Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640Posted: April 25, 2019 Filed under: Arizona, Indoor Recreation Center, Legal Case | Tags: activities, alleges, argues, contends, Contractor, district court, drafted, edition, employee handbook, Employees, exercise of jurisdiction, foam, franchisee, Franchiser, generic, Handbook, jurisdictional, Manual, Motion to Dismiss, nonresident, parties, Personal jurisdiction, purposefully, recommendation, remember, removal, revised, safety rule, Third Party, training, Trampoline Leave a comment
Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640
Blake Haines, Plaintiff,
Get Air Tucson Incorporated, et al., Defendants.
No. CV-15-00002-TUC-RM (EJM)
United States District Court, D. Arizona
October 19, 2018
Honorable Rosemary Marquez United States District Judge.
Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).
I. Standard of Review
A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
II. GALLC’s Objection to Judge Markovich’s Report and Recommendation
As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.) Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)
Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)
Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.
As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.
A. Existence of Duty
“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.
Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.
In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.
The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
Restatement (Second) of Torts § 324A supports the existence of a duty in this case. GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).
Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care, increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.
The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.
The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.
C. Liability of GALLC
Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).
IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.
 Record citations refer to the page numbers generated by the Court’s electronic filing system.
 Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).
Stockdale v. Ellsworth, 2017 CO 109; 2017 Colo. LEXIS 1092Posted: December 19, 2017 Filed under: Colorado, Legal Case | Tags: alter ego, attorneys' fees, checking account, corporate entity, corporate veil, entity, equitable, final judgment, frivolous, heirs, individual liability, individually liable, interpleader, join, joinder, joined, jointly, mineral deeds, Notice, oil, opportunity to contest, Personal jurisdiction, Personal Liability, pierce, piercing, post-judgment, properly joined, severally liable, shareholder, substituted service Leave a comment
Stockdale v. Ellsworth, 2017 CO 109; 2017 Colo. LEXIS 1092
Petitioners: Ruby D. Stockdale; Clara Cardwell, individually and as personal representative of Kenneth Ray Cardwell; Jennifer Lynn Lake; and Patricia Ann Rider Jones, a/k/a Patricia Ann Jones, v. Respondent: Chester J. Ellsworth. and Concerning: XTO Energy, Inc.
Supreme Court Case No. 16SC798
SUPREME COURT OF COLORADO
2017 CO 109; 2017 Colo. LEXIS 1092
December 18, 2017, Decided
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [**1] Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 15CA1114.
DISPOSITION: Judgment Reversed.
CORE TERMS: heirs, alter ego, corporate veil, attorneys’ fees, joinder, piercing, shareholder, mineral deeds, entity, corporate entity, personal jurisdiction, jointly, notice, individual liability, severally liable, personal liability, individually liable, post-judgment, interpleader, frivolous, pierce, join, oil, substituted service, opportunity to contest, final judgment, properly joined, checking account, equitable, joined
Stockdale v. Ellsworth–Corporations–Piercing the Corporate Veil–Attorneys’ Fees–Joinder
The supreme court reverses the court of appeals’ opinion vacating the trial court’s judgment awarding attorneys’ fees. The supreme court holds that the trial court properly pierced the corporate veil to impose joint and several liability on a limited liability company’s managing member for attorneys’ fees. The supreme court also holds that the managing member was properly joined as a party to the litigation, and that imposing such liability did not violate the managing member’s due process rights under the circumstances of this case.
COUNSEL: For Petitioners Ruby D. Stockdale, Clara Cardwell and Patricia Ann Jones: Law Office of John C. Seibert, LLC, John Seibert, Durango, Colorado.
For Petitioner Jennifer Lynn Lake: Law Office of David Liberman, LLC, David Liberman, Durango, Colorado.
No appearance on behalf of Respondent.
JUDGES: JUSTICE MÁRQUEZ delivered the Opinion of the Court.
OPINION BY: MÁRQUEZ
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
[*1] In 2009, XTO Energy, Inc., filed an interpleader action, seeking to resolve [**2] competing claims to oil and gas proceeds held by XTO. XTO named several potential claimants as defendants in the interpleader action, including Seawatch Royalty Partners, LLC (managed by Chester J. Ellsworth) and several alleged heirs of the record owner of the relevant oil and gas interests. After a bench trial, the court concluded that a group of individuals–deemed the true heirs of the record owner–were entitled to the proceeds. Pertinent here, the trial court also ruled that Seawatch’s claims and defenses were frivolous; that Seawatch was an alter ego of Ellsworth; and that Seawatch and Ellsworth were jointly and severally liable for any future award of attorneys’ fees. Ellsworth was subsequently joined as a party under C.R.C.P. 21 and served via substituted service. The post-judgment sanctions proceedings continued for another several years. During that time, Ellsworth contested his individual liability, arguing that the court lacked personal jurisdiction over him; that he had been improperly served; and that Seawatch was not, in fact, his alter ego. The trial court rejected these arguments and entered judgment jointly and severally against Seawatch and Ellsworth for approximately $1 million [**3] in attorneys’ fees. Ellsworth appealed pro se.
[*2] In an unpublished opinion, the court of appeals vacated the judgment against Ellsworth, holding that the district court lacked jurisdiction to hold him jointly and severally liable for the attorneys’ fee award because, as a nonparty, Ellsworth did not have notice and opportunity to contest his individual liability. XTO Energy, Inc. v. Ellsworth, No. 15CA1114, 2016 Colo. App. LEXIS 1205, slip op. at 1 (Colo. App. Aug. 25, 2016). Because we conclude that Ellsworth had adequate notice and opportunity to challenge the alter ego findings that established his individual liability, we reverse the judgment of the court of appeals.
