Opinion
21-P-206
12-15-2021
James F. MONGIARDO v. PRIVATE COLLECTION MOTORS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, James F. Mongiardo, appeals from a judgment dismissing the complaint for lack of personal jurisdiction pursuant to Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). He claims that the Superior Court judge erred in concluding that the defendant, Private Collection Motors, Inc. (PCM or defendant), had insufficient contacts with the Commonwealth under the long-arm statute, G. L. c. 223A, § 3. Because the defendant's contacts in Massachusetts do not provide a basis for assertion of personal jurisdiction, we affirm.
Background. "When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of adducing facts on which jurisdiction may be found" (citation omitted). Roch v. Mollica, 481 Mass. 164, 165 (2019). We review the pleadings, affidavits, and other submissions to determine if the plaintiff has made "a prima facie showing of evidence that, if credited, would be sufficient to support findings of all facts essential to personal jurisdiction." Fern v. Immergut, 55 Mass. App. Ct. 577, 579 (2002). "[W]e accept as true the essential uncontroverted facts that were before the judge." SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 325 n.3 (2017).
In June of 2019, the plaintiff, a Massachusetts resident, sought to purchase a used Tesla Model S car. The defendant is a California corporation that sells preowned luxury cars, which it advertises on various online websites, including eBay as well as its own website. The plaintiff conducted his search online, and eventually located the car he wanted on the defendant's eBay page.
The plaintiff looked at both websites before placing a bid on eBay. The parties negotiated an agreed upon price of $44,750. The defendant then sent the plaintiff the necessary paperwork, which both parties completed from their home States, and the plaintiff wired the money to California. With the defendant's assistance, the plaintiff engaged and paid for the services of a third-party shipper, Deluxe Transport Inc., and accepted delivery in Massachusetts from the shipper. The car arrived on July 3, 2019, and after a brief delay, the plaintiff received the certificate of title.
Shortly thereafter, the plaintiff discovered a defect in the car: a leak in the rear liftgate, which resulted in substantial damage. The plaintiff was not aware of this defect prior to purchase. After contacting the defendant, who refused to provide aid or compensation, the plaintiff paid for repair services.
The plaintiff filed suit pro se in the Superior Court seeking monetary damages. He asserted six causes of action, including fraud, breach of the implied warranty of merchantability, and violations of G. L. c. 93A. The defendant promptly moved to dismiss for lack of personal jurisdiction under Mass. R. Civ. P. 12 (b) (2), arguing that it had insufficient contacts with the Commonwealth to warrant application of our long-arm statute. The motion was initially denied. However, after reconsideration, the judge allowed the motion and dismissed the complaint. The plaintiff timely appealed.
Discussion. Massachusetts courts may assert jurisdiction over nonresident defendants "when some basis for jurisdiction enumerated in the statute has been established" and when the "exercise of jurisdiction under State law [is] consistent with the basic due process requirements mandated by the United States Constitution." Intech, Inc. v. Triple "C" Marine Salvage, Inc., 444 Mass. 122, 125 (2005), quoting Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979), and Tatro v. Manor Care, Inc., 416 Mass. 763, 767 (1994). We "consider the long-arm statute first, before approaching the constitutional question." SCVNGR, Inc., 478 Mass. at 330.
The plaintiff maintains that Massachusetts courts may assert personal jurisdiction over the defendant because the defendant's conduct in Massachusetts satisfied G. L. c. 223A, § 3, which provides, in relevant part:
"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."
A corporation is included within the definition of person. G. L. c. 223A, § 1.
We address each provision in turn.
1. Transacting business in the Commonwealth. The plaintiff first contends that § 3 (a ) applies because the defendant transacted business in Massachusetts by taking "explicit actions to find customers" in the forum. In order to satisfy § 3 (a ) the plaintiff must make a prima facie showing that the defendant (1) "transacted business in Massachusetts" and (2) that the plaintiff's claim arose from the defendant's transactions. Intech, Inc., 444 Mass. at 126. "[G]enerally[,] the purposeful and successful solicitation of business from residents of the Commonwealth, by a defendant or its agent, will suffice to satisfy this requirement." Tatro, 416 Mass. at 767. Transactions that lack purposeful solicitation and that are more accurately described as "isolated" or "minor," however, will not. Id.
Although § 3 (a ) of our long-arm statute has been "construed broadly," it is not broad enough to support the plaintiff's claim that the defendant conducted business in Massachusetts. See Intech, Inc., 444 Mass. at 127. The facts presented reflect an isolated and fortuitous contact with a Massachusetts resident. PCM is a California corporation with an office in Costa Mesa, California. It conducts the majority of its business in its home State and a few neighboring States. It made two sales in Massachusetts in two and one-half years. The sale in question occurred only after the plaintiff initiated contact with PCM. PCM responded to the plaintiff's eBay bid, but the sale was not conducted on eBay. PCM sent a contract to the plaintiff from California and executed it in California only after the plaintiff returned his signed copy. PCM accepted the plaintiff's wire payment in California. A third party who contracted with the plaintiff was responsible for shipping and delivery. Absent from all of these interactions is any showing that the defendant targeted or solicited Massachusetts buyers, or otherwise "purposefully [availed] itself of the privilege of conducting activities within the forum State" (quotation & citation omitted). Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 153-154 (1987) (isolated sale of two marine engines and contacts consisting of advertising in publication distributed in Massachusetts, corresponding with plaintiff by mail and telephone to accept and confirm sale, and shipping goods via independent carrier to Massachusetts insufficient to confer jurisdiction under § 3 [a ]). See Intech, Inc., 444 Mass. at 122-124, 126-127 (isolated sales of two boats over period of several months and contacts consisting of advertising in publication distributed in Massachusetts, corresponding with plaintiff's agent by mail, telephone, and facsimile to accept and confirm sale, and accepting plaintiff's payment insufficient to confer jurisdiction under § 3 [a ]); Roberts v. Legendary Marine Sales, 447 Mass. 860, 861-864 (2006) (isolated sale of boat and contacts consisting of advertising boat on website, corresponding with plaintiffs by mail, telephone, and e-mail to accept and confirm sale, accepting plaintiffs' payment, and shipping boat via independent carrier insufficient to confer jurisdiction under § 3 [a ]). Here, the fact that the title was delivered in Massachusetts is immaterial. PCM was obligated to provide the title, and did so, but this alone is not sufficient to show that PCM engaged in commerce or otherwise transacted business in the Commonwealth.
