Whitley v. KION North America Corporation

Filing 74

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 63 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JAMES WHITLEY,
Plaintiff,
v.
LINDE HEAVY TRUCK DIVISION LTD.,
Defendant.

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CIVIL ACTION
NO. 16-10005-JGD

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
June 1, 2018
DEIN, U.S.M.J.
I. INTRODUCTION
Plaintiff, James Whitley, is a resident of Massachusetts. He has brought this action
against Linde Heavy Truck Division Ltd. (“LHTD”), a company organized under the laws of the
United Kingdom, with its principal place of business in South Wales. Mr. Whitley was seriously
injured while working as a Longshoreman/Harbor Worker at the Conley Terminal located in
South Boston, Massachusetts on August 31, 2012. At that time, a forklift truck1 he was
operating allegedly flipped over and crushed his leg. In his Amended Complaint (“Am. Compl.”)
(Docket No. 58), Mr. Whitley alleges that the forklift truck was manufactured by LHTD and was
defective. (Am. Compl. ¶¶ 1, 8, 12). He has asserted claims against LHTD for negligence (Count
I) and breach of implied warranty of merchantability (Count II).

1

Plaintiff refers to the product at issue as a “forklift truck” and defendant refers to it as a “container
handler.” For purposes of this memorandum, the product will be referred to as a “forklift truck.”

This matter is before the court on “Defendant, Linde Heavy Truck Division Ltd.’s, Motion
to Dismiss for Lack of Personal Jurisdiction.” (Docket No. 63). By its motion, LHTD contends
that all of Mr. Whitley’s claims must be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(2) because LHTD lacks sufficient contacts with Massachusetts to support this court’s
exercise of personal jurisdiction over it. As described below, this court finds that LHTD is not
subject to this court’s jurisdiction. Accordingly, and for all the reasons detailed herein, LHTD’s
motion to dismiss for lack of personal jurisdiction is ALLOWED.
II. STATEMENT OF FACTS
Standard of Review of Record
“On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears
the burden of persuading the court that jurisdiction exists.” Astro-Med, Inc. v. Nihon Kohden
Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009), and cases cited. “When a district court rules on a motion
to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this
case, the ‘prima facie’ standard governs its determination.” United States v. Swiss Am. Bank,
Ltd., 274 F.3d 610, 618 (1st Cir. 2001). Under this standard, 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.” Id. (citation omitted). Thus, to meet its burden in this
case, the plaintiff must “proffer evidence which, taken at face value, suffices to show all facts
essential to personal jurisdiction.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825
F.3d 28, 34 (1st Cir. 2016). The court will “take the facts from the pleadings and whatever
supplemental filings (such as affidavits) are contained in the record, giving credence to the
plaintiff’s version of genuinely contested facts.” Id. It will “then add to the mix facts put
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forward by the defendants, to the extent that they are uncontradicted.” N. Laminate Sales, Inc.
v. Davis, 403 F.3d 14, 24 (1st Cir. 2005) (quoting Mass. Sch. of Law v. Am. Bar Ass’n, 142 F.3d 26,
34 (1st Cir. 1998)).
Applying this standard to the instant case, the relevant facts are as follows. 2
Identification of the Manufacturer
On August 31, 2012, Mr. Whitley was working as a Longshoreman/Harbor Worker at the
Conley Terminal located in South Boston, Massachusetts, when a forklift truck on which he was
riding flipped over and crushed his leg. (Am. Compl. ¶¶ 4-5). The forklift truck allegedly had
the name “Linde” emblazoned on the side. (See Docket No. 49 ¶ 5). On August 27, 2015,
Mr. Whitley filed suit in Suffolk Superior Court against Linde Material Handling North America
Corporation and Kion North America Corporation – the plaintiff believed that one of these
related entities had manufactured the forklift truck at issue. (See Docket No. 6 (Original
Compl.) ¶ 1). According to the defendant, Linde Material Handling North America Corporation
is now known as Kion North America Corp. (See Docket No. 47 at 1). Based on this information, the plaintiff amended his complaint to name Kion North America Corporation (“Kion”) as
the only defendant. (See Docket No. 6 at 21, 23).
Kion removed the action to this court on January 5, 2016. (Docket No. 1). Kion then
moved for summary judgment on the basis that it had not manufactured the forklift truck.
(Docket No. 20). While the motion was initially denied (Docket No. 47), considerable confusion
remained as to which “Linde” company was responsible for manufacturing the forklift truck at

