June 3, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2286
SCOTT MARTEL,
Plaintiff, Appellant,
v.
GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.
Defendants, Appellees.
ERRATA SHEET
The opinion of the Court issued on May 25, 1993 is corrected as follows:
On page 12, footnote 10, lines 13-16 replace with the following: under applicable Maryland law, Martel would have had to present his claim against the estate within nine months after the date of the decedent's death. See Md. Est. & Trusts Code
Ann. 8-103(a)(1)(1991).
UNITED STATES COURT OF APPEALS
GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Stahl, Circuit Judges.
Kenneth J. Chesebro, with whom Robert E. Manchester,
Patricia S. Orr, and Manchester Law Offices, P.C. were on brief,
for appellant. Christopher S. Williams, with whom Griffin & Goulka was on
brief, for appellees.
May 25, 1993
SELYA, Circuit Judge. This appeal could do double duty SELYA, Circuit Judge.
as a law school examination question. It follows a district
court's dismissal of the third action brought by plaintiff-
appellant Scott Martel in what has been a consistently
unsuccessful effort to stay in court long enough to recover
damages for personal injuries sustained in an automobile
accident. Because the district court lacked personal
jurisdiction over the sole defendant, a foreign executor sued as
such, we affirm.
I. BACKGROUND
Leaving to one side the seepage from the geographical
morass in which this case is mired, the prefatory facts are
straightforward. On April 18, 1985, an accident occurred on a
Vermont highway. Martel, a Vermont resident, sustained injuries
when an automobile in which he was riding collided with a vehicle
driven by Wilhelmina S. Parker. Parker, a citizen of Maryland
who was in the process of moving into a new home in Vermont,
perished two days later as an aftermath of the crash. She died
testate, owning property located exclusively in Maryland and
Vermont. Pursuant to her will, probate courts in both
jurisdictions appointed George F. Stafford, a Massachusetts
resident, as executor. Letters of administration were issued to
Stafford in Maryland on May 22, 1985 and letters testamentary
were issued to him in Vermont on August 19, 1985.
Martel seemed to be in no particular hurry to assert
his rights. It was not until April 18, 1988 that he brought
identical suits against Stafford in a Vermont state court and in
Vermont's federal district court. In due course, each court
dismissed Martel's complaint as time-barred on the ground that
the applicable statute of limitations pretermitted the action.
See Vt. Stat. Ann. tit. 12, 557(a) (1973) (providing that
actions against an executor for acts of the decedent are barred
if not commenced within two years of the issuance of letters
testamentary).
Undeterred, appellant went in search of a longer
statute of limitations.1 On November 22, 1988, he filed a
diversity action in the United States District Court for the
District of Massachusetts. Over two years later, Stafford moved
for summary judgment on a bouillabaisse of grounds, including
statute of limitations, res judicata, absence of personal
jurisdiction, and forum non conveniens. The district court
granted the motion on the basis of res judicata, but offered no
elaboration. This appeal ensued.2
II. ANALYSIS
While the district court invoked the doctrine of res
judicata, we are free to affirm the judgment below on any
1Appellant also appealed the superior court's entry of judgment, but to no avail. See Martel v. Stafford, 603 A.2d 345,
346 (Vt. 1991) (affirming dismissal of Vermont action).
2During the pendency of the proceedings, Stafford died and Marilyn S. Elias, the executrix of Stafford's estate, became a party-defendant in this action. See Fed. R. Civ. P. 25(a)(1);
Fed. R. App. P. 43(a). Because Elias's arrival on the scene has no bearing on the disposition of this appeal, we refer to Stafford as if he were still alive and still the sole defendant.
independently sufficient ground made manifest by the record.3
See Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990);
Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st
Cir. 1987); Chongris v. Board of Appeals, 811 F.2d 36, 37 n.1
(1st Cir.), cert. denied, 483 U.S. 1021 (1987). When, as now, a
potential jurisdictional defect rears its ugly head, an appellate
court should not hesitate to scrutinize that defect before
proceeding further. See Feinstein v. Resolution Trust Corp., 942
F.2d 34, 40 (1st Cir. 1991) (stating that "courts should
ordinarily satisfy jurisdictional concerns before addressing the
merits of a civil action"). Because jurisdiction is the most
natural and obvious starting point here, and because the district
court's rationale strikes us as problematic the general rule is
that a dismissal on limitations grounds does not bar the claim
generally, but only bars a second action in the same jurisdiction
or in a jurisdiction that would apply the same statute of
limitations, see, e.g., 18 Charles A. Wright et al., Federal
Practice & Procedure 4441, at 366 (1981) we tackle the
jurisdictional issue first.
