United States Court of Appeals
For the First Circuit
No. 08-2579
EVANS CABINET CORPORATION,
Plaintiff, Appellant,
v.
KITCHEN INTERNATIONAL, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.
Charles K. Reed, with whom P. Michael Freed, McKenna Long &
Aldridge, LLP, Alex C. Gianacoplos, and Duggan & Caccavaro, were on
brief, for appellant.
Edward J. Fallman, for appellee.
February 3, 2010
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Evans Cabinet Corporation
(“Evans”) instituted this diversity action in the United States
District Court for the District of Massachusetts against Kitchen
International, Inc. for breach of contract and quantum meruit.1
Kitchen International filed a motion to dismiss based on res
judicata. It claimed that the action was foreclosed because of an
earlier judgment entered by the Superior Court of Québec. After a
hearing on the motion to dismiss, the district court determined
that the arguments went beyond the pleadings. After allowing
limited discovery and converting the motion to one for summary
judgment, the court entered judgment for Kitchen International.
Evans filed a timely appeal to this court.2
For the reasons set forth in the following opinion, we
reverse the judgment of the district court and remand for
proceedings consistent with this opinion.
1
The district court had diversity jurisdiction over this
contract dispute pursuant to 28 U.S.C. § 1332. Evans is a Georgia
corporation with its principal place of business in Dublin,
Georgia. Kitchen International is a Louisiana corporation with its
principal place of business in Montreal, Québec.
2
This court has jurisdiction over the final decision of the
district court pursuant to 28 U.S.C. § 1291.
-2-
I
BACKGROUND
According to the allegations of the complaint, Kitchen
International and Evans entered into a contract in 2004.3 Evans
agreed to supply Kitchen International with manufactured cabinetry
for several residential construction sites on the East Coast of the
United States. Kitchen International placed these orders from its
headquarters in Montreal with the Georgia offices of Evans. The
materials were shipped directly to the construction sites.
According to Kitchen International, in 2004, the two
parties also agreed that they would create a products showroom at
Kitchen International’s office in Montreal. Kitchen International
claims that Paul Gatti of Evans approved the design and layout of
the showroom. According to Kitchen International, later that year,
Evans manufactured and shipped cabinetry, related products and
sales and promotional materials to Québec for use in the showroom.
Evans denies the existence of such an agreement; it claims that it
never authorized Kitchen International to build a showroom and that
it did not supply products to Kitchen International for that
purpose.
Various issues arose about the quality and conformity of
the products that Evans had shipped to the East Coast projects.
3
The record does not include a copy of this contract or any
information about the circumstances surrounding its formation.
-3-
Consequently, in May 2006, Kitchen International engaged a Canadian
attorney to file suit against Evans in the Superior Court of Québec
for breach of contract arising from the materials supplied by
Evans. Evans was served with process and given notice of this
proceeding. Evans did not answer or otherwise respond to the
action, and, consequently, on May 31, 2007, the Superior Court of
Québec entered a default judgment against Evans in the amount of
$149,354.74.
On April 23, 2007, Evans instituted this action for
breach of contract and quantum meruit in the United States District
Court for the District of Massachusetts. Kitchen International
filed a motion to dismiss on the ground that the action was barred
by res judicata by virtue of the Canadian judgment against Evans.
Evans opposed the motion on the ground that the Superior Court of
Québec had lacked jurisdiction over it, and, therefore, the Québec
judgment could not be recognized by the district court.
During a hearing on Kitchen International’s motion to
dismiss, the district court realized that the issues being argued
went beyond the pleadings. It therefore stated that the motion
should be converted to one for summary judgment and allowed the
parties ninety days to conduct limited discovery on the issue of
the Superior Court of Québec’s jurisdiction over Evans. On March
4, 2008, the district court resumed the hearing. The only
additional documents supplied by either party were affidavits from
-4-
their principals. On November 4, 2008, the district court
converted Kitchen International’s motion to a motion for summary
judgment and dismissed the case. The court first determined that,
because it was sitting in diversity, it should apply
Massachusetts’s version of the Uniform Foreign Money-Judgments
Recognition Act (“Recognition Act”) to determine whether it should
enforce the Québec judgment.4 In order to enforce a judgment under
the Recognition Act, the court continued, the Québec court must
have been able to exercise personal jurisdiction over Evans.
At the beginning of its analysis, the district court
observed that “jurisdictions have split over whether to apply the
personal jurisdiction law of the rendering country, the forum
state, or both.” Evans Cabinet Corp. v. Kitchen Int’l, Inc., 584
F. Supp. 2d 410, 414 (D. Mass. 2008). Because the Supreme Judicial
Court of Massachusetts had not chosen between these views, the
district court decided that it would scrutinize the jurisdiction of
the Québec court under both the law of Québec and the law of
Massachusetts. Turning first to the law of Québec, the district
court noted that Kitchen International had attached the affidavit
of its Canadian attorney to establish that Québec’s exercise of
jurisdiction was appropriate. The district court determined that
the affidavit clearly established that Kitchen International had
4
Massachusetts’s version of the Recognition Act is codified
at Massachusetts General Laws chapter 235, § 23A. The statute is
reprinted in the attached appendix.
-5-
the right to institute a lawsuit in Québec. However, it found the
affidavit deficient on the issue of “whether the Quebec Superior
Court properly exercised personal jurisdiction over [Evans]
pursuant to article 3136 of the Civil Code of Quebec.” Id. at 415.