2

The facts are derived from the following materials: (1) the Amended Complaint (Docket No. 58) (“Am.
Compl.”); (2) the Declaration of Richard Smart (Docket No. 63-2) (“Smart Decl.”); and (3) other
pleadings.
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issue. (See, e.g., Docket Nos. 23, 24, 44, 49, 54, 55, 58). Finally, the parties agreed that LHTD is
the entity responsible for manufacturing the forklift truck at issue in this case. (See Docket No.
55 ¶ 1). LHTD contends, however, that this court has no jurisdiction over this foreign entity.
LHTD’s Contacts With Massachusetts
LHTD is a private limited company organized under the laws of the United Kingdom.
(Smart Decl. ¶ 3). LHTD ceased active business operations in 2013. (Id.). When it was actively
operating, LHTD maintained its principal place of business in Merthyr Tydfil, South Wales, Great
Britain, where the forklift at issue was manufactured. (Id. ¶¶ 3-4). While it was active, LHTD
did not conduct business in Massachusetts, did not conduct marketing activities in Massachusetts, was not a registered company in Massachusetts, had no registered agent for service of
process in Massachusetts, did not pay taxes in Massachusetts, had no employees in Massachusetts, did not maintain an office in Massachusetts, owned no personal or real property in
Massachusetts, held no bank accounts in Massachusetts, and had no telephone listings in
Massachusetts. (Id. ¶ 4).
The forklift truck at issue was manufactured in South Wales in 2006. (Id. ¶ 5). LHTD sold
the forklift truck to Mi-Jack Products, Inc. (“Mi-Jack”), a distributor located in Hazel Crest,
Illinois. (Id.). After the forklift truck was delivered to Mi-Jack in April 2006, LHTD had no further
involvement with the forklift truck, either in the United States generally or in Massachusetts
specifically. (Id.). LHTD had no involvement in the subsequent sale of the forklift truck by MiJack, or involvement in any transaction or activity that ultimately resulted in the forklift truck’s
presence in Massachusetts. (Id.).

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On December 21, 2017, LHTD filed its motion to dismiss for lack of personal jurisdiction,
arguing that LHTD does not satisfy the minimum contacts required for this court to maintain
general or specific jurisdiction over LHTD. On January 3, 2018, Whitley filed his opposition to
defendant’s motion to dismiss, arguing that this court should exercise jurisdiction over LHTD.
(See Docket No. 67 (“Pl. Opp.”)). A hearing was held on January 30, 2018, after which the
plaintiff was given 30 days to supplement the record with any evidence regarding personal
jurisdiction, including the existence of an agency relationship, if any, between LHTD and MiJack. (See Docket No. 73). No supplementation was made.
III. ANALYSIS
As described above, Mr. Whitley asserted claims for negligence (Count I) and breach of
implied warranty of merchantability (Count II). (See Am. Compl.). For the reasons that follow,
this court finds that Mr. Whitley has not made a prima facie showing of personal jurisdiction
over LHTD. Accordingly, LHTD’s motion to dismiss for lack of personal jurisdiction is ALLOWED.
A.

