389 F.Supp.2d 80 (2005) | Cited 1 time | D. Massachusetts | September 8, 2005


This lawsuit, against numerous defendants, arises from acomplex land financing dispute. One of the defendants, WilliamSeigler, a lawyer in solo practice in the state of SouthCarolina, filed a Motion to Dismiss based upon lack of personaljurisdiction. The motion was referred to Magistrate Judge KennethP. Neiman who, on April 13, 2005, issued his Report andRecommendation, to the effect that the defendant's motion shouldbe allowed on the ground that exercise of personal jurisdictionin this instance would violate due process. Plaintiff has dulyobjected.

Upon de novo review, this court will adopt Magistrate JudgeNeiman's Report and Recommendation and will allow the defendant Seigler's Motion to Dismiss. The Magistrate Judgecorrected concluded that, although the defendant's actions mightsuperficially satisfy the requirements of Mass. Gen. Lawsch. 223A, § 3(a), the evidence of record is simply insufficient onits face to support any conclusion that the defendant "purposelyavailed" himself of the jurisdiction of the Commonwealth ofMassachusetts.

The facts of this case are similar to those of Bond LeatherCo. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 932-33 (1st Cir. 1985),where the Court of Appeals found that contacts were insufficientto satisfy Constitutional due process requirements, even thoughthey may have been enough to justify invocation of the state'sLong Arm statute. See also, Phillips Exeter Acad. v. HowardPhillips Fund, Inc., 196 F.3d 284, 292 (1st Cir. 1999) ("Withoutevidence that the defendant actually reached out to theplaintiff's state of residence to create a relationship — say,by solicitation — the mere fact that the defendant willinglyentered into a tendered relationship does not carry the day.")(citation omitted).

Plaintiff's request, following the Magistrate Judge's adverserecommendation, for an opportunity to take jurisdictionaldiscovery of the defendant Seigler is untimely; moreover,plaintiff has not demonstrated a reasonable likelihood that facts sufficient to anchorjurisdiction would be unearthed.

Based on the foregoing, the Report and Recommendation ofMagistrate Judge Kenneth P. Neiman dated April 13, 2005, uponde novo review, is adopted and the defendant Seigler's Motionto Dismiss (Docket No. 25) is hereby ALLOWED. The court has, byseparate marginal notation, denied the motion of the remainingdefendants to transfer this case to the Eastern District ofVirginia. The clerk is ordered to refer this matter to theMagistrate Judge for a pretrial scheduling conference pursuant toFed.R.Civ.P. 16.


South Carolina attorney William Gregory Seigler ("Seigler"),one of a host of defendants in this complex land financingdispute, has moved to dismiss the claims against him for lack ofpersonal jurisdiction among other grounds. Seigler's motion todismiss has been referred to this court for a report andrecommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasonsdescribed below, the court believes that personal jurisdictionover Seigler is lacking and, therefore, will recommend that hismotion be allowed.


The following facts come mainly from the complaint. However,since personal jurisdiction is at issue, the court has alsolooked at other documents supplied by the parties. See Boit v. Gar-Tec Prods., Inc.,967 F.2d 671, 675, 681-82 (1st Cir. 1992) (when faced with motion todismiss based on lack of personal jurisdiction, a plaintiff mustgo beyond the pleadings and affirmatively prove that sufficientcontacts exist between the defendant and the foreign state)(citations omitted); Callahan v. Harvest Bd. Int'l, Inc.,138 F. Supp. 2d 147, 152-53 (D. Mass. 2001) ("The consideration ofmaterials outside the complaint is appropriate in ruling on amotion to dismiss for lack of personal jurisdiction.") (citingcases).

The lead plaintiff and "principal victim" in this action isLitchfield Financial Corporation ("Litchfield"), a Massachusettscompany which "provides financing to creditworthy borrowers forassets not typically financed by banks." (Complaint ¶¶ 3, 35.)The suit is also brought by Litchfield's parent, TextronFinancial Corporation ("Textron"), and its subsidiary, LandFinance Company ("Land Finance"). (Id. ¶¶ 4, 5.) While bothTextron and Land Finance are incorporated in Delaware, LandFinance maintained the same principal place of business asLitchfield in Williamstown, Massachusetts, during the timeperiods at issue here. (Declaration of Paul F. Green ("GreenDecl."), attached to Plaintiffs' Brief (Document No. 32).)Litchfield, Textron and Land Finance will hereinafter be referredto collectively as "Plaintiffs."