I. Facts and Procedural History
[*3] In 2009, XTO Energy, Inc., a producer of oil and natural gas, filed an interpleader action to determine the rights to certain oil and gas proceeds held by XTO. At the time of filing, XTO operated two natural gas wells that were extracting gas from an area of pooled mineral interests in the Fruitland Formation in La Plata County. One of the record owners of a mineral interest within the pooled area was Roy P. Cardwell, who had recorded his title in 1938. Because Cardwell and his heirs could not be located in the 1990s when the Colorado Oil and Gas Conservation [**4] Commission authorized the pooling of interests in the area, the proceeds attributable to Cardwell’s interest were held in suspense as the natural gas wells were developed. When XTO filed the interpleader action in 2009, the proceeds attributable to Cardwell’s interest totaled approximately $2.7 million.
[*4] In its interpleader complaint, XTO sought a declaratory judgment as to who should receive the proceeds of Cardwell’s interest. XTO identified as potential claimants the heirs of a Roy P. Cardwell who died in California in 1971 (“California Heirs”); the heirs of a Roy P. Cardwell who died in Kansas in 1980 (“Kansas Heirs”); and two business entities managed by Chester Ellsworth: CEMPCO, Inc. and Seawatch Royalty Partners, LLC. CEMPCO and the Kansas Heirs withdrew their claims to the proceeds prior to trial, and the remaining parties–Seawatch and the California Heirs–stipulated that the California Heirs were the true heirs of the record owner. Seawatch claimed that it was entitled to the proceeds because it had obtained mineral deeds from the California Heirs. The California Heirs, however, claimed that they were entitled to the proceeds because Seawatch had obtained the mineral deeds [**5] from them through fraud or deceit.
[*5] After a seven-day bench trial, the trial court (Judge Dickinson) issued its Findings, Order, and Judgment on November 10, 2011. The trial court granted the California Heirs’ claims for rescission of the mineral deeds and assignments to Seawatch, concluding that Ellsworth had obtained them on behalf of Seawatch through fraud and misrepresentation. Specifically, Ellsworth told the California Heirs that there was no oil and gas production in the Cardwell interest and that there may be no minerals to extract, even though Ellsworth (or entities he controlled) had already received over $1 million in proceeds from mineral interests in adjoining lands. Ellsworth also falsely represented to the California Heirs that they could be liable for any costs of production or accidents associated with their interests.
[*6] The trial court found that Seawatch failed to produce any credible evidence to support its assertion that Ellsworth did not make material misstatements or unjustifiably conceal material facts; the court therefore ruled that Seawatch’s claims and defenses were frivolous and groundless. Pertinent here, the trial court also concluded that “Seawatch was at [**6] all material times an alter ego of Ellsworth,” thus piercing the corporate veil and rendering Seawatch and Ellsworth jointly and severally liable for attorneys’ fees incurred by XTO and the California Heirs in responding to Seawatch’s frivolous claims and defenses.
[*7] Seawatch appealed, raising several arguments. During this first appeal, Seawatch argued, among other things, that the trial court’s order holding Ellsworth individually liable for attorneys’ fees must be vacated because the court did not have personal jurisdiction over Ellsworth. The court of appeals affirmed the judgment against Seawatch in a unanimous, unpublished decision, but did not address the argument regarding Ellsworth because the trial court had not yet entered final judgment on attorneys’ fees. We denied certiorari review. XTO Energy, Inc. v. Seawatch Royalty Partners LLC, Nos. 11CA2388 & 12CA1159, 2013 Colo. App. LEXIS 312, (Colo. App. March 7, 2013), cert. denied, No. 13SC453 (Feb. 18, 2014).
[*8] While that appeal was pending, XTO and the California Heirs filed motions seeking attorneys’ fees and costs from Seawatch and Ellsworth. XTO and the California Heirs also filed a joint motion to join Ellsworth to the post-judgment proceedings pursuant [**7] to C.R.C.P. 21. The trial court granted the motion to join Ellsworth as a party “as authorized by C.R.C.P. 21 and City of Aurora v. Colorado State Engineer, 105 P.3d 595 (Colo. 2005).” After unsuccessful attempts to serve Ellsworth personally, XTO and the California Heirs moved for an order authorizing substituted service, which the trial court granted.
[*9] In 2013, Ellsworth, making what he called a “limited appearance,” filed numerous objections and motions in which he argued that the court lacked personal jurisdiction over him and that substituted service had been improper.
[*10] In an order dated April 10, 2014, the trial court denied several pending motions, including Ellsworth’s motion to dismiss for lack of personal jurisdiction. Judge Herringer, who presided over the case following Judge Dickinson’s retirement, held that Judge Dickinson’s corporate veil-piercing findings in his November 10, 2011 ruling were “law of the case.” Judge Herringer therefore incorporated the earlier findings into the April 2014 order–specifically, that “Seawatch was at all material times an alter ego of Ellsworth”; that Ellsworth, as Seawatch’s agent, “engaged in civil conspiracy” and “made material omission[s]”; and that Ellsworth’s statements “constitute[d] fraud.” The court articulated several [**8] additional findings relevant to whether piercing the corporate veil was necessary to achieve an equitable result. The court found, for example, that Seawatch’s sole business function was to acquire the mineral deeds from the California Heirs for Ellsworth’s benefit; that Seawatch had no business dealings outside the facts that gave rise to this litigation and was controlled entirely by Ellsworth; that Seawatch was apparently insolvent and had no assets, such that limiting liability to Seawatch would foreclose any meaningful opportunity for injured parties to recover for conduct for which Ellsworth was responsible; and that there was no indication that Seawatch’s litigation strategy was controlled by anyone other than Ellsworth.