A. Personal Jurisdiction over an Executor.
Plaintiff sued only one defendant Stafford and sued
3This option has particular utility in the summary judgment context, as a district court's entry of summary judgment entails plenary appellate review. See, e.g., Rivera-Muriente v. Agosto-
Alicea, 959 F.2d 349, 352 (1st Cir. 1992); Garside v. Osco Drug,
Inc., 895 F.2d 46, 48 (1st Cir. 1990).
him solely in his capacity as executor of Parker's estate.4
With exceptions not pertinent here, the Civil Rules provide that
the law of the forum state determines a representative party's
capacity to sue or be sued in a federal district court. See Fed.
R. Civ. P. 17(b); see also 6A Charles A. Wright et al., Federal
Practice & Procedure 1565, at 473 (2d ed. 1990). Thus,
Massachusetts law governs the determination of whether the
district court could lawfully exercise personal jurisdiction over
Stafford qua executor.
The traditional Massachusetts rule has been that an
executor or administrator appointed in another state we shall
use the generic term "foreign executor" is not subject to suit
in Massachusetts unless a statute dictates to the contrary. See,
e.g., Saporita v. Litner, 371 Mass. 607, 614 (1976); Old Colony
Trust Co. v. Clarke, 291 Mass. 17, 23 (1935); Brown v. Boston &
Me. R.R., 283 Mass. 192, 195 (1933); Borden v. Borden, 5 Mass.
67, 76-77 (1809); see also Gallup v. Gallup, 52 Mass. 445, 447
(1846) (holding that a foreign executor cannot sue in
Massachusetts); Langdon v. Potter, 11 Mass. 313, 313-14 (1814)
(same). The rule stems from the concept that a decedent's
personal representative is a creature of the state which
appointed him or her, and, as such, possesses no power to act
beyond the creator's boundaries. See Saporita, 371 Mass. at 615;
4At one point in the proceedings, plaintiff sought to amend his complaint to name Stafford, individually, as a defendant. The court below denied the motion. On appeal, plaintiff does not assign error to this ruling.
Brown, 283 Mass. at 195; see also Derrick v. New England
Greyhound Lines, Inc., 148 F. Supp. 496, 497 (D. Mass. 1957)
(dismissing action against foreign executor on the ground that
"even if he were present and served he represents the estate only
to the extent of his Connecticut appointment, i.e., not at all,
as [the appointment] has no extraterritorial effect").
The traditional rule like most traditional rules is
not without exceptions. See Saporita, 371 Mass. at 615 (noting
that "the rule has not been rigidly applied" and surveying
certain common law exceptions). Saporita illustrates the point.
There, a Massachusetts resident sued a foreign executor to
recover payment for services rendered to the testator. The
Massachusetts Supreme Judicial Court (SJC) approved a state
court's exercise of personal jurisdiction over the executor,
primarily because the testator had a wealth of contacts with
Massachusetts. See id. at 618. Although Saporita and this case
share a certain factual resemblance in both instances, a
foreign state appointed the executor according to the terms of
the decedent's will, the foreign executor resided in
Massachusetts and was thus subject to in-hand service of process
there, and the decedent owned no real estate in Massachusetts
the two cases are more noteworthy for their dissimilarity than
for their similitude.
In Saporita, the plaintiff lived and worked in
Massachusetts. See id. at 612-13. The contract upon which she
sued had been made and performed there. See id. Moreover, the
testator's links with Massachusetts were pervasive; he resided
and practiced medicine there, considered Boston to be his home,
and spent approximately seventy-five percent of each week in the
Commonwealth. See id. at 611-12. In the last analysis, it was
the testator's contacts with Massachusetts that prompted the SJC
to relax the traditional rule and find personal jurisdiction over
the foreign executor. The court reasoned that, given contacts
"sufficient . . . to allow the court to exercise personal
jurisdiction over [the testator]," substituting an executor who,
although appointed in a foreign jurisdiction, had himself lived
and worked in Massachusetts and who had been served in hand
there, would "not alter the court's jurisdiction." Id. at 618.
The case before us is at a considerable remove.
Despite ample time for pretrial discovery, the record discloses
no relationship between the decedent and the forum state.5 From
aught that appears, Parker had not a single tie to
5It is apodictic that a plaintiff bears the burden of proving facts necessary to establish jurisdiction. See Donatelli
v. National Hockey League, 893 F.2d 459, 468 (1st Cir. 1990). On
such an issue, a party faced with a motion for summary judgment "must reliably demonstrate that specific facts sufficient to create an authentic dispute exist." Garside, 895 F.2d at 48; see
also Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676-78 (1st Cir.
