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IN THE SMALL CLAIMS COURT OF ___________________ COUNTY FOR THE COMMONWEALTH OF MASSACHUSETTS ___________________________ (Name of Plaintiff) Plaintiff v. Case No. _______ ___________________________ (Name of Defendant) Defendant DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Defendant by _________________________ ( name of defendant's attorney) , its attorney, appearing specially and for the purposes of this motion only, and without submitting itself to the jurisdiction of this court, and for no other purpose, moves the court that the alleged service of summons on this defendant in the above-entitled action be quashed, and the action be dismissed, for the reason that this defendant is organized under the laws of the State of _____________________ ( name of non-forum state) , that on or about _____________________ (date) , plaintiff and defendant entered in a written mutual agreement, wherein the parties consented and agreed that the agreement would be governed by, construed, and enforced in accordance with the laws of the State of _________________________ (name of state) , and that venue for any action upon or regarding the agreement lay exclusively in the State of _______________________ (name of state) , County of _______________________ (name of county) . This motion is supported by the affidavit of _____________________________ (affiant’s name) , the ___________________________ ( title/office) of _________________________________ ( name of corporation) , a _______________________ (name of state) corporation. The affiant’s affidavit incorporates by reference the aforesaid written mutual agreement, a copy of which is attached as Exhibit 1 to affiant’s affidavit. The language in which the parties consent and agree that the construction and enforcement of the agreement is to be governed by the laws of the State of _______________________ (name of state) appears at page ___ of the agreement, and the parties consent that venue is to be in ________________________ (name of county) County, ______________________ (name of state) , exclusively, appears at page _____ of the agreement. DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 1 Dated: , 2______. Respectfully submitted, By: (Name of Defendant’s Attorney) State Bar No. _____________ Attorney for Defendant _____________________________ (Name of Defendant’s Attorney) ____________________________________ Address ____________________________________ City, State, Zip Code Telephone: _______________________ See next page for POINTS AND AUTHORITIES: DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 2 I. AMJUR APPEARANCE § 2. Appearances have been classified as either general or special. An appearance is special when the defendant appears for the purpose of objecting to the jurisdiction of the court over the defendant's person, and confines the appearance solely to that question of jurisdiction. A general appearance is made by a party who comes into court and appears in the case in any manner except specially for the specific purpose of challenging the jurisdiction of the court over the defendant's person. A party may waive its objection to the erroneous exercise of personal jurisdiction if the party generally appears in the case and actively prosecutes the action or contests the issues, and, as a general rule, a party's general appearance will cure any defects in service occurring prior to that time. However, if a judgment has previously been entered against the defendant, the making of a general appearance does not submit him or her to the court's jurisdiction retroactively and personal jurisdiction may be challenged. Personal jurisdiction may be acquired either by the party making a general appearance or by service of process. Some statutes or rules provide that a defendant's voluntary general appearance is equivalent to the service of summons upon the defendant. A court's subject matter jurisdiction does not depend on the conduct or agreement of the parties; and, thus, the parties cannot confer subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver. A general appearance is entered when a person or the person's attorney comes into court and submits the party to the jurisdiction of the court. However, filing a notice of special appearance by counsel does not constitute a waiver of objection to lack of personal jurisdiction. II. CASE LAW. KATIE J. LAMARCHE vs. JOHN C. LUSSIER. 