[*11] Ultimately, the court held that Ellsworth was liable for attorneys’ fees after concluding that “[t]he only respect in which Ellsworth has treated Seawatch as a corporate entity, independent of him personally, is as a barrier to his personal liability.” As a result, “[t]o the extent that Seawatch advanced frivolous argument and made groundless claims,” the court ruled, “Ellsworth is the person who should ultimately be held responsible for that conduct.”
[*12] About [**9] a year later, in an April 8, 2015 order, the trial court awarded fees and costs to XTO and the California Heirs under section 13-17-102, C.R.S. (2017), holding Ellsworth and Seawatch jointly and severally liable. The court instructed XTO and the California Heirs to prepare proposed judgments consistent with its order. Notice of the proposed final judgments was served on Ellsworth. Ellsworth did not file any objections. The court entered separate judgments for XTO and the California Heirs in May 2015.
[*13] Ellsworth appealed pro se, arguing, in relevant part, that when Judge Dickinson initially determined that Seawatch was an alter ego of Ellsworth, he had not been made a party to the case, and therefore, to hold him jointly and severally liable for attorneys’ fees violated his right to due process. In a unanimous, unpublished opinion, the court of appeals agreed with Ellsworth and vacated the attorneys’ fee judgment with respect to him. XTO Energy, Inc. v. Ellsworth, No. 15CA1114, 2016 Colo. App. LEXIS 1205 (Colo. App. Aug. 25, 2016).
[*14] Despite his victory in the court of appeals, Ellsworth filed a petition for a writ of certiorari with this court, seeking “relief of manifest injustice to include $200,000,000 in exemplary damages pursuant to [**10] § 13-17-101 [C.R.S. (2017)] to punish the trial court’s and Respondent’s acts of frivolous, groundless and vexatious litigation in [the underlying cases] and the appellate courts [sic] acts of applying an incorrect standard of review and failure to order as adjudicated.”
[*15] XTO filed an opposition to Ellsworth’s petition, and the California Heirs filed a cross-petition for certiorari review, arguing that Ellsworth had been properly joined in the litigation under this court’s decision in City of Aurora ex rel. Utility Enterprise v. Colo. State Engineer, 105 P.3d 595 (Colo. 2005). Ellsworth subsequently filed several documents on behalf of Seawatch and CEMPCO, which this court struck under section 13-1-127(2), C.R.S. (2017). Finally, Ellsworth filed a “Motion to Declare . . . C.R.S. § 13-1-127 . . . Unconstitutional,” which this court denied.
[*16] Ultimately, we denied Ellsworth’s petition for a writ of certiorari, but granted the California Heirs’ cross-petition to review the court of appeals’ ruling on whether Ellsworth was properly joined in the case.1
1 We granted certiorari review of the following issues:
1. Whether the petitioner was properly joined in the sanctions proceedings pursuant to City of Aurora ex rel. Utility Enterprise v. Colorado State Engineer, 105 P.3d 595, 621-24 (Colo. 2005).
2. Whether piercing an entity’s corporate veil is a form of vicarious liability supporting joinder pursuant to City of Aurora ex rel. Utility Enterprise v. Colorado State Engineer, 105 P.3d 595 (Colo. 2005).
3. Whether service of a summons and an opportunity to be heard before entry of the sanctions [**11] judgments afforded the petitioner due process.
The California Heirs filed their opening brief on July 3, 2017. Pursuant to our May 22 scheduling order, Ellsworth had until August 7 to file an answer brief. On August 23, having not received an answer from Ellsworth, we ordered him to notify the court by August 30 whether he intended to file an answer brief, warning that if he did not comply, we would presume that he did not intend to file an answer brief, and the case would proceed. Ellsworth did not thereafter file any response.
A. Piercing the Corporate Veil
[*17] We address first the merits of the trial court’s decision to pierce the corporate veil and hold Ellsworth individually liable for Seawatch’s litigation conduct. “Piercing the corporate veil involves a mixed question of law and fact.” Lester v. Career Bldg. Acad., 2014 COA 88, ¶ 42, 338 P.3d 1054, 1062. Accordingly, “[w]e defer to the trial court’s findings of fact if they are supported by the record, but review the trial court’s legal conclusions de novo.” See People v. Marquardt, 2016 CO 4, ¶ 8, 364 P.3d 499, 502.
[*18] A duly formed corporation is a legal entity distinct from its shareholders. Connolly v. Englewood Post No. 322 Veterans of Foreign Wars of the United States, Inc. (In re Phillips), 139 P.3d 639, 643 (Colo. 2006). This separate status normally insulates a corporation’s shareholders from personal liability for the debts of the corporation. Indeed, such “[i]nsulation from individual liability is an inherent purpose of incorporation; only extraordinary circumstances justify disregarding the corporate entity to impose personal liability.” Leonard v. McMorris, 63 P.3d 323, 330 (Colo. 2003).
[*19] However, in certain circumstances, a court will “pierce the veil of corporate entity” to expose the individuals “hiding behind” it. I.M. Wormser, Piercing the Veil of Corporate Entity, 12 Colum. L. Rev. 496, 515, 497 (1912); Phillips, 139 P.3d at 644. For instance, a shareholder may be individually liable for the corporation’s actions [**12] “when the corporation is merely the alter ego of the shareholder, and the corporate structure is used to perpetuate a wrong.” Phillips, 139 P.3d at 644 (citation omitted). “In such extraordinary circumstances, the courts may ignore the independent existence of the business entity and pierce the corporate veil to achieve an equitable result.” Id.; see also Griffith v. SSC Pueblo Belmont Operating Co. LLC, 2016 CO 60M, 381 P.3d 308, 313 (“The case law governing corporate veil-piercing applies to disregarding the LLC form as well.”)