1992) (discussing standards for determining motions to dismiss for want of personal jurisdiction that involve the court in weighing evidence); General Contracting & Trading Co. v.
Interpole, Inc., 899 F.2d 109, 115 (1st Cir. 1990) (drawing
analogy to Fed. R. Civ. P. 56 in connection with proving disputed jurisdictional facts). Thus, the absence of "relationship" evidence at the summary judgment stage weighs heavily against appellant. As we have observed before, a litigant is always chargeable with knowledge that his "decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence." Kelly v. United
States, 924 F.2d 355, 358 (1st Cir. 1991).
Massachusetts. And, moreover, the cause of action arose out of
state. Had Parker survived and Martel attempted to sue in the
Commonwealth, there is not the slightest reason to believe that a
Massachusetts court could have obtained jurisdiction over her
person. Here, then, unlike in Saporita, allowing the suit to go
forward based on the foreign executor's presence in Massachusetts
would significantly alter the jurisdictional calculus.
We have said enough. Because the Saporita exception
confers personal jurisdiction over a foreign executor only when
the testator manifests sufficient contacts with Massachusetts to
support the exercise of jurisdiction, not merely when the foreign
executor is within the physical reach of a process server,
Parker's behavioral patterns assume decretory significance.
Because she forged no links of any kind with Massachusetts in her
lifetime, her executor's Massachusetts residency cannot tilt the
jurisdictional balance. And putting Stafford's residency aside,
appellant has identified no other state-law basis for grounding
personal jurisdiction. For our part, we can envision none.6
Therefore, we must apply the traditional rule. Under it,
Stafford, like the stereotypical foreign executor, is a
nonentity, ergo, not amenable to suit beyond the boundaries of
the state(s) of his appointment. Giving force to the
6The other exceptions to the traditional rule, see Saporita,
371 Mass. at 615-17, are plainly inapposite, as are two state statutes authorizing jurisdiction over foreign executors upon a showing of sufficient decedent contacts with Massachusetts. See
Mass. Gen. L. ch. 90, 3A (1990); Mass. Gen. L. ch. 199A, 9 (1990).
Massachusetts cases and the policies behind them, we conclude
that the district court lacked personal jurisdiction over
Stafford qua foreign executor.
We add a small eschatocol. Absent some persuasive
indication that a Massachusetts court would abandon its
longstanding rule to find jurisdiction on these specific facts
an extremely dubious prospect given that the lawsuit's center of
gravity obviously lies elsewhere7 we are not at liberty to
manufacture a basis for ignoring the rule. We have repeatedly
warned that a plaintiff who, like Martel, selects a federal forum
in preference to an available state forum may not expect the
federal court to steer state law into unprecedented
configurations. See, e.g., Catrone v. Thoroughbred Racing Ass'ns
of N.A., Inc., 929 F.2d 881, 889 (1st Cir. 1991); Porter v.
Nutter, 913 F.2d 37, 41 (1st Cir. 1990); Kassel v. Gannett Co.,
875 F.2d 935, 949-50 (1st Cir. 1989). While the SJC is free to
reshape Massachusetts's judge-made law, we are not; rather, a
diversity court, with exceptions not germane to this case, must
take state law as it stands.
B. Consent (Waiver).
Appellant argues that Stafford consented to the
jurisdiction of a Massachusetts court, or, alternatively, waived
7We think it unlikely that the SJC would fashion a new exception to an old and honored jurisdictional rule where, as here, the plaintiff is a non-resident, the decedent had no contacts with Massachusetts, the cause of action arose in another place, and no discernible state interest would be served by an assertion of jurisdiction.
his jurisdictional defense,8 by means of statements contained in
a brief filed in the United States District Court for the
District of Vermont. There, the defendant, in response to
plaintiff's threat to bring an action in Maryland's federal
district court, speculated that, because of Stafford's
Massachusetts residency, the proper fall-back forum would be
Massachusetts, not Maryland.
