DANIEL J. FERN & others [Note 1] vs. MEL M. IMMERGUT [Note 2] & others. [Note 3]

DUFFLY, J. The remaining partners of a five-member Massachusetts law firm, Fern, Anderson, Donahue, Jones & Sabatt, P.A. (Fern), seek indemnification or contribution from a New York law firm, Milbank, Tweed, Hadley & McCloy (Milbank). Fern had previously settled a claim against it made by Milbank's New York client, Kansallis Finance, Ltd. (Kansallis), a Finnish corporation with a New York office. In the complaint before us, Fern alleges that Milbank was negligent in its representation of Kansallis. Fern appeals from the dismissal of this complaint for lack of jurisdiction. We conclude that the jurisdictional facts of this case do not warrant the extension of personal jurisdiction over Milbank.

The prior litigation against Fern, that did not involve any of the defendants in the instant action, provides context but no relevant detail. We briefly set forth, in the margin, facts related to that action. [Note 4] After settling that lawsuit, Fern filed the instant action alleging that Milbank had been engaged by Kansallis to represent its interest in connection with a loan transaction that required, among other things, an opinion letter. According to the complaint, "In that connection, Milbank sought personal guarantees from Jones [a Massachusetts resident]; had numerous

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contacts with Jones in the form of telephone calls and correspondence to and from Massachusetts . . . and sent a draft of the opinion letter to Jones in Massachusetts." [Note 5] Fern's claim appears to be premised on the theory that Milbank should have been on notice of irregularities in the loan transaction when it received the opinion letter issued on Fern's letterhead, because the name of the person signing the letter was not on the letterhead as a member of the firm. Thus alerted to this (and other implied irregularities), Milbank was negligent in its representation of Kansallis for failing to make further inquiries that, presumably, would have uncovered the scheme in time to prevent the losses suffered by Kansallis.

Fern asserts that the long-arm statute, G. L. c. 223A, § 3(a), confers personal jurisdiction over Milbank in connection with this claim. We conclude that application of the jurisdictional facts to both the "arising from" requirements of § 3(a) and the constitutionally based principle of "relatedness" do not support personal jurisdiction. [Note 6]

Prima facie showing. When, as here, the assertion of in personam jurisdiction has been challenged under Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974), a plaintiff must make a prima facie showing of evidence that, if credited, would be sufficient to support findings of all facts essential to personal jurisdiction. "[T]he plaintiffs bear the burden of establishing sufficient facts on which to predicate jurisdiction over the defendant." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1 , 3 (1979) (Good Hope Indus.). See also Stanton v. AM Gen. Corp., 50 Mass. App. Ct. 116 , 117 (2000). "In resolving the issue [of whether the plaintiff has established its burden], we accept as true only the uncontroverted facts as they appear in the materials which were before the Superior Court judge." Heins v. Wilhelm

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Loh Wetzlar Optical Mach. GmbH & Co. KG, 26 Mass. App. Ct. 14 , 16 (1988). [Note 7]

Based on these considerations, the jurisdictional facts on which we will permit Fern to rely in support of its opposition to Milbank's motion to dismiss consist of Milbank's having made a few brief telephone calls to Jones in Massachusetts and sending Jones three letters containing drafts of an opinion letter and two forms to be executed by others. [Note 8] "[T]he question to be

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decided is whether [Fern] has presented uncontroverted jurisdictional facts sufficient 'to survive due process scrutiny' and 'to satisfy at least one of the statutory prerequisites.' " C.H. Babb Co. v. A.M. Mfg. Co., 14 Mass. App. Ct. 291 , 293 (1982), quoting from Good Hope Indus., supra at 6.

Arising from. Fern claims that personal jurisdiction over Milbank is proper under G. L. c. 223A, § 3(a), pursuant to which jurisdiction is exercised over a person "as to a cause of action in law or equity arising from the person's transacting any business in the Commonwealth." [Note 9] To qualify as jurisdiction-inducing activity, Milbank's forum contacts must have given

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rise to Milbank's alleged malpractice. See Good Hope Indus., 378 Mass. at 6.

