Newman et al v. EADS N.V. et al

Filing 210

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER granting defendant Socata's motion to dismiss for lack of personal jurisdiction(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
HARRY NEWMAN, et al.,
)
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 09-10138-DJC
)
EUROPEAN AERONAUTIC DEFENCE AND )
SPACE COMPANY EADS N.V., et al.,
)
)
Defendants.
)
__________________________________________)

MEMORANDUM AND ORDER
Casper, J.
I.

June 16, 2011

Introduction
This case arises out of a February 2, 2007 crash of a Socata TBM 700 aircraft near the New

Bedford Regional Airport in Massachusetts in which all of the aircraft’s occupants, Michael J. Milot,
Lauren Angstadt and Peter John Karoly, died. Plaintiffs Harry Newman, Thomas A. Wallitsch and
Patricia and John Milot (“Plaintiffs”), administrators pendente lite of the estates of the three
decedents brought this action for breach of warranty, negligence, strict liability and punitive
damages against numerous defendants, including Defendant Socata SAS (“Socata”), the
manufacturer of the aircraft. Socata has now moved to dismiss the complaint for lack of personal
jurisdiction. For the reasons set forth below, Socata’s motion to dismiss for lack of personal
jurisdiction is GRANTED.
II.

Burden of Proof and Standard of Review

1

Although it is Socata’s motion to dismiss, the Plaintiffs ultimately bear the burden of
establishing that personal jurisdiction over Socata exists. Mass. Sch. of Law at Andover, Inc. v. Am.
Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). Here, the parties agree that the prima facie standard
governs the Court’s determination of whether it has personal jurisdiction. (Pl. Opp. at 3; Def. Reply
at 2).1 Thus, to meet its burden, the plaintiff must “demonstrate the existence of every fact required
to satisfy both the forum’s long-arm statute and the Due Process Clause of the Constitution.” United
States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (internal quotations and citation
omitted). Under this standard, the court will look to the facts alleged in the pleadings and the
parties’ supplemental filings, including affidavits. Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st Cir.
1995); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). The court will
“take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and
construe them in the light most congenial to the plaintiff's jurisdictional claim.” Mass. Sch. of Law,
142 F.3d at 34. It will then “add to the mix facts put forward by the defendants, to the extent that
they are uncontradicted.” Id. Notwithstanding the liberality of this approach, the court will not
“credit conclusory allegations or draw farfetched inferences.” Ticketmaster-New York, Inc., 26 F.3d
at 203.

1

For the purposes of this Memorandum and Order, all references to the parties’ filings are
abbreviated as follows: Defendant’s memorandum in support of its motion to dismiss (“Def.
Memo”); Declaration of Elisabeth Cassagnes attached to the Defendant’s memorandum in
support of its motion to dismiss and attached to Plaintiff’s opposition as exhibit 3 (“Cassagnes
Decl.”); Transcript of the deposition of Nelson Chabbert attached to Plaintiffs’ opposition to
defendant’s motion to dismiss as exhibit 1 (“Chabbert Dep.”); Plaintiffs’ renewed opposition to
Defendant’s motion to dismiss (“Pl. Opp.”); Defendant’s reply to Plaintiffs’ opposition to motion
to dismiss (“Def. Reply”) and transcript of oral argument from May 11, 2011 hearing (“Tr.”).
2

III.

Factual Background
Plaintiffs, who are citizens and residents of Pennsylvania, have sued numerous defendants,

including Socata. Socata is a company organized under French law with a principal place of
business in Tarbes, France. (Cassagnes Decl. ¶ 2). Socata designed and manufactured the TBM-700
aircraft involved in the crash. (Cassagnes Decl. ¶ 4). The Socata TBM-700 is an aviation aircraft
that seats six people: a pilot, a co-pilot and four passengers. (Pl. Opp. ¶ 4; Chabbert Dep. at 2223). The aircraft is purchased primarily by individuals or companies for private, non-commercial
use. (Pl. Opp. ¶ 4; Chabbert Dep. at 23-24). Socata does not conduct business in Massachusetts,
has no registered agent in Massachusetts, has no registered agent for service in Massachusetts, does
not maintain any offices in Massachusetts, has no employees based in Massachusetts, holds no bank
accounts in Massachusetts, has no telephone listings in Massachusetts, has never paid taxes to the
State of Massachusetts and does not own any personal or real property in Massachusetts.
(Cassagnes Decl. ¶ 3).
Socata did not sell the TBM-700 aircraft involved in the crash in Massachusetts nor were any
of the entities involved in the transactions that led to its sale to PK Leasing, the Pennsylvania owner
at the time of the crash, based in Massachusetts. In 2001, a company called Columbia Aircraft
Sales, Inc. (“Columbia”), based in Groton, Connecticut, purchased the aircraft in France from Socata
(Id.) and Socata delivered it to Columbia at Socata’s place of business in France. (Pl. Opp. ¶ 23;
see also Cassagnes Decl. ¶ 4; Ex. A (Terms & Conditions for sale of aircraft) and Ex. B (Certificate
of Acceptance)). Columbia then sold the aircraft to Chesapeake Leasing, Inc. located in Virginia,
which then sold it to PK Leasing. (Pl. Opp. ¶ 23).
Socata was not a party to any distribution agreement to sell the TCM-700 aircraft in the

