Volume 1973
Article 19
1-1-1973
Chapter 16: Civil Procedure and Practice
John J. Curtin Jr.
William G. Young
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CHAPTER 16
Civil Procedure and Practi¢e
JOHN J. CURTIN, JR.• AND WILLIAM G, YOuNG••
§16.1. Opening statement: Risks and oppo~ties. During the Survey year conduct of counsel in presenting an open ng statement to a jury was challenged on appeal in several cases. In Sil a v. Pereira,l the Appeals Court overruled exceptions to the denial of stveral motions for directed verdicts based on the plaintiff's opening sta~ement. The state-ment was attacked both for what was said and for what was not said. The appellant urged that the statement had failed to include an essential element of the plaintiff's cause of action and, in addi4on, that the state-ment bound the plaintiff to a theory of the case whiich had not been proven. The case illustrates the importance of careful analysis of both the theory of a case and the evidence to be presented ~n support of that
theory. ·
In Silva, the plaintiff administratrix sued to recoVer sums delivered by her decedent to the defendants, the decedent's two daughters and sons-in-law. The money was used for down payments o~ their respective homes. The basic question was whether the moneyias transferred as loans or as gifts. In his opening statement, counsel for e plaintiff clearly stated that he would attempt to prove loans were ade on which in-terest was to be paid twice yearly. He also stated at the principal would be repayable "when [they] can or when [they] would be able."2
Ap-parently counsel added that the loans were to be repaid when the de-fendants "could afford to."B The opening failed to m~ntion that the de-fendants in either case were able to make repayment or that the plain-tiff would establish that fact.
Motions for directed verdicts were made following !the opening. The trial court gave plaintiff's counsel an opportunity to a~d to his opening, but no further statements were made with respect
th
the defendants' ability to repay. The motions were renewed and deqied following the!
• JoHN J. CURTIN, Ja. is a partner in the firm of Bing~m, Dana, Be Gould, Boston, and is an instructor in law at Boston College Law Sch~L
•• WILLIAM G. YouNG is Chief Counsel to the Governor of Massachusetts, and is an instructor in law at Boston College Law School.
§16.1. 1 1978 Mass. App. Ct. Adv. Sh. 489, 298 N.E.2d 701.
2 Id. at 441, 298 N.E.2d at 702.
637
additional remarks of plaintiff's counsel and again made and denied at the conclusion of the evidence.
On the issue of the failure to state in the opening an essential part of the plaintiff's case, the Court relied on a line of Massachusetts cases which holds that direction of a verdict on the opening is discretionary with the court and that the court may prefer to wait for the presentation of the plaintiff's case or the whole case before ruling on the motion. Of equal significance to the practitioner, the Court cited with approval
Douglas v. Whittaker' for the proposition that the trial judge may direct a verdict on an opening if satisfied that the plaintiff cannot present evidence to establish his case.ll
The Douglas case contains a general analysis of the nature of an open-ing and a dictum that a verdict should be directed if the openopen-ing "plainly fails to show a cause of action".6 Reversing the trial court, which had directed a verdict on the opening of plaintiff's counsel, the Court specifically stated that "[c]ases should be decided upon sworn evidence rather than upon an anticipatory statement of counsel which might bear little resemblance to the available evidence. In instances in-volving close questions, the safer course is to hear the evidence."7 In an earlier opinion Justice Spaulding had cautioned:
While the practice of ordering a verdict on an opening that fails to state a case is a well recognized part of our law, nevertheless it is a power which, for obvious reasons, should be exercised with great caution. It is customary and proper before disposing of a case upon an opening to make sure that the case has been fully stated.8
There are ample recent illustrations to remind careful trial counsel that they should not assume that the trial court will wait for the evidence before deciding a motion for directed verdict. In Beaumont v. Segal9 the
Supreme Judicial Court affirmed a directed verdict on the opening. The plaintiff sued the superintendent of the state hospital, two staff psychi-atrists and a private consultant psychiatrist on theories of false imprison-ment and negligent malpractice, inter alia. Despite the fact that the defendant has the burden of justifying confinement in a false
imprison-4 824 Mass. 898, 86 N.E.2d 916 (1949).
II In a typical case of this type, the Court recently affirmed a directed verdict on the opening in a suit to recover a real estate broker's commission on a quantum meruit
theory. The plaintiff's theory was that he undertook to sell the defendant's prop· erty; his opening showed that no sale had been effected and no binding agreement to sell had been made. Murphy v. O'Rourke, 854 Mass. 770, 289 N.E.2d 16 (1968) (rescript).
6 824 Mass. at 899, 86 N.E.2d at 918.
7 Id. at 400, 86 N.E.2d at 918.
B Carbone v. Trustees of N.Y., N.H. &: Hartford R.R. Co., 320 Mass. 710, 713-14, 71 N.E.2d 408, 405 (1947) (citations omitted).