Personal Jurisdiction – Generally

In order to exercise personal jurisdiction over LHTD, the court must “find sufficient
contacts between the defendant and the forum to satisfy both that state’s long-arm statute and
the Fourteenth Amendment’s Due Process clause.” Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st
Cir. 1995). In the past, the First Circuit has treated the “limits of Massachusetts’s long-arm
statute as coextensive with those of the Due Process Clause.” Copia Commc’ns, LLC v.
AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016). In such cases, the court has been able to “sidestep the statutory inquiry and proceed directly to the constitutional analysis[.]” Daynard v.
Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002). However,
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more recently the First Circuit “suggested that Massachusetts’s long-arm statute might impose
more restrictive limits on the exercise of personal jurisdiction than does the Constitution.”
Copia Commc’ns, 812 F.3d at 4. This disparity recently was confirmed by the Massachusetts
Supreme Judicial Court, which held as follows:
We recently clarified ... that Massachusetts courts cannot “streamline” the
personal jurisdiction inquiry by focusing solely on due process considerations, under the theory that the limits imposed by the long-arm statute and
due process are coextensive. See SCVNGR, Inc. v. Punchh, Inc., 478 Mass.
324, 329-330 & n.9, 85 N.E.3d 50 (2017). They are not. Id. “The long-arm
statute ‘asserts jurisdiction over [a nonresident] to the constitutional limit
only when some basis for jurisdiction enumerated in the statute has been
established.” Id. at 329, 85 N.E.3d 50, quoting Good Hope Indus., Inc. v.
Ryder Scott Co., 378 Mass. 1, 6, 389 N.E.2d 76 (1979).
Exxon Mobil Corp. v. Att’y Gen., 479 Mass. 312, 317 n.3, 94 N.E.2d 786, 793 n.3 (2018). The
same result is reached in the instant case under both the long-arm statute and due process
analysis.
B.

Massachusetts Long-Arm Statute

“Massachusetts’s long-arm statute, G.L. c. 223A, § 3, ‘sets out a list of specific instances
in which a Massachusetts court may acquire personal jurisdiction over a nonresident defendant.’” Id. at 317, 94 N.E.2d at 792-93 (quoting Tatro v. Manor Care, Inc., 416 Mass. 763, 767,
625 N.E.2d 549, 551 (1994)). The burden is on the plaintiff to establish the existence of facts
sufficient to establish jurisdiction. Id. Pursuant to ch. 223A, § 3, a person’s relevant conduct
may be undertaken either “directly or by an agent[.]” In the instant case, plaintiff argues that
“[i]f found to be an agent of Defendant, Mi-Jack’s sales in Massachusetts would constitute
contacts with the forum for the purposes of personal jurisdiction[.]” (Pl. Opp. at 3). As detailed

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above, however, Mr. Whitley has not put forward any evidence that Mi-Jack served as LHTD’s
agent. Therefore, only LHTD’s contacts with Massachusetts will be evaluated.
The potentially relevant provisions of ch. 223A, § 3 are as follows:
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;

(b)

contracting to supply services or things in this commonwealth;

(c)

causing tortious injury by an act or omission in this commonwealth;
[or]

(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[.]

Id. § 3(a-d).
The record before this court is that LHTD did not transact any business in Massachusetts
or contract to supply any of its product in Massachusetts, and, therefore, §§ 3(a) and (b) are not
applicable. The purported “act” in this case was the manufacturing of the forklift truck at issue,
which was allegedly defective. The forklift truck was manufactured in Great Britain. However,
under § 3(c), “a negligent act or a failure to act outside the state cannot be considered an act or
omission in Massachusetts.” Fiske v. Sandvik Mining & Constr. USA, LLC, 540 F. Supp. 2d 250,
254 (D. Mass. 2008) (emphasis in original) (in suit for negligent design of oil rig and negligent
failure to warn, there was no jurisdiction under § 3(c) where rig was not designed in
Massachusetts and no aspect of the marketing, sale, or distribution of the rig occurred in
Massachusetts, although accident occurred in Massachusetts). Therefore, Mr. Whitley’s injury
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is “clearly not the result of an ‘act or omission in this commonwealth’ within the meaning of §
3(c).” Id. Similarly, plaintiff has not established that § 3(d) applies, since there is no evidence
that LHTD regularly conducts business in Massachusetts or derives significant revenue from
business in Massachusetts. In sum, plaintiff has not met his burden of establishing that
jurisdiction is appropriate under the Massachusetts long-arm statute.
The plaintiff relies on Edwards v. Radventures, Inc., 164 F. Supp. 2d 190 (D. Mass. 2001),
but that case is easily distinguishable from the instant matter. In Edwards, the court found that
the defendant transacted business in Massachusetts, and that jurisdiction existed under Mass.
Gen. Laws ch. 223A, § 3(a). 164 F. Supp. 2d at 194-95. The issue before that court was whether
the amount of sales by Radventures to Massachusetts residents, and its communications with
the plaintiff in connection with its sale of a monoski to the plaintiff in Massachusetts, were
sufficient to constitute transacting business under the long-arm statute. In the instant case,
however, there is no evidence that LHTD made any sales of any equipment in Massachusetts.
The plaintiff has not established that the statutory requirements for jurisdiction have been
satisfied.3
Because jurisdiction of this court over LHTD is not properly granted under the Massachusetts long-arm statute, it is not necessary to proceed to the constitutional analysis because