3

United States. (Pl. Opp. at 19, Ex. 6 (Columbia Distribution Agreement); Def. Reply at 11).
However, Socata North America, which is located in Florida and has been previously dismissed
from this action, has distribution agreements with several regional United States distributors of the
Socata TBM series aircraft. (Pl. Opp. ¶ 2). The relationship between Socata and Socata North
America at the time of the 2007 accident was as follows: EADS Socata North America was owned
by EADS North America while EADS Socata S.A. (the predecessor of Socata) was owned by EADS
France. (Pl. Opp. ¶ 3). EADS Socata S.A. and EADS North America were then independent
entities owned by two different entities which were in turn both owned by EADS, N.V. (Pl. Opp.
¶ 3). Socata had no ownership interest in Socata North America at the time. (Pl. Opp. ¶ 3;
Cassagnes Decl. ¶ 5).2 The 2000 distribution agreement between EADS Socata North America,
now known as Socata North America, and Columbia Aircraft provided that “Socata [North America]
sells its Products at its sole discretion either by direct sales, or through the use of aircraft sales
representatives (ASRs), or through a network of distributors, of which Distributor wishes to belong;
provided, however, that Distributor’s Territory . . . shall be exclusive . . . .” (Pl. Opp. ¶ 11; Chabbert
Dep. at 94; Ex. 6, Distribution Agreement at 1)).

Under the agreement, Columbia was obligated

to “use its best efforts to promote the sale of the Product within the Territory,” by employing a sales
force and advertising the aircraft to potential customers. (Pl. Opp. ¶ 11; Ex. 6, Distribution
Agreement at 15).

The “Territory” includes sixteen states in the United States including

Massachusetts. (Ex. 6, Distribution Agreement at Ex. C). Although a distribution agreement existed

2

In January 2009, approximately two years after the accident and about one month
before this lawsuit was filed, EADS Socata became Socata. (Pl. Opp. ¶ 1). At that time, EADS
North America, Inc., also became Socata North America. (Pl. Opp. ¶ 2). Socata then became
the 100% owner of Socata North America, which is a New York corporation with its principal
place of business in Florida. (Pl. Opp. ¶ 3; Cassagnes Decl. ¶ 5).
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between EADS Socata North America and Columbia at the time of the accident, no distribution
agreement existed between EADS Socata S.A. (Socata’s predecessor) and Columbia.
IV.

Procedural History
Plaintiffs initiated this lawsuit on January 29, 2009, asserting claims for strict liability (Count

I), negligence (Counts II, VI - XI), and breach of warranty (Count III), and punitive damages (Count
IV) and breach of contract (Count V), against numerous defendants. Plaintiffs assert the claims in
Counts I through IV and VI against Socata. Since the filing of Plaintiffs’ first amended complaint
on March 4, 2009 (Docket # 4) and their second amended complaint on March 16, 2010 (#128),
numerous defendants have been dismissed.3
On June 29, 2010, Defendant Socata moved to dismiss for lack of personal jurisdiction
(#158). The parties then agreed to engage in jurisdictional discovery prior to the Court’s ruling on
Socata’s motion to dismiss. (#182). However, because the time for filing dispositive motions had
passed, both under the Federal Rules of Civil procedure and according to the Court’s scheduling
order, on December 21, 2010, Socata was ordered by the Court (Wolf, J.) to show cause why its
motion should not be denied as untimely. (#185). On January 14, 2011, Socata responded that the
parties had agreed among themselves that the motion could be filed late but had neglected to seek
permission from the court. (#188). After the Court found that Socata had shown good cause and
ruled that its motion to dismiss for lack of personal jurisdiction would not be denied as untimely

3

The following Defendants have been dismissed from this action for lack of personal
jurisdiction: EADS North America, Inc. (dismissed on March 3, 2010) (#124); SimCom
International, Inc., SimCom, Inc. and Socata North America, Inc. (all dismissed on March 30,
2010) (#131); and EADS N.V., Compagnie Daher S.A., and Compagnie Daher S.A. (dismissed
on December 21, 2010) (#185). On March 31, 2011, the following Defendants were dismissed
by reason of settlement with the Plaintiffs: the City of New Bedford, Airport Solutions Group,
LLC and Vanasse Hangen Brustlin, Inc. (#204).
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(#191), the parties requested additional briefing on the motion to dismiss (#195) now before the
Court. This matter was transferred to this session (Casper, J.) on January 21, 2011 and the Court
heard oral argument on May 11, 2011. This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1332.
V.

Discussion
A.

