Opinion
No. 2000-4370
DATED: August 20, 2001
MEMORANDUM AND ORDER ON DEFENDANTS MILLI KNACK AND LESTER KNACK'S MOTION TO DISMISS
This matter is before the court on the defendants' motion to dismiss the plaintiff's complaint for lack of personal jurisdiction and, alternatively, to dismiss Count IV for failure to state a claim upon which relief may be granted. The defendants assert that their contacts with Massachusetts are insufficient to permit proper exercise of jurisdiction. Additionally, the defendants argue that even if the court may properly exercise jurisdiction, under choice of law principles, New York law governs, and therefore Count IV alleging violations of the Massachusetts Dog Bite Statute must be dismissed. The plaintiff opposes the motion, contending that the defendants' activities within Massachusetts expose them to this court's jurisdiction and that such an assertion comports with both the Massachusetts long arm statute and the United States Constitution. The plaintiff further contends that application of choice of law principles is premature. Having heard the parties and examined the papers, the defendants' motion is DENIED .
BACKGROUND
The facts, taken in the light most favorable to the plaintiff, are as follows:
On or about July 6, 1998, the plaintiff, Katherine Burke ("Burke"), a professional dog handler, entered into a contract with Anita M. Migday, D.V.M. ("Migday"), a Massachusetts dog breeder, to exhibit Migday's Bullmastiff dog named Carlton at dog shows. In September 1998, a third party referred Migday to out-of-state defendants Milli and Lester Knack ("the Knacks") after the Knacks expressed interest in purchasing a Bullmastiff. Mr. Knack subsequently initiated contact by telephoning Migday and negotiated the terms of the Purchase and Sale Agreement ("Agreement") to purchase Carlton. Mrs. Knack also telephoned Migday at her residence and place of business.
Prior to signing the Agreement, the Knacks mailed Migday a check in the amount of $5,400.00. Migday deposited that check into her account on September 24, 1998. Under the terms of the Agreement drafted by Migday, the Knacks agreed that:
Stud service monies of $3, 600.00 (3 breedings @ $1200/breeding) will be paid as they are received from bitch owners using Carlton's semen. The stud services will be from the first 3 of the following 4 individuals who have already requested Carlton's semen in the near future: Jeannie Stacey of Visalia, CA, Mark Essary of Oklahoma, Becky Combs of Ohio Laurie Bowser of Massachusetts.
Shall Carlton ever need to be resold or relocated, [Migday] of OAKRIDGE BULLMASTIFFS must be informed immediately in order to have opportunity to reclaim the dog or assist in relocating the dog in an appropriate home. She will owe the Buyer any monies should this become necessary.
The Knacks arranged by telephone with Migday and Burke to pick up Carlton on September 27, 1998, the day their ownership rights became effective, in New York where Burke was exhibiting Carlton in a dog show. After the show, Carlton was loaded into a cage and placed into the back of the Knacks' van. When Burke opened up the cage to say goodbye, Carlton viciously attacked Burke's face.
The Knacks refused to take Carlton home with them. The following morning on September 28, 1998, Migday took possession of Carlton and, in accordance with Massachusetts law, kept him quarantined for 10 days before administering euthanasia. On October 6, 1998, the Knacks executed a General Release agreeing not to hold Migday liable for her having "put down [Carlton] . . . as required under Massachusetts State law."
On October 31, 2001, Burke filed suit alleging negligence, violations of G.L.c. 140, § 155, and breach of contract against Migday (Counts I, II III); and violations of G.L.c. 140, § 155, negligence and breach of contract against the Knacks (Counts IV, V VI). On January 2, 2001, this court (Fabricant, J.) allowed the parties to engage in discovery limited to the issue of personal jurisdiction. The court now has before it the Knacks' motion to dismiss all claims against them on the grounds that the court lack personal jurisdiction, see Mass.R.Civ.P. 12 (b)(2), and Count IV fails to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12 (b)(6).
DISCUSSION
I. Personal Jurisdiction
The issue of whether this court may assert personal jurisdiction over the Knacks involves a two-part inquiry. The first question is whether the Massachusetts Long Arm Statute, G.L.c. 233A is applicable to the case at bar. See Good Hope Indust., Inc. v. Ryder Scott, Co., 378 Mass. 1, 5-6 (1979); Packard v. Packard, 34 Mass. App. Ct. 543, 548 (1993). If so, the second question is whether such an exercise of jurisdiction is consistent with basic due process requirements mandated by the United States Constitution. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Jurisdiction may be asserted only when both questions are answered in the affirmative. Good Hope, 378 Mass. at 5-6. Burke has the "has the burden of establishing the facts upon which the question of personal jurisdiction over a defendant is to be determined." See Good Hope, 378 Mass. at 3; Droukas, 375 Mass. at 151; Stanton v. AM Gen. Corp., 50 Mass. App. Ct. 116, 117 (2000); Balloon Bouquets, Inc. v.Balloon Telegram Delivery, Inc., 18 Mass. App. Ct. 935, 935 (1984).
The Long Arm Statute
According to Burke, the court's jurisdiction over the Knacks is proper under the "transacting business" provision of the Massachusetts Long Arm Statute. In pertinent part, G.L.c. 223A, § 3(a) provides:
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.
The Supreme Judicial Court has indicated that the courts should construe the "transacting any business" language in § 3(a) broadly. SeeTatro v. Manor Care, Inc., 416 Mass. 763, 768 (1994); Ross v. Ross, 371 Mass. 439, 441 (1976). Thus, "any purposeful act by an individual, whether personal, private or commercial," generally satisfies § 3(a)'s requirement. See id.; Morrill, 390 Mass. at 130. Whether a particular defendant's acts constitute transacting any business must be decided on the particular facts involved. See Morrill v.Tong, 390 Mass. 120, 129 (1983); Droukas v. Divers Training Academy, Inc. 375 Mass. 149, 156-57 (1978).
