Beruflich Dokumente
Kultur Dokumente
October 8, 1992
____________________
No. 91-2238
KIMBERLY CROCKER AND JULIAN H. CROCKER,
Plaintiffs, Appellants,
v.
THE HILTON INTERNATIONAL BARBADOS, LTD.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella and Boudin, Circuit Judges,
______________
and Keeton,* District Judge.
______________
_____________________
________
Robert G. Eaton, with whom
________________
for appellee.
was on brief
____________________
____________________
____________________
*
sued
a
the
hotel
Hilton
located
in
Barbados,
Bridgetown,
Ltd.
Barbados,
for
damages resulting from the rape of Kimberly Crocker while she and
her husband
of less
than a
year were
guests at
that lodging.
the
she was
hotel
raped.
premises alone,
The complaint
consortium,
and claims
attacked at
knifepoint and
assault was
loss of
perpetrated by
person who was neither a guest at the hotel nor a hotel employee.
Appellee
challenged the
personal jurisdiction
of the
district court
through a Motion
notwithstanding
to Dismiss,
appellants' opposition.
Ltd.
Hilton Hotel
Corporation
granted
which was
as
International,
Appellants
in
make
over appellee:
Barbados
arose
three-fold
(1)
ch.
223A,
3(a);
(2) they
they allege
out of
claim
of
that
appellee's
personal
the sexual
transaction
claim
that
some
of the
of
Laws
damages
diagnosed delayed
-2-
post
traumatic
consortium,
stress
constitute
pursuant
to Mass.
contend
that
Gen.
appellee's
syndrome,
a
as
tortious
Laws ch.
well
injury
223A,
activities
as
in
the
of
Massachusetts
3(d); and
in
loss
(3)
they
Massachusetts
were
sufficient to
warrant the
exercise of jurisdiction
under Mass.
37 and 38.
223A,
3(a),
Mass.
Gen.
Laws
states
as
follows:
A
court
may
exercise
personal
jurisdiction over a person, who acts
directly or by an agent, as to a cause of
action in law or equity arising from the
person's (a) transacting any business in
this commonwealth . . . .
with
the
application
of
said
measures
to
foreign
corporations.
The following facts arise from the record.
Appellee is
of
business
therein.
It
conducts
no
business
in
described hereinafter.
the
commonwealth.
located
("Village
booked their
in
hotel
Massachusetts,
Tours").
This
agency
Village
had
International.
Village Tours
Go
Tours, an
a travel
and
Travel
advertising
affiliate of
Tour
received an
brochure about
Go
room through
New Jersey
travel management
Lib/Go
has an
certain
appellants
number of
made a down
rooms
at
discount
payment to Village
rate.
Thus,
as well
as a
by
Boston
area telephone
also listed in
Hilton
number, whereby
a brochure distributed
International,
by Kimberly Crocker in
These
a copy
that state.
of
which
in
was
by Hilton
International
and American
Airlines.
In
addition,
on one
occasion at
an annual
Caribbean
I
The crucial question to
analysis
statute
appellants' causes
out of
See Fournier v.
___ ________
F.2d
126 (1st
Cir.
this respect
crystal clear,
arose
the established
of recent vintage,
precedent
in this
circuit is
See
___
F.2d 10 (1st Cir. 1991), cert. denied, 112 S. Ct. 1290 (1992).
_____ ______
In Marino,
______
she
a Massachusetts resident
was injured
Hotel in Hawaii.
when
Marino, 793
______
F.2d at 427.
and regularly
428.
Id. at
___
slip
business there.
Id. at
___
Id. at 428-29
___
n.3.
We
in Massachusetts.
from'
Massachusetts
through a
ruled
Hyatt
The
cause
of action
itself must
"'aris[e]
We
concluded that a
fall accident
in Hawaii
not "arise
in
resident
jurisdiction under
Fournier,
________
had
3(a).
failed
for a
from" the
Id. at 430.
___
we
decided
to
establish
that
another
in personam
____________
a Grand Cayman
-5-
made
her
arrangements
in
was
Plaintiff also
Massachusetts,
but
defendant's
activities
in
Massachusetts
court correctly
were,
as in
Marino,
______
ruled that it
lacked jurisdiction
argument
under
Section
injuries
may
have
Massachusetts, here,
sued for
damages
Furthermore,
been
experienced
as in
to
the
upon
their
than were
as alleging manifestations or
manifestations,
legal
issue
of
however, are
in personam
____________
refers is
different in
jurisdiction
the
no
to
or effects of that
The complaint in
return
the plaintiffs
3(d)
be understood
no
out-of-state incident.
which Section
fares
and consortium-related
stemming from
the injury
3(d)
These
relation to
than
the pain
the
and
Massachusetts.
771 (D.
1985) (injury
Mass.
occurs
where the
bodily
contact
-6-
occurs); Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D.
_____
____________________
Mass. 1976).
The injury occurred in
be subjected
to
Barbados.
personal jurisdiction
in
under
provide a
basis for
personal jurisdiction
over appellee.
the mechanical
been interpreted
more
aspects of
broadly.
acquiring jurisdiction,
See
Caso v.
Lafayette
it has
Radio
___
____
________________
has
contentions.
never
been
extended
to
Nevertheless, this
encompass
appellants'
Id. at 711-12.1
___
The court
ruled in that
38
757 F.2d
_____
_______________
claim
does
not
arise
out
of
the
solicitation
action
third
Barbados
of a
Hilton
party after
and, at
Barbados Hilton in
appellants
most,
had lodged
the alleged
negligence
in
the
of the
security.
No
IV
The
district court
did
not abuse
its discretion
in
____________________
1
At oral
argument, appellants
relied
heavily on
Gunner v.
_________
24 Mass. App. 96, 506 N.E.2d 175 (1987), for
denying appellants'
motion to
sought
additional
to
include
grounded
alleged
that
Massachusetts
hotel,
to
and that
appellee
and
with
habitable
appellee breached
on
breach
appellants
premises at
that contract by
of
contracted
provide safe
Appellants
in
its
failing to
premises were safe and habitable, and that appellee breached that
warranty because its premises were unsafe.
are
foreclosed
by
our
rulings
in
Again,
Marino.
______
these
In
claims
considering
at 430
interference
(emphasis in
by
the
original).
hotel owner
There is
alleged
in
no
the
paid $1,600
category."
advance
We conclude,
and
however,
had
been
that
here, appellants
assigned
the implied
"room
covenant
pertaining to
the claims
in the
amendments sought
would have
-9-
arisen
in
this
Massachusetts
appellants
personam
________
case, not
through the
checked in
as
when
the
travel
reservation
agent, but
hotel guests.
was made
in Barbados
Therefore, since
to try these
in
when
in
__
new counts in
Vargas v. McNamara,
______
________
conclusion
amendment seeking
to add
is
of
equal
application
to
the
Hilton Hotel
Corporation as defendants.
V
Trial courts
discovery
Santiago v.
________
is required
the issue
to decide
of personal
whether
jurisdiction.
A ruling
will
be overturned
"only
wrong
and
aggrieved party."
The
amount
of
upon
clear
showing
of
resulted
in substantial
manifest
order was
prejudice
to
the
Id.
___
information sought
revenue
derived
by
by
appellants deals
appellee
from
with the
Massachusetts
travelled to this
state
appellee
Massachusetts
relevant
tour
has
"letters
promoters.
to the issue
agreement"
None of
before us
solicitation of business,
of
as it
this
with
information
deals either
other
is
with mere
goods or
-11-