ROBIN LYONS & another [Note 1] vs. JOHN A. DUNCAN, THIRD (and a companion case [Note 2]).

KATZMANN, J. This appeal stems from two medical malpractice actions brought in Superior Court by Robin Lyons and Paul Lyons, individually and on behalf of their minor son, Michael Lyons, against Dr. John A. Duncan, III (defendant or Dr. Duncan). In the first case, summary judgment was granted for the defendant for lack of personal jurisdiction under the Massachusetts long-arm statute. The second case was dismissed pursuant to Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008). The plaintiffs now appeal from both decisions. We affirm.

Background. On December 4, 2003, Michael Lyons suffered a stroke. He was eventually transferred to Hasbro Children's Hospital in Providence, Rhode Island, where he was diagnosed with Moyamoya disease, which affects the circulation of blood in the brain. While at Hasbro Children's Hospital, Michael came under the care of Dr. Duncan, who performed a procedure known as encephalodural arteriosynangiosis on the right side of Michael's brain.

Following the surgery, Dr. Duncan had two follow-up visits with Michael in Providence. After each of these visits, Dr. Duncan mailed a letter to Michael's pediatrician in Massachusetts. In the first letter, dated December 29, 2003, Dr. Duncan described the facts leading up to the diagnosis and surgery, detailed the treatment Michael had received, discussed his condition postsurgery, and specified that Michael would return for another follow-up visit. In the second letter, dated January 26, 2004, Dr. Duncan summarized Michael's previous treatment, described his observations of the patient's condition, and stated that the plan was for Michael's parents to meet with him that week to "discuss their questions and concerns and to discuss the plan of management."

In June, 2004, Michael suffered a second stroke. He was taken to Children's Hospital in Boston, where surgery was eventually performed on both sides of his brain using the pial synangiosis procedure.

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In 2007, the plaintiffs filed a malpractice action in Massachusetts against Dr. Thomas Connolly, Michael's pediatrician, and Needham Pediatrics, P.C. [Note 3] In 2010, the plaintiffs amended their 2007 complaint to add Dr. Duncan as a defendant, alleging negligence, lack of informed consent, and claims on behalf of both parents. [Note 4] They subsequently filed a second motion to amend the complaint, seeking to add a claim of negligent misrepresentation against Dr. Duncan based on the two letters that he mailed to Michael's pediatrician. This motion was denied after the judge found that the proposed amendment was "futile" because the contents of the letters "cannot make out a claim of negligent misrepresentation." The same judge granted the defendant's motion for summary judgment after finding that the court lacked personal jurisdiction over the defendant.

In November, 2010, after the judge denied the second motion to amend but before she ruled on the motion for summary judgment in the 2007 case, the plaintiffs [Note 5] brought another malpractice action in Massachusetts against Dr. Duncan. In addition to allegations of negligence and lack of informed consent, the plaintiffs also included the same claim for negligent misrepresentation they had attempted to include in the 2007 case by means of their second motion to amend. A different Superior Court judge granted the defendant's motion to dismiss for several reasons, including "existence of the prior action in 2007 case."

Discussion. 1. 2007 case. The plaintiffs' arguments for personal jurisdiction under the Massachusetts long-arm statute, G. L. c. 223A, § 3, rely on the letters that the defendant mailed from Rhode Island to Michael's pediatrician in Massachusetts. Only the negligent misrepresentation claim relates to these letters. As noted above, the plaintiffs' second motion to amend their 2007 case to include the negligent misrepresentation claim was denied, and the plaintiffs never appealed from that denial. Thus, the

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negligent misrepresentation claim never became part of the 2007 case. The plaintiffs never raised any arguments either in Superior Court [Note 6] or on appeal to explain why Massachusetts courts should have personal jurisdiction over their other claims against Dr. Duncan. The plaintiffs' 2007 claims arise from medical treatment provided by a nonresident [Note 7] at a hospital outside the Commonwealth, and we discern no basis for personal jurisdiction in relation to these claims. See Bradley v. Cheleuitte, 65 F.R.D. 57, 59-61 (D. Mass. 1974).