Overview of Personal Jurisdiction

“In determining whether a non-resident defendant is subject to its jurisdiction, a federal court
exercising diversity jurisdiction is the functional equivalent of a state court sitting in the forum
state.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir.
2002) (internal quotations and citations omitted). Accordingly, this Court may only exercise
personal jurisdiction within the limits set by Massachusetts’ long-arm statute and the Constitution.
Lyle Richards Intl, Ltd. v. Ashworth, Inc., 132 F.3d 111, 112 (1st Cir. 1997). Here, the Court “may
sidestep the statutory inquiry and proceed directly to the constitutional analysis. . .because the
Supreme Judicial Court of Massachusetts has interpreted the state’s long-arm statute ‘as an assertion
of jurisdiction over the person to the limits allowed by the Constitution of the United States.’”
Daynard, 290 F.3d at 52 (quoting “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361
Mass. 441, 443 (1972)). “Constitutional limitations on the exercise of personal jurisdiction over
out-of-state defendants are rooted in principles of fundamental fairness.” Cossaboon v. Me. Med.
Ctr., 600 F.3d 25, 32 (1st Cir. 2010) (quotations and citation omitted).
Due process requires that a non-resident defendant “ha[s] certain minimum contacts with it
such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945) (quoting Milliken v. Meyer, 311

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U.S. 457, 463 (1940)). This constitutional guarantee of due process “protects an individual’s liberty
interest in not being subject to the binding judgments of a forum with which he has established no
meaningful ‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72
(1985) (quoting Int’l Shoe Co., 326 U.S. at 319).
Although a court may exercise two types of personal jurisdiction: general and specific,
Cossaboon, 600 F.3d at 31, the Plaintiffs do not contend that the Court has general jurisdiction over
Socata and, therefore, the Court need only address whether Plaintiffs have asserted sufficient facts
to support the exercise of specific jurisdiction over Socata.
B.

Specific Jurisdiction Analysis

“The First Circuit employs a tripartite analysis to determine whether specific jurisdiction is
appropriate: 1) whether the claims arise out of or are related to the defendant’s in-state activities,
2) whether the defendant has purposefully availed itself of the laws of the forum state and 3) whether
the exercise of jurisdiction is reasonable under the circumstances.” Pesmel N. Am., LLC v.
Caraustar Indus., Inc., 754 F. Supp. 2d 168, 172 (D. Mass. 2010).
The first prong, relatedness, focuses on whether “‘the claim underlying the litigation . . .
directly arise[s] out of, or relate[s] to, the defendant’s forum-state activities.’” Astro–Med, Inc. v.
Nihon Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009) (quoting N. Laminate Sales, Inc. v. Davis,
403 F.3d 14, 25 (1st Cir. 2005)) (further citation omitted). It is a “flexible, relaxed standard.” Id.
(internal quotations and citations omitted).
To satisfy the second prong of purposeful availment, there must be some act or series of acts
“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

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U.S. 235, 253 (1958). The purposeful availment test involves a consideration of both voluntariness
and foreseeability. Voluntariness exists when a defendant deliberately has engaged in significant
activities within the forum, but not when the defendant’s contacts with the forum are “random,
fortuitous, or attenuated” or result solely from “the unilateral activity of another party or a third
person.” Burger King Corp., 471 U.S. at 475 (internal quotations and citations omitted).
Foreseeability exists when the defendant's conduct and connection with the forum state is such that
the defendant “should reasonably anticipate being haled into court there.” Id. at 474 (internal
quotation and citation omitted).
If the first two parts of the test for specific jurisdiction are satisfied, the Court must still
determine whether the exercise of personal jurisdiction is reasonable in light of the so called “Gestalt
factors,” including: (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 judicial system’s interest in obtaining the most effective resolution of the controversy; and (5)
the common interests of all sovereigns in promoting substantive social policies. Cossaboon, 600
F.3d at 33 n. 3. Even when the lawsuit arises out of the defendant’s purposefully generated contacts
with the forum, therefore, the court may decline to exercise personal jurisdiction if doing so would
be unreasonable and fundamentally unfair. See Burger King, 471 U.S. at 476-78; Ticketmaster-New
York, Inc., 26 F.3d at 209-10.
In regard to at least the purposeful availment prong discussed above, Plaintiffs argue that
the Court has specific jurisdiction over Socata because its contact with the forum state satisfies the
“stream of commerce plus” test - a derivation of the original “stream of commerce” theory. The
stream of commerce theory arises from World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

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(1980) in which the Supreme Court held that the exercise of specific jurisdiction over a foreign
manufacturer was permissible when the sale of its product is “not simply an isolated occurrence, but
arises from [its] efforts . . . to serve directly or indirectly, the market for its product in other States
. . .” and “delivers its products into the stream of commerce with the expectation that they will be
purchased by consumers in the forum State.” Id. at 297-98. However, the Supreme Court
subsequently ruled that “[t]he placement of a product into the stream of commerce, without more,
is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co.
v. Superior Court of Cal., 480 U.S. 102, 112 (1987).