638 1973 ANNUAL SURVEY OF MASSACHUSETIS LAW §16.1
ment case, the Court upheld directing a verdict on ~e opening on the ground that "statements in a plaintiff's opening may be binding admis-sions which serve to establish a defence as a matter of law."10 The Court ruled that the opening stated facts which showed compliance with the applicable commitment statutes. The opening had alsQ stated that there was an unnecessary delay in discharge. The court bruShed these remarks aside with the statement that this contention was !not supported by factual assertion. As to the negligence count, the Court relied on the fact that the opening demonstrated no intention of introducing expert testi-mony on the issue of negligence. It should be noted that, as often occurs, counsel for the plaintiff read the declaration to the jucy. On its face, the case seems contrary to the spirit of liberal recent cases since it purports to require a detailed statement of the facts, which ' would support a charge of unnecessary delay, and of the evidence to support negligence. Perhaps in explanation, the Court noted that it had examined the opinion of the First Circuit in a case involving the same parties11 and was satisfied that the omissions from the opening wete not inadvertent and that appropriate evidence did not exist.
In Fichtner v. Schneider12 the Court reversed the granting of motions for directed verdicts on each of eight counts following the opening. A minor plaintiff had sued four defendants for negligence, and his father had sued them for consequential damages. The minor iplaintiff had been struck on the hand by a concrete block while playing ball near a building undergoing construction. The block had fallen togetl;ler with a 2 X 4 board intended to be used in the roofing of the building. The Court con-cluded that "[w]hile the opening [did] not detail direct evidence on the circumstances of the accident, it suggests that there , was evidence suf-ficient to take the case out of the 'realm of guesswork.1 "18 Having stated that the judge must take all statements in the open,ng as true in the light most favorable to the plaintiff, including all rational inferences, the Court ruled that the jury could infer that the concrete block was pre-cariously placed on top of an uncompleted wall. In some contrast to the Beaumont case, the Court stated that the plaintiffs w~ under no obliga-tion to describe the details of the defendant's neglige~ce and that their negligence could be found to be an effective contrib~ting cause of the accident. With respect to the additional issue of control, the Court con-ceded that the opening contained only a meager assertion of facts. Nevertheless, the Court ruled:
I
In the particular circumstances here, where all defendants denied control and the proof of control would probably I come from the
10 Id. at 1103, 283 N.E.2d at 860.
11 Beaumont v. Morgan, 427 F.2d 667 (1st Cir.), cert. denied, 400 U.S. 882 (1970).
12 1972 Mass. Adv. Sh. 1515, 285 N.E.2d 793. '
defendants and their employees called to the witness stand by the plaintiffs' counsel, verdicts should not have been directed on the issue of control.14
The silence of the opening on the issue of whether the mason and carpenter were independent contractors, whose negligence could not be attributed to the landlord or lessee, was deemed not to be an admission, and the court left that status to be determined at trial on the ground that all the defendants had denied control.
Beaumont is consistent in other aspects with earlier cases in which the Court had affirmed the directing of a verdict after the opening on the ground that even if the plaintiff's counsel proved a fact which was omitted from his opening, the defendant could not be held liable as a matter of law. In Allen v. National Peanut Corp.111 the opening failed to
state that the defendant was aware of the prior bad character of its em-ployee who had raped the plaintiff. The Court affirmed a directed verdict on the opening on the ground that the defendant could not be found negligent since it could not foresee a crime of violence by the employee even if it had been aware of the employee's prior bad character. The omitted fact, even if proved at trial, would not have permitted recovery on a negligence theory.
Trial courts have been permitted considerable latitude even where a plaintiff's opening demonstrates a defense as a matter of law. The Supreme Judicial Court recently approved the directing of a verdict with respect to two defendants and at the same time expressly sanctioned allowing the case to go forward against a third defendant, although the principle barring the cause of action would appear applicable to all defendants. In Burns v. Barry16 the plaintiff sued three members of the
board of registration of engineers for slander because of statements made by a member of the board to a friend who posed as a prospective em-ployer and requested information about the plaintiff. The Court upheld the directed verdict on the opening as to two defendants who had not made the statement. The case against the third defendant ended with a verdict entered on leave reserved based on privilege to respond to one purporting to be a prospective employer, particularly where the state-ment was procured by the plaintiff himself. The privileges seem equally applicable to the opening.u
14 Id. at 1517, 285 N.E.2d at 795.
til !J21 Mass. 665, 75 N.E.2d 240 (1947).
16 !J5!J Mass. 115, 228 N.E.2d 728 (1967).
640 1973 ANNUAL SURVEY OF MASSACHUSE'ITS J!.AW §16.1
Despite the principle that an opening may constitut~ a binding admis-sion, the trial courts have been somewhat cautious in applying the principle, and their refusals to direct on the openings ave been upheld. Silva affirmed denial of directed verdicts on the ope · ng although the Court reiterated the rule that statements made by unsel may have the force of a binding admission. The defendant ur d that plaintiff was bound by the opening statement that the loans ere to be repaid when the defendants "could afford to." The court rfjected this view, citing authority holding that "[o]penings commonly re not made for the purpose of expressing admissions, and as the tria progresses there may be changes in the contentions of counsel.''18 Th Court expressly
noted that although the plaintiff's proof was limited ~y the pleadings, she was entitled to prove facts at the trial in support ofia theory different from or even inconsistent with the theory espoused in ~e opening. The Court has previously limited binding admissions to facj:s expressly stated rather than adverse inferences from those facts, at least/where more than one inference is permissible.10 If the facts permit only ;t single inference, the Court may direct a verdict on the opening.2o !