The analysis requires that the relationship of the jurisdictional facts present in this case be considered in light of the claim that Milbank was negligent in its representation of its New York client by failing to be alert to irregularities that presented themselves when Milbank received an opinion letter on Fern's letterhead that was not signed by a person listed thereon as a partner. It is not alleged that language proposed by Milbank to be included in Fern's opinion was deficient and thereby contributed to Kansallis's losses, nor that Milbank issued a directive to Fern to execute the opinion letter regardless of the truth or falsity of the proposed language. And, although the complaint refers to "irregularities" in the loan transaction, there is no claim in the complaint, the plaintiff's brief, or in any affidavit or other document in the record, that Milbank was aware of irregularities, or had information prior to the closing of the transaction that should have alerted it to irregularities, other than those that might be gleaned from Fern's executed opinion letter. [Note 10]

We conclude that Milbank's preparation of a draft of an opinion that was to be executed by Fern, and brief contacts with Fern's partner in Massachusetts for the purpose of securing Fern's opinion, do not give rise to personal jurisdiction over Milbank in Massachusetts. A claim of negligent representation that turns on what Milbank should have known when it received Fern's opinion (or other documents) at its offices in New York has only a peripheral relationship to the isolated jurisdictional contacts present in this case. The fact that Milbank prepared (as it was undoubtedly appropriate to do) a draft suggesting the language that would give appropriate assurances to its client adds no heft to the contacts. That the assurances turned out to

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be empty was not the result of Milbank's action in sending the draft.

The present case is similar in its jurisdictional facts to those of Telco Communications, Inc. v. New Jersey St. Fireman's Mut. Benevolent Assn., 41 Mass. App. Ct. 225 , 231 (1996), where Justice Kaplan stated, in connection with a breach of contract claim, that telephone and other communications and the faxing of drafts of the contract to Massachusetts did not confer jurisdiction under § 3(a). See also Stanton v. AM Gen. Corp., 50 Mass. App. Ct. at 118-119 (plaintiff Massachusetts trucker employed by separate transport company, was injured on Indiana company's site when he delivered parts; that Indiana company purchased parts from Massachusetts business failed to establish that it was "doing business in Massachusetts and that [plaintiff's] injury grew out of that business."); LTX Corp. v. Daewoo Corp., 979 F. Supp. 51, 55 (D.Mass. 1997) (interpreting § 3(a), no jurisdiction over Korean companies in action for breach of contract by Massachusetts corporation where contract was not signed in Massachusetts and in-State activity did not give rise to breach of contract action). [Note 11] Because there is no showing of a sufficient nexus between Milbank's contacts with Massachusetts and the claim that it negligently represented Kansallis, we conclude that jurisdiction is lacking under § 3(a). Because we disagree with the dissent as to this issue, we proceed to discuss a further basis to decline jurisdiction.

Relatedness. Because the Massachusetts long-arm statute has been construed to "function[] as an assertion of jurisdiction over the person to the limits allowed by the [Federal] Constitution," (citation omitted), Tatro v. Manor Care, Inc., 416 Mass. 763 , 771 (1994), in the final analysis, the question is whether subjecting Milbank to jurisdiction is permissible under the relatedness factor of the due process analysis described in Sawtell

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v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995). "The relatedness requirement is not met merely because a plaintiff's cause of action arose out of the general relationship between the parties; rather, the action must directly arise out of the specific contacts between the defendant and the forum state." Id. at 1389 (emphasis supplied). The court in Sawtell concluded that jurisdiction was lacking over a Virginia law firm in a malpractice suit against it brought in New Hampshire. See id. at 1384-1390. Although the law firm sent fifteen letters and made numerous telephone calls to the plaintiffs in the forum, only one letter (recommending settlement) related to the claim. See id. at 1386, 1389. In Philips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 291 (1st Cir. 1999), a Florida fiduciary sent letters and annual checks, and paid one visit, to a New Hampshire private school. The school claimed it had been short-changed and argued that jurisdiction over the fiduciary was appropriate on the strength of the foregoing contacts and because "the consequences of the relationship involved contacts with New Hampshire" (emphasis in original). Ibid. Rejecting this argument, and noting that the foreseeability of causing injury in another State is not alone sufficient to confer jurisdiction, the court said: "the receipt of payment in New Hampshire could not conceivably have caused the breach of the duty of loyalty of which Exeter complains" (emphasis in original). Ibid.