Between 1999 and 2001, Plaintiffs entered into a series ofcomplex financial transactions through which they providedfinancing to a number of entities and individuals from Virginia, hereinafter referred tocollectively as the "Buyers Source Defendants." (Complaint ¶¶7-18, 33-34.)1 According to the complaint, the BuyersSource Defendants conspired and fraudulently induced Litchfieldto enter into purchases or acquisitions of loans for propertiessold in Florida, South Carolina and Ohio. (Id. ¶ 35.)

Also named as defendants are three attorneys, Stephen Hudginsand John Lumpkin of Newport News, Virginia, as well as Seigler, asolo practitioner in McCormick, South Carolina. (Id. ¶¶19-21.)2 The attorneys and their firms are alleged tohave inaccurately represented to Plaintiffs that certain BuyersSource Defendants were in "full compliance with all applicablefederal, state and local laws and regulations" (id.),allegations each attorney denies in his answer, (Document Nos.24, 27, 28). Only Seigler, however, has filed a motion todismiss. (Document No. 25.)

It is undisputed that Seigler prepared three separate opinionletters dated May 21, 2001. (Complaint ¶¶ 36, 40, 41; Green Decl.¶ 6.) All three are addressed to Land Finance at 430 Main Street,Williamstown, Massachusetts, and each concerns the Buyers Source "Savannah" project in SouthCarolina. (Green Decl. ¶ 6 and attachments thereto.) Each letterbegins with a declaration that Seigler represents the BuyersSource Defendants associated with the Savannah project and thathe has been asked to render an opinion in connection with thetransactions that Land Finance proposes to enter into with hisclients. (See attachments to Green Decl.) Each letter thenindicates that Seigler is "licensed to practice in SouthCarolina" and that he expresses "no opinion as to the laws of anystate or jurisdiction" other than South Carolina and theUnited States. (Id.) Nonetheless, two of the letters go on torepresent, among other matters, that Buyers Source Savannah, LLC,and its operations and business "are in full compliance with allapplicable federal, state and local laws and regulations."(Id.) All three letters represent that "[t]his opinion is forthe benefit of and may be relied upon by Land Finance . . . andits successors and assigns." (Id.)

Like the other two defendant attorneys, Seigler is targeted intwo of the complaint's six counts, negligent misrepresentation(Count III) and legal malpractice (Count VI).3 And asindicated, Seigler's opinion that Buyers Source Savannah, LLC,was in compliance with "all applicable federal, state and local laws and regulations" forms the basis of Plaintiffs' claimsagainst him. (Complaint ¶ 22.) In particular, Plaintiffs allegethat, had Seigler "performed a proper legal analysis beforedelivering [his] objective opinions, [he] would have discoveredthe failure of the Buyers Source entities to comply with federallaw and regulations, including the Land Sales Act and regulationsthereunder." (Id. ¶ 36.)


The court believes that Seigler is not subject to personaljurisdiction in this forum. Accordingly, after first discussing aprocedural issue regarding Seigler's motion to dismiss, the courtwill recommend that the motion be allowed.

A. Posture of Defendant's Motion

The court notes that it was technically improper for Seigler tofirst answer the complaint and then move to dismiss pursuant toFed.R.Civ.P. 12(b).4 Although Plaintiffs have notargued the point, the court notes that Rule 12(b) motions shouldbe filed "before pleading." Fed.R.Civ.P. 12(b) (secondsentence). In other words, "[i]f the defendant decides to asserta Rule 12(b) defense by motion, then he must do so before filingthe answer." Charles Alan Wright & Arthur R. Miller, 5C FederalPractice & Procedure § 1361 (2005) (citing, inter alia, Gerakaris v. Champagne, 913 F. Supp. 646, 650 (D.Mass. 1996)). Nevertheless, Seigler's error is immaterial giventhat his Rule 12(b) defenses were, at least, mentioned in hisanswer. See id. (noting that while "[a] strict interpretationof the timing provision's language leads to the conclusion thatthe district judge must deny any Rule 12(b) motion made after aresponsive pleading is interposed as being too late . . .,federal courts have allowed untimely motions if the defense hasbeen previously included in the answer") (citing cases). Cf.Fed.R.Civ.P. 12(c) (providing avenue for defendant to seekjudgment on the pleadings "[a]fter the pleadings are closed").Accordingly, the court turns to the merits of Seigler's personaljurisdiction argument.