Appellant's basic premise is sound: a party may
consent to a court's in personam jurisdiction before the
commencement of an action. See, e.g., National Equipment Rental,
Ltd. v. Szukhent, 375 U.S. 311, 314-15 (1964); Pennsylvania Fire
Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95
(1917); Holloway v. Wright & Morrissey, Inc., 739 F.2d 695, 699
(1st Cir. 1984). But, consent to personal jurisdiction cannot
be said to have occurred here. The allegedly consenting words,
buried, as they were, in a responsive argument to a speculative
threat in a prior suit before a different court and concerning a
matter unrelated to that suit's determination, dealt with a topic
wholly separate from the issue of personal jurisdiction. Taken
in context, the language to which plaintiff clings, quoted
8Because the alleged conduct occurred beyond the confines of the present suit, the argument may be more aptly phrased as involving "consent" rather than "waiver." We do not probe the point, however, for the distinction is immaterial in this situation. See General Contracting & Trading Co. v. Interpole,
Inc., 940 F.2d 20, 22-23 & n.3 (1st Cir. 1991).
verbatim in the margin,9 constituted no more than an assertion
that, because an executor's residence controls for venue
purposes, see, e.g., Smith v. Harris, 308 F. Supp. 527, 528 (E.D.
Wis. 1970), venue would likely lie in Massachusetts.
Notwithstanding appellant's effort to muddle the two concepts,
venue and personal jurisdiction are not the same. Pre-suit
consent to a court's jurisdiction must be far more clear and
unequivocal than a passing remark directed to another subject.
Cf., e.g., National Equipment, 375 U.S. at 314 (equating consent
with agreement to appoint an agent for service of process);
Petrowski v. Hawkeye-Security Ins. Co., 350 U.S. 495, 496 (1956)
(holding that defendant's stipulation submitting to jurisdiction
waived any right to contest in personam jurisdiction);
Pennsylvania Fire Ins., 243 U.S. at 94-95 (holding that a foreign
corporation's registration to do business within a state
constitutes consent); General Contracting & Trading Co. v.
Interpole, Inc., 940 F.2d 20, 23 (1st Cir. 1991) (ruling that a
plaintiff who purposefully avails himself of a particular forum
surrenders jurisdictional objections to claims arising out of the
same transaction that are brought against him in the same forum).
Furthermore, unlike, say, factual allegations in
trial court pleadings, statements contained in briefs submitted
by a party's attorney in one case cannot routinely be used in
9The exact words Stafford's counsel used were: "venue might . . . be proper in the U.S. District Court for the District of Massachusetts." Defendant's Response to Plaintiffs's Reply Memorandum, at 9 (July 26, 1988).
another case as evidentiary admissions of the party. See Hardy
v. Johns-Manville Sales Corp., 851 F.2d 742, 745 (5th Cir. 1988);
cf. Fragoso v. Lopez, F.2d , (1st Cir. 1993), [No. 92-
2046, slip op. at 21] (holding that, in opposing summary
judgment, a litigant may not rest upon freestanding allegations
contained in a lawyer's brief). And although such statements may
achieve binding force in highly unusual circumstances, see
Kassel, 875 F.2d at 952 n.17 (suggesting that specific factual
statements contained in a pro se brief may be used in cross-
examining the author), we discern no such circumstances here.10
Having read the entire record with care, we find that
it reveals no word, act, or omission that may properly be
construed as consent to the jurisdiction of a Massachusetts court
or as a waiver of any available defenses in that regard. To the
contrary, defendant raised the jurisdictional objection in his
answer and by motion, and in his briefs below and on appeal.
Throughout, he made his point abundantly clear. It is a winning
10We think it is well to note that appellant has not claimed that the venue-related allusion caused any detrimental reliance. At any rate, such a claim would be bootless. Maryland generally views "the question as to which period of limitations applies" as "a matter of procedural, not substantive, law." Turner v. Yamaha
Motor Corp., U.S.A., 591 A.2d 886, 887 (Md. Ct. Spec. App. 1991).
Thus, a court sitting in Maryland would apply Maryland's statute of limitations. By July 26, 1988 (the date when Stafford served the brief containing the controversial comment), Maryland's three-year statute of limitations for civil actions, see Md. Cts.
& Jud. Proc. Code Ann. 5-101 (1992), had expired. Plaintiff has called no applicable tolling provision to our attention; and, furthermore, under applicable Maryland law, Martel would have had to present his claim against the estate within nine minths after the date of the decedent's death. See Md. Est. & Trusts Code
Ann. 8-103(a)(1) (1991).
point, properly preserved, never abandoned, and sufficient to
carry the day.
III. CONCLUSION
We need go no further.11 As Massachusetts has never
recognized personal jurisdiction over a foreign executor on facts
akin to those presented here, the action may not proceed.
Affirmed. Costs to appellees.
11Since the jurisdictional issue is determinative, we take no view of the intriguing choice-of-law questions that lurk in the record or any of the other defenses Stafford advances.