Instead, Plaintiffs must put forth some

evidence of “additional conduct of the defendant . . . indicat[ing] an intent or purpose to serve the
market in the forum State....” Id. Asahi gave rise to the “stream of commerce plus” standard, later
adopted by the First Circuit Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir. 1992) and
which Plaintiffs agree has replaced “stream of commerce” as the appropriate standard.4
Although Plaintiffs argue that the “stream of commerce plus” standard means that the Court
does not have to address the relatedness factor to find that there is specific jurisdiction over Socata
(Pl. Opp. at 24-25), the Supreme Court and First Circuit have not made clear that this is the case.
The Supreme Court did not specifically address the relatedness requirement in World-Wide

4

Even prior to the Supreme Court’s decision in Asahi and the First Circuit’s adoption of
the stream of commerce plus standard in Boit, in Dalmau Rodriguez v. Hughes Aircraft Co., 781
F.2d 9, 15 (1st Cir. 1986), the First Circuit held that “[a]ssuming that [Defendant] knew that the
destination of the helicopters was Puerto Rico, we do not think that the sale ... can be the source
of a stream of commerce.... The test is not knowledge of the ultimate destination of the product,
but whether the manufacturer has purposefully engaged in forum activities so it can reasonably
expect to be haled into court there”).
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Wolkswagon or Asahi nor has the First Circuit directly addressed this issue.5 Accordingly, it cannot
be said that a court need no longer address relatedness- an inquiry that has always been a part of the
jurisdictional test - simply because neither the Supreme Court nor the First Circuit have explicitly
stated that relatedness must be discussed even where a plaintiff employs the stream of commerce
plus theory. Indeed, courts in this Circuit squarely address the relatedness requirement in addition
to and independent from its purposeful availment analysis under which the stream of commerce plus
theory is discussed. See, e.g., JKA, Inc. v. Anisa Int’l Inc., No. 07-123S, 2008 WL 4949126, at *8
(D.R.I. Nov. 13, 2008) (discussing the stream of commerce plus theory in the context of its
purposeful availment analysis while subsequently and separately addressing relatedness;) Tower
Mfg. Corp. v. Shanghai Ele Mfg. Corp., 533 F. Supp. 2d 255, 268-69 (D.R.I. 2008) (same); In re
Lupron Mktg. and Sales Practices Litig., 245 F. Supp. 2d 280, 297-98 (D. Mass. 2003) (finding that
under the stream of commerce plus theory, the defendant’s contact with the state were sufficient to
show purposeful availment only); Ranahan v. Pheasant Wilsons, Inc., No. 95-5-SD, 1995 WL
502412, at *3-8 (D.N.H. May 2, 1995) (addressing the stream of commerce plus theory in purposeful
availment analysis while separately addressing relatedness). But see Unicomp, Inc. v. Harcros
Pigments, Inc., 994 F. Supp. 24, 25-26 (D. Maine 1998) (noting that “[t]he Court determines that
an alleged injury from the sale of a product in a forum targeted by the manufacturer through its
choice of distributors is sufficiently foreseeable to satisfy the relatedness prong of the jurisdictional

5

Plaintiffs’ reliance on Nowak v. Tak How Inv., Ltd., 94 F.3d 708, 713 (1st Cir. 1996) for
this point (Pl. Opp. at 11) is misplaced since that case does not address the stream of commerce
theory although it discusses relatedness.
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inquiry”).6 Accordingly, the Court addresses each of the three prongs–relatedness, purposeful
availment and reasonableness–in turn.
1.

Relatedness

The First Circuit has explained that “relatedness is the divining rod that separates specific
jurisdiction cases from general jurisdiction cases . . . [and] it ensures that the element of causation
remains in the forefront of the due process investigation.” Nowak, 94 F.3d at 714 (quoting
Ticketmaster, 26 F.3d at 206) (internal quotation marks omitted). The First Circuit standard for
determining whether a claim “arises out of” the defendant’s activities within the state lies
somewhere between a “but for” and a “proximate cause” test. Nowak, 94 F.3d at 713-16 (describing
the First Circuit standard as “a small overlay of ‘but for’ on ‘proximate cause’”).
As discussed infra, the only connection between Socata and this lawsuit in Massachusetts
is that one of Socata’s aircrafts manufactured in France crashed in Massachusetts. Socata has no
employees, agents, offices, operations or property in Massachusetts, nor has it registered to conduct
business in Massachusetts. Nor was Socata involved with any transactions regarding the airplane
after selling it in France to Connecticut-based Columbia, including any of the transactions that
caused it to be operated in Massachusetts.7 Thus, it cannot be said that Plaintiffs’ claims arise out

6

To the extent that Unicomp suggests that a court need not consider the relatedness
prong here, 994 F. Supp. at 26, the Court rejects that position for the reasons stated above.
Moreover, as discussed infra, plaintiffs have not satisfied the purposeful availment requirement
and, therefore, have failed to satisfy their burden of showing personal jurisdiction over Socata
even if this Court were to accept fully the Plaintiffs’ view of the appropriate standard.
7

At oral argument, Plaintiffs’ counsel represented that the sale of the plane involved in
the crash was sold pursuant to the distribution agreement which allowed a U.S. customer,
Columbia, to bypass the distribution system and purchase directly from Socata SAS in France.
Even assuming this were the case, the accident still occurred in Massachusetts and Columbia,
although an independent Socata dealer with Massachusetts, never sold the plane to anyone in
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of or relate to Socata’s activities in Massachusetts where none exist.
2.

