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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1584CV03390
MEDICAL SPECTROSCOPY, INC. and APPLIED ANALYTICS, INC.
v.
ADA ZAMIR
MEMORANDUM AND ORDER ALLOWING DEFENDANT'S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
This lawsuit concerns defendant Ada Zamir’s participation in an Israeli
company called Medical Spectroscopy Ltd (“MSL”), which in turn allegedly entered
into a joint venture with plaintiffs Applied Analytics, Inc. (“AAI”) and Medical
Spectroscropy, Inc. (“MSI”). The plaintiffs both do business in Massachusetts and are
controlled by Dr. Zamir’s daughter and son-in-law. AAI and MSI claim that Dr. Zamir
breached contractual and fiduciary duties that she allegedly owed them under the
“Founders Agreement” that established MSL, and that in so doing she also violated
G.L. ¢. 98A.
Dr. Zamir, who lives and works in Israel, has moved to dismiss this action for
lack of personal jurisdiction over her. For the reasons discussed below, the Court will
ALLOW her motion and dismiss this action without prejudice.
Not Soop Plaintiffs have presented some evidence that, if believed, would establish the
©6144. Ib following facts. MSL was established in October 2007 by Dr. Zamir and six other
cy M individuals, including her son Dr. Gideon Zamir, her daughter Dr. Yael Barshad, and
mee her son-in-law Dr. Yoav Barshad. At the time the Barshads lived in Massachusetts
Feu Lp and the other four founders in MSL lived in Israel. The contract establishing MSL
TSup stated that the founders’ aim was to engage in a joint venture between MSL (in Israel)
R +8 uipin AAI (in Massachusetts) to research and develop a new method for measuring
blood chemistry for human and veterinary use. This Founders Agreement specified
(mo that this project would be carried out through MSL.
The alleged acts or omissions by Dr. Zamir that give rise to Plaintiffs’ claims
are as follows. In their complaint, Plaintiffs allege that: (1) in late 2009 Dr. Zamir
falsely told “the shareholders of MSL” that the technology they had been trying to
develop “would not work and that therefore the Project would fail and should not bepursued further;” (2) on the basis of that statement MSL ceased operating, AAI
stopped working on the joint venture project, and MSI also ceased operating; (3)
thereafter Dr. Zamir used confidential information belonging to MSL to help develop
similar technology for competing companies . In their opposition to Dr. Zamir’s motion
to dismiss, Plaintiffs allege in the alternative that if Dr. Zamir’s statement that
MSL’s technology was in fact true, then she nonetheless breached her alleged
fiduciary duty to Plaintiffs by failing to disclose that information in early 2008 when
she first became aware of it.
Plaintiffs argue that the Court may exercise personal jurisdiction over
Dr. Zamir under G.L. 223A, §§ 3(a) and 3(c). Although Dr. Zamir is the moving party,
AAI and MSI have “the burden of establishing facts to show that the ground relied
on under § 3 is present.” Roberts v. Legendary Marine Sales, 447 Mass. 860, 863
(2006), quoting Tatrov. Manor Care, Inc., 416 Mass. 763, 767 (1994). Plaintiffs do not
assert, and therefore have waived, any other basis under the long-arm statute for
exercising jurisdiction over Dr. Zamir.
To establish personal jurisdiction under § 3(a) or 3(c), Plaintiffs must present
evidence that they have a cause of action “arising from” Dr. Zamir’s “transacting
business in Massachusetts” or from her “causing tortious injury by an act or omission
in this commonwealth.” See G.L. c. 233A, § 2A; see also, generally, Fern v. Immergut,
55 Mass. App. Ct. 577, 579, rev. denied, 438 Mass. 1102 (2002) (“When, as here, the
assertion of in personam jurisdiction has been challenged under Mass. R. Civ. P.
12(b)(2), ... 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.”).