In summary, counsel in an opening undertakes ceruj.in risks which to some extent have been mitigated by giving the trial rurt considerable discretion in directing a verdict. Reaction to these ri ks may seriously affect the trial tactics of counsel. Some counsel sharp y limit openings to general and rather minimal statements of the natur~ of the theory of the case and a summary of the facts.21 Counsel who cpntent themselves with reading pleadings to the jury, as sometimes amplified by an ad-mittedly incomplete outline of key facts, constitute an1 extreme wing of this position. By so doing counsel may feel he has avotded the risk that he may be bound by a detailed statement of the fa ts he expects to prove.22 A minimal statement may also reduce the li elihood of harm from unanticipated evidence and permit flexibility in ~ounsel's theory of the case without conveying an impression to the jury: that counsel has
changed horses in midstream. .
Counsel need not and probably should not as a 1'tter of tactics in-dulge in a complete and comprehensive statement " bracing a multi-tude of details many of which are of little importance •.. .''28 He cannot
18 197!1 Mass. App. Ct. Adv. Sh. at 441, 298 N.E.2d at 70!1, cl~g Mercier v. Union
St. Ry., 2!10 Mass. 397, 406, 119 N.E.764, 767 (1918). i
19 Sluskonis v. B 8c M R.R., 299 Mass. 413, 416, 12 N.E.2d 858~ 860 (1938). 20 Rosenblum v. Economy Grocery Stores, liOO Mass. 264, 15 .E.2d 189 (1938).
21 R. Keeton, Trial Tactics and Methods 1f 7.11 (2d ed. 197!1); 19 K. Hughes, Mass.
Practice, Evidence 1f 518 (1961). 1
22 19 K. Hughes, supra note 21, at 708. But see Beaumont v. ~gal. 1972 Mass. Adv.
Sh. 1101, 28lJ N.E.2d 859. .
convert an opening to a closing argument and should not be allowed to state facts which are irrelevant or for any reason plainly incompetent.24
Despite the risk of sacrificing flexibility, counsel should be reluctant to ignore an opportunity to present an organized and persuasive statement of his case and the facts he expects to support it. Aided by a more com-plete opening, the jury can much more readily appreciate plaintiff's case as he later develops it. In view of the availability of modern dis-covery techniques, counsel should be willing to give up some flexibility in order to seize the opportunity to begin the process of jury persuasion. §16.2. Personal jurisdiction: The distinction between the "active" and "passive" purchaser. Since 1968 the courts of the Commonwealth1
have been authorized by statute to exercise personal jurisdiction over any person in a cause of action arising from that person's11 transacting any
business in this commonwealth."2 In 1972 in "Automatic'' Sprinkler Corp. of America v. Seneca Foods Corp., the Supreme Judicial Court declared that G.L. c. 223A was "an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States."& Therefore, since the "assertion of jurisdiction" is to be tested by federal constitutional limits, the question becomes whether the person over whom personal jurisdiction is asserted has "certain minimum contacts" with Massachusetts so "that the maintenance of the suit [would] not offend 'traditional notions of fair play and substantial justice.' "4
While the Supreme JudiCial Court's decision in "Automatic" Sprinkler
provided some guidance as to the quantity and quality of "contacts" with Massachusetts necessary to permit the assertion of personal juris-diction, the United States Court of Appeals ~or the First Circuit during
24 Posell v. Herscovitz, 237 Mass. 513, 514, 130 N.E. 69, 70 (1921).
§16.2. 1 The personal jurisdiction of the United States District Court for the District of Massachusetts is at least as broad as that of the Massachusetts state courts. See Fed. R. Civ. P. 4(d)(7}.
2 G.L. c. 22M, §3(a), added by St. 1968, c. 760. It would seem that the "trans-acting any business" standard appearing in G.L. c. 223A is significantly more inclu-sive than the "doing" or "transacting business" standards set forth in G.L. c. 181, 1§5, 5, and 12 for imposing certain qualification requirements on foreign corpora-tions. Compare Remington Arms Co. v. Lechmere Tire Be: Sales Co., 339 Mass. 131, 158 N.E.2d 134 (1959) with "Automatic" Sprinkler Corp. of America v. Seneca Foods Corp., 1972 Mass. Adv. Sh. 601, 280 N.E.2d 423. Query whether the scope of the "doing business" standard set forth in G.L. c. 227, §§5, 5A, requiring the appointment of agents within the Commonwealth for the service of process, is to be given the same restrictive interpretation as found when the same phrase is encountered in G.L. c. 181, U3, 5B. See generally 1965 Ann. Surv. Mass. Law §21.2; Note, Nonresident Juris-diction and the New England Experience, 48 B.U.L. Rev. 372 (1968).
a 1972 Mass. Adv. Sh. 601, 603, 280 N.E.2d 423, 424. A full discussion of the
".dutot7Uitic" Sprinkler case appears in 1972 Ann. Surv. Mass. Law §20.4, at 551-55.