It noted, however, that the United States District Court for the
Southern District of New York had determined that the Québec court
could exercise personal jurisdiction over a defendant if the
contract at issue had been “‘concluded in Quebec or if the cause of
action arose in Quebec.’” Id. (quoting Canadian Imperial Bank of
Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1253 (S.D.N.Y.
1995) (emphasis in original)). Based on that authority, the
district court concluded that the Superior Court of Québec properly
had exercised personal jurisdiction over Evans pursuant to the law
of Québec.
The district court then turned to the law of
Massachusetts. The court first noted that Massachusetts courts had
interpreted the Commonwealth’s long-arm statute “as an assertion of
jurisdiction over the person to the limits allowed by the
Constitution of the United States.” Id. (internal quotation marks
omitted). The district court then held:
The Quebec Superior Court’s exercise of
personal jurisdiction over Plaintiff did not
contravene traditional notions of fair play
and substantial justice. Plaintiff had
several contacts with Quebec. All the orders,
communications, payments, correspondence and
dealings between [the] Parties occurred
through Defendant’s Montreal office.
-6-
Moreover, Parties agreed to create a product
showroom at Defendant’s Montreal office, which
was ultimately constructed. The purpose of
this showroom was to display Plaintiff’s
products to potential customers and sales
agents from Canada and New England. Because
under either Quebec or Massachusetts law the
Quebec Superior Court properly exercised
personal jurisdiction over Plaintiff,
Plaintiff’s argument that the Quebec default
judgment is not conclusive fails.
Id. at 416 (internal quotation marks omitted).
The court then turned to the question of whether Evans’s
claims were barred by the Québec judgment. The district court
determined that, although Massachusetts supplies the applicable res
judicata law, “a Massachusetts court must give a prior judgment the
same finality it would receive in the rendering jurisdiction.” Id.
at 417. Consequently, the court employed Québec rules of res
judicata to determine whether the default judgment should be given
preclusive effect. Id. (citing Québec civil code and a Supreme
Court of Canada decision). The court then concluded that Evans’s
suit was barred by these rules:
Here, the Quebec default judgment
precludes the relitigation of Plaintiff’s
claim. Because a default judgment is a final
judgment under the Recognition Act, the Quebec
default judgment qualifies for res judicata
treatment. First, this action involves the
same cause of action--breach of contract--as
the Quebec proceeding. Second, as both
Parties stipulated in open court, this action
involves the same construction projects as
were at issue in the Quebec proceeding.
Third, the parties to this action were the
same parties to the Quebec proceeding, with
-7-
the only difference being that Plaintiff here
was the defendant in Quebec.
Id. The district court, therefore, held that res judicata
precluded the present action and entered summary judgment for
Kitchen International.
II
DISCUSSION
A. Contentions of the Parties
Evans submits that the district court erred in holding
that its claim for damages for breach of contract or in quantum
meruit were barred because of the prior default judgment entered
against it by the Superior Court of Québec. In Evans’s view, the
Superior Court of Québec lacked personal jurisdiction over it, and,
consequently, the default judgment was unenforceable and not
subject to recognition by the district court. Noting that the
district court applied a summary judgment standard in determining
whether the Québec court properly exercised jurisdiction, Evans
submits that there are significant unresolved factual questions
concerning the nature of Evans’s relevant contacts with the
Province of Québec. Evans contends that, if the district court had
taken the facts in the light most favorable to its position, as the
district court must do in the context of summary judgment, there
would be no basis for concluding that the Québec court could
exercise personal jurisdiction over it.
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Kitchen International takes a decidedly different view.
It submits that the Québec judgment must be recognized and
precludes the present suit. Focusing on the summary judgment
motion, it notes that the district court characterized its evidence
that Evans had purposeful contacts with Québec as “overwhelming.”
See Evans Cabinet, 584 F. Supp. 2d at 416. By contrast, Evans
submitted only the affidavits of Mark Trexler, Evans’s CEO, who, in
Kitchen International’s view, could show no involvement in the
parties’ agreements.
B. Threshold Matters
We review de novo a grant of summary judgment. Summary
judgment is appropriate only when there is no genuine issue of any
material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). In assessing the merits of
such a motion, the court must consider the record in the light most
favorable to the party opposing the motion and must indulge in all
inferences favorable to that party. Kunelius v. Town of Stow, 588
F.3d 1, 8-9 (1st Cir. 2009). We also must keep in mind, however,
that the role of summary judgment is to “pierce the pleadings” and
to determine whether there is a genuine need for trial. Garside v.
Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). The moving party
must “put the ball in play” by averring the absence of any genuine
issue of fact. Id. at 48. Once the ball is in play, however, the
non-moving party must come forward with competent evidence to rebut
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the assertion of the moving party. Id.; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). Not every factual
discrepancy is sufficient to defeat a motion for summary judgment.
“[E]vidence that ‘is merely colorable or is not significantly
probative’” cannot defeat the motion. Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 822 (1st Cir. 1991) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).5
When sitting in diversity and asked to recognize and
enforce a foreign country judgment, federal courts tend to apply
5
Evans notes that, in determining the jurisdiction of the
Québec court, the district court did not employ any of the
methodologies set out in Boit v. Gar-Tec Products, Inc., 967 F.2d
671, 674-78 (1st Cir. 1992). See also Foster-Miller, Inc. v.