Purposeful Availment

The purposeful availment inquiry “focuses on the defendant's intentionality,” and “is only
satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so
that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction
based on these contacts.” Swiss Am. Bank, Ltd., 274 F.3d at 623-24 (citations omitted). The Court
focuses “on whether a defendant has ‘engaged in any purposeful activity related to the forum that
would make the exercise of jurisdiction fair, just or reasonable.’” Sawtelle, 70 F.3d at 1391 (quoting
Ruch v. Savchuk, 444 U.S. 320, 329 (1980)).

“The function of the purposeful availment

requirement is to assure that personal jurisdiction is not premised solely upon a defendant’s ‘random,
isolated, or fortuitous contacts’ with the forum state.” Sawtelle, 70 F.3d at 1391 (quoting Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)).
Here, Plaintiffs have not established that Socata has purposefully availed itself of
Massachusetts. Socata had no distributor specifically in Massachusetts, did not sell or cause anyone
else to sell its aircraft in Massachusetts, and did not make service visits to Massachusetts to work
on the accident airplane, or any other airplane. Moreover, Socata did not sell the aircraft in the
United States or in Massachusetts specifically. (Cassagnes Decl. ¶ 4). It does not conduct business
in Massachusetts, has no registered agent in Massachusetts, has no registered agent for service in
Massachusetts, does not maintain any offices in Massachusetts, has no employees based in
Massachusetts, holds no bank accounts in Massachusetts, has no telephone listings in Massachusetts,
has never paid taxes to the State of Massachusetts, and does not own any personal or real property
Massachusetts. As discussed infra, Socata did nothing in or directed at Massachusetts in
particular.
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in Massachusetts. (Cassagnes Decl. ¶ 3). Thus, Socata has not voluntarily engaged in activities in
this forum. Nor was Socata involved with any transactions regarding the airplane after selling it in
France to Connecticut-based Columbia, including any of the transactions that caused it to be
operated in Massachusetts. Socata had no contact with Massachusetts other than the fact that the
aircraft it manufactured crashed there. Thus, it cannot be said that Socata has purposefully availed
itself of Massachusetts where it has had no contact with the state aside from the crash itself. See,
e.g., Boit, 967 F.2d at 683 (finding no purposeful availment when the only contact with forum state
was that plaintiff was injured by product manufactured by defendant in that state); Amburgey v.
Atomic Ski USA, Inc., No. 2:06-149, 2007 WL 1464380, at *7-8 (D. Me. May 17, 2007) (same);
Snell v. Bob Fisher Enter., Inc., 115 F. Supp. 2d 17, 22-23 (D. Me. 2000) (same).
Plaintiffs’ argument that Socata purposefully availed itself of Massachusetts through its
knowing utilization of a distribution network is not persuasive since Socata itself did not establish
that distribution network, did not control it, and was not a party to the distribution agreement. At
oral argument, counsel argued that Socata is playing a “corporate shell game” (Tr. 17-18) and hiding
behind the distribution system owned by its “sister corporations.” (Tr. 23). This argument is of no
aid to the Plaintiffs. The record is devoid of any evidence that Socata North America was acting for
Socata at the time of the accident. Socata North America was a separate and independent company
from Socata. They were not one in the same and cannot be held to therefore be acting together for
jurisdictional purposes. Plaintiffs’ counsel also pointed to the sales development plan to suggest a
sufficiently close relationship between the two entities (Ex. 4), but the plan shows nothing more than
Socata’s awareness of the distribution network established by Socata North America in the United
States. Moreover, awareness and knowledge that products may end up in a forum state or in the

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United States generally whether or not through a distribution network is insufficient to constitute
purposeful availment.
a.

Stream of Commerce Plus

Relying upon the “stream of commerce plus standard,” Plaintiffs assert that Socata (known
as EADS Socata S.A. in 2007) has purposefully availed itself of the privilege of conducting business
in Massachusetts through a targeted distribution system through which its aircraft is sold in the
United States, including Massachusetts. (Pl. Opp. at 17). To support their argument, Plaintiffs
almost solely rely on a distribution agreement, discussed supra, to which Socata was not even a
party. The distribution agreement existed between Columbia and Socata N.A. (known as EADS
Socata North America in 2007). Socata N.A. maintained a distribution agreement with Columbia
that gave it the exclusive right to market, sell, and distribute Socata TBM aircraft in Massachusetts
and fifteen other States and obligated Columbia to use its best efforts to promote the marketing and
sale of the TBM aircraft in Massachusetts. (Pl. Opp. at 17; Ex. 6, Distribution Agreement at 1, 15;
Chabbert Dep. at 72, 75, 93-94).
Under the distribution agreement, Columbia and other distributors of the Socata TBM
aircraft, placed orders with Socata North America for new aircrafts to be purchased by U.S. citizens.
In turn, Socata North America placed the order with Socata for the manufacture of the aircraft. (Pl.
Opp. at 18; Chabbert Dep. at 108-109). The distribution agreement also permitted Columbia to
bypass Socata North America and to purchase a new aircraft ordered by a U.S. customer directly
from Socata and to distribute that aircraft directly to the customer. (Pl. Opp. at 18; Chabbert Dep.
at 118-120); Ex. 6, Distribution Agreement at § 3.3(a)). With respect to the aircraft involved in the
accident in February 2007, Columbia purchased the aircraft directly from Socata. (Pl. Opp. at