642 1973 ANNUAL SURVEY OF MASSACHUSE'ITS LAW §16.2
I
this Survey year provided a more adequate vehicle fo~ consideration of this complex issue in Whittaker Corp. v. United Airfraft Corp.~'> The First Circuit there distinguished between the quality of contacts with Massachusetts resulting from the actions of various defendants, holding one subject to personal jurisdiction and declaring that others were
be-yond the reach of G.L. c. 223A. In a careful analysts, the court dis-tinguished between "active" and "passive" purchasers. !
Whittaker, a California corporation, located its 1 Nuclear Metals Division in Concord, Massachusetts and developed there a new pro-cedure for manufacturing metal powder. United, a Delaware corpora-tion with its principal place of business in ConnecticU;t, had since 1966 been purchasing metal powders produced by Whittakeii. In 1970, United was awarded a government contract to manufacture jet aircraft engines. It then ordered from Whittaker test "logs" of a certain metal alloy to determine whether Whittaker could become an approved source of such "logs." Although United made its solicitations for the production of these test logs in Florida and Connecticut, during the fourse of negotia-tions "United personnel contacted Whittaker employee~ in Massachusetts by telephone, teletype, or mail on thirteen occasions ~nd visited Whit-taker's Massachusetts facility on four instances . . . . "6
In 1971, United informed Whittaker that it had been designated a qualified producer of the metal alloy logs. Whittaker thereupon signed certain "vendor agreements" and a "secrecy agreemept" with United, which thereupon notified certain of its subcontractor~ that they could use Whittaker as a source of the logs. Whittaker then received oral orders from Ladish Company, a Wisconsin· corporation, and Gulf and Western Industrial Products Company, a Delaware corporation, for various quantities of the logs. Thereafter, disputes arosj:: between United and Whittaker as to the quality of the logs, and a !United employee visited Whittaker's Massachusetts plant in an attemp~ to correct weak-nesses discovered in one of them. By autumn of 1971, United, Gulf and Ladish had all rejected Whittaker's logs as failing to conform to contract specifications.
Whittaker brought suit in federal district court seeiqng to obtain per-sonal jurisdiction over United, Ladish and Gulf in Ma~sachusetts on the grounds that all three were "transacting business" here7 and that each defendant had supplied design specifications to Whittaker for the pro-duction of the logs.8 Whittaker further alleged that the visiting United
employee had made fraudulent representations that l(nited would not
G 482 F.2d 1079 (1st Cir. 197!1).
6 Id. at 1081.
1 GL. c. 22l!A, §li(A).
s Persons who contract to supply services or things in the Commonwealth may be
§16.2 CIVIL PROCEDURE AND PRACTICE 643
require adherence to the contract specifications. Alleging reliance upon these representations to its injury, Whittaker sought to assert jurisdiction over United pursuant to G.L c. 223A, §3(c).9
The district court, concluding that the activity of the defendants "was not substantially different" from the conduct held insufficient for the exercise of personal jurisdiction in "Automatic'' Sprinkler, granted the defendants' motions to dismiss. On appeal, the First Circuit affirmed the decision of the district court that Gulf and Ladish could not be sued in Massachusetts, but reversed as to United.10
The First Circuit focused its decision upon the "transacting any busi-ness" standard found in G.L. c. 223A, § 3(a)-a standard it called "the most open-ended provision in the statute."ll Rejecting the district court's conclusion that "Automatic'' Sprinkler was controlling,12 the First
Cir-cuit conceded only that the decision was "instructive as to the approach of the Massachusetts courts in construing long arm legislation,"18 and
took pains to point out the quantitative and qualitative differences be-tween the "contacts" present in "Automatic" Sprinkler and those it was called upon to analyze.
One obvious difference was the sheer quantity of contacts present in
Whittaker. In contrast, the out-of-state defendant in "Automatic'' Sprinkler had but a single contact in the Commonwealth: he mailed a purchase order and a partial payment to the plaintiff's Worcester plant.u The Supreme Judicial Court deemed this contact insufficient. In Whit-taker, however, United's employees
9 A person who causes tortious injury by an act or omission in this Commonwealth may be made subject to the personal jurisdiction of its courts pursuant to G.L. c. 223A, Ill( c).
10 482 F.2d at 1084, 1086.