Babcock & Wilcox Canada, 46 F.3d 138, 144-49 (1st Cir. 1995). We
agree with Evans that the district court correctly proceeded in
this regard. The approaches set forth in Foster-Miller and in Boit
are designed to assist the district court in investigating the
basis of its own jurisdiction in the suit before it. They are
designed to reconcile the sometimes competing interests of fairness
to the parties and considerations of judicial economy that often
arise in that context.
Here, the jurisdictional issue is raised in a very different
context. Kitchen International’s motion to dismiss the
Massachusetts action did not attempt simply to bar the prosecution
of the current action in Massachusetts on the ground that the
district court lacked authority to adjudicate Evans’s present
contract claim there. Rather, it was a motion addressed to the
merits of the Massachusetts action. It sought a ruling that Evans
was precluded from obtaining the substantive relief that it sought
in the Massachusetts action because an earlier judgment obtained in
another court precluded any further litigation of the matter. As
part of that assertion, Kitchen International submits that the
earlier judgment was rendered by a court that had personal
jurisdiction over the defendant in that action, Evans. Evans takes
the opposite view. This is a merits dispute properly analyzed at
this stage of the proceedings by conventional summary judgment
analysis.
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the law of recognition and enforcement of the state in which they
sit, as required by Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938).6 However, some courts and commentators have suggested that
recognition and enforcement of foreign country judgments deserves
application of a uniform federal body of law because suits of this
nature necessarily implicate the foreign relations of the United
States.7 This question has not been decided definitively in this
6
See, e.g., Sarl Louis Feraud Int’l v. Viewfinder, Inc., 489
F.3d 474, 477-78 (2d Cir. 2007); Soc’y of Lloyd’s v. Siemon-Netto,
457 F.3d 94, 98-99 (D.C. Cir. 2006); Sw. Livestock & Trucking Co.
v. Ramon, 169 F.3d 317, 320 (5th Cir. 1999); Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir. 1996); Andes v.
Versant Corp., 878 F.2d 147, 149-50 (4th Cir. 1989); Ingersoll
Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir. 1987);
Bank of Montreal v. Kough, 612 F.2d 467, 469-72 (9th Cir. 1980);
Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440
(3d Cir. 1971); see also McCord v. Jet Spray Int’l Corp., 874 F.
Supp. 436, 437-38 (D. Mass. 1994); Restatement (Second) of Conflict
of Laws § 98 & cmt. c (rev. 1988).
7
See, e.g., Wilson v. Marchington, 127 F.3d 805, 813 (9th
Cir. 1997) (“We apply federal common law when a federal rule of
decision is necessary to protect uniquely federal interests.”
(internal quotation marks omitted)); Banque Libanaise Pour Le
Commerce v. Khreich, 915 F.2d 1000, 1003 n.1 (5th Cir. 1990)
(“Commentators have argued that the enforceability of a foreign
judgment in United States’ courts should [] be governed by
reference to a general rule of federal law.”); Tahan v. Hodgson,
662 F.2d 862, 868 (D.C. Cir. 1981) (“[N]otwithstanding Erie
Railroad Co. v. Tompkins, the issue seems to be national rather
than state.”); see also Restatement (Second) of Conflict of Laws
§ 98 cmt. c (“[I]t seems probable that federal law would be applied
to prevent application of a State rule on the recognition of
foreign nation judgments if such application would result in the
disruption or embarrassment of the foreign relations of the United
States.” (citing Zschernig v. Miller, 389 U.S. 429 (1968))); Ronald
A. Brand, Enforcement of Foreign Money-Judgments in the United
States: In Search of Uniformity and International Acceptance, 67
Notre Dame L. Rev. 253, 301-18 (1991) (suggesting that federal
common law may supplant state laws on the recognition and
-11-
circuit. In John Sanderson (Wool) Pty. Ltd. v. Ludlow Jute Co.,
569 F.2d 696, 697 n.1 (1st Cir. 1978), we left the question open,
noting that there was no reason to decide the matter under the
facts of that case because there was no appreciable difference
between the federal and the state rules. We shall follow the same
course in this case because we need not resolve the matter here.
Neither party has suggested that the district court ought to have
followed a rule other than that of Massachusetts. In any event,
even if the reciprocity rule of Hilton v. Guyot were applicable
under the facts of this case, the Massachusetts rule of recognition
enforcement of foreign country judgments).
Proponents of this view note that a federal rule of
recognition and enforcement of foreign country judgments may
already exist, as established by the Supreme Court in Hilton v.
Guyot, 159 U.S. 113 (1895). When a federal court is asked to
recognize and enforce a foreign country judgment in an action where
the court’s subject matter jurisdiction is based not on diversity,
but on 28 U.S.C. § 1331 or some other source of federal
jurisdiction, the federal rule of recognition and enforcement would
govern. See, e.g., Gordon & Breach Sci. Publishers S.A. v. Am.
Inst. of Physics, 905 F. Supp. 169, 178-79 (S.D.N.Y. 1995)
(applying the federal rule in a Lanham Act case). See generally
Brand, supra, at 262 n.32 (discussing non-diversity cases applying
federal rules).