65 Mass. App. Ct. 887 September 15, 2005 - April 3, 2006 Present: LENK, DUFFLY, & KATZMANN, JJ. The defendant in an abuse prevention proceeding did not waive his defense of lack of personal jurisdiction by appearing at a hearing to extend the protective order, where the defendant had asserted the defense at the outset of the action and again in multiple objections both in his motions to dismiss and to continue, as well as during the original hearing. [889-892] Nothing in the record of an abuse prevention proceeding suggested that any of the grounds for assertion of personal jurisdiction over the defendant under the Massachusetts long-arm statute. LENK, J. The defendant, John C. Lussier, appeals from a series of abuse prevention orders entered against him pursuant to G. L. c. 209A upon the complaint of the plaintiff, Katie J. Lamarche. [Note 1] On April 13, 2004, Lamarche obtained an ex parte order against the defendant from the Lowell Division of the District Court Department. At an April 27, 2004, hearing to extend the order, the judge denied the defendant's motion to dismiss for lack of personal jurisdiction pursuant to Mass.R.Civ.P. 12(b)(2), 365 DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 3 Mass. 755 (1974), and extended the order until July 29, 2004, when, after a hearing, the order was again extended. We reverse. [Page 888] 1. Background. The plaintiff was born and raised in Massachusetts, where she lived for twenty years, while Lussier was raised in New Hampshire. The parties had an intimate relationship of about two years' duration. During that time, in December, 2002, Lamarche moved to New Hampshire to live with the defendant. A month later, Lussier joined the United States Navy as an intelligence officer and was stationed in the State of Washington. Lamarche joined Lussier in Washington during the summer of 2003 and bore their son, Adam, [Note 2] on June 27, 2003. [Note 3] She moved back to New Hampshire briefly in mid-autumn of that year, but then soon returned to Washington. [Note 4] With Adam, she returned permanently to Massachusetts in April, 2004. Lamarche's April 13, 2004, affidavit in support of her application for an abuse prevention order recites that Lussier repeatedly threatened to kill her, warning her that, as an intelligence officer, he could always discover her whereabouts. She attested that Lussier carried knives, hit her on one occasion, threatened to hurt Adam, [Note 5] and, during one fight, stabbed and destroyed her cellular telephone. Lamarche also stated that Lussier had called her mother to tell her that she would never see her daughter again and should say goodbye. [Note 6] The record suggests that all of these incidents took place while Lamarche and Lussier were in Washington. Lamarche does not indicate that any communications were made or received in Massachusetts. At the April 27, 2004, hearing, Lussier, through counsel, moved both to continue the matter pursuant to 50 U.S.C. App. § 521(d) (Supp. 2005), [Note 7] and to dismiss Lamarche's complaint on the grounds that personal jurisdiction did not attach. In support of the latter motion, he maintained that since he was not currently and had never been a resident of Massachusetts, and none of the relevant acts occurred in Massachusetts, the requirements of G. L. c. 223A, § 3, the Massachusetts long-arm statute, were not satisfied. The judge allowed the motion to continue; ordered the abuse prevention order continued in effect until a scheduled July 29, 2004, hearing; and twice denied the motion to dismiss, to which the defendant twice objected. At the July 29 hearing, the judge continued the order in effect until January 27, 2005; the order indicates that the defendant personally appeared at the hearing. 2. Analysis. A judgment is void if the court from which it issues lacked personal jurisdiction over the defendant. Colley v. Benson, Young & Downs Ins. Agency, Inc ., 42 Mass. App. Ct. 527 , 532 (1997). However, "the moving party must show not only a lack of personal jurisdiction, but also that he or she did not waive the lack of jurisdiction and voluntarily submit to the court's jurisdiction." Id. at 529, quoting from 12 Moore's Federal Practice § 60.44[3] (3d ed. 1997). The relevant inquiry thus has two parts: whether there was a waiver and, if there was not, whether there is personal jurisdiction over the defendant. a. Waiver. The question before us is whether the defendant waived the personal jurisdiction defense by appearing at the July 29, 2004, hearing. Such a defense may be waived by conduct, express submission, or extended inaction. Precision Etchings & Findings, Inc. v. LGP Gem, Ltd ., 953 F.2d 21, 25 (1st Cir. 1992). If a party makes voluntary appearances and contests the case at all stages until judgment is DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 4 rendered, such conduct gives jurisdiction. Ingersoll v. Ingersoll , 348 Mass. 209 , 210 (1964). [Note 8] The common factors in a waiver of personal jurisdiction are "dilatoriness and participation in, or encouragement of, judicial proceedings." Precision Etchings & Findings, Inc. v. LGP Gem, Ltd ., 953 F.2d at 25, quoting from United States to Use of Combustion Sys. Sales, Inc. v. Eastern Metal Prods. & Fabricators, Inc ., 112 F.R.D. 685, 687 (M.D.N.C. 1986). See Gahm v. Wallace , 206 Mass. 39 , 44-45 (1910) (defendant's assertion of defense other than personal jurisdiction in affidavit indicated intention to submit to jurisdiction of court); Bishins v. Richard B. Mateer, P.A ., 61 Mass. App. Ct. 423 , 428 (2004) (plaintiffs' voluntary appearance as interveners in Florida court gave that court jurisdiction over them, and Florida judgment was accorded full faith and credit in Massachusetts). The threshold question in these cases is whether the defendant brought the jurisdictional defense to the attention of the court before further proceedings had gotten underway. In Walling v. Beers , 120 Mass. 548 , 550 (1876), the Supreme Judicial