11 Id. at 1082. The court's belief that §!l(a) of G.L c. 22!1A is "the most open-ended provision in the statute," 482 F.2d at 1082, is curious in light of its own recent deci-sion in Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 66!1 (1st Cir. 1972), where it held that misrepresentations made within Massachusetts are sufficient "without question" to subject the maker to the personal jurisdiction of its courts under G.L. c. 223A, lll(c). See generally Curtin &: Young, supra note !1. Still more attenuated circum-stances are found under G.L. c. 223A, §!l(e) (''having an interest in ••• real property in this commonwealth'~ and §3(f) ("contracting to insure any ••• risk located within this commonwealth at the time of contracting''). The court's belief that §!J(a) is "the most open-ended provision," 482 F .2d at 1082, is especially ironic since, wholly apart from its extended analysis of that section, it held §!l(c) to be "an independent basis for jurisdiction" because Whittaker alleged that a United employee made a single know-ing misrepresentation durknow-ing the course of one trip to Whittaker's Massachusetts plant. 482 F.2d at 1084. But note the circumstances in Salter v. Lawn, 294 F. Supp. 882 (D. Mass. 1968), where Judge Wyzanski held that the payment of obligations due a Massachusetts bank with deposits in that bank constituted "transacting ••• business in this Commonwealth" pursuant to G.L. c. 22!1A, §!l(a).
12 482 F.2d at 1083.
18 Id. at 108!1.
1978 ANNUAL SURVEY OF MASSACHUSETIS t.AW §16.2
[made] five visits and [sent] sixteen documents and 'twenty teletype and telephone messages into the Commonwealth from the time of Whittaker's qualification to the rejection of the logs [in addition to the seventeen pre-qualification contacts mentione~ above]. Dur-ing the same period [between qualification and reje~tion] the tally for Ladish was one visit, nine documents, and two phone calls and for Gulf three visits, seven documents, and nine tel~type and
tele-phonic messages. til 1
Since Ladish and Gulf were held not subject to suit id Massachusetts, a purely quantitative analysis would seem to indicate (l) that an out-of-state purchaser is certainly beyond the reach of sectioni 3(a) in making a single in-state contact,16 (2) that he comes within its rscope somewhere beyond three visits, nine documents, and nine telep~one or telegraph messages, and (3) that he is clearly covered by the sectiqn when the total number of contacts reaches fifty..eight.1'1' i .
However, as the First Circuit made clear, it is not sqlely the quantity but also the quality of the contacts with Massachusett$ which will ulti-mately determine whether the out-of-state defendant ts subject to per-sonal jurisdiction. The number of contacts is but on~ element in this analysis. Judge McEntee, writing for the court, pres~nted this frame-work for analysis:
I
[A] number of factors, including the nature and purpose of the contacts, the connection between the contacts and *e cause of ac-tion, the number of contacts, the interest of the forubl, and the con-venience and fairness to the parties n:tust be consid~d.18
Using this framework, the court highlighted those a$pects of United's activities which it deemed most relevant. It pointed! out that United
I
liS 482 F .2d at 1082.
18 While this statement appears correct as regards §lJ(a) sta~ing alone, a single contact by a purchaser may well be enough to support the exercf of personal juris-diction under §lJ(c) (if it is accompanied by a knowing mis epresentation made within the Commonwealth) (see note 10 supra) or under §ll(e) (if t relates to the pur-chase of real property). Query whether the out-of-state acceptan of an offer mailed from a Massachusetts vendor is suflicient to ensnare the foreigne~who, as part of his acceptance, agrees to supply services or things in this Commo wealth. The Whit· talcer court avoids the question by treating the design speci cations supplied by United as merely another indication that United was transactin business in Massa-chusetts under §lJ(a) and not as a separate basis for jurisdiction nder §ll(b). 482 F.2d
at 1084 n.6. ,
1'1' By totalling the "contacts" in this fashion, we do not imjy that they are all fungibl~that a telephone call, for instance, is as significant jurisdictional
pur-poses as an extended visit to the Commonwealth. It is of some ignificance, however, that the First Circuit saw fit to total the contacts as quoted bove. The spectrum there delineated, when compared to the sparse contact held insu dent in Automatic Sprinkler, may be of some help to the- practitioner. '
had solicited Whittaker's participation in competing to become a quali-fied vendor of the logs. It noted that United personnel had regularly communicated with and visited Whittaker's Concord facility, and in-ferred that "United either actively supervised or actively participated in Whittaker's initial development of the alloy logs."111 It also found that United had monitored Whittaker's performance throughout the project and ruled that "[o]n this background the extent of United's participation in the economic life of Massachusetts seems clearly to rise above that of a purchaser who simply places an order and sits by until the goods are delivered."20 The court concluded that "it would not be unfair to
re-quire United to defend this action in Massachusetts," given its five-year history of dealing with Whittaker and added that the allegedly deceitful representation presented an independent basis for jurisdiction under section 8(c). The First Circuit accordingly held United subject to the personal jurisdiction of the district court.21
The situation of Ladish and Gulf appeared to the court to differ in
three respects. First, "both seem[ ed] to fall more clearly into the category of passive purchasers."22 The court added that "their activities may properly be characterized as 'ancillary' to the placement of [their] orders."2B Second, remarking that there had been no prior dealing
be-tween Whittaker and either Ladish or Gulf, the court stated that "these defendants may more legitimately claim surprise at being required to defend these charges in this forum."24 Finally, with respect to Ladish and
Gulf, there were no allegations of deceitful representations made in or sent into Massachusetts. Summing up these three criteria, the First Cir-cuit held that Ladish and Gulf were beyond the personal jurisdiction of the district courts.211
Although it is true that the court gave some weight to United's history of prior dealings with Whittaker and to the allegations that United had made deceitful representations to Whittaker, the central focus of the Whittaker decision is on the difference between "active" and "passive" purchasers. For the present, this distinction marks the outer limits for the exercise of personal jurisdiction under G.L. c. 223A, §3(a).