Moreover, even if the negligent misrepresentation claim had been added to the 2007 case, Massachusetts courts still would not have personal jurisdiction over Dr. Duncan under either of the theories advanced by the plaintiffs pursuant to the Massachusetts long-arm statute. [Note 8] The two letters that Dr. Duncan mailed to Michael's pediatrician in Massachusetts and the fact that Dr. Duncan was licensed to practice medicine in Massachusetts are inadequate to constitute "transacting any business in this commonwealth" under G. L. c. 223A, § 3(a), where there is no evidence that Dr. Duncan actually practiced medicine in Massachusetts. See Morris v. UNUM Life Ins. Co. of America, 66 Mass. App. Ct. 716 , 721-722 (2006) (two telephone calls and two letters from another State to Massachusetts "amounted to a single, isolated consultation with a Massachusetts physician

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. . . [and] were not sufficiently substantial or continuous to confer personal jurisdiction in Massachusetts" under § 3[a]). Furthermore, where the plaintiffs have only alleged negligent misrepresentation with regard to Dr. Duncan's letters, the plaintiffs cannot succeed in establishing jurisdiction under G. L. c. 223A, § 3(c), which distinguishes between intentional and negligent acts. Bradley, 65 F.R.D. at 60 (no personal jurisdiction under § 3[c] where nonresident doctor's out-of-State actions were at most negligent). See Burtner v. Burnham, 13 Mass. App. Ct. 158 , 164 & n.6 (1982) (finding fraudulent representations made by telephone and mail were intentional acts sufficient to establish jurisdiction under § 3[c] and declining to decide whether negligent actions would be sufficient for jurisdictional purposes); Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 664 (1st Cir. 1972) ("there can be no constitutional objection to Massachusetts asserting jurisdiction over the out-of-state sender of a fraudulentmisrepresentation" [emphasis added]). [Note 9]

Thus, for the reasons stated above, we affirm the Superior Court judge's allowance of the defendant's motion for summary judgment in the 2007 case due to the court's lack of personal jurisdiction.

2. 2010 case. "Rule 12(b)(9)[ [Note 10]] provides for the dismissal of a second action in which the parties and the issues are the same

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as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting." M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337 , 339 (2004) (citation omitted).

Here the relevant parties were the same in both cases, and the claims were identical to those the plaintiffs brought (or attempted to bring) against the defendant in the previous action. Moreover, "[i]t is apparent from the face of the present complaint . . . that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action." Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 346 (2004), cert. denied, 543 U.S. 1150 (2005), quoting from Keen v. Western New England College, 23 Mass. App. Ct. 84 , 85-87 (1986).

The 2007 case was "pending" within the meaning of rule 12(b)(9) for two reasons. First, the judge had not yet issued a decision on the summary judgment motion in the 2007 case at the time the defendant filed his motion to dismiss in the 2010 case. [Note 11] Contrast Mongeau v. Boutelle, 10 Mass. App. Ct. 246 , 249 (1980) (case not "pending" where judgment entered in prior action before filing of motion to dismiss). The 2007 case was also "pending" because, at all times relevant to the 2010 case, a viable appeal existed in the 2007 case after the motion for summary judgment was granted. [Note 12] See Keen, 23 Mass. App. Ct. at 85 n.2, and cases cited; Okoli v. Okoli (No. 2), ante 381, 385 (2012).

The plaintiffs, citing Hurwitz v. Bocian, 41 Mass. App. Ct. 365 , 368-369 (1996), argue that the judge in the 2010 case was

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not required to grant the defendant's motion to dismiss after another judge denied their second motion to amend in the 2007 case. The judge did not err here in dismissing the 2010 case pursuant to rule 12(b)(9) where the judge in the 2007 case reached the merits of the plaintiffs' negligent misrepresentation claim by finding the plaintiffs' second motion to amend futile. Contrast Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512 , 517 n.6 (2003) (purpose of rule 12[b][9] -- to prevent claim splitting -- would not be served by dismissing separate civil action where counterclaims in summary judgment case "were dismissed without reaching their substantive merits"). The plaintiffs could have appealed the denial of their second motion to amend in the 2007 case but chose not to do so, opting instead to simply file another complaint. They had an opportunity to litigate their negligent misrepresentation claims in the 2007 case but failed to do so. Zora Enterprises, Inc., 61 Mass. App. Ct. at 345-347 & n.11. Contrast Striar v. Cooper, 6 Mass. App. Ct. 841 , 841-842 (1978) (dismissal of second action under rule 12[b][9] together with refusal to allow amendment in first action would leave plaintiffs without opportunity to litigate their "separate and distinct" claim). The 2010 case was properly dismissed pursuant to rule 12(b)(9).

Conclusion. The summary judgment in the 2007 case is affirmed, as is the judgment of dismissal in the 2010 case.

So ordered.