Weller v. Cromwell Oil Co., 6 Cir., 1974, 504 F.2d 927; 2 Moore's Fed.
    Practice (2d ed. 1979) P 4.41-1(3).

    13

    Apparently recognizing that she has made no proof, plaintiff turns to her final
    stated issue, charging that the court, by deciding the motion to dismiss when it
    did, cut her off prematurely from proving her case. The court did no such thing.
    Plaintiff's memorandum submitted to the court supported, both by its content
    and by the fact that it referred only to section 3(c), the court's announced
    conclusion that defendant's connection with Raymond's national dealer
    network, if established, would bear only on liability and was not asserted as
    jurisdictional. Plaintiff did not return to the court to claim a misunderstanding.
    Her present attempt to use such facts as jurisdictional under section 3(d) came
    so late that it was only by amendment to her statement of issues on appeal that
    she sought to lay the groundwork therefor by claiming that the court cut her
    off.

    14

    Our allowance of this amendment did not add to her rights. Again, it is
    elementary that, absent a serious miscarriage of justice, a party cannot take a
    new tack to support an appeal. Dobb v. Baker, 1 Cir., 1974, 505 F.2d 1041. We

    are not tempted, on plaintiff's present allegations, to relax the rule that she is
    bound by her past procedure, or, more precisely, by her lack of it.
    15

    Affirmed.

    Plaintiff charged that although Fortna, a Raymond dealer, had not handled the
    particular sideloader in question, it had known of the defect and should have
    warned Chlebda or his employer. We are not concerned with whether she has
    adequately stated a cause of action

    "(d) causing tortious injury in this commonwealth by an act or omission outside


    this 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." Mass. G.L. c.
    223A, 3(d)

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