111 Id. at 1084. 20 Id. 21 ld. 22 Id.
28 Id. at 1085. lH ld.
646 1973 ANNUAL SURVEY OF MASSACHUSETTS J:rAW §16.3
§16.3. Aspects of handling multiparty and multiclaim. litigation. Three decisions during this Survey year illustrate the old adage that the more things change, the more they stay the same. Iti July 1973, the Supreme Judicial Court adopted comprehensive rules <!>f procedure gov-erning "all suits of a civil nature" in the superior 1court and other specified trial courts.1 Later that year, the General Court enacted
legislation which dove-tailed with the new rules by restricting the ap-plication of contrary statutory provisio.ns to those co4rts in which the new rules of civil procedure did not apply.2 While tp.e "new" Massa-chusetts Rules of Civil Procedure contain much th* was previously unknown in Massachusetts practice,8 by far the larger portion of these new rules have their roots in forms of practice tried and tested in the Commonwealth. There is not nearly as much change as many
practi-tioners fear. 1
This section will briefly describe three pre-Rules case~ to illustrate how the decisions reached therein continue to be persua$ive and relevant under the new Rules. The common thread in these cases is that they each involved a multiclaim or a multiparty situation. This is not, however, the only area in which the courts have been cognizant q£ the continuities between our former practice and practice under the nejw rules.4
In School Committee v. Reilly,6 the Boston school ,committee, faced
with a strike by public school teachers, brought a bill 'in equity against the members of the Boston Teachers Union and the President and
cer-§16.!1. 1 See Order of the Supreme Judicial Court for the qommonwealth, July
13, 1973. :
.2 See St. 1973, c. 1114. Both the order of the Supreme Judicial Court and the amendatory legislation took effect on July I, 1974.
8 For example, to quote the Reporters to the Advisory Committee to the Judicial Conference on Rules of Civil Procedure, Rule 2, which me~ law and equity, "brings about a substantial change in existing practice," Rule !If which governs the commencement of civil actions," "drastically alters prior Massachpsetts practice," and Rule 26, which sets forth the general provisions regarding the I scope of discovery,
"contain[s] several significant departures from existing patterns." See Reporters' Notes to Mass. R. Civ. P. 2. !1, and 26.
4 Justice Kaplan has been particularly alert to point out the bearing of the Massachusetts Rules of Civil Procedure on the solutions to pre-Ru~es cases .. See Diaz v. Eli Lilly &: Co., 1973 Mass. Adv. Sh. 1263, 1273, 302 N.E.2d 555,1 560-61 (Kaplan, J.),
discussing compulsory joinder under Mass. R. Civ. P. 19(a) of • spouse's claim for loss of consortium; Goldstein v. Gontarg, 1974 Mass. Adv. Sh. !J!f7. 371 (Kaplan, J.), discussing the use of the pre-trial conference under Mass. R. Civ. P. 16 in delimiting the bounds of admissible evidence in a particular fact situation. Justice Kaplan, while a Professor at the Harvard Law School, was a member of the Supreme Court's Advisory Committee on Civil Rules and participated ill. the drafting of a number of the Federal Rules of Civil Procedure upon which our !Massachusetts Rules are modeled. His detailed observations on certain of the FederaliRules are found in Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (pts. I and 2), 81 Harv. L. Rev. 356 and 591.
tain officers of the particular union local. Upon appeal to the Supreme Judicial Court, the defendant teachers argued that the school committee was not a proper party to bring the suit since it was not a corporate entity for the purpose of suing and being sued. The defect was only technical since the defendant teachers recognized that a majority of the individual members of the committee could have commenced the action on behalf of the committee as a whole and that the bill in equity itself was appropriately signed by the committee's attorney.6 Nevertheless, the technical defect was real. Unincorporated associations such as the school committee do not have the capacity to sue or be sued,7 and thus may not be parties to a suit in equity.s
However, following the trend of recent years,9 the Court in Reilly placed substance over form and allowed the school committee to main-tain the action. Without even considering it necessary to distinguish prior cases, Justice Quirico placed a new gloss upon the familiar rule:1o
Where, as in the instant case, the group in question is a defined public body with a small and readily ascertainable membership, asserting a common, unified position in the enforcement of public rights, there is no legal bar to referring collectively to the individual members of the public body by its statutory title. We therefore hold that the individual members of the Committee were properly before the court on a bill which referred to them collectively as the "School Committee of the City of Boston."
