Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics Inc.

901 F. Supp. 2d 255, 2012 WL 4529021, 2012 U.S. Dist. LEXIS 140066
CourtDistrict Court, D. Massachusetts
DecidedSeptember 28, 2012
DocketC.A. No. 11-10791-MLW
StatusPublished
Cited by4 cases

This text of 901 F. Supp. 2d 255 (Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics Inc., 901 F. Supp. 2d 255, 2012 WL 4529021, 2012 U.S. Dist. LEXIS 140066 (D. Mass. 2012).

Opinion

MEMORANDUM AND ORDER

WOLF, District Judge.

I. INTRODUCTION

This is an action brought by plaintiff Rissman, Hendricks, & Oliverio, LLP (“Rissman”) against defendants MIV Therapeutics, Inc. (“MIV”), MIV Scientific Holdings Ltd., Biosync Scientific PVT, Alan P. Lindsay, Patrick McGowan, and Chris Xunan Chen. Rissman, a Massachusetts law firm, alleges that defendants owe it $416,309.00 for legal services provided to MTV between May 29, 2008 and February 7, 2011.

The case was originally brought in the Superior Court of the Commonwealth of Massachusetts. It was removed to the United States District Court on May 5, 2011. Plaintiffs Complaint asserted a variety of state law claims against the defendants, including breach of contract, fraud, unjust enrichment, breach of the covenant of good faith and fair dealing, intentional misrepresentation, negligent misrepresentation, and violation of the Massachusetts Consumer Protection Act, Mass.G.L. c. 93A, as well as violations of several federal statutes.

In December 2011, separate and final default judgments in the amount of $542,575.17, including principal and interest, were entered against four of the defendants: MIV, MIV Scientific Holdings, Biosync Scientific PVT, and Chen (collectively, the “defaulted defendants”). Plaintiff dismissed all remaining claims against these defendants except for two counts seeking injunctive relief to prevent the defaulted defendants from liquidating a variety of assets until the default judgments were paid. Plaintiff also dismissed all claims against defendant McGowan.

Lindsay, a former corporate officer and member of the board of directors of MIV, has filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and (5) (the “Motion”). Lindsay contends that the court lacks personal jurisdiction over him both under the Massachusetts long-arm statute, Mass.G.L. c. 223A, § 3, and the requirements of Due Process Clause of the United States Constitution. He also asserts that he was not properly served with process by the plaintiff. For the reasons set forth in this Memorandum and Order, the Motion is being denied.

II. LEGAL STANDARD

A. Prima Facie Standard.

Once a defense of lack of personal jurisdiction has been raised, the plaintiff has [260]*260the burden of showing that the court has personal jurisdiction over the defendant. See Adams v. Adams, 601 F.3d 1, 4 (1st Cir.2010); Daynard, v. Ness, Motley, Loadholt, Richardson & Poole, PA., 290 F.3d 42, 50 (1st Cir.2002); Newman v. European Aeronautic Defence & Space Co. Eads N.V., 700 F.Supp.2d 156, 159 (D.Mass.2010).

District courts in the First Circuit may require a plaintiff to satisfy one of three standards in establishing that personal jurisdiction exists: a prima facie showing of facts essential to establishing jurisdiction; a likelihood of the existence of each fact necessary to support personal jurisdiction; or a preponderanee-of-the-evidence standard. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-46 (1st Cir.1995); Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 674-78 (1st Cir.1992); see also Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.2007). The prima facie standard is the most commonly used and is appropriate where a case does not involve materially conflicting versions of the facts. See Foster-Miller, 46 F.3d at 145-46; see also Adelson, 510 F.3d at 48. Under the prima facie standard, the district court considers “only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Boit, 967 F.2d at 675. The court does not act as fact-finder and instead adduces “the facts from the pleadings and the parties’ supplementary filings, including affidavits, taking facts affirmatively alleged by plaintiff as true and construing disputed facts in the light most hospitable to plaintiff.” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994); see also Sawtelle v. Farrell, 70 F.3d 1381, 1385-87 (1st Cir.1995); Boit, 967 F.2d at 675.

As defendant agrees, the prima facie standard is appropriate in the instant case. There is conflicting evidence, but the record is not so rife with contradictions that a standard higher than prima facie should apply. See General Contracting & Trading Co. v. Interpole, Inc., 899 F.2d 109, 115 (1st Cir.1990); see also Landmark Bank v. Machera, 736 F.Supp. 375, 380 n. 7 (D.Mass.1990). Accordingly, the court is utilizing the prima facie standard. See Daynard, 290 F.3d at 51.

Under the prima facie standard, “to establish personal jurisdiction [a] plaintiff must go beyond the pleadings and make affirmative proof.” Chlebda v. H.E. Fortna & Bro., Inc., 609 F.2d 1022, 1024 (1st Cir.1979). Such an affirmative showing must be based on documents and affidavits. They must indicate that the defendant is subject to the jurisdiction of the court under the long-arm statute of the state in which the court sits, as “a federal court exercising diversity jurisdiction ‘is the functional equivalent of a state court sitting in the forum state.’ ” Sawtelle, 70 F.3d at 1387 (quoting Ticketmaster-New York, 26 F.3d at 204). The court must also determine whether exercising jurisdiction comports with the Fourteenth Amendment’s Due Process Clause. See id.

B. Long-Arm Statute and Due Process

Because Lindsay is not alleged to have been a resident of Massachusetts, to own property here, or to have otherwise consented to this court’s jurisdiction, personal jurisdiction is only appropriate if the defendant falls within the Massachusetts long-arm statute, Mass.G.L. c. 223A, § 3, and exercising jurisdiction comports with the requirements of the Due Process Clause. See Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593 F.3d 135, 146 (1st Cir.2010); Nowak v. Tak How Inv., Ltd., 94 F.3d 708, 712 (1st Cir.1996); Newman, 700 F.Supp.2d at 162-63.

[261]*261The Massachusetts long-arm statute provides that 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 ... transacting any business in this commonwealth!.]” Mass. G.L. c. 223A, § 3(a). “For jurisdiction to exist under Section 3(a), the facts must satisfy two requirements-the defendant must have transacted business in Massachusetts, and the plaintiffs claim must have arisen from the transaction of business by the defendant.” Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1994) (citing

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901 F. Supp. 2d 255, 2012 WL 4529021, 2012 U.S. Dist. LEXIS 140066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rissman-hendricks-oliverio-llp-v-miv-therapeutics-inc-mad-2012.