Crocker v. The Hilton Intntl.

• Court: Court of Appeals for the First Circuit
• Decided: October 8, 1992
• Docket: 91-2238
• Status: Published

Opinion

USCA1 Opinion

October 8, 1992
                                 ____________________

          No. 91-2238

                       KIMBERLY CROCKER AND JULIAN H. CROCKER,

                               Plaintiffs, Appellants,

                                          v.

                       THE HILTON INTERNATIONAL BARBADOS, LTD.,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS 

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                        Torruella and Boudin, Circuit Judges,
                                              ______________

                             and Keeton,* District Judge.
                                          ______________

                                _____________________

               Dianna  R.  Stallone,  with whom  Law  Office  of  Dianna R.
               ____________________              __________________________
          Stallone, was on brief for appellants.
          ________
               Robert  G. Eaton, with whom  Sloane and Walsh,  was on brief
               ________________             ________________
          for appellee.

____________________

____________________

____________________

          *  Of the District of Massachusetts, sitting by designation.

TORRUELLA, Circuit Judge.   Kimberly and Julian Crocker
                               _____________

          ("Appellants")  sued  the  Hilton  International  Barbados,  Ltd.

          ("Appellee"),  a  hotel  located  in  Bridgetown,  Barbados,  for

          damages resulting from the rape of Kimberly Crocker while she and

          her husband  of less  than a  year were  guests at  that lodging.

          Appellants allege that when  Kimberly Crocker was walking through

          the  hotel  premises alone,  she was  attacked at  knifepoint and

          raped.  The complaint  alleges counts for negligence and  loss of

          consortium,  and claims  that the  assault was  perpetrated by  a

          person who was neither a guest at the hotel nor a hotel employee.

                    Appellee  challenged the  personal jurisdiction  of the

          district court  through a Motion  to Dismiss,  which was  granted

          notwithstanding  appellants' opposition.  The district court also

          disallowed appellants' motions to amend  the complaint to add  as

          defendants  Hilton Hotel  Corporation  and Hilton  International,

          Ltd.   In addition the motion sought  to add claims for breach of

          contract and warranty, which request was also denied.  Appellants

          attempted to stay the jurisdictional ruling pending discovery but

          this move was rejected by the trial court.  These rulings are all

          the subject of this appeal.

                    Appellants   make  a   three-fold  claim   of  personal

          jurisdiction  over appellee:   (1)  they allege  that  the sexual

          assault  in  Barbados  arose  out of  appellee's  transaction  of

          business in Massachusetts within  the meaning of Mass. Gen.  Laws

          ch.  223A,    3(a);  (2) they  claim  that  some  of the  damages

          resulting from the  rape in Barbados, namely a  diagnosed delayed

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post  traumatic   stress  syndrome,  as  well  as   the  loss  of

          consortium,   constitute  a  tortious   injury  in  Massachusetts

          pursuant  to Mass.  Gen.  Laws ch.  223A,    3(d); and  (3)  they

          contend   that  appellee's   activities  in   Massachusetts  were

          sufficient to  warrant the  exercise of jurisdiction  under Mass.

          Gen. Laws ch. 223,    37 and 38.

                    Chapter  223A,     3(a),  Mass.  Gen.  Laws  states  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 . . . .

                    Section 3(d), thereof allows personal jurisdiction over

          a person

                      causing    tortious   injury    in   this
                      commonwealth  by  an   act  or   omission
                      outside the 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.

                    Section 37 of Chapter 223 establishes the procedure for

          service of process on  corporations, with Section 38 specifically

          dealing  with  the  application   of  said  measures  to  foreign

          corporations.

                    The following facts arise from the record.  Appellee is

          a corporation organized under the laws of Barbados, with its sole

          place  of  business  therein.     It  conducts  no   business  in

          Massachusetts except for the solicitation of business, as will be

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described hereinafter.  It has no offices, agents or employees in

          the  commonwealth.  Nor does appellee pay taxes, have any process

          agent, or is it listed as having a Massachusetts telephone number

          or address.