A. Personal Jurisdiction

"When embarking upon the fact-sensitive inquiry of whether aforum may assert personal jurisdiction over a defendant, thecourt's task is not a rote, mechanical exercise." Sawtelle v.Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995) (citations andinternal quotation marks omitted). See also id. ("Diviningpersonal jurisdiction is more an art than a science.") (citationsand internal quotation marks omitted); Good Hope Indus., Inc. v.Ryder Scott Co., 389 N.E.2d 76, 78 (Mass. 1979) ("Generallyspeaking, `inquiries into whether the exercise of personaljurisdiction is permissible in a particular case are sensitive tothe facts of each case.'") (quoting Great W. United Corp. v.Kidwell, 577 F.2d 1256, 1266 (5th Cir. 1978)). Rather, the court is bound to pursue a two-part inquiry:(1) whether the plaintiff has demonstrated that the assertion ofjurisdiction is authorized by statute, and, if authorized, (2)whether such assertion comports with the restraints imposed bythe Due Process Clause of the United States Constitution. SeeSawtelle, 70 F.3d at 1387; Foster-Miller, Inc. v. Babcock &Wilcox Canada, 46 F.3d 138, 144 (1st Cir. 1995).

1. Long-Arm Statute Analysis

With regard to the first part of the inquiry, the law of theforum state applies. Sawtelle, 70 F.3d at 1387. In relevantpart, Massachusetts' long-arm statute (hereinafter "section 3")provides 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; [or] . . . . (c) causing tortious injury by an act or omission in this commonwealth.Mass. Gen. L. ch. 223A, § 3(a), (c). Following the parties' lead,the court will first discuss subsection (c) and then analyzesubsection (a).5

a. Section 3(c) Plaintiffs first argue that jurisdiction over Seigler isauthorized by section 3(c) since this is a case "arising from[Seigler]'s . . . causing tortious injury by an act or omissionin this commonwealth." Mass. Gen. L. ch. 223A, § 3(c).Unfortunately for Plaintiffs' cause, the case law does notsupport this assertion.

As both parties point out, Plaintiffs' section 3(c) argumentrevolves around the First Circuit's decision in Murphy v.Erwin-Wasey, Inc., 460 F.2d 661 (1st Cir. 1972). There, theplaintiff's tort claims were premised on the defendant's mailinga fraudulent misrepresentation into Massachusetts. Id. at 663,664. The First Circuit found personal jurisdiction over thedefendant based on section 3(c). Id. at 663. "Where a defendantknowingly sends into a state a false statement, intending that itshould there be relied upon to the injury of a resident of thatstate," the court explained, "he has for jurisdictional purposes,acted within that state." Id. at 664. Subsequent decisions havefollowed Murphy in similar circumstances. See, e.g., EalingCorp. v. Harrods, Ltd., 790 F.2d 978, 982 (1st Cir. 1986);Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1084(1st Cir. 1973); JMTR Enters., LLC v. Duchin,42 F. Supp. 2d 87, 97 (D. Mass. 1999); Burtner v. Burnham, 430 N.E.2d 1233,1236-37 (Mass.App. Ct. 1982).