[*20] A corporation is the alter ego of its shareholder or shareholders when it is a “mere instrumentality for the transaction of the shareholders’ own affairs, and there is such unity of interest in ownership that the separate personalities of the corporation and the owners no longer exist.” Id. (quoting Krystkowiak v. W.O. Brisben Co., 90 P.3d 859, 867 n.7 (Colo. 2004)). To determine whether a corporation is an alter ego, a court should consider a number of factors, including whether “(1) the corporation is operated as a distinct business entity, (2) funds and assets are commingled, (3) adequate corporate records are maintained, (4) the nature and form of the entity’s ownership and control facilitate misuse by an insider, (5) the business is thinly capitalized, (6) the corporation is used as a ‘mere shell,’ (7) shareholders disregard [**13] legal formalities, and (8) corporate funds or assets are used for noncorporate purposes.” Id. As we explained in Phillips, “[t]hese factors reflect the underlying principle that the court should only pierce when the corporate form has been abused.” Id.
[*21] Next, if the corporation is found to be merely the alter ego of a shareholder, the court must consider “whether justice requires recognizing the substance of the relationship between the shareholder and corporation over the form because the corporate fiction was used to perpetrate a fraud or defeat a rightful claim.” Id. (quotation marks omitted). “Only when the corporate form was used to shield a dominant shareholder’s improprieties may the veil be pierced.” Id.
[*22] Finally, “the court must evaluate whether an equitable result will be achieved by disregarding the corporate form and holding the shareholder personally liable for the acts of the business entity.” Id. “Achieving an equitable result is the paramount goal of traditional piercing of the corporate veil.” Id.
[*23] A claimant seeking to pierce the corporate veil must make a clear and convincing showing that each of the foregoing factors has been satisfied. Id. If a claimant satisfies [**14] this burden and the corporate veil is pierced, the court may ignore the independent existence of the corporate entity and hold the shareholder liable for the corporation’s actions. See id.
[*24] Here, the trial court held that Seawatch “was at all material times” the alter ego of Ellsworth. In its November 10, 2011 order, the trial court adopted XTO’s proposed findings of fact and conclusions of law, as well as portions of the California Heirs’ post-trial briefing. Specifically, the trial court found that Ellsworth was the sole managing partner of Seawatch, which he owned with his wife and two adult children; Ellsworth’s payments to the California Heirs for the mineral deeds were made from Ellsworth’s personal checking account or were cash; Seawatch did not have its own checking account, its own cash, or any loan agreements with Ellsworth; Seawatch did not own other property, had never received any income, and did not file tax returns; and Ellsworth used these alter ego entities to perpetuate a wrong.
[*25] Subsequently, after Judge Herringer took over the case for Judge Dickinson, the trial court incorporated these findings as law of the case in its April 10, 2014 order. In that order, the trial [**15] court also revisited the third requirement for piercing the corporate veil–i.e., whether piercing the veil is necessary to achieve an equitable result. On that point, the court found that “Seawatch was used by Ellsworth as an instrumentality for committing fraud” and that Seawatch’s “sole business function was to acquire mineral deeds from the California Heirs for the benefit of Ellsworth.” Indeed, according to the trial court, “Seawatch had no business dealings outside the facts that give rise to this litigation and it was entirely controlled by Ellsworth.” Moreover, the court found, “Seawatch is apparently insolvent and has no assets, not even its own checking account” and “when Ellsworth was purportedly conducting business on behalf of Seawatch, he used his personal checking account for transactions made by Seawatch.” Additionally, “there [was] no indication that Seawatch’s litigation strategy was controlled or dictated by anyone other than Ellsworth.”
[*26] Thus, the court reasoned, “if liability was limited to Seawatch, it would foreclose any meaningful opportunity for the injured parties to recover for conduct [for] which Ellsworth is responsible.” Because “[t]he record is devoid of [**16] any meaningful evidence that Seawatch was operated as a separate corporate entity apart from Ellsworth,” and “[t]he only respect in which Ellsworth has treated Seawatch as a corporate entity, independent of him personally, is as a barrier to his personal liability,” the court concluded, holding Ellsworth “liable for the actions of Seawatch is required to achieve fairness and reach a just result.”
[*27] As noted above, we “defer to the trial court’s findings of fact if they are supported by the record.” Marquardt, ¶ 8, 364 P.3d at 502. Here, the trial court’s findings are amply supported by the record. During the 2011 bench trial related to the mineral deeds, Ellsworth testified that he owned Seawatch with his wife and two children. Ellsworth testified that he had been the sole manager of Seawatch since its inception in 2007 and that he makes all the decisions for Seawatch. Ellsworth further testified that Seawatch did not have a checking account when he obtained the mineral deeds from the California Heirs; indeed, at least one California Heir testified that Ellsworth paid for the mineral deeds with a personal check. Ellsworth also testified that Seawatch had not received any income and had not filed tax [**17] returns.
[*28] Based on the above factual findings, and reviewing the trial court’s legal conclusion de novo, id., we conclude that the trial court did not err by piercing the corporate veil.
B. Joinder and Due Process
[*29] The court of appeals vacated the judgment against Ellsworth, holding that the trial court lacked personal jurisdiction over him because Ellsworth had not yet been joined as a party (and therefore had no notice or opportunity to contest personal liability) when the trial court entered the November 2011 order holding him individually liable. XTO Energy, slip op. at 1, 5-6. Consequently, the court of appeals reasoned, the initial order was void with respect to Ellsworth, and all subsequent orders and judgments based on the initial order were void as well. Id. at 14. The court of appeals rejected XTO’s argument that joinder “cured” this jurisdictional defect, because (1) joinder was improper; and (2) Ellsworth did not have a chance, after the joinder motion was filed, to contest the trial court’s alter ego findings or its imposition of joint and several liability. Id. at 10-14.