                    Appellants  booked their  hotel  room through  a travel

          agency  located  in   Massachusetts,  Village  Tour   and  Travel

          ("Village  Tours").   This  agency  had  received an  advertising

          brochure about  appellee's hotel from its  parent company, Hilton

          International.  Village Tours  placed appellants' booking through

          Go  Go  Tours, an  affiliate of  a  New Jersey  travel management

          company known as Lib/Go  Travel, Inc. ("Lib/Go").  Lib/Go  has an

          agreement with appellees pursuant to which it is given preference

          on  a  certain  number of  rooms  at  a  discount  rate.    Thus,

          appellants  made a down  payment to Village  Tours, Village Tours

          paid Go Go, and Go Go paid the hotel in Barbados.

                    Hilton  International maintains an "800" number (1-800-

          Hiltons),  as well  as a  Boston  area telephone  number, whereby

          reservations can be made  for any Hilton hotel worldwide.   These

          telephone numbers are  also listed in  a brochure distributed  in

          Massachusetts  by  Hilton  International,  a copy  of  which  was

          acquired  by Kimberly Crocker in  that state.   Together with six

          other hotels, appellee was listed in a Boston Globe advertisement

          sponsored  by Hilton  International  and American  Airlines.   In

          addition,  there is some evidence to the effect that the Barbados

          Hilton was represented  on one  occasion at  an annual  Caribbean

          Tourism Association trade show in Massachusetts.

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I

                    The crucial question to  be answered under the two-part

          analysis  required by Section 3(a) of  the Massachusetts long arm

          statute  is whether  appellants' causes  of action  arose  out of

          business conducted in Massachusetts by appellee.  See Fournier v.
                                                            ___ ________

          Best  Western Treasure  Island  Resort, 962  F.2d  126 (1st  Cir.
          ______________________________________

          1992); Marino  v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir. 1986).
                 ______     ___________

          In  this respect  the established  precedent  in this  circuit is

          crystal clear,  of recent vintage,  and absolutely binding.   See
                                                                        ___

          Metcalf & Eddy v.  Puerto Rico Aqueduct and Sewer  Authority, 945
          ______________     _________________________________________

          F.2d 10 (1st Cir. 1991), cert. denied, 112 S. Ct. 1290 (1992).
                                   _____ ______

                    In Marino,  a Massachusetts resident  was injured  when
                       ______

          she  fell while staying at a Hyatt  Hotel in Hawaii.  Marino, 793
                                                                ______

          F.2d at 427.  Hyatt  owned and operated a hotel in  Massachusetts

          and regularly  advertised and solicited  business there.   Id. at
                                                                     ___

          428.  Plaintiffs had made their reservations for the Hawaii Hyatt

          through a  Massachusetts travel agency.   Id. at 428-29  n.3.  We
                                                    ___

          ruled  that it was not enough "that a defendant transact business

          in Massachusetts.   The  cause  of action  itself must  "'aris[e]

          from'  the defendant's transacting of business in Massachusetts."

          Id. at  428.  We  concluded that a  personal injury action  for a
          ___

          slip  and  fall accident  in Hawaii  could  not "arise  from" the

          reservation of a hotel room in Massachusetts.  Id. at 430.
                                                         ___

                    Similarly,  in   Fournier,  we  decided   that  another
                                     ________

          Massachusetts  resident  had  failed  to  establish  in  personam
                                                               ____________

          jurisdiction under   3(a).   The suit was against  a Grand Cayman

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Island hotel for injuries suffered there when that plaintiff  was

          struck by a motor  boat while she was snorkeling.  Plaintiff also

          had   made   her  travel   arrangements  in   Massachusetts,  but

          defendant's  activities  in  Massachusetts  were,  as in  Marino,
                                                                    ______

          limited to solicitation of business.  Fournier, 962 F.2d at 127.
                                                ________

                    The holdings in Fournier  and Marino decide this issue.
                                    ________      ______

          The district  court correctly  ruled that it  lacked jurisdiction

          under Section 3(a).

                                          II

                    Appellants'   argument  under  Section  3(d)  fares  no

          better.  Although appellants' post trauma  and consortium-related

          injuries  may   have  been  experienced  upon   their  return  to

          Massachusetts, here,  as in  Marino and Fournier,  the plaintiffs
                                       ______     ________

          sued for  damages  stemming from  the  out-of-state incident.    

