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

Can 209A Restraining Orders be issued againstof jurisdiction authorized by statute, and, if so, is the
out-of-state Defendants?exercise of jurisdiction consistent with due process
requirements under the US Constitution? In
There are two types of jurisdictional requirementsMassachusetts, the statute that grants jurisdiction over
that must be met in order for a court of law to havenonresident Defendants is Mass. Gen. Laws Chapter
the authority to rule on matters: subject matter and223A, Section 3. This is the so called "long arm"
personal jurisdiction. Subject matter simply means thatstatute. It sets out eight factors for consideration in
a court has the authority to hear a particular kind ofdetermining whether jurisdiction may be asserted:
case. Personal, or in personam jurisdiction, means that
a court has the authority to assert power over aTransacting business in the state
specific person, usually the Defendant.Contracting to supply services or things in the state
Causing injury by act or omission in the state
In Massachusetts, Chapter 209A Section 1 grantsCausing injury outside the state while maintaining
subject matter jurisdiction to hear 209A Restrainingbusiness or other persistent contacts within the state
Order cases to Superior, District, Probate and Family,Interest in real property in the state
and Boston Municipal Court departments. In casesProviding insurance within the state
where there is only a dating relationship between theMaintaining domicile within the state while being a party
parties, Superior Court does not have jurisdiction. Thus,to a relationship out of which there arises a divorce,
subject matter jurisdiction is usually not an issue incustody, child support, alimony, or property settlement
209A Cases.action. Note that a domicile is not the same as a
residence. A person may have more than one
On the question of personal jurisdiction, the Courtresidence, but only one domicile, which entails the
spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in"intent to remain indefinitely."
April 2006, clarifying this issue. In this case, the PlaintiffHaving been subject in the past to jurisdiction in the
was a native of Massachusetts while the Defendantstate that resulted in alimony, custody, child support, or
was from New Hampshire. The couple had a 2 yearproperty settlement orders, if the current action
dating relationship, during which the Plaintiff moved toinvolves modification of such orders.
New Hampshire to live with the Defendant. Shortly
thereafter, the Defendant relocated to the State ofIt is the provision regarding causing injury in the state
Washington on a Navy assignment, and the Plaintiffthat is most often invoked in 209A Restraining Order
followed. A child was born, and after a brief return tocases. Further, it is the Plaintiff who bears the burden
New Hampshire, the Plaintiff remained in Washington.of proof on whether jurisdiction is validly asserted.
After the relationship ended, the Plaintiff relocated to
Massachusetts permanently.In the Lamarche v. Lussier case, the Court went
through the eight factors listed above and held that
Immediately upon the Plaintiff's return tonone of the factors applied to the Defendant, and
Massachusetts, she sought a 209A Restraining Ordertherefore personal jurisdiction should not have been
claiming various threats and fears based in part on theasserted. In short, the Defendant did not reside in
Defendants Navy connections. All of these allegedMassachusetts, nor conducted any business, nor
threats took place while both parties were indelivered goods or services, nor owned any real
Washington.property in the state. The alleged injuries to the Plaintiff
occurred while the couple was living in another state.
Generally for personal jurisdiction to exist, the
Defendant must have been served with the courtWhile the Defendant's actions may have caused
papers, and have had sufficient contacts with thePlaintiff's injury in Massachusetts, the Defendant did not
state so that the assertion of jurisdiction by the Courthave the "persistent contacts" with Massachusetts as
meets basic due process and fairness standards.required by the statute.
There is no set minimum number or types of contacts
that are required; the Court will analyze these issuesBecause the requirements of the statute were not
on case by case basis.met, the Court did not need to further analyze the
second question of due process and whether
The most obvious contact with a state is residence.Constitutional requirements were met so as not to
When the Defendant resides in the state where theoffend "traditional notions of fair play and substantial
court sits, personal jurisdiction is likely established. Thejustice." International Shoe Co. v. Washington, 326 U.S.
other strong but less obvious basis for jurisdiction is310, 316 (1945) (the landmark Supreme Court case
waiver. This is when the Defendant does not reside insetting forth the requirements for personal jurisdiction).
the state, but comes to defend and litigate the caseWith that in mind, the 209A Restraining Orders issued
and does so to conclusion without raising lack ofagainst the Defendant were dismissed.
jurisdiction as an objection. The Defendant is deemed
to have "waived" his lack of jurisdiction defenseAs to the question of whether 209A Restraining
because by litigating the case he has voluntarilyOrders can be issued against out of state Defendants,
submitted to the jurisdiction of the Court. In the wordsthe answer comes down to an unsatisfactory and
of the Court, common factor in waiver of personalterse summary of everything discussed above, and a
jurisdiction are "dilatoriness and participation in, orclassic lawyerly answer: IT
encouragement of, judicial proceedings."DEPENDS.-----------------------
Boston Attorney Dmitry Lev handles Criminal Defense
The Defendant can also make a "specialand 209A Restraining Order Defense cases in
appearance" solely for the purpose of disputingMassachusetts. In addition, Attorney Lev assists
personal jurisdiction without waiving the defense.individuals who had Restraining Orders issued against
them and wish to have these orders removed, as well
When can a court assert jurisdiction over aas those accused of violating these orders.Attorney
nonresident Defendant?Lev maintains a blog at and a website at Offices of D.
Lev, PC
There are two questions to be asked: is the assertion77 Franklin St.