Like the substantively identical “relatedness” requirement imposed by the due
process clause of the Fourteenth Amendment to the United States Constitution, this
requirement “is not met merely because a plaintiffs 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” (emphasis in
original). Fern, supra, at 583-584, quoting Sawtell v. Farrell, 70 F.3d 1381, 1389
(1st Cir. 1995).Plaintiffs have not met their burden under the long-arm statute because they
have presented no evidence that their claims arise from or out of alleged misconduct
by Dr. Zamir that took place in Massachusetts. Dr. Yoav Barshad asserts in his
affidavit that in late 2009 Dr. Zamir “informed” him “that the technology behind the
project would not work.” But Plaintiffs have not presented any evidence regarding
the manner in which this communication took place or that any part of it took place
in Massachusetts. Although Barshad further testifies that Dr. Zamir “confirmed this”
in an email dated February 11, 2010, the Complaint makes clear that the actions
against Dr. Zamir arise from the alleged misrepresentation in late 2009, and not from
any subsequent confirmatory email. In any case, Plaintiffs have not shown that the
February 2010 email constituted the intentional transaction of business or an
intentional misrepresentation within Massachusetts. Similarly, Plaintiffs have
neither alleged nor presented any evidence that Dr. Zamir did anything in
Massachusetts that constituted competing with MSL or using confidential
information allegedly belonging to MSL.
Nor can Plaintiffs salvage this action through their new theory that if
Dr. Zamir was truthful when she said in late 2009 that MSL’s technology would not
work, then she breached her alleged fiduciary duty to AAI and MSI by not revealing
that fact much earlier. Since Dr. Zamir was living and working in Israel, a mere
alleged failure to disclose information would not constitute causing tortious injury
“by an act or omission in Massachusetts,” and thus would not fall within the scope of
G.L. c. 288A, § 3(c). Cf. Fern, 55 Mass. App. Ct. at 582-583 (claims arising from alleged
failure to disclose by lawyers working in New York did not arise from transaction of
business in Massachusetts).
Plaintiffs focus primarily on contested evidence that Dr. Zamir was present in
Massachusetts from time to time and that she participated in drafting a report on
behalf of MSL while she was in Concord, Massachusetts, once inspected equipment
at the AAI facility in Massachusetts, and once met in Boston with officials from the
federal Food & Drug Administration regarding the MSL/AAI joint venture. This part
of Plaintiffs’ argument is also unavailing. None of the claims against Dr. Zamir arise
from or out of any of these alleged activities in Massachusetts. As a result, none ofthese activities subject her to personal jurisdiction in Massachusetts courts under
G.L. c. 233A, §§ 3(a) or 3(c).
ORDER
Defendant’s motion to dismiss this action for lack of personal jurisdiction is
ALLOWED. Final judgment shall enter dismissing all claims witheut prejudice.
&F, > «
Aaah
Kenneth W. Salinger
June 13, 2016 Justice of the Superior Court
Preview
- i COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1584CV03390 MEDICAL SPECTROSCOPY, INC. and APPLIED ANALYTICS, INC. v. ADA ZAMIR MEMORANDUM AND ORDER ALLOWING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION This lawsuit concerns defendant Ada Zamir’s participation in an Israeli company called Medical Spectroscopy Ltd (“MSL”), which in turn allegedly entered into a joint venture with plaintiffs Applied Analytics, Inc. (“AAI”) and Medical Spectroscropy, Inc. (“MSI”). The plaintiffs both do business in Massachusetts and are controlled by Dr. Zamir’s daughter and son-in-law. AAI and MSI claim that Dr. Zamir breached contractual and fiduciary duties that she allegedly owed them under the “Founders Agreement” that established MSL, and that in so doing she also violated G.L. ¢. 98A. Dr. Zamir, who lives and works in Israel, has moved to dismiss this action for lack of personal jurisdiction over her. For the reasons discussed below, the Court will ALLOW her motion and dismiss this action without prejudice. Not Soop Plaintiffs have presented some evidence that, if believed, would establish the ©6144. Ib following facts. MSL was established in October 2007 by Dr. Zamir and six other cy M individuals, including her son Dr. Gideon Zamir, her daughter Dr. Yael Barshad, and mee her son-in-law Dr. Yoav Barshad. At the time the Barshads lived in Massachusetts Feu Lp and the other four founders in MSL lived in Israel. The contract establishing MSL TSup stated that the founders’ aim was to engage in a joint venture between MSL (in Israel) R +8 uipin AAI (in Massachusetts) to research and develop a new method for measuring blood chemistry for human and veterinary use. This Founders Agreement specified (mo that this project would be carried out through MSL. The alleged acts or omissions by Dr. Zamir that give rise to Plaintiffs’ claims are as follows. In their complaint, Plaintiffs