According to Hilton, a diversity case from the pre-Erie era,
foreign judgments shall be recognized so long as the rendering
court afforded an opportunity for full and fair proceedings; the
court was of competent jurisdiction over the persons and subject
matter; the court conducted regular proceedings, which afforded due
notice of appearance to adversary parties; and the court afforded
a system of jurisprudence likely to secure an impartial
administration of justice between the citizens of its own country
and those of other countries. See 159 U.S. at 202-03. The Hilton
rule also requires reciprocity in the recognition and enforcement
of United States judgments from the jurisdiction of the rendering
court. Id. at 210, 226-27.
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and enforcement also contains a reciprocity requirement. See Mass.
Gen. Laws ch. 235, § 235A (subsection (7) of third paragraph); see
also John Sanderson, 569 F.2d at 697.
C. Massachusetts Law on the Recognition of Foreign Country
Judgments
With respect to the recognition of foreign country
judgments, Massachusetts, like many other states of the Union, has
enacted a version of the Recognition Act.8 The Massachusetts
version of that Act is codified at Massachusetts General Laws
chapter 235 § 23A.9 This section clearly requires that the
rendering court have personal jurisdiction over the defendant in
order for the resulting judgment to be recognized in Massachusetts.
8
The parties do not question that the Recognition Act
applies not only to enforcement actions but also to the recognition
of the foreign judgments to preclude further litigation. See 18B
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure
§ 4473 n.7 (“The inclusion of at least the core of claim preclusion
in Section 3 [of the Recognition Act] is noted [by
commentators].”); see also Brand, supra, at 265-66 & n.43
(“‘Whether a foreign judgment should be recognized, may be in
issue, however, not only in enforcement . . . but in other
contexts, for example where the defendant seeks to rely on a prior
adjudication of a controversy (res judicata).’” (quoting
Restatement (Third) of Foreign Relations Law § 481 cmt. b (1986))).
Of course, in the case of recognition to preclude further
litigation, once the foreign judgment is deemed entitled to
recognition under the Recognition Act, the extent of the foreign
judgment’s preclusive effect still must be determined. See
generally Restatement (Second) of Conflicts of Laws § 98 cmt. g
(rev. 1988). In this case, we need not address that issue because
Evans has waived any argument that the Québec judgment is entitled
to less res judicata effect than what the district court gave it.
See infra note 18.
9
See the statutory appendix to this opinion.
-13-
The statute does not state explicitly, however, whether the
correctness of that exercise of jurisdiction by the rendering court
ought to be determined according to the law of the rendering or the
enforcing jurisdiction. The district court suggested that there is
currently a division of authority on this question among the states
that have enacted a form of the Recognition Act.10 The district
10
Some states have concluded that the relevant question is
only whether personal jurisdiction would have been present had the
rendering court applied the law of the enforcing state. See, e.g.,
Genujo Lok Beteiligungs GmbH v. Zorn, 943 A.2d 573, 580 (Me. 2008)
(looking only to whether the foreign jurisdiction could have
established personal jurisdiction under Maine law); Sung Hwan Co.
v. Rite Aid Corp., 850 N.E.2d 647, 650-51 (N.Y. 2006) (interpreting
the term “personal jurisdiction” as used in an analogous New York
statute to mean “whether exercise of jurisdiction by the foreign
court comports with New York’s concept of personal jurisdiction”
and omitting any analysis of foreign law).
Other state courts instead have concluded that the proper
interpretation is to ascertain first whether the rendering court
could exercise personal jurisdiction over the defendant under its
own laws. They then look to whether the rendering court could have
exercised personal jurisdiction under the law of the forum state.
The purpose of this second step is to ensure that the rendering
court not only possessed jurisdiction at the time of judgment but
also that the rendering court’s procedures comported with United
States due process standards. Under this approach, both of these
requirements are necessary for a rendering court to have personal
jurisdiction over the defendant within the meaning of the
Recognition Act. See, e.g., Monks Own, Ltd. v. Monastery of Christ
in the Desert, 168 P.3d 121, 124-27 (N.M. 2007) (adopting the
approach of first ascertaining whether personal jurisdiction was
satisfied under the law of the rendering foreign jurisdiction and
then determining whether the judgment debtor’s applicable contacts
with the rendering jurisdiction satisfy the United States
constitutional due process minimum); Vrozos v. Sarantopoulos, 552
N.E.2d 1093, 1099-1100 (Ill. App. Ct. 1990) (reviewing a trial
court decision concluding that a Canadian court had personal
jurisdiction over the judgment debtor pursuant to United States
principles of due process and remanding for consideration of
whether the Canadian court also had personal jurisdiction pursuant
to Canadian law of service of summons). Federal courts applying
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court also noted that the Supreme Judicial Court of Massachusetts
has not yet spoken squarely on the matter.11
The district court, faced with the ambiguity about the
prevailing rule in Massachusetts with respect to the law governing
personal jurisdiction in the rendering court, explicitly declined
to resolve the matter and instead applied the governing rule of
both jurisdictions. On appeal, neither party has contended that
the district court erred in this regard. Nor has either party
argued that Massachusetts would apply any other rule. Under these
circumstances, we must conclude that the parties have waived any
reliance on another rule and that we must decide this case by
assessing the facts in light of the personal jurisdiction law of
both the Province of Québec and the Commonwealth of Massachusetts.
analogous state recognition acts also have adopted this approach.