Court held that where the defendant appeared specially for the purpose of contending lack of personal jurisdiction and filed an answer that did not waive the objection to personal jurisdiction, his acts did not amount to a waiver of that defense. The court noted that "the objection upon the ground of want of jurisdiction was seasonably taken. There was no formal motion that the bill should be dismissed, but it is sufficient that, by the form of his appearance, the objection was brought to the attention of the court. The defendant, by proceeding to trial afterwards, does not lose the right to say that he did not thereby withdraw his protest against the jurisdiction of the court." Ibid. See Harkness v. Hyde , 98 U.S. 476, 479 (1879) ("[i]llegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity; nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived"). While nothing in the record suggests that Lussier raised the jurisdictional defense at the July 29, 2004, hearing, on several prior occasions he had unmistakably voiced his objections to the court's assertion of personal jurisdiction. [Note 9] , [Note 10] Our decisions in Vangel v. Martin , 45 Mass. App. Ct. 76 (1998), and Sarin v. Ochsner , 48 Mass. App. Ct. 421 (2000), are not to the contrary. In those cases, we held that active participation in court proceedings without raising the jurisdictional defense constituted a waiver. [Note 11] In contrast, Lussier asserted lack of personal jurisdiction at the outset of the action and again in his multiple objections both in his motions to dismiss and to continue, as well as during the initial hearing. We cannot say that the court was not "sufficiently informed of the bases of the defendant's challenges to its jurisdiction . . . ." Morrill v. Tong , 390 Mass. 120 , 125 (1983). Even if Lussier appeared at the July 29, 2004, hearing without renewing his objections, he had given the court sufficient notice of his objection to its jurisdiction to preserve the issue for appeal. There was no waiver. b. Assertion of jurisdiction over the defendant. An assertion of personal jurisdiction over a nonresident defendant poses a two-pronged inquiry: "(1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 5 requirements mandated by the United States Constitution?" Good Hope Indus., Inc. v. Ryder Scott Co ., 378 Mass. 1 , 5-6 (1979). The Massachusetts long-arm statute, G. L. c. 223A, § 3, authorizes jurisdiction to the limits allowed by the Federal Constitution. [Note 12] " Automatic" Sprinkler Corp. of America v. Seneca Foods Corp. , 361 Mass. 441 , 443 (1972). Even if the facts sustain a claim of personal jurisdiction under G. L. c. 223A, § 3, the plaintiff must still meet the constitutional requirements of due process. Good Hope Indus., Inc. v. Ryder Scott Co ., 378 Mass. at 6. REMF Corp. v. Miranda, 60 Mass. App. Ct. 905 (2004). The plaintiff bears the burden of establishing sufficient facts to assert personal jurisdiction. Droukas v. Divers Training Academy, Inc ., 375 Mass. 149 , 151 (1978). Nothing in the record before us suggests that any of the statutory grounds for the assertion of personal jurisdiction can be satisfied. Lussier lived in the States of New Hampshire and Washington, not in Massachusetts. There is no suggestion of his having any interest in Massachusetts real property, of his having transacted any business here, or of his having contracted to supply services or things in Massachusetts. See G. L. c. 223A, § 3(a), (b), (e). The injuries to Lamarche are asserted to have occurred while Lamarche and Lussier were living together out-of-State. Although § 3(d) of c. 223A provides that out-of-State acts can in some circumstances confer jurisdiction, e.g., where the tortious act caused injury in Massachusetts, there is nothing in the record to indicate that Lamarche engaged in a "persistent course of conduct" in this State, also a prerequisite to personal jurisdiction under § 3(d). As Lamarche never maintained a domicil in Massachusetts, and the present claim concerns an abuse prevention order, rather than matters of domestic relations, § 3(g) does not apply. Last, although the record shows that a paternity action has been filed in the Probate and Family Court, there is nothing to indicate that any of the conditions in § 3(h) have been satisfied. The failure to satisfy the aforesaid requirements of our long-arm statute precludes the need for us to address whether the activities of the defendant were of sufficient dimension to withstand constitutional limitations requiring "certain minimum contacts with [the State] such that [jurisdiction] does not offend 'traditional notions of fair play and substantial justice.' " Droukas v. Divers Training Academy, Inc ., 375 Mass. at 152, quoting from International Shoe Co. v. Washington , 326 U.S. 310, 316 (1945). Notwithstanding the unsavory conduct alleged, it was error for the judge to have concluded that the requirements for personal jurisdiction had been met and, on this basis, to have denied the defendant's motion to dismiss. The G. L. c. 209A orders dated April 13, 2004, through July 29, 2004, are vacated. So ordered. DEFENDANT’S MOTION TO QUASH SERVICE AND TO DISMISS ACTION FOR LACK OF JURISDICTION Page 6