At first blush, Murphy seems to support Plaintiffs' section3(c) position as well. In essence, Plaintiffs claim, Seigler'smailing of documents into Massachusetts constituted "an act oromission in this commonwealth" which caused them "tortious injury." However, the tort claims inMurphy and its progeny were grounded in fraud, deceit, and/orfraudulent misrepresentation. See Murphy, 460 F.2d at 663;Ealing, 790 F.2d at 979; Whittaker Corp., 482 F.2d at 1084;JMTR Enters., 42 F. Supp. 2d at 97; Burtner,430 N.E.2d at 1236-37. And as other courts have recognized, there is a criticaldistinction for section 3(c) purposes between such "intentional"tort claims and claims based in negligence, as is the situationhere. See, e.g., Bradley v. Cheleuitte, 65 F.R.D. 57, 60 (D.Mass. 1974) (noting "crucial" difference between Murphy line ofcases where defendant's acts "are intentional" and situationwhere acts "are at most negligent"); Burtner,430 N.E.2d at 1237 (noting "the apparent distinction in the Murphy casebetween intentional acts outside Massachusetts causing a`tortious injury' within the Commonwealth and negligent actscreating a condition from which damage might later arise"); Fernv. Immergut, 773 N.E.2d 972, 975 n. 9 (Mass.App. Ct. 2002)(citing Murphy and noting that section 3(c) jurisdiction wouldnot lie in legal malpractice cause of action). Cf.Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 205 (1stCir. 1994) (noting that Murphy "was decided in the context offraudulent misrepresentation" and questioning whether it shouldextend to defamation). As one circuit court has explained: "Theunderlying premise of the Murphy opinion seems to be thatnegligent and intentional acts should be treated differently wheninterpreting statutory language. The Murphy court apparently agrees that jurisdiction would not lie had theact with which the court was concerned been negligent." Margolesv. Johns, 483 F.2d 1212, 1219 (D.C. Cir. 1973). See also FirstAct, Inc. v. Brook Mays Music Co., 311 F. Supp. 2d 258, 261 n. 4(D. Mass. 2004) (noting that "the First Circuit has subsequentlyexpressed `profound reservations' about extending . . . Murphybeyond claims for fraudulent misrepresentation") (quotingTicketmaster-New York, 26 F.3d at 205 n. 5); Kolikof v.Samuelson, 488 F. Supp. 881, 883 (D. Mass. 1980) (suggestingthat Murphy should be limited to situations where the words thedefendant transmits over state lines "are intended to bring aboutthe injury").

This distinction between intentional and negligent torts isparamount in the case at bar as well. As in Murphy, Seiglerknowingly sent a statement into Massachusetts. But, unlike thesituation in Murphy, there is no evidence, let alone anallegation, that Seigler knew that the statement he sent intoMassachusetts was false or that he was "intending that it shouldthere be relied upon to the injury of a resident of that state."Murphy, 460 F.2d at 664 (emphasis added). Indeed, Plaintiffsconcede that they lacked evidence of an intentional tort onSeigler's part. (See Plaintiffs' Surreply at 4 ("Plaintiffs didnot have sufficient evidence . . . [to] plead a cause of actionof intentional misrepresentation.").) It is for that reason, itwould appear, that Plaintiffs pursue claims against Seigler onlyfor malpractice and negligent misrepresentation. Accordingly, thecourt believes that personal jurisdiction over Seigler is not authorized bysection 3(c) of the Massachusetts long-arm statute.

b. Section 3(a)

Nonetheless, the court agrees with Plaintiffs' alternativeargument that personal jurisdiction over Seigler is authorized bysection 3(a). This is so because, in the court's estimation, theclaims against Seigler meet both prongs of section 3(a): they"arise from" Seigler's "transacting any business inMassachusetts." Mass. Gen. L. ch. 223A, § 3(a).

Section 3(a) is to be construed broadly. See Bond Leather Co.v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 931 (1st Cir. 1985); JMTREnters., 42 F. Supp. 2d at 94. A defendant need not bephysically present in Massachusetts in order to be deemed to havetransacted business here under section 3(a). Workgroup Tech.Corp. v. MGM Grand Hotel, LLC, 246 F. Supp. 2d 102, 109-10 (D.Mass. 2003) (citation omitted). As the Supreme Judicial Court hasstated, the language of section 3(a) "is general and applies toany purposeful acts by an individual, whether personal, privateor commercial." Ross v. Ross, 358 N.E.2d 437, 439 (Mass. 1976).See also Ealing Corp., 790 F.2d at 982.

For its part, the First Circuit has repeatedly concluded thatthe "transacting any business" requirement of section 3(a) may besatisfied even when the defendant's forum contacts are quitesparse, for example, the sending of a single telex to Massachusetts. See Ealing Corp., 790 F.2d at 983. Seealso Bond Leather, 764 F.2d at 932 (mailing four letters to andreceiving at least one telephone call from plaintiff inMassachusetts in course of negotiations satisfied "transactingany business" requirement); Hahn v. Vermont Law Sch.,698 F.2d 48, 50 (1st Cir. 1983) (mailing application information andacceptance letter to plaintiff in Massachusetts constitutedtransacting business in the commonwealth for purposes of section3(a)); Nova Biomedical Corp. v. Moller, 629 F.2d 190, 193-95(1st Cir. 1980) (mailing two letters charging patent infringementand threatening litigation satisfied the statutory prerequisite).Accordingly, Seigler's argument that his "only" forum contact wassending the three letters at issue falls short.6