          Furthermore,  the injury  to  which Section  3(d)  refers is  the

          sexual assault itself, not the manifestations  or effects of that

          injury as claimed by appellants.  The complaint in  this case may

          be understood  as alleging manifestations or  effects more severe

          than were  alleged in cases such  as Fournier and Marino.   These
                                               ________     ______

          manifestations,  however, are  no  different in  relation to  the

          legal  issue  of  in  personam  jurisdiction  than  the pain  and
                            ____________

          suffering of the plaintiffs in those cases, in which the accident

          took place elsewhere, but plaintiffs convalesced in Massachusetts

          and  suffered most of the effects of the out-of-state injuries in

          Massachusetts.  See also Mello v. K-Mart Corp., 604 F. Supp. 769,
                          ________ _____    ____________

          771 (D.  Mass.  1985) (injury  occurs  where the  bodily  contact

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occurs); Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D.
                   _____    ____________________

          Mass. 1976).

                    The injury occurred in  Barbados.  Thus appellee cannot

          be subjected  to  personal jurisdiction  in  Massachusetts  under

          Section 3(d) in the circumstances of this case.

                                         III

                    Neither do Sections 37 and 38 of Chapter 223 Mass. Gen.

          Laws  provide a  basis for  personal jurisdiction  over appellee.

          Section 38 states that:

                      In   an   action   against    a   foreign
                      corporation . . . which has a usual place
                      of business in the commonwealth, or, with
                      or  without such usual place of business,
                      is engaged  in or soliciting  business in
                      the    commonwealth,    permanently    or
                      temporarily,  service  may  be   made  in
                                    _______
                      accordance   with   the  provision[]   of
                      [Section  37]  relative  to   service  on
                      domestic corporations . . . .

          Emphasis supplied.

                    Although this language would appear to principally deal

          with  the mechanical  aspects of  acquiring jurisdiction,  it has

          been interpreted  more  broadly.   See  Caso v.  Lafayette  Radio
                                             ___  ____     ________________

          Electric Corp., 370 F.2d 707 (1st Cir. 1966).  Nevertheless, this
          ______________

          provision  has  never  been  extended  to  encompass  appellants'

          contentions.  In fact it has been 

                      regularly  found  [that] more  than "mere
                      solicitation" [is required] . . . .[E]ven
                      when  [the  Supreme  Judicial   Court  of
                      Massachusetts]  has   found  solicitation
                      plus  some  other  activity,  it  has not
                      extended jurisdiction when  the cause  of
                      action   did  not   arise   out  of   the
                      activities in Massachusetts . . . .

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Id. at 711-12.1   The court  ruled in that  case that Section  38
          ___

          jurisdiction would attach only if 

                      (a)  . .  . the  corporation's activities
                      affect  the   commerce  of  Massachusetts
                      substantially  so that  the state  has an
                      interest   in   regulating  the   general
                      conduct of those activities  . . . or (b)
                      whenever the  corporation's activities in
                      Massachusetts   have   so  affected   the
                      particular transaction at  issue that  it
                      is  appropriate to  have the  claim  in a
                      Massachusetts court . . . .

          Id. at 712; see also Mas Marques v.  Digital Equipment Corp., 637
          ___         ________ ___________     _______________________

          F.2d 24, 28 (1st Cir.  1980); Howse v. Zinner Mfg. Co.,  757 F.2d
                                        _____    _______________

          448, 450 (1st Cir. 1983).

                    Appellants'   claim  does   not   arise   out  of   the

          solicitation  of business in Massachusetts, but rather out of the

          action  of a  third  party after  appellants  had lodged  in  the

          Barbados  Hilton  and, at  most,  the alleged  negligence  of the

          Barbados Hilton in  failing to provide appropriate  security.  No

          jurisdiction attaches under Section 38.  Caso, 370 F.2d at 712.
                                                   ____