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The plaintiff also cites to Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 107
S. Ct. 1026, 94 L. Ed. 2d 92 (1987). However, Asahi supports the conclusion that there is no jurisdiction
in the instant case. In Asahi, the Court confirmed the principle that a defendant must take actions which
are “purposefully directed toward the forum State” to satisfy due process requirements, and held that
“a defendant’s awareness that the stream of commerce may or will sweep the product into the forum
State does not convert the mere act of placing the product into the stream into an act purposefully
directed toward the forum State.” Id. at 112, 107 S. Ct. at 1032. In the instant case, there is no evidence
that LHTD did anything more than place its products in the stream of commerce – there is no evidence
that it purposefully directed any actions toward Massachusetts.
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the court must “find sufficient contacts between the defendant and the forum to satisfy both
that state’s long-arm statute and the Fourteenth Amendment’s Due Process clause.” Sawtelle
v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995) (emphasis added). However, since the parties
focused on the constitutional analysis, it will be addressed. The results are the same.
C.

Due Process Analysis

Under the Due Process Clause, a court may exercise personal jurisdiction “over an outof-state defendant only if that defendant has ‘certain minimum contacts with [the forum state]
such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” Copia Commc’ns, 812 F.3d at 4 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)) (alteration in original; additional quotation
marks and citation omitted). Accordingly, “[t]he accepted mode of analysis for questions
involving personal jurisdiction concentrates on the quality and quantity of the potential defendant’s contacts with the forum.” Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d
284, 288 (1st Cir. 1999). “Jurisdiction is proper . . . where the contacts proximately result from
actions by the defendant himself that create a substantial connection with the forum State.”
Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109, 107 S. Ct. 1026,
1030, 94 L. Ed. 2d 92 (1987) (punctuation and emphasis in original; internal quotation marks
and citation omitted).
“Personal jurisdiction may be either general or specific.” Cossaboon v. Maine Med. Ctr.,
600 F.3d 25, 31 (1st Cir. 2010). “General jurisdiction broadly subjects the defendant to suit in
the forum state’s courts ‘in respect to all matters, even those that are unrelated to the defendant’s contacts with the forum.’” Id. (quoting Phillips Exeter Acad., 196 F.3d at 288). Specific
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jurisdiction exists “where the cause of action arises directly out of, or relates to, the defendant’s forum-based contacts.” Id. (quoting Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994).
In the instant case, there is no claim that LHTD is subject to this court’s general
jurisdiction. It was neither incorporated here nor were its contacts with Massachusetts “so
continuous and systematic as to render it essentially at home in the forum State.” Daimler AG
v. Bauman, 571 U.S. 117, 138-39, 134 S. Ct. 746, 761, 187 L. Ed. 2d 624 (2014) (internal
punctuation and citation omitted). Therefore, this court will proceed to the specific jurisdiction
analysis. See Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st Cir. 2005) (“The plaintiff need not
prove the existence of both types of jurisdiction; either one, standing alone, is sufficient.”).
D.