Our holding is not intended to affect the long-standing require-ment of naming representive plaintiffs or defendants in cases in-volving unincorporated voluntary associations and similar groups whose exact membership, in terms of identity and numbers, may be
6 See G.L. c. 214, §15.
T There are some statutory exceptions to this general rule. See G.L. c. 182, §6.
8 Donahue v. Kenney, 327 Mass. 409, 99 N.E.2d 155 (1951). But see Massachusetts Ass'n of Tobacco Distribs. v. State Tax Comm'n, 354 Mass. 85, 235 N.E.2d 557 (1968) where the court, without comment, inexplicably entertained the appeal of an unin-corporated association upon a bill in equity for a declaratory decree which named the unincorporated association as plaintiff.
9 See generally 1970 Ann. Surv. Mass. Law 687, 697; 1971 Ann. Surv. Mass. Law 205,
213-14. •
10 School Committee of Boston v. Reilly, 1972 Mass. Adv. Sh. 1453, 1457·1458, 285
648 1978 ANNUAL SURVEY OF MASSACRUSETI'S UW §16.8
difficult to define. Nor is it intended to apply to
icases
involving suits between confticting factions of the same ~dy or group,whether public or private. !
Thus, in Reill'Y we find certain public bodies perm§' tted to maintain certain actions under their collective statutory title. owever, we also find a restatement of the traditional rule that unincor rated voluntary associations must name representive plaintiffs if they wish to sue, and that such associations can be sued only if representati e defendants are
named. •
This traditional standard is maintained in Mass. R. ¢iv. P. 23.2, which
provides: ,
[A]n action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that thf representative parties will fairly and adequately protect the intqests of the
as-sociation and its members.11 i
This rule does nothing more than define with some! particularity the "representative" nature of the named parties. Presum~ly, if such named parties were truly "representative," they would "fairl and adequately protect the interests of the association and its me hers." Rule 23.2 merely makes this requirement explicit and focuses th' attention of the pleader and the court upon the representative nature of the parties
named in the complaint. I
A second aspect of multiparty litigation is illustratt by A.R. Belli,
Inc. v. Boston Edison Co.u Foodfare, Inc. commen ed a tort action against Belli alleging negligent construction by the latt. r. Belli sought to implead Boston Edison as a third party defendant UJ!lder G.L. c. 231,
§ 4B, alleging that Boston Edison was solely responsi~le for Foodfare's injury "by reason of its failure to mark out, advise and~' protect its power lines, pipes or conduits."lB Belli's third party declarat' n did not, how-ever, "specify" that Boston Edison was liable to it £ r all or part of
Foodfare's claim against it. '
The Appellate Division held that this omission w~ "fatal to Belli's position."14 The court noted that G.L. c. 231, §4B pen!nits impleader of
a third party defendant only in those circumstance~ I where the third party defendant (Boston Edison) is liable to the thid party plaintiff
I
11 The remainder of Mass. R. Civ. P. 2!1.2 provides that a coErt may enter orders in an action by or against the members of an unincorporated · tion just as it would in a class action under Mass. R. Civ. P. 2ll(d). Further, th rule provides that mch actions must be compromised or diJmisled in the same ma~er as class actions.
12 App. Div. Dist. Cts., So. Dist. (Dec. 2/1, 1972) (slip opinion). ] 18 Id. at 2.
(Belli) in whole or part for the claim of the plaintiff (Foodfare) against the original defendant (Belli). The court considered the language of §4B "imminently [sic] clear .•• applicable to the instant case."111 Since Belli had not advanced any theory in its third party declaration which would permit Boston Edison to be found liable to it, Belli had done little more than present Foodfare with a second defendant which Belli alleged was responsible for the tort committed on Foodfare.
While the court noted the similarity between Fed. R. Civ. P. 14(a) and G.L. c. 231, §4B, it would seem to have chosen to stress the wrong aspect of this similarity-the proposition that both Federal Rule 14 and chapter 231, §4B were designed to avoid a multiplicity of suits.16 The most apposite similarity would seem to be that pointed out by the Reporters of the Massachusetts Rules, who indicate:
It should be noted that . . . Federal Rule 14 and G.L.c. 231 §4B . . . do not permit the defendant to "tender" an additional defen-dant to the plaintiff. If the plaintiff has not chosen to sue the prospective third-party defendant, the original defendant may bring in the third-party defendant only if the third-party defendant "is or may be liable to" the original defendant.l7
It is precisely this language that has been incorporated in Mass. R. Civ. P. 14(a). The pleader under the new rules is permitted to implead a third party defendant only in those circumstances where the prospective third party defendant is liable to the defendant/third party plaintiff for some or all of the original plaintiff's claim against the defendant/third party plaintiff. The rule in Massachusetts thus remains that the defendant/ third party plaintiff is not permitted to "tender" another defendant to the plaintiff.