allege that: (1) in late 2009 Dr. Zamir falsely told “the shareholders of MSL” that the technology they had been trying to develop “would not work and that therefore the Project would fail and should not bepursued further;” (2) on the basis of that statement MSL ceased operating, AAI stopped working on the joint venture project, and MSI also ceased operating; (3) thereafter Dr. Zamir used confidential information belonging to MSL to help develop similar technology for competing companies . In their opposition to Dr. Zamir’s motion to dismiss, Plaintiffs allege in the alternative that if Dr. Zamir’s statement that MSL’s technology was in fact true, then she nonetheless breached her alleged fiduciary duty to Plaintiffs by failing to disclose that information in early 2008 when she first became aware of it. Plaintiffs argue that the Court may exercise personal jurisdiction over Dr. Zamir under G.L. 223A, §§ 3(a) and 3(c). Although Dr. Zamir is the moving party, AAI and MSI have “the burden of establishing facts to show that the ground relied on under § 3 is present.” Roberts v. Legendary Marine Sales, 447 Mass. 860, 863 (2006), quoting Tatrov. Manor Care, Inc., 416 Mass. 763, 767 (1994). Plaintiffs do not assert, and therefore have waived, any other basis under the long-arm statute for exercising jurisdiction over Dr. Zamir. To establish personal jurisdiction under § 3(a) or 3(c), Plaintiffs must present evidence that they have a cause of action “arising from” Dr. Zamir’s “transacting business in Massachusetts” or from her “causing tortious injury by an act or omission in this commonwealth.” See G.L. c. 233A, § 2A; see also, generally, Fern v. Immergut, 55 Mass. App. Ct. 577, 579, rev. denied, 438 Mass. 1102 (2002) (“When, as here, the assertion of in personam jurisdiction has been challenged under Mass. R. Civ. P. 12(b)(2), ... 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.”). Like the substantively identical “relatedness” requirement imposed by the due process clause of the Fourteenth Amendment to the United States Constitution, this requirement “is not met merely because a plaintiffs 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” (emphasis in original). Fern, supra, at 583-584, quoting Sawtell v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995).Plaintiffs have not met their burden under the long-arm statute because they have presented no evidence that their claims arise from or out of alleged misconduct by Dr. Zamir that took place in Massachusetts. Dr. Yoav Barshad asserts in his affidavit that in late 2009 Dr. Zamir “informed” him “that the technology behind the project would not work.” But Plaintiffs have not presented any evidence regarding the manner in which this communication took place or that any part of it took place in Massachusetts. Although Barshad further testifies that Dr. Zamir “confirmed this” in an email dated February 11, 2010, the Complaint makes clear that the actions against Dr. Zamir arise from the alleged misrepresentation in late 2009, and not from any subsequent confirmatory email. In any case, Plaintiffs have not shown that the February 2010 email constituted the intentional transaction of business or an intentional misrepresentation within Massachusetts. Similarly, Plaintiffs have neither alleged nor presented any evidence that Dr. Zamir did anything in Massachusetts that constituted competing with MSL or using confidential information allegedly belonging to MSL. Nor can Plaintiffs salvage this action through their new theory that if Dr. Zamir was truthful when she said in late 2009 that MSL’s technology would not work, then she breached her alleged fiduciary duty to AAI and MSI by not revealing that fact much earlier. Since Dr. Zamir was living and working in Israel, a mere alleged failure to disclose information would not constitute causing tortious injury “by an act or omission in Massachusetts,” and thus would not fall within the scope of G.L. c. 288A, § 3(c). Cf. Fern, 55 Mass. App. Ct. at 582-583 (claims arising from alleged failure to disclose by lawyers working in New York did not arise from transaction of business in Massachusetts). Plaintiffs focus primarily on contested evidence that Dr. Zamir was present in Massachusetts from time to time and that she participated in drafting a report on behalf of MSL while she was in Concord, Massachusetts, once inspected equipment at the AAI facility in Massachusetts, and once met in Boston with officials from the federal Food & Drug Administration regarding the MSL/AAI joint venture. This part of Plaintiffs’ argument is also unavailing. None of the claims against Dr. Zamir arise from or out of any of these alleged activities in Massachusetts. As a result, none ofthese activities subject her to personal jurisdiction in Massachusetts courts under G.L. c. 233A, §§ 3(a) or 3(c). ORDER Defendant’s motion to dismiss this action for lack of personal jurisdiction is ALLOWED. Final judgment shall enter dismissing all claims witheut prejudice. &F, > « Aaah Kenneth W. Salinger June 13, 2016 Justice of the Superior Court