ARTHUR FEINBERG & Another v. EAST COAST SEALCOATING, INC., & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1448

ARTHUR FEINBERG & another1

vs.

EAST COAST SEALCOATING, INC., & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from a judgment dismissing their

complaint against defendant Kwest Enterprises, LLC (Kwest), for

lack of personal jurisdiction pursuant to Mass. R. Civ. P.

12 (b) (2), 365 Mass. 754 (1974). A Superior Court judge

concluded that Kwest had insufficient contacts with the

Commonwealth under the long-arm statute, G. L. c. 223A, § 3, and

that exercising jurisdiction did not comport with the

requirements of due process under the United States

Constitution. We affirm.

1 Karen Feinberg.

2Kwest Enterprises, LLC, and Coolink AC and Heating LLC,
doing business as CRP Mechanical.
Background. The plaintiffs are Massachusetts residents,

and Arthur3 is the president of Resilient Technologies, Inc.,

doing business as Tracklite Systems (Tracklite), a Massachusetts

corporation with a business address in Andover and an office in

Lawrence. Kwest is a limited liability company organized under

the laws of Alabama with its principal -- and only -- place of

business in Montgomery, Alabama. Kwest does not do business,

own property, have employees, advertise for, or solicit business

in Massachusetts.

In May 2020, Kwest's president telephoned Arthur regarding

a construction project at Kessler Air Force Base in Mississippi

(base). After further phone calls and e-mail messages, on July

15, 2020, Kwest entered into a subcontract with Tracklite for

work on the project, its fourth such subcontract for work at the

base.4 In connection with these projects, "Kwest directed

hundreds of communications -- letters, faxes, telephone calls,

and emails -- to Tracklite in Massachusetts."

On September 26, 2020, Arthur was seriously injured on the

project in Mississippi. The plaintiffs filed suit in

3 As they share a surname, we refer to the plaintiffs by
their first names.

4 Kwest paid Tracklite $736,951 for the four projects.

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Massachusetts against Kwest and others5 alleging negligence in

the operation of the forklift and supervision of the worksite.

Karen brought a claim for loss of consortium. A judge allowed

Kwest's motion to dismiss. This appeal followed.

Discussion. "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." Roch v.

Mollica, 481 Mass. 164, 165 (2019), quoting SCVNGR, Inc. v.

Punchh, Inc., 478 Mass. 324, 325 n.3 (2017). We review to

determine whether the plaintiffs 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" (citation omitted). SCVNGR, Inc., supra.

A Massachusetts court may assert jurisdiction over

nonresident defendants "when some basis for jurisdiction

enumerated in [G. L. c. 223A, § 3,] has been established" and

when "exercise of jurisdiction under State law [is] consistent

with basic due process requirements mandated by the United

5 The plaintiffs voluntarily dismissed their claims against
Coolink AC and Heating LLC and entered into a settlement
agreement with East Coast Sealcoating, Inc.

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States Constitution" (citations omitted). Intech, Inc. v.

Triple "C" Marine Salvage, Inc., 444 Mass. 122, 125 (2005).

Passing on the question whether the plaintiffs met the

requirements of the long-arm statute, we consider whether the

exercise of jurisdiction over Kwest is inconsistent with due

process. "'[T]he constitutional touchstone' of the

determination whether an exercise of personal jurisdiction

comports with due process 'remains whether the defendant

purposefully established "minimum contacts" in the forum

state.'" Tatro v. Manor Care, Inc., 416 Mass. 763, 772 (1994),

quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,

108–109 (1987). The minimum contacts analysis has three prongs:

the defendant must have purposefully availed itself of the

privilege of conducting activities in the forum; the claim must

arise out of or relate to the defendant's contacts with the

forum; and the exercise of jurisdiction must not offend

"traditional notions of fair play and substantial justice."

Bulldog Investors Gen. Partnership v. Secretary of the

Commonwealth, 457 Mass. 210, 217 (2010), quoting Tatro, supra at

773.

Prong one. To determine whether Kwest purposefully availed

itself of the privileges of conducting activities in

Massachusetts, we look to the voluntariness and foreseeability

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of its contacts here. See Doucet v. FCA US, LLC, 492 Mass. 204,

211 (2023). We ask whether Kwest had a "meaningful" connection

to Massachusetts that was voluntarily undertaken, and whether it

was reasonably foreseeable that Kwest would be brought into

court in Massachusetts as a result. Walden v. Fiore, 571 U.S.

277, 290 (2014). See Doucet, supra.

Here, Kwest did not provide services or goods to any

Massachusetts customer. It did not solicit business in

Massachusetts. It did not advertise in Massachusetts. It did

not have offices or employees in Massachusetts. Kwest merely

hired Tracklite, a business with an office in Massachusetts.

The subject of the subcontract was a construction project in

Mississippi, and the plaintiffs' tort claims arose out of an

accident that occurred in Mississippi.

Kwest's communications with Tracklite were not acts

purposefully directed to Massachusetts. Kwest did nothing to

invoke the benefits and protections of Massachusetts's laws.

Indeed, the subcontract was to be governed by the laws of

Alabama. A mere relationship between the parties -- as existed

here -- was insufficient; what is required is "a quid for a quo

that consists of the state's extending protection or other

services to the nonresident." Cote v. Wadel, 796 F.2d 981, 984

(7th Cir. 1986).

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Prong two. For Massachusetts to exercise jurisdiction

consistent with due process, Kwest's "suit-related conduct must

create a substantial connection with the forum State." Walden,

571 U.S. at 284. Put differently, there must be "a relationship

between the actions voluntarily undertaken in the jurisdiction

and the plaintiffs' claims." Doucet, 492 Mass. at 213. Here,

the operation of the forklift and the supervision of the

worksite both occurred in Mississippi. The plaintiffs failed to

meet their burden to prove that Kwest's allegedly tortious

conduct was substantially connected to its contacts with

Massachusetts.

Prong three. Finally, we must consider whether the

exercise of jurisdiction over Kwest would offend notions of

"fair play and substantial justice" (citation omitted).

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

We look at Kwest's burden of appearing, Massachusetts's interest

in adjudicating the claim, the plaintiffs' interests in

obtaining convenient and effective relief, and "the common

interests of all sovereigns in promoting substantive social

policies." Nowak v. Tak How Invs., 94 F.3d 708, 717 (1st Cir.

1996), cert. denied, 520 U.S. 1155 (1997). Here the accident

occurred in Mississippi, all the relevant nonparty witnesses are

in Mississippi, and Mississippi law governs the tort claim.

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Under these facts, it would offend traditional notions of fair

play and substantial justice to require Kwest to defend itself

in Massachusetts. The complaint was properly dismissed as

against Kwest.

Judgment entered November 2,
2023, affirmed.

By the Court (Blake, C.J.,
Ditkoff & D'Angelo, JJ.6),

Clerk

Entered: December 27, 2024.

6 The panelists are listed in order of seniority.

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