See K & R Robinson Enters. Ltd. v. Asian Exp. Material Supply Co.,
178 F.R.D. 332, 339-42 (D. Mass. 1998). See generally Royal Bank
of Canada v. Trentham Corp., 491 F. Supp. 404, 408-10 (S.D. Tex.
1980), vacated by, 665 F.2d 515 (5th Cir. 1981). The American Law
Institute adopts this approach in its model federal statute on the
recognition of foreign money judgments. See American Law
Institute, Recognition and Enforcement of Foreign Judgments:
Analysis and Proposed Federal Statute § 3 & cmt. c (2006).
11
In Manches & Co. v. Gilbey, 646 N.E.2d 86 (Mass. 1995), the
Supreme Judicial Court decided that an English default judgment was
worthy of recognition in Massachusetts. It reviewed the English
judgment employing the criteria stated in the Massachusetts version
of the Recognition Act. However the court did not rule on the
question of whether the actual exercise of jurisdiction by the
English court ought to be measured solely by the law of England or
Massachusetts or both.
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1. The Jurisdiction of the Superior Court of Québec under the
Law of Québec
We turn, then, to the question of whether Kitchen
International established that the Superior Court of Québec
properly exercised personal jurisdiction over Evans.12 In the
district court, Kitchen International submitted the affidavit of a
Canadian attorney and argued that the Québec court properly
exercised jurisdiction under Article 3136 of the Québec Civil Code.
That provision states:
Even though a Québec authority has no
jurisdiction to hear a dispute, it may hear
it, if the dispute has a sufficient connection
with Québec, where proceedings cannot possibly
be instituted outside Québec or where the
institution of such proceedings outside Québec
cannot reasonably be required.
Civil Code of Québec, R.S.Q., ch. 64, art. 3136. From an
examination of the record in its entirety, it does not appear that
Kitchen International relied upon any other particular provision of
the Code. Moreover, the opinion of the district court appears to
have interpreted Kitchen International’s position as relying
entirely on this provision. The district court took the view,
albeit in conclusory fashion, that this provision applied because
“‘the contract [at issue] was concluded in Quebec or [] the cause
of action arose in Quebec.’” Evans Cabinet, 584 F. Supp. 2d at 415
12
The Superior Court of Québec is the court of general trial
jurisdiction in the Province of Québec. See F. Pearl Eliadis &
France Allard, The Legal System in Quebec, in Gerald Gall, The
Canadian Legal System 277 (5th ed. 2004).
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(quoting Canadian Imperial Bank, 899 F. Supp. at 1253 (emphasis and
first alteration in original)).
There are two problems with this analysis. First, the
Québec provision relied upon by Kitchen International, Article
3136, is clearly a provision that permits Québec courts to assume
personal jurisdiction over parties in exceptional cases when there
is no other available jurisdiction to which the parties may
litigate their dispute. See GreCon Dimter, Inc. v. J.R. Normand,
Inc., [2005] 2 S.C.R. 401 para 33.13 Such a situation is clearly
not the case here. The litigants are American corporations which
are amenable to suit in the state of their corporate domicile and,
with respect to particular transactions, in the states where they
have the requisite minimum contacts with the other party and with
the transaction at issue in the lawsuit. Because there obviously
are other forums quite able to assume jurisdiction over the
parties, we must conclude that Kitchen International has not
carried its burden of establishing that this provision can serve as
an adequate basis for jurisdiction over Evans in the courts of that
province. Cf. Bouchard v. Ventes de Vehicules Mitsubishi du Canada
Inc., [2008] Q.J. No. 13487, 2008 QCCS 6033 para. 22 (holding that
the statute does not apply because “all Respondents are domiciled
in countries with sophisticated court systems which apply the rule
13
Other provisions of the code, however, would have been
invoked more appropriately. See the statutory appendix to this
opinion.
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of law”). The second infirmity with the district court’s reliance
on Article 3136 is that Canadian Imperial Bank does not indicate
that the parties in that case, or the district court in that case,
were relying on this provision of Québec law. Nor does Canadian
Imperial Bank identify what provision of Québec law the court
believed supported an exercise of personal jurisdiction in that
case. 899 F. Supp. at 1253. Thus, simply invoking Canadian
Imperial Bank does not prove that the Superior Court of Québec
properly exercised personal jurisdiction over Evans pursuant to
Québec law.
Under these circumstances, we normally would have little
difficulty in concluding that Kitchen International had not met its
burden of establishing that the Québec court had personal
jurisdiction over Evans on the basis of Article 3136 and, moreover,
that Kitchen International had waived reliance on any other
provision of Québec law by its failure to raise any other provision
in the district court. However, several considerations make a
determination of waiver inappropriate under the circumstances of
this case. First, although relying on the wrong section of the
Code, the district court indicated to the parties that it believed
Québec’s Code authorized jurisdiction if the contract had been made
in Québec or if the cause of action had arisen there.
Additionally, Evans, far from relying on a waiver on the part of
Kitchen International, explicitly admits in its brief before this
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court that the Québec court could have had jurisdiction if the
contract had been concluded in Québec or if the cause of action
arose in Québec. Appellant’s Br. 16 (citing Canadian Imperial
Bank).14 Under these circumstances, we must conclude that Kitchen
International may be able to demonstrate that the Québec court was
authorized to exercise jurisdiction if it can demonstrate that a
contractual relationship was established with Evans in Québec or
that there was a breach of that agreement in Québec or that one of
the obligations arising from the contract was to be performed in
the Province. A provision of the Civil Code of Québec authorizes
the exercise of jurisdiction on these bases. See Civil Code of
Québec, R.S.Q., ch. 64, art. 3148.15 Under that provision, a Québec
court can exercise personal jurisdiction over a foreign defendant
if, inter alia, “a fault was committed in Québec, damage was
suffered in Québec, an injurious act occurred in Québec or one of
the obligations arising from a contract was to be performed in
Québec.” Id.