14

18,Chabbert Dep. at 110-12, 121-22; Cassagnes Decl. ¶ 4).8 When Columbia purchased the aircraft
directly from Socata in 2001, Columbia then sold it to Chesapeake Leasing located in Virginia.
(Cassagnes Decl. ¶ 4; Chabbert Dep. at 121-22). In 2006, the aircraft was sold to PK leasing with
Columbia acting as broker for the sale. (Pl. Opp. at 19; Exs. 14, 17 & 18). Beyond mere awareness
of the distribution network, Plaintiffs have not presented any evidence of additional conduct on the
part of Socata to show that it purposefully availed itself of Massachusetts.
Plaintiffs’ argument fails to appreciate the plus in the “stream of commerce plus” standard.
The First Circuit requires additional conduct beyond mere awareness of a distribution network to
establish purposeful availment under the stream of commerce plus theory. In Boit, the defendant
manufacturer from Indiana, Gar-Tec, sold a product to a national distributor, Brookstone, which then
sold it through the mail to the plaintiff’s contractor in Maine. 967 F.2d at 673-74. The Court found
no evidence that “Gar-Tec designed the product for Maine, advertised in Maine, established
channels for providing regular advice to customers in Maine, or marketed the product through a
distributor who had agreed to serve as a sales agent in Maine.” Id. at 683 (citing Asahi, 480 U.S.
at 112). Because no evidence showed Gar-Tec “intended to serve the market in Maine,” the Court
found that Gar-Tec’s “mere awareness” that the product “may end up in the forum state d[id] not
constitute ‘purposeful availment.’” Boit, 967 F.2d at 683.9 Amburgey, upon which Socata relies,
8

Plaintiffs also note that between 2003 and 2009, Columbia has sold at least five Socata
TBM series aircraft to Massachusetts residents through the distribution channel utilized by
Socata (Ex. 8, FAA Bills of sale), that there are currently 11 Socata TBM series aircraft
registered to Massachusetts residents (Ex. 10, FAA Registry), and that Socata sold a TBM 700
aircraft directly to a corporation located in Massachusetts (Ex. 11, Bill of sale). (Pl. Opp. at
18).
9

Plaintiffs’ attempt to distinguish Boit from the instant case is unavailing since both cases
involve a middleman distributor that were neither established nor controlled by the
manufacturer. Id.
15

is particularly instructive on this point. 2007 WL 1464380. There, the plaintiffs failed to show any
additional conduct by Atomic Austria demonstrating their intent or purpose to serve the market in
Maine. Id. at *3. Atomic Austria manufactured allegedly defective ski bindings in Austria that
caused an injury in Maine. Id. at *2. Just like Plaintiffs in this case, the plaintiffs in Amburgey
argued that Atomic Austria purposefully availed itself of Maine through a distribution network that
included Maine. Id. at *3. The Court declined to exercise personal jurisdiction under the stream of
commerce plus standard and found that Atomic Austria did not establish or control the distribution
network that brought its products to Maine nor was Atomic Austria involved with the distribution
network beyond Atomic Ski USA, located in New Hampshire which distribute its products to
independent distributors throughout the U.S., including dealers in Maine. Id. at *2-3; see Snell, 115
F. Supp. 2d at 22-23.10
Plaintiffs’ argument that Socata need not be a party to the distribution agreement on which
Plaintiffs heavily rely because Socata and Socata North America were “affiliated sister corporations
owned by the same EADS holding company, EADS N.V.” (Pl. Opp. at 17) at the time of the
accident in 2007 is without merit. Plaintiffs claim that Socata has known since 2007 of the
distribution system that would lead its products to states including Massachusetts because its
“affiliated sister corporation” engaged Columbia, the distributor for the U.S. market. (Pl. Opp. at

10

Plaintiffs rely on Unicomp, 994 F. Supp. 24, to support their argument that specific
jurisdiction under the stream of commerce plus theory over Socata is proper. However, as the
court in Amburgey explained, the court in Unicomp found that “the manufacturer itself
established a distribution network that was known to serve Maine.” Amburgey, 2007 WL
1464380, at *3; see also Unicomp, 994 F. Supp. at 26-28. Here, like Atomic Austria in
Amburgey, Socata may have been aware of a distribution network that included Massachusetts
when it sold the aircraft involved in the 2007 accident to Columbia, but unlike Harcros in
Unicomp, Socata did not itself create or control the distribution network.
16