The foregoing observation applies with equal force to the facts of this case: the sending of a draft letter and forms to Massachusetts could not conceivably have caused the alleged negligent representation consisting of Milbank's failure to discover that the opinion letter issued by Fern was false. See Massachusetts Sch. of Law at Andover, Inc. v. American Bar Assn., 142 F.3d 26 (1st Cir. 1998). [Note 12] See also Austad Co. v. Pennie &

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Edmonds, 823 F.2d 223 (8th Cir. 1987) [Note 13]; Nash Finch Co. v. Preston, 867 F. Supp. 866 (D.Minn. 1994). [Note 14]

We therefore conclude that Milbank's forum contacts were insufficiently related to the cause of action to confer personal jurisdiction, and affirm the order of dismissal. [Note 15]

Judgment affirmed.

BECK, J. (dissenting). The majority describes the claim of the remaining partners of the law firm of Fern, Anderson, Donahue, Jones & Sabatt, P.A. (Fern), against Milbank, Tweed, Hadley & McCloy (Milbank) as based on Milbanks's failure "to be alert to irregularities that presented themselves when Milbank received an opinion letter on Fern's letterhead that was not signed by a person listed thereon as a partner." Ante at 582.

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There was more to it than that. Fern contends that Milbank "committed negligence not merely by inadequately inspecting the final version of the opinion letter [in New York], but by deliberately seeking the opinion letter from, and requesting execution of the letter by, a Massachusetts principal [Fern's partner, Stephen C. Jones] in the loan transaction" involving a Massachusetts partnership. Because I believe that Fern's claim involves sufficient Massachusetts contacts to warrant personal jurisdiction over Milbank, I respectfully dissent.

Although there were at least three documents that Milbank sent to Jones in Massachusetts for execution, it is the opinion of counsel letter that is key. The Milbank associate assigned to the Kansallis Finance, Ltd. (Kansallis), matter acknowledged that after sending Jones a draft of the proposed opinion letter her client required, she sent Jones "a revised draft of the opinion letter . . . [for him] to render." Jones then sent the opinion letter back to Milbank on Fern letterhead. (The unverified complaint states that Jones had the text of the revised letter Milbank sent to him "re-typed verbatim" on the Fern letterhead. Milbank does not dispute this assertion.) Milbank also sent Jones for execution a partnership acknowledgment of the Maine and Massachusetts partnerships, and a form of partnership authorization.

Although not a contract, see Carlson Corp. v. University of Vt., 380 Mass. 102 , 105 (1980) (physically signing a contract in Massachusetts is transacting business here), the execution of the opinion letter was "an essential and critical stage," ibid., in a significant loan transaction with other Massachusetts connections. Cf. Johnson v. Witlowski, 30 Mass. App. Ct. 697 , 713 (1991) (signing document in Massachusetts amending trust by appointing signor as trustee "purposeful and meaningful business transaction"); Haddad v. Taylor, 32 Mass. App. Ct. 332 , 333-335 (1992) (telephone negotiations concerning sale of real property in Massachusetts and sending of draft purchase and sale agreement into Commonwealth constituted transacting business).

In my view, Fern's cause of action arose to a substantial extent from Milbank's contacts with Massachusetts. Milbank not only drafted and sent into Massachusetts documents critical

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to the purported loan transaction, it continued to deal with Jones in Massachusetts without further inquiry, despite information in documents mentioned in the opinion letter it drafted that Jones was wearing too many hats, including his role as counsel to at least one of the partnerships, as well as his role as a guarantor. This conduct contributed to Kansallis's losses for which Fern seeks to recover here, and satisfies the "arising from" requirement under our long-arm statute. See Tatro v. Manor Care, Inc., 416 Mass. 763 , 771 (1994).