Correspondingly absent is any discernable effect of the defendant's transaction "on the commerce of the Commonwealth." Droukas, 375 Mass. at 154.
We reject the plaintiff's contention that the defendant's operation of e-commerce platforms, including a website and an eBay page, changes the result under § 3 (a ). The defendant's website was a passive website. While it is true that the defendant's eBay page involved a greater level of interactivity than its website, neither website was adequate to establish personal jurisdiction. See Roberts, 447 Mass. at 865.
Although we do not reach the constitutional dimension of the analysis, we note that those Federal courts which have considered the question have held that the use of a passive website or an eBay page alone is insufficient to confer personal jurisdiction in the forum State. See Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549-550 (7th Cir. 2004) ; Holland Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) ; Comer v. Comer, 295 F. Supp. 2d 201, 209-210 (D.C. Mass. 2003).
In Roberts the defendant posted an advertisement seeking purchase offers on a boat trading website, a platform much like eBay. Id. at 861. After viewing the advertisement, the plaintiff contacted the defendant, and the parties formalized the sale without the use of the website. Id. at 861-862. The same is true in this case. Some negotiation occurred on eBay, but ultimately, the purchase and sale occurred outside that platform.
In considering whether § 3 (d ) of the long-arm statute applied, the Roberts court recognized that the defendant's website had the potential to reach prospective clientele in Massachusetts. However, this fact alone was not dispositive "in the absence of any specific showing ... that the [website] did anything beyond providing information" or that the website was an attempt by the defendants to purposefully solicit business in Massachusetts. Roberts, 447 Mass. at 865. We think this reasoning applies to § 3 (a ) as well. And as in Roberts, the plaintiff has not shown that the eBay page went beyond providing information, albeit detailed information, or that it made any attempt to target Massachusetts buyers.
General Laws c. 223A, § 3 (d ), provides personal jurisdiction as to a cause of action "causing tortious injury in this commonwealth [by one] who 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."
That the defendant's eBay page contained a "virtual showroom" and provided significant details about the car is thus irrelevant to the analysis under Roberts.
Finally, the plaintiff asserts that the contacts with Massachusetts are sufficient because PCM's website appealed to out-of-State buyers and invited them to purchase vehicles. As discussed above, no targeted effort to solicit Massachusetts buyers is apparent on this record, and the history of PCM's sales indicates that sales in Massachusetts were minimal, isolated, and sporadic, with little if any impact on commerce in the Commonwealth.
2. Contracting to supply services or things in the Commonwealth. Next, the plaintiff contends that jurisdiction may be asserted pursuant to § 3 (b ) because the defendant "contracted to deliver a vehicle in Massachusetts." Contrary to the plaintiff's assertion, however, the contract between the parties did not obligate the defendant to deliver the vehicle to Massachusetts. The plaintiff instead contracted with a third-party shipping company. Here, Droukas, Intech, Inc., and Roberts control. In all three cases, the Supreme Judicial Court found that § 3 (b ) did not apply where the plaintiff relied on a separate carrier to deliver their goods to the Commonwealth. See Roberts, 447 Mass. at 864 ; Intech, Inc., 444 Mass. at 125 ; Droukas, 372 Mass. at 157-159.
The plaintiff points to the permissive arbitration clause in the retail sales contract signed by the defendant, which states that any "arbitration hearing shall be conducted in the federal district in which you reside unless the Seller-Creditor is a party to the claim or dispute, in which case the hearing will be held in the federal district where this contract was executed." He argues that the defendant's assent to this provision "constitute[d] contracting to supply services or things in Massachusetts." However, this argument overlooks the holdings in Droukas, Intech, Inc., and Roberts.
3. Causing tortious injury by an act or omission in the Commonwealth. The plaintiff also asserts that jurisdiction may be grounded on § 3 (c ) of the long-arm statute, causing tortious injury by an act or omission in the Commonwealth. He points to his receipt of title in Massachusetts as the requisite act causing injury and creating jurisdiction under § 3 (c ).
The Supreme Judicial Court has foreclosed the application of § 3 (c ) to claims that are contractual in nature. In Roberts, the court rejected the plaintiffs' argument that § 3 (c ) applied because the defendant made misrepresentations about the age and conditions of a boat for sale. See Roberts, 447 Mass. at 864. It reasoned that the "substance" of the complaint was contractual: the plaintiffs, at bottom, alleged that "but for the defendant's misrepresentations, [the plaintiffs] would not have executed the contract to purchase the boat and ... would not have incurred expenditures related to its purchase." Id. The damages were likewise "grounded in breach of contract" and thus "d[id] not constitute ‘tortious injury’ " as the only harm suffered was monetary. Id. The plaintiff's claim here is legally indistinguishable from the claim at issue in Roberts.
Judgment affirmed.