[*30] It is true that a person is not bound by a judgment if he was not “designated as a party or . . . made a party by service of process.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). But here, we conclude [**18] that Ellsworth was a party to the post-judgment proceedings. The court of appeals’ conclusion that Ellsworth was not properly joined because there was no pleaded “claim for relief” against Ellsworth, XTO Energy, slip op. at 10-12, is contrary to our decision in City of Aurora. There, after the trial court entered its order of dismissal following an eight-week trial, the prevailing party sought attorneys’ fees and costs under section 13-17-102(4), and moved to join Aurora solely “for purposes of collecting attorney fees and costs.” City of Aurora, 105 P.3d at 605. The court granted joinder, and we affirmed.
[*31] As we explained, under the Colorado Rules of Civil Procedure, “[p]arties may be dropped or added by order of the court on motion of any party . . . at any stage of the action and on such terms as are just.” Id. at 623 (emphasis in original) (quoting C.R.C.P. 21). Rules 20 and 21, which should be “liberally construed,” specifically “authorize joinder in situations where one party seeks to join a person who may be liable for the same debt or conduct that is already before the court.” Id. These rules “indicate clearly a general policy to disregard narrow technicalities and to bring about the final determination of justiciable controversies without undue delay.” Id. (quoting Swan v. Zwahlen, 131 Colo. 184, 280 P.2d 439, 441 (Colo. 1955)). Thus, we held, [**19] joinder of Aurora was not an abuse of discretion, even though the court had already entered judgment on the merits, “[b]ecause C.R.C.P. 20 allows joinder at any stage of the proceedings and because C.R.C.P. 21 anticipates joinder where there are joint liabilities, as well as common questions of law and fact,” and Aurora “was potentially liable for conduct that was already before the court.” Id.
[*32] Nor were XTO and the California Heirs required to amend their pleadings to add a “claim for relief” against Ellsworth, or file additional pleadings to the same effect, to join Ellsworth. Such a rule would be antithetical to the policy behind Rules 20 and 21, and would make little sense in situations where, like here and in City of Aurora, the trial court has already entered judgment on the underlying dispute. Additionally, in light of the unique factual circumstances of this case, any failure to amend the complaint to add Ellsworth as a party to the post-judgment sanctions proceedings would be, at most, harmless error. “The court at every stage of the proceeding must disregard all errors and defects that do not affect any party’s substantial rights.” C.R.C.P. 61. “[A]n error affects a substantial right only if it can be said with fair [**20] assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.” Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24, 365 P.3d 972, 978 (quotation marks omitted). By the time Ellsworth was joined as a party, he had already been heavily involved with the case for several years as Seawatch’s sole managing member. Indeed, he spent much of the trial at counsel’s table and also testified. He was then properly served with the joinder motion and summons. On this record, Ellsworth cannot establish that any error regarding amending the complaint substantially influenced the outcome of the case or impaired the basic fairness of the trial.
[*33] Furthermore, contrary to the court of appeals’ assertion, Ellsworth had an opportunity to contest his individual liability once he was joined as a party. The trial court found that Seawatch was Ellsworth’s alter ego in November 2011 and that, accordingly, Ellsworth would be jointly and severally liable for any award of attorneys’ fees. In December 2011, XTO and the California Heirs moved for judgment on attorneys’ fees and to join Ellsworth as a party to the post-judgment proceedings. The court granted the joinder motion in August 2012, and Ellsworth was served via [**21] substituted service in January 2013. The court did not enter final judgment awarding attorneys’ fees against Ellsworth, however, until May 2015. During the three years after Ellsworth was joined as a party and before the entry of final judgment, Ellsworth had ample opportunity to challenge the alter ego findings.
[*34] In fact, Ellsworth did offer arguments, however unartful, regarding the propriety of piercing the corporate veil. In 2013, Ellsworth, making what he called a “limited appearance,” argued that the court lacked personal jurisdiction over him and that the substituted service had been improper. In his motion to dismiss, Ellsworth, represented by the same attorney who represented Seawatch, “object[ed] to the validity of the Summons served by substitute service . . . and also on the basis that the Court lacks personal jurisdiction over Ellsworth.” Ellsworth’s motion to dismiss went on to address “the elements of ‘piercing the corporate veil,'” arguing that the trial court’s order holding Ellsworth individually liable “contains no record that [the relevant] elements were evaluated” and that the record was “also completely void of the analysis showing all elements satisfied a standard [**22] of ‘clear and convincing’ proof.” (citing Phillips, 139 P.3d at 644).
[*35] In a subsequent filing, Ellsworth argued against piercing the corporate veil under a section entitled “CEMPCO AND SEAWATCH ARE NOT AGENTS OR ALTER EGOS OF ELLSWORTH.” Ellsworth asserted that the “alter-ego theory of the trial court cannot be applied here” for various reasons, including that “the failure of a limited liability company to observe the formalities or requirements relating to the management of its business and affairs is not in itself a ground for imposing personal liability on the members for liabilities of the limited liability company.” (quoting § 7-80-107, C.R.S. (2017)). Ellsworth went on to address the “[c]ommon law Alter Ego elements,” reiterating that the trial court made, in his view, insufficient findings on the record. Based on this record, we disagree with the court of appeals that “Ellsworth did not have a chance, after the joinder motion was filed, to contest the court’s alter ego finding or its imposition of joint and several liability.” XTO Energy, slip op. at 13.
[*36] The court of appeals’ focus on the 2013 hearing on the motions for attorneys’ fees was misplaced. That hearing, the court of appeals asserted, was limited to “whether XTO could recover fees it [**23] had incurred by participating in the litigation more actively than a traditional interpleader plaintiff” and thus “did not provide any kind of belated opportunity for Ellsworth to challenge the court’s alter ego finding.” Id. However, this conclusion is belied by the transcripts of the hearing; it also discounts the time after joinder before the hearing, and the years after the hearing but before final judgment entered.