20).11 First, the fact that the distribution agreement existed between Columbia and EADS Socata
North America, not Socata is significant because it means that Socata did not have control over the
distribution channels to target certain states, including Massachusetts for the sale of its product.
Thus, Socata is unlike the defendant in Unicomp who entered into an agreement with a distribution
company whose target area included Maine. Second, the fact that the corporations were affiliated
at the time of the accident in 2007 is of no moment since Socata and Socata North America were two
independent and separate entities at that time and shared no parent company. The two separate
entities that owned Socata and Socata North America shared a parent; Socata and Socata North
America did not. Significantly, Plaintiffs do not allege nor does the evidence show that either entity
exercised any control over the other, that Socata had even been involved with establishing any of
the distributorships established by Socata North America in the U.S. or that Socata had any control
over the distributors of the Socata aircraft in the U.S., including Columbia. In fact, Plaintiffs’
evidence shows that “[t]he distribution network in the United States is not linked to Socata.”
(Chabbert Dep. at 45).12
In fact, the cases cited by Plaintiffs to support their argument that Socata purposefully
availed itself of Massachusetts involves deliberate marketing and sales efforts targeted at the
particular forum. For example, in Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26,
29 (1st Cir. 1988), a Brazilian pressure cooker manufacturer was subject to jurisdiction in Puerto

11

The fact that Socata became the 100% owner of Socata North America in January 2009
is irrelevant since conduct occurring after the accident on February 2, 2007 is not considered for
jurisdictional purposes. See Harlow v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005).
12

The evidence shows that Socata has sold only one aircraft directly to buyers from
Massachusetts which occurred in 1999. (Pl. Opp. Ex. 11 (Bill of Sale “dated at TARBES,
FRANCE”)).
17

Rico where it “took active steps to sell its cookers in Puerto Rico.”

For example, it “hired an

‘export advisor’ . . . to travel to Puerto Rico to discuss how [the defendant] could sell cookers in
Puerto Rico.” Id. This advisor, directly hired by the manufacturer, who was called the defendant’s
“sales representative,” could solicit orders in Puerto Rico directly for the defendant. Id. While he
lived in Florida, he traveled to Puerto Rico at least four times per year to sell the defendant’s cookers
and other products. Id. At oral argument, Plaintiffs’ counsel argued that “awareness, knowledge
and intention” satisfy the “plus” under the “stream of commerce plus” standard, relying on Benitez.
(Tr. 10). However, unlike the manufacturer in Benitez who directed its sales efforts and its
representatives to target Puerto Rico, Plaintiffs here do not allege nor does the evidence demonstrate
any direct efforts on the part of Socata or that Socata hired anyone to target and enter Massachusetts
to sell its aircraft.
Plaintiffs’ reliance on Bartow v. Extec Screens and Crushers, Ltd., 53 F. Supp. 2d 518,
525-27 (D. Mass. 1999) is equally of no help. In Bartow, the Court found that specific jurisdiction
existed in Massachusetts over a British manufacturer, Extec, which, unlike Socata, had “numerous
direct contacts” with the Commonwealth, and which established and exercised control over the
distribution channel that brought its products into Massachusetts. The Court found purposeful
availment based on evidence that Extec conducted market research in Massachusetts to evaluate the
potential for selling its machines there, used an agent to sell machines directly to Massachusetts
purchasers, established a direct distributorship agreement with a U.S. distributor that included
Massachusetts in its territory, and maintained bills of exchange on its machines that indicated
Extec’s“availment of Massachusetts contract and property laws.” Id. at 519-20, 525-27. Such is
not the case here, where Socata had no direct contacts with Massachusetts, did not maintain a direct

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distribution agreement with Columbia, the dealer that included Massachusetts within its territory.
Salgado-Santiago v. American Baler Co., 394 F. Supp. 2d 394, 403, 405 (D.P.R.
2005) is similarly distinguishable. There, the Court found jurisdiction based on the fact that the
defendant Ohio-based manufacturer had an authorized dealer in Puerto Rico (the forum) at the time
of the injury to plaintiff which sold the same type of machine that caused the injury, and the
manufacturer made service visits to Puerto Rico, including a visit to work on the very machine
involved in the accident. Id. at 404 (“ having a distributor in the forum, allowing the sale of your
products in the forum, and performing service visits for said products constitutes the ‘additional
conduct’ that the U.S. Supreme Court in Asahi envisioned as sufficient contacts to warrant a finding
of purposeful availment.”). Here, Socata has had no comparable presence in Massachusetts.
To the extent Plaintiffs argue that Socata purposefully availed itself of Massachusetts by
intending and expecting that its products would be used generally in the United States,13 the fact that
a manufacturer’s product could be used in a forum does not mean that jurisdiction over the
manufacturer exists in every such forum. Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85 (1st
Cir. 1997). In Rodriguez, the Court declined to exercise jurisdiction under the stream of commerce
plus theory despite the fact that the defendant knew that the entity to which it sold its rims
incorporated them into tires that would be marketed and sold in distant forums, advertised in
national publications that were disseminated in Puerto Rico, and filled orders from Puerto Rico. Id.
at 84-85; see Tice v. Taiwan Shin Yeh Enter. Co., Ltd., 608 F. Supp. 2d 119, 123-25 (D. Me. 2009).
Socata’s mere awareness of a U.S. distribution network, and that Massachusetts was included in that
13