Relying on the affidavit of Ms. Shiell, an officer and
owner of Kitchen International, the district court took the view
that the authority of Québec to exercise jurisdiction over Evans
14
Read in context, it is clear that Evans makes this
statement in reference to the district court’s reading of Article
3136. However, there is no indication that Evans disagrees with
that reading or that it believes that Article 3136 is limited to
the extraordinary circumstance when there is no other viable forum.
15
See the statutory appendix to this opinion.
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had been established because all of the “‘orders, communications,
payments, correspondence and dealings’” between the parties had
taken place through Kitchen International’s Montreal office. Evans
Cabinet, 584 F. Supp. 2d at 416 (quoting Shiell Aff. at 3). The
district court also concluded that the parties had agreed to create
a product showroom to display Evans’s products to potential
customers and sales agents from New England and Canada. Id.
An examination of the record makes clear, however, that
the district court’s factual conclusions were not undisputed.
Through the affidavit and supplemental affidavit of its CEO, Mark
Trexler, Evans disputed that it had accepted in Québec any
contractual obligation with Kitchen International or had engaged,
through its representatives, in any business in Québec. Indeed, it
denied the existence of any agreement with Kitchen International
other than various agreements to sell the allegedly defective
material. Evans denied, explicitly, any joint venture to establish
a showroom in Montreal. Indeed, none of the affidavits make
explicit the precise relationship between the alleged showroom and
the specific sales of allegedly defective products by Evans. Under
these circumstances, it is clear that genuine issues of fact remain
to be resolved before the authority of Québec to exercise personal
jurisdiction over Evans can be established.
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2. The Application of Massachusetts Standards to the Superior
Court of Québec’s Exercise of Jurisdiction
At the outset, we pause to emphasize that the parties do
not dispute that the district court had personal jurisdiction over
them in this case. Here we review its determination of whether the
exercise of personal jurisdiction by the Superior Court of Québec
comported with Massachusetts and federal standards.
The exercise of personal jurisdiction over a defendant
such as Evans is governed by the Commonwealth’s long-arm statute
insofar as the exercise of jurisdiction also comports with the
requirements of the federal Due Process Clause. Caplan v. Donovan,
879 N.E.2d 117, 120 (Mass. 2008); see also Ticketmaster-New York,
Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994). The
Massachusetts long-arm statute permits the exercise of personal
jurisdiction when a person has transacted business within the
Commonwealth or when the person has contracted to supply services
or things within the Commonwealth. This conferral of jurisdiction
creates a specifically affiliating jurisdictional nexus;16 the
personal jurisdiction conferred is only with respect to litigation
arising out of the transaction within the Commonwealth, not with
respect to the defendant’s transactions that did not take place in
16
The district court understood Kitchen International to be
arguing that Evans had a specifically affiliating nexus with
Québec. Evans Cabinet, 584 F. Supp. 2d at 415. Kitchen
International does not dispute that understanding on appeal, and,
indeed, argues the case on that basis. Appellee’s Br. 13.
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the Commonwealth. Here, “[w]e may sidestep the statutory inquiry
and proceed directly to the constitutional analysis . . . because
the Supreme Judicial Court of Massachusetts has interpreted the
state’s long-arm statute as an assertion of jurisdiction over the
person to the limits allowed by the Constitution of the United
States.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole,
290 F.3d 42, 52 (1st Cir. 2002) (internal quotation marks omitted).
We have described in earlier cases these constitutional
requirements:
“First, the claim underlying the litigation
must directly arise out of, or relate to, the
defendant’s forum-state activities. Second,
the defendant’s in-state contacts must
represent a purposeful availment of the
privilege of conducting activities in the
forum state, thereby invoking the benefits and
protections of that state’s laws and making
the defendant’s involuntary presence before
the state’s courts foreseeable. Third, the
exercise of jurisdiction must, in light of the
Gestalt factors, be reasonable.”
Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144
(1st Cir. 1995) (quoting United Elec., Radio and Mach. Workers of
Am. v. 163 Pleasant Street Corp., 960 F.2d 1080, 1089 (1st Cir.
1992)). With respect to the “Gestalt factors,” we have observed
that,
In constitutional terms, the jurisdictional
inquiry is not a mechanical exercise. The
Court has long insisted that concepts of
reasonableness must inform a properly
performed minimum contacts analysis. This
means that, even where purposefully generated
contacts exist, courts must consider a panoply
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of other factors which bear upon the fairness
of subjecting a nonresident to the authority
of a foreign tribunal.
Ticketmaster-New York, 26 F.3d at 209 (internal quotation marks and
citations omitted). The Gestalt factors that a court will consider
include: “(1) the defendant’s burden of appearing, (2) the forum
state’s interest in adjudicating the dispute, (3) the plaintiff’s
interest in obtaining convenient and effective relief, (4) the
judicial system’s interest in obtaining the most effective
resolution of the controversy, and (5) the common interests of all
sovereigns in promoting substantive social policies.” Id.