Similarly misplaced, in the court's view, is Seigler'sassertion that Plaintiffs' claims against him do not "arise from"the letters themselves, but rather from his actions in SouthCarolina. As Seigler is no doubt aware, the courts employ a "butfor" causation test, which asks whether a defendant's contactswith Massachusetts constituted "the first step in a train of events"that caused the injury. Lyle Richards Int'l v. Ashworth, Inc.,132 F.3d 111, 113 (1st Cir. 1997) (citing Tatro,625 N.E.2d at 553). Here, as described, Plaintiffs' complaint places Seigler'sletters — in which he represented that "all applicable federal,state and local laws and regulations" were fully complied with —squarely at the center of the negligent misrepresentation andlegal malpractice causes of action. (See Complaint ¶¶ 21, 29, 36,40, 41, 61-66, 78-80.) Moreover, an undisputed affidavitsubmitted by Paul F. Green of Land Finance confirms thecentrality of these letters and the injury they allegedly causedPlaintiffs to suffer in Massachusetts: 6. Land Finance Company received three letters from Defendant William Gregory Seigler, Esq. at its offices in Williamstown, MA in May 2001. The three letters were dated May 22, 2001. . . . 7. On information and belief, Plaintiffs relied upon the statements contained in Mr. Seigler's letter in Williamstown, MA. 8. Because of Mr. Seigler's statements, Land Finance Company made the decision to purchase consumer loans from, and lend money to, Buyers Source Savannah LLC. This decision was made at the Land Finance Company offices in Williamstown, MA. Thereafter[,] Land Finance Company issued instructions to fund the loans from its offices in Williamstown, MA. 9. Litchfield Financial Corporation is a Massachusetts corporation that has incurred losses in Massachusetts because the value of its assets related to Buyers Source have been impaired.(Green Decl. ¶¶ 6-9.)7 In sum, the court believes that Plaintiffs have sufficientlydemonstrated that their claims against Seigler would not haveoccurred "but for" the letters he sent them in Massachusetts.See Tatro, 625 N.E.2d at 551 (section 3(a) jurisdiction properwhere defendant directed activities at plaintiffs inMassachusetts). Compare Comer v. Comer, 295 F. Supp. 2d 201,207-08 (D. Mass. 2003) (no section 3(a) jurisdiction overout-of-state attorneys where action did not arise from service ofprior complaint on plaintiff in Massachusetts); Fern,773 N.E.2d at 976-77 (no section 3(a) jurisdiction arising from NewYork lawyers' opinion letters which had only a peripheralrelationship to forum contacts). As a result, the court concludesthat Plaintiffs' assertion of jurisdiction over Seigler isauthorized by section 3(a) of the Massachusetts long-arm statute.That, however, does not end the court's analysis.

2. Due Process

The second part of the court's inquiry asks whether theexercise of personal jurisdiction would comport with due process.The First Circuit has designated "three distinct components" tothis inquiry: "relatedness, purposeful availment (sometimescalled `minimum contacts'), and reasonableness." Foster-Miller,46 F.3d at 144. Since all three components must be satisfied,see Ticketmaster-New York, 26 F.3d at 206, the court will addresseach in turn.

a. Relatedness

The relatedness component — "that a suit arise out of, or berelated to" the defendant's forum activities — "ensures that theelement of causation remains in the forefront." Ticketmaster-NewYork, 26 F.3d at 206, 207. Insofar as the court believes thatPlaintiffs' claims against Seigler are ones "arising from" his"transacting any business in Massachusetts," as described above,it assumes that this first component has been met. Indeed,Seigler has not challenged this component with much force.