The third example of continuity between the old practice and the new arises in the area of multiple claims-in particular, compulsory counter-claims. In Volpe Construction Co. v. Trustees of Tufts College,lB the Appeals Court had occasion to consider what counterclaims arise "out of the transaction which is the subject matter" of pending litigation. Under former Rule 32 of the Rules of the Superior Court,19 a defendant
111 Id. at 2.
16 The court cites both state and federal decisions to support the proposition that G.L. c. 251, §4B is designed to avoid a multiplicity of suits and to that end has been "liberally construed." Whatever the validity of this proposition, it would seem wholly inapposite in the present case where the correct result, and the one reached by the court, is to dismiss the third party claim against Boston Edison.
17 Reporters' Notes to Rule 14.
18 197!1 Mass. App. Ct. Adv. Sh. 41, 294 N.E.2d 476.
650 1973 ANNUAL SURVEY OF MASSACHUSETTS Ll-\W §16.3
in a suit in equity was required to set up in his answer any such counter-claim if it might be the subject of an independent suit in equity. A de-fendant was permitted, but not required, to set up in ~is answer unre-lated counterclaims and counterclaims of a legal nat~e arising out of the same transaction. Under the new rules, however,! a pleader must plead as a counterclaim
any claim for relief the court has power to give which at the time of serving the pleading the pleader has against any opppsing party, if it arises out of the transaction or occurrence that is the js~bject matter of the opposing party's claim and does not either reqllire for its ad-judication the presence of third parties over whom the court cannot acquire jurisdiction or constitute an action required by law to be brought in a county other than the county in which the court is
sitting.20 ·
Under both former and present practice, the key con~pt is the scope to be afforded to the word "transaction."
In Volpe, Tufts had originally brought a bill in equity against Volpe seeking a declaratory decree determining the rights and duties of the parties under a written contract for the construction of !a college dormi-tory as those rights and duties pertained to the employ$ent of members of minority groups in such construction. Volpe then brought an entirely separate action in contract seeking to recover money for labor and ma-terials claimed to be due under the same contract. Tufts filed an answer in abatement which was sustained in superior court, ~o which ruling Volpe excepted. The Appeals Court noted that the sa~e building con-tract was involved in both controversies but found that this was the only common element in the two cases.
Each case involves separate controversies as to rights and duties arising out of that contract . . . . In the case at bar we appear to be confronted with breaches of entirely separate contr~ct provisions which stem from different factual contexts. We fail to see how facts supporting one claim would be determined with respect to the other. Moreover, no logical relationship appears between the issues ~elated
20 Mass. R. Civ. P. l!l(a). "The requirement is mandatory if the counterclaim arises out of the transaction or occurrence which is the subject of tpe plaintiff's claim; the defendant must assert it or forever lose it." Reporters' Notes to Rule 1!1. How-ever, when compulsory counterclaims are omitted "through oversight, inadvertence, or excusable neglect, or when justice requires," they may be set up by amendment if leave of court is secured. Mass. R. Civ. P. l!l(f). Counterclaims otherwise compulsory also need not be pleaded if they are already the subject of another pending action, if the party who possesses the counterclaim is subject to no more I than quasi in rem
to a breach of the equal opportunity of employment clause and those related to the failure to pay for labor and materials under the contract. The two claims do not arise out of the same transaction within the meaning of the compulsory counterclaim provision of [Superior Court] Rule 82.21
The Appeals Court also quoted from Potier v. A.W. Perry, Inc.:
In the rule of court in question it [the word "transaction"] should not be construed narrowly or technically, but should ·be construed in a sense to effectuate the settlement in one proceeding of contro-versies so closely connected as appropriately to be combined in one trial in order to prevent duplication of testimony, to avoid unneces-sary expense to the parties and to the public, and to expedite the adjudication of suits.22
This would seem to exemplify the approach to be taken in delimiting the scope of the word "transaction" in this context. The same approach is warranted in determining the applicability of permissive joinder under Mass. R. Civ. P. 20(a),2ll and in determining whether to plead a compul-sory counterclaim under Mass. R. Civ. P. 13(a).24 Here again our former
Massachusetts practice illustrates and lends dimension to the standards promulgated under the new Massachusetts Rules of Civil Procedure.
21 Volpe Const. Co. v. Trustees of Tufts Univ., 1973 Mass. App. Ct. Adv. Sh. 41, 42-43, 294 N.E.2d 476, 477-78.
22 286 Mass. 602, 608, 190 N.E.822, 824-25 (19!14) (emphasis added). This same decision also held that "a transaction is where both causes of action proceed from the same wrong." Id. See Davis Be O'Connor Co. v. Shell Oil Co., 311 Mass. 401, 405, 41 N.E.2d 287, 290 (1942).
23 AU persons may join in one action as plaintiffs if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or oc-currences and if any question of -law or fact common to all defendants will arise in the action.
Mass. P. Civ. P. 20(a) (emphasis added). The underlined language adds a new re-quirement and "changes prior law slightly." Reporters' Notes to Rule 20. It does not affect the definition of the term "transaction."