In applying these standards, the district court held:
The Quebec Superior Court’s exercise of
personal jurisdiction over Plaintiff did not
contravene traditional notions of fair play
and substantial justice. Plaintiff had
several contacts with Quebec. All the orders,
communications, payments, correspondence and
dealings between Parties occurred through
Defendant’s Montreal office. Moreover,
Parties agreed to create a product showroom at
Defendant’s Montreal office, which was
ultimately constructed. The purpose of this
showroom was to display Plaintiff’s products
to potential customers and sales agents from
Canada and New England.
Evans Cabinet, 584 F. Supp. 2d at 416 (internal quotation marks
omitted). However, as we have noted in our earlier discussion of
the Québec jurisdictional statute, the affidavits supplied by the
parties were in conflict. Evans, through the affidavits of Mr.
Trexler, maintains that there were various contracts for the
purchase of the allegedly defective material, that they were all
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entered into by Evans at its Georgia plant and that Evans did no
business in Québec. It further claims that it had no agreement
with Kitchen International with respect to a showroom in Montreal
and therefore, at least implicitly, denies any connection between
such a showroom and its contracts to supply the allegedly defective
goods. Mark Trexler further stated in his affidavit that, in his
position as CEO of Evans, he had personal knowledge of Evans’s
contractual relationships and that he was unaware of any agreement
with Kitchen International to develop or construct a showroom.
Janet Shiell, one of the principals of Kitchen International, by
contrast, stated in her affidavit that there was an agreement with
Evans to create a showroom, and she produced paperwork purportedly
related to that agreement (but no document embodying the agreement
itself). Furthermore, she stated in a rebuttal affidavit that
there was no reason for Trexler to know about the agreement because
she (and others at Kitchen International) had dealings only with
Gatti,17 another employee of Evans. Kitchen International never
makes clear the exact relationship between the alleged joint
venture to create a showroom and the agreements to sell the
allegedly defective material.18
17
Who Paul Gatti is, and what his position is/was at Evans,
never was explained by either party in their submissions.
18
If the district court were to find that there was no
connection between the alleged agreement to establish a showroom in
Montreal and the agreements to supply the allegedly defective
material, Kitchen International’s argument for maintaining that the
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Furthermore, even if such an argument had been made
successfully,19 the district court’s analysis of jurisdiction still
Québec court had jurisdiction over the contracts to supply the
allegedly defective material would be weakened substantially. See
Lyle Richards Int’l v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir.
1997) (discussing application of the “arising from” clause in the
Commonwealth’s long-arm statute).
19
Absent the “showroom evidence,” Evans’s contacts with
Canada are limited to its contractual relationship with Kitchen
International for the supply of cabinetry to various business sites
in the United States. In Burger King Corp. v. Rudzewicz, 471 U.S.
462 (1985), the Court explained the “purposeful availment”
requirement as it applies to a contractual relationship. It
stated:
This purposeful availment requirement ensures that
a defendant will not be haled into a jurisdiction solely
as a result of random, fortuitous, or attenuated
contacts, or of the unilateral activity of another party
or a third person. Jurisdiction is proper, however,
where the contacts proximately result from actions by the
defendant himself that create a substantial connection
with the forum State. Thus where the defendant
deliberately has engaged in significant activities within
a State, or has created continuing obligations between
himself and residents of the forum, he manifestly has
availed himself of the privilege of conducting business
there, and because his activities are shielded by the
benefits and protections of the forum’s laws it is
presumptively not unreasonable to require him to submit
to the burdens of litigation in that forum as well.
Jurisdiction in these circumstances may not be
avoided merely because the defendant did not physically
enter the forum State. Although territorial presence
frequently will enhance a potential defendant’s
affiliation with a State and reinforce the reasonable
foreseeability of suit there, it is an inescapable fact
of modern commercial life that a substantial amount of
business is transacted solely by mail and wire
communications across state lines, thus obviating the
need for physical presence within a State in which
business is conducted. So long as a commercial actor’s
efforts are purposefully directed toward residents of
another State, we have consistently rejected the notion
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is deficient. Absent from the district court’s analysis is any
discussion of the “Gestalt factors,” which, we have made clear, a
court must consider to determine the fairness of subjecting the
defendant to a foreign jurisdiction.
that an absence of physical contacts can defeat personal
jurisdiction there.
Id. at 475-76 (internal quotation marks, citations and emphasis
omitted).
In Burger King, although the defendant had no physical ties to
the state of Florida, the Court determined nonetheless that he had
established the necessary minimum contacts with that state to be
hauled into court there. It noted that, in determining that there
was a want of jurisdiction, the appellate court had “overlook[ed]
substantial record evidence indicating that Rudzewicz most
certainly knew that he was affiliating himself with an enterprise
based primarily in Florida.” Id. at 480. It stated:
The contract documents themselves emphasize that Burger
King’s operations are conducted and supervised from the
Miami headquarters, that all relevant notices and
payments must be sent there, and that the agreements were
made in and enforced from Miami. Moreover, the parties’
actual course of dealing repeatedly confirmed that
decisionmaking authority was vested in the Miami
headquarters and that the district office served largely
as an intermediate link between the headquarters and the
franchisees. When problems arose over building design,
site-development fees, rent computation, and the
defaulted payments, Rudzewicz and MacShara learned that
the Michigan office was powerless to resolve their
disputes and could only channel their communications to
Miami. Throughout these disputes, the Miami headquarters
and the Michigan franchisees carried on a continuous
course of direct communications by mail and by telephone,
and it was the Miami headquarters that made the key
negotiating decisions out of which the instant litigation
arose.