[*37] It is true that Judge Herringer ruled that Judge Dickinson’s findings were “law of the case.” But that doctrine did not prevent Ellsworth from challenging those findings. Generally speaking, the law of the case doctrine “provides that prior relevant rulings made in the same case are to be followed unless such application would result in error or unless the ruling is no longer sound due to changed conditions.” People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999). However, the law of the case doctrine recognizes that “a trial court is not inexorably bound by its own precedents.” Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 149 (Colo. 2007). That is, the law of the case doctrine does not “prevent[ ] a trial court from clarifying or even revisiting its prior rulings.” In re Bass, 142 P.3d 1259, 1263 (Colo. 2006). To the contrary, “[a] trial court has discretion to apply the law of the case doctrine to its own prior rulings.” [**24] San Antonio, Los Pinos & Conejos River Acequia Pres. Ass’n v. Special Improvement Dist. No. 1, 2015 CO 52, ¶ 31, 351 P.3d 1112, 1120. Thus, Judge Herringer was not bound by Judge Dickinson’s findings. And indeed, here, before addressing the merits of the trial court’s decision to pierce the corporate veil, Ellsworth argued that “the trial court always possesses the power to correct or re-direct a prior Order and . . . is ‘not’ to be trapped by the ‘law of the case’ doctrine while its case remains pending.” (emphasis in original) (citing Bass, 142 P.3d at 1263).
[*38] Ellsworth also could have filed a Rule 59(e) motion to alter or amend the judgment after the trial court entered judgment against him in May 2015. He did not do so. Nor did he move under Rule 60(b) to ask the court to relieve him from the final judgment. See Link v. Wabash R.R. Co., 370 U.S. 626, 632, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (recognizing that “the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b)–which authorizes the reopening of cases in which final orders have been inadvisedly entered–renders the lack of prior notice of less consequence.”); see also Am. Sur. Co. v. Baldwin, 287 U.S. 156, 168, 53 S. Ct. 98, 77 L. Ed. 231 (1932) (“Due process requires that there be an opportunity to present every available defense; but it need not be before the entry of judgment.”). In sum, we disagree with the court of appeals that Ellsworth lacked notice and opportunity to contest his liability.
[*39] We conclude that the trial court [**25] properly pierced the corporate veil to hold Ellsworth individually liable for Seawatch’s, his alter ego, frivolous claims and defenses. Additionally, we hold that Ellsworth, who was properly joined to the post-judgment proceedings, had notice and opportunity to contest his individual liability. We therefore reverse the court of appeals and remand with instructions to reinstate the judgment awarding attorneys’ fees and costs.
LaFond v. Salomon North America, Inc. et al., 2011 Mass. Super. LEXIS 344Posted: March 25, 2012 Filed under: Legal Case, Massachusetts, Skiing / Snow Boarding | Tags: Jurisdiction, Massachusetts, Personal jurisdiction, Salomon, Salomon SAS, Ski binding, skiing, United States, Venue Leave a comment
Gary LaFond v. Salomon North America, Inc. et al.1
1 Amer Sports Winter & Outdoor Company, and Salomon S.A.
Opinion No.: 118812, Docket Number: SUCV2008-01383
SUPERIOR COURT OF MASSACHUSETTS, AT SUFFOLK
2011 Mass. Super. LEXIS 344
December 19, 2011, Decided
December 20, 2011, File
JUDGES: [*1] Elizabeth M. Fahey, Justice of the Superior Court.
OPINION BY: Elizabeth M. Fahey
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT SALOMON S.A.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
The plaintiff, Gary LaFond (“LaFond”), was injured when one of his ski bindings broke while he was skiing in Utah. LaFond brought this action against Salomon North America, Inc., Amer Sports Winter & Outdoor Company (“ASWO”), and Salomon S.A., asserting claims of negligence, breach of implied warranty of merchantability, and violation of G.L.c. 93A. The action is now before the court on Salomon, SA’s motion to dismiss for lack of personal jurisdiction. For the following reasons, the motion is DENIED.
The following relevant jurisdictional facts are taken from the materials before the court. LaFond is a resident of Massachusetts. Salomon S.A. is a French corporation with its principal place of business in Annecy, France.2 According to the declaration of the senior legal counsel for Salomon S.A.’s European legal department, Laurence Grollier (“Grollier”), Salomon S.A. does not maintain an office, employees, agents, or real property in Massachusetts. It distributes its Salomon-branded products in the [*2] United States through a single entity, ASWO, which submits orders to Salomon S.A. in France. Salomon S.A. then ships the products to AWSO in Ogden, Utah, but it has no further involvement or control over the resale and distribution of the shipped products. Salomon S.A. has not entered into any contracts to perform services in Massachusetts.
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2 The corporation states that LaFond has mistakenly referred to it as Salomon S.A., whereas its title should be Salomon S.A.S. Given that the corporation has been entered into the court’s docket as Salomon S.A., the court will use that title.
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Salomon S.A. has not visited Massachusetts to market, promote, or solicit sales of its products, including the binding that allegedly caused LaFond’s injury. Salomon S.A. does maintain a website, http://www.salomon.com (“Website”), which is accessible (presumably all the time) in Massachusetts. The Website includes information on Salomon products, but U.S. consumers may not purchase such products directly through the Website. If a consumer wishes to purchase a Salomon product, however, the Website includes a search function whereby said consumer can locate area retail stores that sell Salomon-branded products. Counsel [*3] for LaFond avers in an affidavit that she conducted such a search on the website and located fifty-six Massachusetts retailers that sell Salomon products.