b. Purposeful Availment

The purposeful availment component, however, is hotlycontested. This requirement is designed to assure that personaljurisdiction is not premised solely upon the defendant's "random,isolated, or fortuitous" contacts with a forum. Keeton v.Hustler Magazine, Inc., 465 U.S. 770, 774 (1984). In otherwords, the plaintiff must demonstrate that the defendant'scontacts "represent a purposeful availment of the privilege ofconducting activities in [Massachusetts], thereby invoking thebenefits and protections of its laws and making the defendant'sinvoluntary presence before [a Massachusetts] court foreseeable."Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir. 1994) (citation andinternal quotation marks omitted). In the court's estimation, Plaintiffs have not demonstratedthat Seigler purposefully availed himself of the privilege ofconducting activities in Massachusetts. For one thing, Seigler islicensed to practice law in South Carolina and has never been toMassachusetts. He also owns no property here and has neverentered into a contract to be performed within the commonwealth.Further, and perhaps most importantly, he did not initiate thecontact with Plaintiffs. Rather, his clients from Virginiacontacted him in connection with their purchase of theSavannah Lakes property in South Carolina and it was they, as theletters themselves reflect, who requested that he offer a legalopinion for their benefit as well as the benefit of Land Finance.Thus, while Seigler "has plainly taken action with commercialconsequences in the commonwealth," he is hardly "akin to a sellerwho solicits revenue from a resident of the forum state." BondLeather, 764 F.2d at 933.

Bond Leather is particularly apt for purposes here. The FirstCircuit held that, although the defendant's mailing four lettersto and receiving at least one telephone call from the plaintiffin Massachusetts satisfied the "transacting any business"requirement of section 3(a), such contacts were insufficient todemonstrate purposeful availment. See id. at 933-35 (citingMcGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957)). In yetanother case containing parallels to the case at bar, the FirstCircuit stated that "[w]ithout evidence that the defendant actually reached out to the plaintiff's state of residence tocreate a relationship — say, by solicitation — the mere factthat the defendant willingly entered into a tendered relationshipdoes not carry the day." Phillips Exeter Acad. v. HowardPhillips Fund, Inc., 196 F.3d 284, 292 (1st Cir. 1999) (emphasisin original) (citation omitted). Similarly, in a recent legalmalpractice action in the Second Circuit, the court stated thathad the defendant's only contacts with the forum been theissuance of the subject opinion letter and ancillarycommunications, "we might very well agree . . . that nopurposeful availment had been demonstrated." Bank BrusselsLambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127-29(2nd Cir. 2002) (holding that due process was not violated giventhat defendant kept an apartment in the forum state, faxednewsletters to numerous persons there, and had performed work formany clients in the forum).

Still other case law from outside this jurisdiction supportsthe view that Seigler has not purposefully availed himself ofthis forum. For example, the Ninth Circuit, citing with approvalthe First Circuit's decision in Kowalski v. Doherty, Wallace,Pillsbury & Murphy, 787 F.2d 7 (1st Cir. 1986), ruled that"[o]ut-of-state legal representation does not establishpurposeful availment of the privilege of conducting activities inthe forum state, where the law firm is solicited in its homestate and takes no affirmative action to promote business withinthe forum state." Sher v. Johnson, 911 F.2d 1357, 1363 (9thCir. 1990). "A contrary rule," a district judge in Minnesota later stated, "would mean that anytime alawyer sent a letter beyond his or her own state's borders, thatlawyer would be subject to the jurisdiction of the state of theaddressee." Nash Finch Co. v. Preston, 867 F. Supp. 866, 868-69(D. Minn. 1994). "Such a rule," the court continued, "would makeinterstate law practice all but impossible" because a lawyer"could well be susceptible to the jurisdiction of every state inthe union." Id. at 869. "Such a possibility would be absurd."Id. See also Trierweiler v. Croxton & Trench Holding Corp.,90 F.3d 1523, 1534 (10th Cir. 1996) (holding that "purposefulavailment" component was not met where "the only connectionbetween [the attorney] and [the plaintiff] was the opinion letter[the plaintiff] requested"); Austad Co. v. Pennie & Edmonds,823 F.2d 223, 226-27 (8th Cir. 1987) (where law firm's onlysubstantial connection with the forum state was its work on alegal matter for a forum resident taking place outside the forum,law firm did not purposefully avail itself of the benefits andprotections of the forum state).

In support of their argument to the contrary, Plaintiffsmaintain almost exclusive reliance on the Murphy line of cases.As described, however, those cases all concerned intentionaltorts. See also First Act, Inc., 311 F. Supp. 2d at 261 n. 4("Murphy dealt primarily with interpreting the Massachusettslong-arm statute, rather than constitutional due processconcerns."). As the Murphy court itself explained: The element of intent . . . persuades us that there can be no constitutional objection to Massachusetts asserting jurisdiction over the out-of-state sender of a fraudulent misrepresentation, for such a sender has thereby "purposefully [availed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."