The "arising from" requirement in our long-arm statute "corresponds" to the relatedness requirement under the due process clause. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144-145 & n.3 (1st Cir. 1995) (evaluating relatedness requirement reduces to whether the plaintiff's claim arises from the defendant's minimum contacts). Although the United States Court of Appeals for the First Circuit has taken "the restrictive proximate cause approach" to the necessary relationship, Tatro v. Manor Care, Inc., 416 Mass. at 771, the court has also tempered its position. See Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 715-716 (1st Cir. 1996), cert. denied 520 U.S. 1155 (1997) (espousing flexible approach loosening proximate cause standard when circumstances dictate). Milbank's apparent failure to examine the implications of the documents it sent into Massachusetts for execution and its continued reliance on Jones to execute the opinion letter it drafted and sent to Massachusetts was a "meaningful link" between Milbank's contacts with Massachusetts and the harm Kansallis, and ultimately Fern, suffered. See id. at 716.

Having concluded that Milbank's negligence was related to its contacts with Massachusetts, I must consider the due process requirement of purposeful availment. See Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (setting out due process factors). The "cornerstones upon which the concept of purposeful availment rest are voluntariness and foreseeability." Sawtelle v. Farrell, supra at 1391. The "focus is on whether a defendant has 'engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just, or reasonable.' " Ibid., quoting from Rush v. Savcheck, 444 U.S. 320, 329 (1980).

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I think Milbank's contacts with Massachusetts were more than random or fortuitous. As Milbank averred, "It is customary in a significant transaction for the Lender to request that the Borrower furnish to it as part of the closing package, an Opinion letter from [the] Borrower's counsel opining to issues such as authority to act, enforceability of documents, title and other issues." When it is the borrower's counsel who drafts an opinion letter and sends it to the lender's counsel, such a contact may well be more "random" and fortuitous" than "voluntary." Here, however, it was Milbank, counsel for the lender, that drafted the letter, as well as other critical documents. That action, and the decision to continue relying on Jones without confirming his bona fides, was not random; it was deliberate. See Fitzgibbon & Glazer, Legal Opinions §§ 1.1, 1.8 (2d ed. 2001) (negotiation and preparation of opinion letter is exercise in professionalism in which lawyers on both sides should work together to reach sensible result); Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of the Section of Business Law, American Bar Association, 47 Business Lawyer 167, 226-227 (1991) (stressing importance of negotiation and collaboration in production of an opinion letter).

In these circumstances, it "was reasonably foreseeable, if not foreseen, rather than a surprise," Haddad v. Taylor, 32 Mass. App. Ct. at 336, that if the documents were faulty, as they were, Milbank might be involved in litigation in Massachusetts, where Milbank sent the letter for execution and where the loan proceeds were distributed to a Massachusetts partnership. See ibid. Contrast Nash Finch Co. v. Preston, 867 F.Supp. 866, 868-869 (D. Minn. 1994) (no Minnesota jurisdiction over Kentucky lawyer who sent opinion letter to Minnesota where letter was executed in Kentucky and loan proceeds were distributed there).

"Once it has been decided that a defendant purposely established minimum contacts . . . these contacts may be considered in light of other factors." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). These other factors favor the Massachusetts forum Fern seeks. The burden on Milbank, a large New York law firm with an international practice, to litigate in Massachusetts should not be unduly onerous; Massachusetts has an interest in adjudicating the relative responsibilities

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of a Massachusetts law firm in executing an opinion of counsel letter forwarded to it by Milbank. See Burger King Corp., supra at 477. Finally, the interstate aspects appear to be either evenly balanced or not relevant. I would reverse the judgment of the Superior Court, recognizing that Milbank may not be precluded from renewing their jurisdictional challenge if appropriate. See Daynard v. Ness, Motley, Loadhalt, Richardson & Poole, 290 F.3d 42, 63 (1st Cir. 2002).