Plaintiffs proffer evidence that the U.S. represents the largest market for Socata aircraft,
that Socata got the TBM-700/850 series aircraft certified by U.S. authorities so that it can be
flown in this important market, that Socata has occasionally attended air shows in the U.S., and
that Socata provides promotional material for the U.S. market.
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network, is insufficient to establish that Socata purposefully availed itself of Massachusetts
specifically. To rule otherwise would essentially create nationwide jurisdiction over foreign
manufacturers who have taken no action, aside from merely manufacturing and being aware that
their product may indeed reach a particular forum, to purposefully avail themselves of a particular
forum.
3.

Reasonableness

Even assuming that Plaintiffs could satisfy purposeful availment and relatedness, they have
not shown the reasonableness of subjecting Socata to this Court’s jurisdiction. With respect to the
first of the Gestalt factors, the defendant's burden of appearing, the Court finds that the burden on
Socata would not be significant. Although the need to defend an action in a foreign jurisdiction “is
almost always inconvenient and/or costly. . . this factor is only meaningful where a party can
demonstrate some kind of special or unusual burden.” Pritzker v. Yari, 42 F.3d 53, 64 (1st
Cir.1994), cert. denied, 514 U.S. 1108 (1995).
The second factor, concerning the forum state’s interest in adjudicating the dispute, weighs
heavily against keeping the lawsuit against Socata in Massachusetts. Socata is located in France,
not Massachusetts. None of the Plaintiffs or the decedents whose estates they represent are from
Massachusetts. Nor do these individuals have any connection to Massachusetts. Moreover, the
alleged wrongful conduct by Socata – the defective design and manufacture of the TBM 700 aircraft
– occurred entirely outside of Massachusetts and did not cause injury to any Massachusetts
residents. The evidence shows that the only nexus between this litigation and Massachusetts is the
location of the accident which “is not . . . enough to establish its substantial interest in [a] suit.”
Merced v. JLG Indus., Inc., 193 F. Supp. 2d 290, 295 (D. Mass. 2001); see Medicus Radiology LLC

20

v. Nortek Med. Staffing, Inc., No. 10-300, 2011 WL 9373, at *6 (D.N.H. Jan. 3, 2011)
(reasonableness requirement favored dismissal where alleged tortious conduct occurred outside of
forum). Moreover, in Sawtelle, which Plaintiffs suggest supports a finding of reasonableness, holds
that “[t]his factor cuts against jurisdiction” when “the acts comprising the defendants’ alleged
negligence occurred almost entirely outside of [the forum].” 70 F.3d at 1395.
The third Gestalt factor to consider is the plaintiff’s interest in obtaining convenient and
effective relief. The First Circuit has repeatedly observed that “a plaintiff's choice of forum must
be accorded a degree of deference with respect to the issue of its own convenience.” Sawtelle, 70
F.3d at 1395.

However, this factor does not weigh in favor of maintaining the litigation in

Massachusetts for the aforementioned reasons. Further, Plaintiffs’ claim that Socata should be
subject to personal jurisdiction in Massachusetts because several other defendants are subject to suit
here is unavailing. (Pl. Opp. at 27 n. 8). Defendants EADS N.V. Socata North America, EADS
North America, Inc., SimCom International, Inc. and SimCom, Inc. have already been dismissed
from the Massachusetts action for lack of personal jurisdiction and Plaintiffs have initiated an
identical parallel lawsuit over this accident against these defendants, including Socata, in Florida.
See Newman v. EADS N.V., Case No. 6-09-CV-00193JA (M.D. Fla.).
The fourth Gestalt factor, concerning the judicial system’s interest in obtaining the most
effective resolution of the case, is generally considered “a wash.” Hasbro, Inc. v. Clue Computing,
Inc., 994 F.Supp. 34, 45-46 (D. Mass. 1997) (quoting Nowak, 94 F.3d at 719). However, because
“it is unlikely that the parties will be able to resolve the dispute without judicial intervention in some
forum” if the matter is dismissed here, “[t]he most efficient path for the judicial system ... is to move
forward with the lawsuit in the present forum.” Hasbro, 994 F. Supp. at 46.

21

The final factor concerns the interests of affected states in promoting substantive social
policies. Even if it could be arguably said that Massachusetts has some interest in the resolution
of liability in a fatal crash that occurred in the Commonwealth, such consideration in this case does
not outweigh the balance of the other Gestalt factors or tip the balance in favor of finding that the
exercise of personal jurisdiction would be reasonable here. Thus, on balance, the Gestalt factors
weigh against the exercise of personal jurisdiction over Socata.
VI.

Conclusion
For the foregoing reasons, the defendant’s motion to dismiss for lack of personal jurisdiction

is GRANTED.
So ordered.
/s/ Denise J. Casper
United States District Judge

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