Shortening The Long Arm: Can A Restraining Order Be Issued Against An Out Of State Defendant?

Can 209A Restraining Orders be issued againstThere are two questions to be asked: is the
out-of-state Defendants?assertion of jurisdiction authorized by statute, and, if
There are two types of jurisdictional requirementsso, is the exercise of jurisdiction consistent with due
that must be met in order for a court of law to haveprocess requirements under the US Constitution? In
the authority to rule on matters: subject matter andMassachusetts, the statute that grants jurisdiction
personal jurisdiction. Subject matter simply meansover nonresident Defendants is Mass. Gen. Laws
that a court has the authority to hear a particularChapter 223A, Section 3. This is the so called "long
kind of case. Personal, or in personam jurisdiction,arm" statute. It sets out eight factors for
means that a court has the authority to assertconsideration in determining whether jurisdiction may
power over a specific person, usually the Defendant.be asserted:
In Massachusetts, Chapter 209A Section 1 grants- Transacting business in the state
subject matter jurisdiction to hear 209A Restraining- Contracting to supply services or things in the state
Order cases to Superior, District, Probate and Family,- Causing injury by act or omission in the state
and Boston Municipal Court departments. In cases- Causing injury outside the state while maintaining
where there is only a dating relationship between thebusiness or other persistent contacts within the state
parties, Superior Court does not have jurisdiction.- Interest in real property in the state
Thus, subject matter jurisdiction is usually not an- Providing insurance within the state
issue in 209A Cases.- Maintaining domicile within the state while being a
On the question of personal jurisdiction, the Courtparty to a relationship out of which there arises a
spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887,divorce, custody, child support, alimony, or property
in April 2006, clarifying this issue. In this case, thesettlement action. Note that a domicile is not the
Plaintiff was a native of Massachusetts while thesame as a residence. A person may have more than
Defendant was from New Hampshire. The couple hadone residence, but only one domicile, which entails the
a 2 year dating relationship, during which the Plaintiff"intent to remain indefinitely."
moved to New Hampshire to live with the Defendant.- Having been subject in the past to jurisdiction in the
Shortly thereafter, the Defendant relocated to thestate that resulted in alimony, custody, child support,
State of Washington on a Navy assignment, and theor property settlement orders, if the current action
Plaintiff followed. A child was born, and after a briefinvolves modification of such orders.
return to New Hampshire, the Plaintiff remained inIt is the provision regarding causing injury in the state
Washington. After the relationship ended, the Plaintiffthat is most often invoked in 209A Restraining Order
relocated to Massachusetts permanently.cases. Further, it is the Plaintiff who bears the burden
Immediately upon the Plaintiff's return toof proof on whether jurisdiction is validly asserted.
Massachusetts, she sought a 209A Restraining OrderIn the Lamarche v. Lussier case, the Court went
claiming various threats and fears based in part onthrough the eight factors listed above and held that
the Defendants Navy connections. All of thesenone of the factors applied to the Defendant, and
alleged threats took place while both parties were intherefore personal jurisdiction should not have been
Washington.asserted. In short, the Defendant did not reside in
Generally for personal jurisdiction to exist, theMassachusetts, nor conducted any business, nor
Defendant must have been served with the courtdelivered goods or services, nor owned any real
papers, and have had sufficient contacts with theproperty in the state. The alleged injuries to the
state so that the assertion of jurisdiction by thePlaintiff occurred while the couple was living in
Court meets basic due process and fairnessanother state.
standards. There is no set minimum number or typesWhile the Defendant's actions may have caused
of contacts that are required; the Court will analyzePlaintiff's injury in Massachusetts, the Defendant did
these issues on case by case basis.not have the "persistent contacts" with
The most obvious contact with a state is residence.Massachusetts as required by the statute.
When the Defendant resides in the state where theBecause the requirements of the statute were not
court sits, personal jurisdiction is likely established. Themet, the Court did not need to further analyze the
other strong but less obvious basis for jurisdiction issecond question of due process and whether
waiver. This is when the Defendant does not resideConstitutional requirements were met so as not to
in the state, but comes to defend and litigate theoffend "traditional notions of fair play and substantial
case and does so to conclusion without raising lack ofjustice." International Shoe Co. v. Washington, 326
jurisdiction as an objection. The Defendant is deemedU.S. 310, 316 (1945) (the landmark Supreme Court
to have "waived" his lack of jurisdiction defensecase setting forth the requirements for personal
because by litigating the case he has voluntarilyjurisdiction).
submitted to the jurisdiction of the Court. In theWith that in mind, the 209A Restraining Orders issued
words of the Court, common factor in waiver ofagainst the Defendant were dismissed.
personal jurisdiction are "dilatoriness and participationAs to the question of whether 209A Restraining
in, or encouragement of, judicial proceedings."Orders can be issued against out of state
The Defendant can also make a "special appearance"Defendants, the answer comes down to an
solely for the purpose of disputing personalunsatisfactory and terse summary of everything
jurisdiction without waiving the defense.discussed above, and a classic lawyerly answer: IT
When can a court assert jurisdiction over aDEPENDS.
nonresident Defendant?