                                          IV

                    The  district court  did  not abuse  its discretion  in

____________________

          1    At oral  argument, appellants  relied  heavily on  Gunner v.
                                                                  _________
          Elmwood Doge, Inc.,  24 Mass. App. 96, 506 N.E.2d 175 (1987), for
          __________________
          the proposition  that  persistent solicitation  of  Massachusetts
          residents can  suffice to  establish jurisdiction over  a foreign
          corporation.     Gunner,  however,  involved   the  assertion  of
                           ______
          jurisdiction under section 3(a) of  the long-arm statute --  that
          is, over a cause of  action assumed by the court to  arise out of
          the  corporation's contacts with the state.   In this case, as we
          have explained above, appellants' cause  of action does not arise
          out of appellee's contacts with Massachusetts.  As noted in Caso,
                                                                      ____
          significantly more by way of contacts is required where the cause
          of  action does not arise out of the foreign defendant's contacts
          with the state.  See Caso, 370 F.2d at 711-12.
                           ___ ____

                                         -8-

denying appellants'  motion to  amend the complaint.   Appellants

          sought  to  include  additional  claims  grounded  on  breach  of

          contract and breach of warranty theories.  The breach of contract

          claim  alleged  that  appellee  contracted  with   appellants  in

          Massachusetts  to  provide safe  and  habitable  premises at  its

          hotel,  and that  appellee breached  that contract by  failing to

          maintain safe and habitable conditions.  Similarly, the breach of

          warranty claim alleged that appellee impliedly warranted that its

          premises were safe and habitable, and that appellee breached that

          warranty because its premises were unsafe.  Again,  these  claims

          are  foreclosed  by  our  rulings  in  Marino.    In  considering
                                                 ______

          plaintiff's breach of contract argument we stated:

                      [T]o  proceed in contract against a hotel
                      owner  for  the  infliction  of  personal
                      injury       [requires]       intentional
                                                    ___________
                      interference with the hotel guest's right
                      to the  quiet enjoyment  of his room  . .
                      . .

          Marino, 793 F.2d  at 430  (emphasis in  original).   There is  no
          ______

          intentional  interference  by  the  hotel owner  alleged  in  the
          ___________

          present case, but rather criminal acts by third parties.  

                    Appellants argue that Marino is distinguishable because
                                          ______

          in that case only  a reservation had been made;  here, appellants

          had  paid $1,600  in  advance  and  had  been  assigned  a  "room

          category."    We conclude,  however,  that  the implied  covenant

          pertaining to  safety of occupied premises arises  when the guest

          checks in, is assigned some specific space, and receives a key or

          other means of access to that space.  

                    Thus  the claims  in the  amendments sought  would have

                                         -9-

arisen  in  this  case, not  when  the  reservation  was made  in

          Massachusetts  through the  travel  agent, but  in Barbados  when

          appellants  checked in  as  hotel guests.    Therefore, since  in
                                                                         __

          personam  jurisdiction would not lie  to try these  new counts in
          ________

          Massachusetts, the district court  acted correctly in denying the

          motion to amend the complaint.  Vargas v. McNamara,  608 F.2d 15,
                                          ______    ________

          18 (1st Cir. 1979).

                    This  conclusion   is  of  equal  application   to  the

          amendment seeking  to add  Hilton International and  Hilton Hotel

          Corporation as defendants.  

                                          V

                    Trial courts  have broad discretion  to decide  whether

          discovery  is required  on  the issue  of personal  jurisdiction.

          Santiago v.  Fenton, 891 F.2d 373, 379 (1st Cir. 1989).  A ruling
          ________     ______

          will  be overturned  "only  upon  a  clear  showing  of  manifest

          injustice, that is, where  the lower court's discovery  order was

          plainly  wrong  and  resulted  in substantial  prejudice  to  the

          aggrieved party."  Id.
                             ___

                    The  information sought  by  appellants deals  with the

          amount  of  revenue   derived  by  appellee   from  Massachusetts

          customers, whether appellee's employees  travelled to this  state

          to participate in a Caribbean Tourism Association trade show, and

          whether   appellee  has   "letters  of   agreement"  with   other

          Massachusetts  tour  promoters.    None of  this  information  is

          relevant  to the issue  before us  as it  deals either  with mere

          solicitation of business,  or involves the provision of  goods or

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services outside of Massachusetts.

                    The orders appealed from are affirmed.
                                                 ________

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