In June 2004, LaFond accessed the Website and researched different Salomon alpine ski bindings. Based in part on the information the Website provided, LaFond decided to buy Salomon 912Ti alpine ski bindings. Knowing that Bob Smith’s Wilderness House (“Wilderness House”) sold Salomon products at its Boston location, he visited that store to buy the Salomon 912Ti bindings, doing so in June 2004.
LaFond alleges that he was skiing in Alta, Utah on January 20, 2007, when the heel plate of his left ski binding broke, causing him to fall and injure himself seriously. Upon returning to Massachusetts, LaFond brought the defective binding back to Wilderness House, reported his January 20, 2007 accident to the store, and requested that the defective binding be replaced with a new Salomon binding. The materials before the court indicate that a new binding was shipped to Wilderness House, but it is not clear who shipped the binding.
HN1Go to this Headnote in the case.In order for a Massachusetts court to exercise personal jurisdiction over a non-resident defendant, the [*4] defendant’s conduct must fall within the limits of the Massachusetts long-arm statute, G.L.c. 223A, §3(a)-(h). See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). In addition, the exercise of personal jurisdiction must comply with the due process requirements of the U.S. Constitution. See id. at 5-6. These two parts often converge into a single inquiry, because G.L.c. 223A “functions as ‘an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.'” Id. at 6, quoting “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 443, 280 N.E.2d 423 (1972).
HN2Go to this Headnote in the case.When confronted with a motion to dismiss under Mass.R.Civ.P. 12(b)(2), the plaintiff bears the burden of establishing facts sufficient to show that the Massachusetts’ court has personal jurisdiction over the defendant. See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151, 376 N.E.2d 548 (1978). The court views the jurisdictional facts in the light most favorable to the plaintiff. See Cepeda v. Kass, 62 Mass.App.Ct. 732, 738, 819 N.E.2d 979 (2004). Nevertheless, the court does not have to “credit conclusory allegations or draw farfetched inferences.” Workgroup Tech. Corp. v. MGM Grand Hotel, LLC, 246 F.Sup.2d 102, 108 (D.Mass. 2003) [*5] (citations omitted).
I. Long-Arm Statute
LaFond argues that this court may exercise personal jurisdiction over Salomon S.A. based on three provisions of the long-arm statute, G.L.c. 223A, §3(a), (b), and (f). Because this court finds that jurisdiction is appropriate under G.L.c. 223A, §3(a), it will not address the other provisions.
A. G.L.c. 223A, §3(a
HN3Go to this Headnote in the case.”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 . . .” G.L.c. 223A, §3(a). The “transacting any business” language is construed broadly. See Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1994). “Although an isolated (and minor) transaction with a Massachusetts resident may be insufficient, generally the purposeful and successful solicitation of business from residents of the Commonwealth, by a defendant or its agent, will suffice to satisfy this requirement.” Id.
This court concludes that Salomon S.A. has engaged in such purposeful and successful solicitation of business from Massachusetts residents via the Website.3 The Website is not merely a passive instrument that only presents [*6] information about Salomon products. See McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005) (“[T]he mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum”); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Sup. 1119, 1124 (W.D.Pa. 1997) (“A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction”). Rather, it explicitly solicits business from Massachusetts residents by directing them to Massachusetts’ retailers that sell Salomon products.
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3 It appears that the question of whether a website may confer specific personal jurisdiction over a defendant pursuant to G.L.c. 223A, §3(a) is one of first impression in Massachusetts state courts. The parties did not cite, and this court could not find any Supreme Judicial Court or Appeals Court case addressing the question. This court considered reporting to the Appeals Court the correctness of its decision regarding personal jurisdiction over Salomon S.A., but, after thoroughly examining the relevant [*7] facts and law, ultimately decided not to do so
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By thus soliciting business, Salomon S.A. purposefully targets Massachusetts’ residents through the Website. Compare Comer v. Comer, 295 F. Supp. 2d 201, 209-10 (D.Mass. 2003) (no personal jurisdiction over defendant pursuant to G.L.c. 223A, §3(a) where “website is ‘passive’—i.e., it only posts information for those who are interested and, admittedly, makes no mention of any ties to Massachusetts”); Berry v. Cook, 2011 WL 5841768 at *4 (Mass.Super. 2011) [29 Mass. L. Rptr. 97] (advertisement of vacation home through website does not confer personal jurisdiction pursuant to G.L.c. 223A, §3(a) where no evidence that website specifically targeted Massachusetts residents). Cf. Roberts v. Legendary Marine Sales, 447 Mass. 860, 864-65, 857 N.E.2d 1089 (2006) (no personal jurisdiction over defendant pursuant to G.L.c. 223A, §3(d) where website only provided information and did not solicit business in Massachusetts). Accordingly, Salomon S.A. transacts business in Massachusetts.
Further, LaFond’s claims against Salomon S.A. arise out of this business where he stated in an affidavit that he purchased the binding at issue in part based on research he conducted on the [*8] Website. See Tatro, 416 Mass. at 771 (construing §3(a)’s “arising from” language as broadly as “transacting business” language, and holding that “a claim arises from a defendant’s transaction of business in the forum State if the claim was made possible by, or lies in the wake of, the transaction of business in the forum State” (citation omitted)).
The literal requirements of the long-arm statute have therefore been satisfied.