Id. at 480-81 (internal citations omitted).
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Because the district court resolved material issues of
fact against Evans, the nonmoving party, the judgment must be
reversed. The controverted issues of fact that Evans has raised
must be resolved. Accordingly, the judgment of the district court
is reversed and the case is remanded for proceedings consistent
with this opinion.20
REVERSED and REMANDED
20
Evans did not argue, until the reply brief, that, even if
the district court correctly had analyzed the jurisdictional issue,
it nevertheless erred in holding that its (Evans’s) claims were
barred by res judicata because the claim before the district court
is different from the claim or cause of action before the Québec
court. Because this argument was not raised in its opening brief,
it is waived. Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st
Cir. 1990) (“[B]ecause the argument was not made to the district
court or in appellant’s opening brief, surfacing only in his reply
brief, it has been waived.”).
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Statutory Appendix
Massachusetts General Laws Chapter 235, § 23A
Except as hereinafter provided, any foreign
judgment that is final and conclusive and
enforceable where rendered even though an
appeal therefrom is pending or it is subject
to appeal shall be conclusive between the
parties to the extent that it grants or denies
recovery of a sum of money. The foreign
judgment shall be enforceable in the same
manner as the judgment of a sister state which
is entitled to full faith and credit.
A foreign judgment shall not be conclusive if
(1) it was rendered under a system which does
not provide impartial tribunals or procedures
compatible with the requirements of due
process of law; (2) the foreign court did not
have personal jurisdiction over the defendant;
or (3) the foreign court did not have
jurisdiction over the subject matter.
A foreign judgment shall not be recognized if
(1) the defendant in the proceedings in the
foreign court did not receive notice of the
proceedings in sufficient time to enable him
to defend; (2) the judgment was obtained by
fraud; (3) the cause of action on which the
judgment is based is repugnant to the public
policy of this state; (4) the judgment
conflicts with another final and conclusive
judgment; (5) the proceedings in the foreign
court were contrary to an agreement between
the parties under which the dispute in
question was to be settled otherwise than by
proceedings in that court; (6) in the case of
jurisdiction based only on personal service,
the foreign court was a seriously inconvenient
forum for the trial of the action; or (7)
judgments of this state are not recognized in
the courts of the foreign state.
A foreign judgment shall not be refused
recognition for lack of personal jurisdiction
if (1) the defendant was served personally in
the foreign state; (2) the defendant
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voluntarily appeared in the proceedings, other
than for the purpose of protecting property
seized or threatened with seizure in the
proceedings or of contesting the jurisdiction
of the court over him; (3) the defendant prior
to the commencement of the proceedings had
agreed to submit to the jurisdiction of the
foreign court with respect to the subject
matter involved; (4) the defendant was
domiciled in the foreign state when the
proceedings were instituted, or, being a body
corporate had its principal place of business,
was incorporated, or had otherwise acquired
corporate status, in the foreign state; (5)
the defendant had a business office in the
foreign state and the proceedings in the
foreign court involved a cause of action
arising out of business done by the defendant
through that office in the foreign state; or
(6) the defendant operated a motor vehicle or
airplane in the foreign state and the
proceedings involved a cause of action arising
out of such operation.
The courts of this state may recognize other
bases of jurisdiction.
If the defendant satisfies the court either
that an appeal is pending or that he is
entitled and intends to appeal from the
foreign judgment, the court may stay the
proceedings until the appeal has been
determined or until the expiration of a period
of time sufficient to enable the defendant to
prosecute the appeal.
This section shall not prevent the recognition
of a foreign judgment in situations not
covered by this section and its provisions.
As used in this section (1) “foreign state”
means any governmental unit other than the
United States, or any state, district,
commonwealth, territory, insular possession
thereof, or the Panama Canal Zone, the Trust
Territory of the Pacific Islands, or the
Ryukyu Islands; (2) “foreign judgment” means
any judgment of a foreign state granting or
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denying recovery of a sum of money, other than
a judgment for taxes, a fine or other penalty,
or a judgment for support in matrimonial or
family matters.
Civil Code of Québec, R.S.Q., ch. 64, art. 3148
In personal actions of a patrimonial nature, a Québec
authority has jurisdiction where
(1) the defendant has his domicile or his
residence in Québec;
(2) the defendant is a legal person, is not
domiciled in Québec but has an establishment
in Québec, and the dispute relates to its
activities in Québec;
(3) a fault was committed in Québec, damage
was suffered in Québec, an injurious act
occurred in Québec or one of the obligations
arising from a contract was to be performed in
Québec;
(4) the parties have by agreement submitted to
it all existing or future disputes between
themselves arising out of a specified legal
relationship;
(5) the defendant submits to its jurisdiction.
However, a Québec authority has no
jurisdiction where the parties, by agreement,
have chosen to submit all existing or future
disputes between themselves relating to a
specified legal relationship to a foreign
authority or to an arbitrator, unless the
defendant submits to the jurisdiction of the
Québec authority.
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