Specific Jurisdiction Analysis

For purposes of specific jurisdiction analysis, the First Circuit has “broken the minimum
contacts analysis into three categories—relatedness, purposeful availment, and reasonableness[.]” Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007). Thus, as the Court has explained:
First, the claim underlying the litigation must directly arise out of, or
relate to, the defendant’s forum-state activities. Second, the defendant’s
in-state contacts must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby invoking the benefits
and protections of that state’s laws and making the defendant’s involuntary presence before the state’s courts foreseeable. Third, the exercise
of jurisdiction must, in light of the Gestalt factors, be reasonable.
Id. (quoting Daynard, 290 F.3d at 60). “An affirmative finding on each of the three elements of
the test is required to support a finding of specific jurisdiction.” Phillips Exeter Acad., 196 F.3d
at 288. As detailed below, the evidence is insufficient to support these elements, as a result of
which this court does not have personal jurisdiction over LHTD under a specific jurisdiction
analysis.
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Relatedness
The relatedness inquiry “is to be resolved under ‘a flexible, relaxed standard.’” BaskinRobbins Franchising LLC, 825 F.3d at 35 (quoting Pritzker, 42 F.3d at 61). “The relatedness
prong requires the plaintiff to show a demonstrable nexus between its claims and the defendant’s forum-based activities, such that the litigation itself is founded directly on those
activities.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir. 2014)
(quoting Adelson, 652 F.3d at 81) (internal punctuation omitted).
In the instant case, the plaintiff asserted claims for negligence and breach of the implied
warranty of merchantability regarding an alleged manufacturing defect in the forklift truck.
LHTD manufactured the forklift truck in Great Britain, then sold and delivered it to Mi-Jack, an
Illinois company, in Illinois. There is no evidence that Mi-Jack is an agent of LHTD. After the
forklift truck was delivered to Illinois, LHTD did not have any involvement in any transaction or
activity related to the forklift truck or its eventual presence in Massachusetts. Thus, it cannot
be said that the claims in this suit arise out of defendant’s forum-state activities.
Purposeful Availment
“The purposeful availment inquiry . . . focuses on the defendant’s intentionality. This
prong 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
(internal citation omitted). Accordingly, purposeful availment occurs “when a defendant
deliberately targets its behavior toward the society or economy of a particular forum [such
that] the forum should have the power to subject the defendant to judgment regarding that
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behavior.” Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st. Cir. 2011) (citing J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873, 881, 131 S. Ct. 2780, 2787-88, 180 L. Ed. 2d 765 (2011)).
“The enforcement of personal jurisdiction over a non-resident defendant is foreseeable when
that defendant has established a continuing obligation between itself and the forum state.”
Sawtelle, 70 F.3d at 1393. “[P]assively put[ting] an item in the stream of commerce” is not
sufficient to constitute purposeful availment. C.W. Downer, 771 F.3d at 68 (citation omitted).
See also note 3, supra. When a case, like the instant one, is in federal court on diversity
jurisdiction alone, absent a federal question claim, the court must consider defendant’s
contacts with only the particular forum state, not with the United States as a whole. United
Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir.
1992).
In the instant case, there is no evidence that LHTD purposefully availed itself of the
opportunity to do business in Massachusetts. LHTD did not conduct business in Massachusetts,
solicit business in Massachusetts, have employees in Massachusetts, negotiate contracts in
Massachusetts, or have property in Massachusetts. LHTD put the forklift truck at issue into the
stream of commerce in Illinois, without any indication, or obvious intention that it would end
up in Massachusetts. LHTD did not purposefully direct any action towards Massachusetts.
Therefore, the plaintiff has not met this criteria for asserting specific jurisdiction over LHTD.
Reasonableness: Gestalt Factors
As detailed above, the third consideration for establishing specific jurisdiction is
whether the exercise of jurisdiction is reasonable. Daynard, 290 F.3d at 60-61. This involves an
analysis of the so-called “Gestalt factors,” which includes consideration of “(1) the defendant’s
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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.” Sawtelle, 70 F.3d at 1394. However, “the
gestalt factors come into play only if the first two segments of the test for specific jurisdiction
have been fulfilled.” Id. (internal punctuation and citation omitted). Given the complete
absence of any contacts between LHTD and Massachusetts, there is no need for this court to
address the Gestalt factors. Under the facts presented here, it clearly would not be reasonable
for the court to exercise jurisdiction over LHTD.
IV. CONCLUSION
For all the reasons detailed herein, “Defendant, Linde Heavy Truck Division Ltd.’s,
Motion to Dismiss for Lack of Personal Jurisdiction” (Docket No. 63) is ALLOWED.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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