The court finds that Burke has presented sufficient evidence that the Knacks transacted business in the Commonwealth. The Knacks engaged in a series of phone calls with Migday to negotiate contract terms and to arrange to pick up Carlton in New York. On at least two occasions, the Knacks mailed documents to Migday in Massachusetts. Moreover, the Knacks made their business transactions in Massachusetts continuous when they agreed to provide Carlton's semen to a Massachusetts resident and to contact Migday before relinquishing ownership of Carlton.
The "arising from" language similarly receives a broad construction. See Tatro, 416 Mass. at 771. This inquiry requires the court to determine if Burke would have suffered injuries but for the Knacks' transacting business in the Commonwealth. See id.. At the time of the incident, Carlton was in a cage in the Knacks' van because the Knacks were exerting ownership pursuant to the terms of the Agreement with Migday. The court thus finds that Burke's injuries arose from the Knacks' contract with Migday, and therefore, the Knacks are subject to this court's jurisdiction under the long-arm statute.
Due Process
In addition to meeting the statutory requirement, the exercise of personal jurisdiction must satisfy the requirements of the Due Process Clause of the United States Constitution. Jurisdiction is proper if the Knacks have minimum contacts with Massachusetts such that the exercise of jurisdiction would "not offend traditional notions of fair play and substantial justice." See International Shoe, 376 U.S. at 316.
Applying these principles, the court finds that the Knacks established "minimum contacts" in Massachusetts by purposefully availing themselves of the privileges and benefits of Massachusetts laws. Burger King Corp., v. Rudzewicz, 471 U.S. 462, 475 (1985). The Knacks deliberately engaged in significant activities within Massachusetts when they initiated and maintained contact with Migday via telephone and mail, and when they consciously agreed to contract terms that maintained contacts with Migday and another Massachusetts resident. See id. Moreover, the Knacks executed a release permitting Migday to "put down" Carlton as required under Massachusetts law. As such, it is "not unreasonable to require [the Knacks] to [now] submit to the burdens of litigation in [Massachusetts] as well." See id. at 475-476.
Additionally, the exercise of jurisdiction over the Knacks is "neither so unfair nor so unreasonable as to result in a denial of due process." See Good Hope, 378 Mass. at 12. In the General Release, the Knacks stated,
[we] agree to release [Migday], whom we believe to be the true, legal owner of . . . Carlton from any and all liability relating to [Migday] putting the dog . . . down as required under Massachusetts State law. While the undersigned believe that Dr. Migday is, and at all times pertinent hereto was, the legal owner of the dog and that [the Knacks] did not "own" the dog at any time . . .
In her answer to the complaint, however, Migday asserts repeatedly that "she was not the owner or keeper of the dog at the time of the alleged incident." Thus, whether Migday or the Knacks owned Carlton at the time of the incident will undoubtedly become a major factual and legal issue in Burke's suit against the Knacks as well as Burke's suit against Migday. Under these circumstances, Massachusetts' interest in adjudicating the dispute and Burke's interest in obtaining relief outweigh any burden on the Knacks in litigating the dispute here. Seeid. For these reasons, the Knacks' motion to dismiss for lack of personal jurisdiction is DENIED.
II. Motion to Dismiss Count IV: Violation of the Massachusetts' Dog Bite Statute
The Knacks contend that if this court exercises personal jurisdiction over them, Count IV alleging violations of the Massachusetts Dog Bite Statute, G.L.c. 140, § 155, must be dismissed because under choice of law principles, New York law governs.
The Knacks also contend that even if Massachusetts law applies, Count IV still fails to state a claim upon which relief may be granted because at the time of the incident, the Knacks were not Carlton's "keeper" as defined under G.L.c. 140, § 155. For the reasons discussed above, the court declines to address this contention.
The Knacks assert that Massachusetts law does not apply because Burke was attacked in New York. Under Massachusetts choice of law rules and the Restatement (Second) of Conflicts, however, personal injury claims may be governed by the laws of a state other than the state in which the alleged injury occurred if another state has a more significant relationship to the occurrence and the parties. See Bushkin Associates, Inc. v. Raytheon Co., 393 Mass. 622, 630-632; Dash v. Adelman, 45 Mass. App. Ct. 418, 421-422 (1998). Such considerations include the needs of the interstate system, the relevant policies of the forum and other interested states, certainty, predictability, uniformity of the result, and ease in the determination and application of the law to be applied. See Restatement (Second) of Conflicts of Laws § 6 (1971). Thus, Massachusetts rejects the traditional lex loci approach in favor of a "functional choice of law approach that responds to the interest of the parties, the States involved, and the interstate system as a whole." SeeBushkin, 393 Mass. at 631-632.
Which state's substantive law applies involves a consideration of facts beyond those needed to sufficiently allege a claim, and thus, the court declines to determine at this juncture whether New York or Massachusetts law governs Burke's claims. See United Technologies Corp., v. Liberty Mutual Ins. Co., 407 Mass. 591, 598 (1990) (premature to determine on a motion to dismiss what substantive law applies); Kwasniewski v. Gulf Stream Coach, Inc., 1999 WL 281306 *4 (Sup. Ct) (Toomey, J.) (same);Rhodes v. ITT Sheraton Corp., 1999 WL 26874 *5 (Sup.Ct.) (Hinkle, J.) (same). For these reasons, the Knacks' motion to dismiss Count IV alleging violations of G.L.c. 140, § 155 is DENIED .
ORDER
For the foregoing reasons, the defendants' motion to dismiss is DENIED .
_________________________ Raymond J. Brassard Justice of the Superior Court
DATED: August ___, 2001