50 F.R.D. 484 | D. Mass. | 1969
MEMORANDUM
Plaintiff, a resident of Rhode Island, brings this action against Texas Instruments, Inc. (Instruments), and Ling-Temco-Vought, Inc.,
Instruments was not registered under Mass.Gen.Laws, ch. 181, to do business in the Commonwealth when the process was served on the Secretary. It was last qualified on January 11, 1961 when it filed with the Secretary an affidavit of withdrawal of the right to do business in Massachusetts. It has never registered here since that date, and it has not appointed the Secretary under Mass.Gen.Laws, ch. 181, § 3 its agent to receive service of process against it. Thus service on the Secretary of the summons could not be effective under Rule 4(d) (7) to bring Instruments within the jurisdiction of this court unless plaintiff can show Instruments is doing business in Massachusetts within the meaning of Mass.Gen.Laws, ch. 181,
It is not clear from the complaint, but it was made clear during oral argument by counsel for plaintiff that the wrongs alleged by plaintiff occurred in Texas, and none of them arose in Massachusetts. This is a significant fact in testing the efficacy of the service under section 3A.
But it is argued by plaintiff that Instruments as a foreign corporation is amenable to service of process under the provisions of Mass.Gen. Laws, ch. 223, § 38,
The question posed by plaintiff is the applicability of section 38 in the circumstances of the case. The court of appeals in this circuit in Caso v. Lafayette Radio Electronics Corporation, swpra, pointed out the test it would apply in an action against a foreign corporation having limited business activity in Massachusetts (712):
[T]he Massachusetts courts would assert jurisdiction over a foreign corporation served under section 38: (a) whenever 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 (“doing business”), or (b) whenever the corporation’s activities in Massachusetts have so affected the particular transaction at issue that it is appropriate to hear the claim in a Massachusetts court.
It is apparent here from the admitted fact none of the alleged wrongs occurred in Massachuetts that plaintiff’s complaints have not been shown to have even remote contact with any of the corporation’s activities within the Commonwealth. (It will later appear this is true also of Instruments’ subsidiary.) Thus the condition stated in “(b)” is absent here. As to condition “(a)”, the facts
The court finds that Texas Instruments Supply Company is not the agent and is not the alter ego of Instruments in Massachusetts, that it is not subject to Instruments’ control in the State, and has not been shown to make any significant contribution to the business activities of Instruments in the Commonwealth. See Aro Manufacturing Co. v. Automobile Body Research Corp., 352 F.2d 400 (1st Cir.1965), cert, denied, 383 U.S. 947, 86 S.Ct. 1199, 16 L.Ed. 2d 210 (1966). Taking into consid-. eration the relations shown to exist in Massachusetts between Instruments and its subsidiary, together with all other activities of Instruments in the Commonwealth, the court finds that Instruments’ impact on the commerce of the State is certainly no more marked, and apparently a good deal less so, than that of the defendant in Caso. Following the teaching of Caso, the court finds “no strong federal interest in taking jurisdiction here where it is not clear that [Massachusetts] would * * Caso v. Lafayette Radio Electronics Corporation, supra 370 F.2d at 713. The court holds, therefore, there is want of personal jurisdiction over Instruments by service of process under section 38.
The court does not have personal jurisdiction over Instruments as a foreign corporation on any ground advanced by plaintiff. Nothing has appeared in the proceedings warranting the conclusion that to satisfy notions of fair play it is in the interest of justice to transfer the case against Instruments to another district. 28 U.S.C. § 1406(a). Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir.1966); cf. Meench v. Raymond Corp., 283 F.Supp. 68 (E.D.Pa.1968). Accordingly, Instruments’ motion to quash the service is hereby allowed, and the case against it is hereby dismissed.
. Ling-Temco-Vought, Inc. also has attacked the complaint in this case, and that attack under its motions will be heard and considered after the decisions on Instruments’ motions herein. Court’s subsequent judgment in favor of Ling-Temco-Vought, Inc. was reversed on grounds other than those stated in this memorandum and the case remanded, 429 F.2d 849 (1st Cir. 1970).
. Mass.Gen.Laws, eh. 181, § 3A, in the aspects pertinent here, provides:
Any such corporation which does business in this commonwealth without complying with the provisions of section three * * * shall * * * be deemed and held, in relation to any cause of action or proceeding arising out of such business, to have appointed the secretary * * * to be its true and lawful attorney, and any process in any such action or proceeding against it served upon the secretary * * * shall be of the same legal force and validity as if served on such corporation.
. Mass.Gen.Laws, ch. 223, § 38 provides, in pertinent part:
In an action against a foreign corporation * * * engaged in or soliciting business in the commonwealth, permanently or temporarily, service may be made in accordance with [section 37] relative to service on domestic corporations in general, instead of * * * under section three or three A of chapter one hundred eighty-one.