II. Due Process
HN4Go to this Headnote in the case.In addition to fulfilling the statutory requirement of G.L.c. 223A, §3, an assertion of personal jurisdiction over the defendant must also comply with the due process requirements of the United States Constitution. See Good Hope Indus., Inc., 378 Mass. at 5-6. Due process requires that the non-resident defendant have “some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action.” Id. at 7. In determining whether the exercise of specific jurisdiction comports with due process, the court must first examine whether “the defendant purposely avails itself of the privilege of conducting activities [*9] in the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). The lawsuit must also arise from or relate to the defendant’s specific conduct in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Finally, the court may not exercise personal jurisdiction over the defendant under circumstances “that would offend ‘traditional notions of fair play and substantial justice.'” Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
A. Purposeful Availment
As discussed above, via the website, Salomon specifically targets Massachusetts’ residents and solicits their business. The evidence before this court also indicates that Salomon S.A. fulfills orders it receives from ASWO, the sole distributor of Salomon products in the United States, which then distributes those products to retailers in various states, including Massachusetts. Salomon S.A. lists fifty-six Massachusetts retailers on the Website, and it has clearly not instructed ASWO to refrain from distributing Salomon products to Massachusetts. As such, viewing the facts [*10] in the light most favorable to LaFond, Salomon S.A. purposefully avails itself of the benefits of doing business in Massachusetts by placing its products in the stream of commerce with the intention of reaching consumers, including consumers in Massachusetts.
As the United States District Court in Massachusetts has stated, HN5Go to this Headnote in the case.the purposeful availment “requirement goes beyond simple ‘foreseeability’ to ensure that only those defendants that willingly and purposefully avail themselves of the benefits of a state will be brought to court there.” Hasbro, Inc. v. Clue Computing, Inc., 994 F.Sup. 34, 44-45 (D.Mass. 1997) (personal jurisdiction over defendant complied with due process where it directed its advertising website to all states, doing nothing to avoid Massachusetts); see also Gather, Inc. v. Gatheroo, LLC, 443 F.Sup.2d 108, 117-18 (D.Mass. 2006) (distinguishing case where defendant prohibited sales in forum state and noting that “[n]o such limitation is found in Gatheroo’s [web]site”). Compare Accutest Corp. v. Accu Test Sys., Inc., 532 F.Sup. 416, 420 (D.Mass. 1982) (no personal jurisdiction where, “by instructing its underwriters not to sell stock in Massachusetts, defendant seems [*11] to have purposefully sought to avoid activity in this forum”). Salomon S.A.’s contacts with Massachusetts comply with this requirement.
This court has already concluded that LaFond’s claims against Salomon S.A. arise from the latter’s contacts with Massachusetts, so this due process requirement is fulfilled. See Back Bay Farm, LLC v. Collucio, 230 F.Sup.2d 176, 186 (D.Mass. 2002) (“Here, as the court has already determined, Plaintiff’s claim arises from Defendant’s Massachusetts activity. The relatedness element has thus been met”).
C. Fair Play and Substantial Justice
HN6Go to this Headnote in the case.In determining whether its exercise of personal jurisdiction over a defendant constitutes fair play and substantial justice, a court examines the following factors: “(1) the burden on the defendant in appearing; (2) the interest of the forum state in adjudicating the dispute; (3) the interest of the plaintiff in obtaining convenient and effective relief: (4) the interest of the judicial system in obtaining the most effective resolution of the controversy; and (5) the interests common to all sovereigns in promoting substantive social policies.” Back Bay Farm, LLC, 230 F.Sup.2d at 187.
HN7Go to this Headnote in the case.As for the first factor, [*12] it “is only meaningful where a party can demonstrate some kind of special or unusual burden.” Hasbro, Inc., 994 F.Sup. at 45, quoting Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). While Salomon S.A. claims that because it is a French company with no office or personnel located in Massachusetts, having to defend itself in Massachusetts would put it at a severe disadvantage, it does not differentiate itself from any other alien corporation with no presence in the forum state.4 As such, Salomon S.A. has not shown any special or unusual burden, and the first factor holds no significance.
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4 Additionally, the case Salomon S.A. cites to support its assertion that its status as a French company with no Massachusetts presence provides a basis to deny personal jurisdiction is not a personal jurisdiction case. Rather, the case, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), deals with a forum selection clause in a contract between the parties.
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The court finds that the next four factors weigh in favor of this court asserting personal jurisdiction over Salomon S.A. First, Massachusetts clearly has an interest in adjudicating the claims of one of its residents injured by a product sold [*13] in Massachusetts and provided by a company that specifically solicits Massachusetts business. Second, as the United States District Court in Massachusetts has recognized, “[t]he average consumer who is injured by a defective product generally lacks the resources necessary to enable him to prosecute his claim effectively against the manufacturer who is situated in a distant jurisdiction.” Mark v. Obear & Sons, Inc., 313 F.Sup. 373, 376 (D.Mass. 1970). This is especially true here where Salomon S.A. is located in a distant foreign country. Third, because witnesses, medical records, documents, and other evidence in this case are likely scattered among Utah (where LaFond’s accident occurred), Massachusetts (where LaFond resides and where the binding was sold), and France (presumably where Salomon S.A. designed and manufactured the binding), Massachusetts is as effective a forum location as Utah or France. Similarly, while Massachusetts and France both have an interest in promoting substantive social policies, Massachusetts’ interest is stronger here given the facts of this case.
Finally, this court notes that failing to assert personal jurisdiction over Salomon S.A. in this case would in [*14] fact not comply with traditional notions of fair play and substantial justice. This court declines to permit “a manufacturer such as [Salomon S.A.] whose plant is a great distance from the State where it causes its products to be marketed . . . as a practical matter [to] insulate itself against suits by injured consumers by the simple expedient of [providing] its products through an independent distributor.” Mark, 313 F.Sup. at 376.
Based on the foregoing, it is hereby ORDERED that Salomon S.A.’s motion to dismiss for lack of personal jurisdiction is DENIED.
Elizabeth M. Fahey
Justice of the Superior Court
Dated: December 19, 2011