Id., 460 F.2d at 664 (quoting Hanson v. Denckla,357 U.S. 235, 253 (1958)).

Plaintiffs, however, do not assert a claim of internationaltort against Seigler. Rather, as described, their claims againstSeigler are grounded in negligence. For constitutional purposes,this distinction makes all the difference. As the late DistrictJudge Frank H. Freedman observed over three decades ago,Murphy's "distinction" between intentional and negligent acts"`can have a distinct bearing on whether the exercise ofjurisdiction thereover is constitutional, for it goes directly tofairness and the degree to which an individual has purposefullyavailed himself of the privilege of conducting activities withinthe forum state.'" Bradley, 65 F.R.D. at 60 (quotingMargoles, 483 F.2d at 1220) (further citations omitted). SeeHome Owners Funding Corp. v. Century Bank, 695 F. Supp. 1343,1346 (D. Mass. 1988) (citing Murphy for proposition that"intent is necessary in the attenuated case of an actor outsidethe Commonwealth whose actions result in injury in theCommonwealth to insure that, consistent with due process, theactor `should reasonably anticipate being haled into courthere'") (quoting World-Wide Volkswagen Corp. v. Woodson,444 U.S. 286, 297 (1980)). Cf. Callahan, 138 F. Supp. 2d at 164(distinguishing Murphy on similar grounds). In sum, the court finds that the second component of the dueprocess inquiry has not been satisfied and, therefore, willrecommend that Seigler's motion to dismiss be allowed.Nonetheless, the court will address the third component of theanalysis, so as to provide a comprehensive report andrecommendation. But see Nowak, 94 F.3d at 717 (indicating thatassessment of third component is important only "where theminimum contacts question is very close").

c. Reasonableness

The "reasonableness" component requires that the assertion ofjurisdiction over a defendant must "not offend `traditionalnotions of fair play and substantial justice.'" InternationalShoe Co. v. State of Washington, 326 U.S. 310, 316 (1945)(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). SeeAsahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113(1987). In analyzing this component, a court typically must weighfive elements often referred to as "gestalt factors": "(1) thedefendant's burden of appearing, (2) the forum state's interestin adjudicating the dispute, (3) the plaintiff's interest inobtaining convenient and effective relief, (4) the judicialsystem's interest in obtaining the most effective resolution ofthe controversy, and (5) the common interests of all sovereignsin promoting substantive social policies." Foster-Miller,46 F.3d at 150. These factors can be addressed in short order. As for the first factor, it doubtless would be burdensome forSeigler, a solo practitioner with no connection to Massachusetts,to litigate this action here. And as for the second factor,Massachusetts appears to have only a marginal interest inadjudicating the dispute: none of the events underlying thecauses of action against Seigler occurred here, only witnessesfrom Litchfield or Land Finance might possibly live here, andmany relevant documents are likely located out of state.

The same holds true for the third factor. While it is true thatPlaintiffs have labeled Massachusetts their "home" state — atleast with respect to events which allegedly occurred in 2001 —their present connection to this forum is tenuous at best.According to the complaint, Land Finance, the only plaintiff thatallegedly received Seigler's opinion letters, is currently "aDelaware corporation having its principal place of business . . .[in] Connecticut." (Complaint ¶ 5.) In addition, Textroncontinues to be "a Delaware corporation having its principalplace of business . . . [in] Rhode Island" and Litchfield nolonger has its principal place of business in Massachusetts, butin Connecticut. (Complaint ¶¶ 3-4.) In short, the court questionswhether Plaintiffs have an actual interest in obtaining relieffrom Seigler in Massachusetts.

Regarding the fourth factor, the court cannot conceive that thejudicial system as a whole would benefit from forcing Plaintiffs'claims against Seigler to be litigated in Massachusetts given thefacts presented. See Nowak, 94 F.3d at 718 ("Usually this factor is a wash."). And with regard to thefifth and final factor, the case does not appear to raise any"substantive social policies," let alone ones which shouldnecessarily be resolved in Massachusetts. At bottom, therefore,the court believes that the gestalt factors also favor dismissalof Seigler on personal jurisdiction grounds.8


For the foregoing reasons, the court recommends that Seigler'smotion to dismiss be ALLOWED.9

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