| Can 209A Restraining Orders be issued
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| | process requirements under the US
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| against out-of-state Defendants?
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| | Constitution? In Massachusetts, the
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| | statute that grants jurisdiction over
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| There are two types of jurisdictional
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| | nonresident Defendants is Mass. Gen. Laws
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| requirements that must be met in order
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| | Chapter 223A, Section 3. This is the so
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| for a court of law to have the authority
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| | called "long arm" statute. It sets out
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| to rule on matters: subject matter and
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| | eight factors for consideration in
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| personal jurisdiction. Subject matter
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| | determining whether jurisdiction may be
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| simply means that a court has the
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| | asserted:
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| authority to hear a particular kind of
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| case. Personal, or in personam
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| | Transacting business in the state
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| jurisdiction, means that a court has the
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| | Contracting to supply services or things
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| authority to assert power over a specific
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| | in the state
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| person, usually the Defendant.
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| | Causing injury by act or omission in the
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| | state
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| In Massachusetts, Chapter 209A Section 1
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| | Causing injury outside the state while
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| grants subject matter jurisdiction to
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| | maintaining business or other persistent
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| hear 209A Restraining Order cases to
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| | contacts within the state
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| Superior, District, Probate and Family,
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| | Interest in real property in the state
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| and Boston Municipal Court departments.
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| | Providing insurance within the state
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| In cases where there is only a dating
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| | Maintaining domicile within the state
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| relationship between the parties,
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| | while being a party to a relationship out
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| Superior Court does not have
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| | of which there arises a divorce, custody,
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| jurisdiction. Thus, subject matter
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| | child support, alimony, or property
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| jurisdiction is usually not an issue in
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| | settlement action. Note that a domicile
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| 209A Cases.
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| | is not the same as a residence. A person
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| | may have more than one residence, but
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| On the question of personal
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| | only one domicile, which entails the
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| jurisdiction, the Court spoke in Lamarche
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| | "intent to remain indefinitely."
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| v. Lussier, 65 Mass. App. Ct. 887, in
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| | Having been subject in the past to
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| April 2006, clarifying this issue. In
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| | jurisdiction in the state that resulted
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| this case, the Plaintiff was a native of
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| | in alimony, custody, child support, or
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| Massachusetts while the Defendant was
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| | property settlement orders, if the
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| from New Hampshire. The couple had a 2
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| | current action involves modification of
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| year dating relationship, during which
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| | such orders.
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| the Plaintiff moved to New Hampshire to
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| live with the Defendant. Shortly
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| | It is the provision regarding causing
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| thereafter, the Defendant relocated to
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| | injury in the state that is most often
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| the State of Washington on a Navy
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| | invoked in 209A Restraining Order cases.
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| assignment, and the Plaintiff followed.
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| | Further, it is the Plaintiff who bears
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| A child was born, and after a brief
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| | the burden of proof on whether
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| return to New Hampshire, the Plaintiff
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| | jurisdiction is validly asserted.
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| remained in Washington. After the
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| relationship ended, the Plaintiff
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| | In the Lamarche v. Lussier case, the
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| relocated to Massachusetts permanently.
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| | Court went through the eight factors
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| | listed above and held that none of the
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| Immediately upon the Plaintiff's return
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| | factors applied to the Defendant, and
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| to Massachusetts, she sought a 209A
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| | therefore personal jurisdiction should
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| Restraining Order claiming various
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| | not have been asserted. In short, the
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| threats and fears based in part on the
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| | Defendant did not reside in
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| Defendants Navy connections. All of
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| | Massachusetts, nor conducted any
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| these alleged threats took place while
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| | business, nor delivered goods or
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| both parties were in Washington.
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| | services, nor owned any real property in
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| | the state. The alleged injuries to the
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| Generally for personal jurisdiction to
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| | Plaintiff occurred while the couple was
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| exist, the Defendant must have been
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| | living in another state.
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| served with the court papers, and have
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| had sufficient contacts with the state so
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| | While the Defendant's actions may have
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| that the assertion of jurisdiction by the
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| | caused Plaintiff's injury in
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| Court meets basic due process and
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| | Massachusetts, the Defendant did not have
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| fairness standards. There is no set
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| | the "persistent contacts" with
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| minimum number or types of contacts that
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| | Massachusetts as required by the statute.
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| are required; the Court will analyze
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| these issues on case by case basis.
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| | Because the requirements of the statute
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| | were not met, the Court did not need to
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| The most obvious contact with a state is
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| | further analyze the second question of
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| residence. When the Defendant resides in
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| | due process and whether Constitutional
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| the state where the court sits, personal
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| | requirements were met so as not to offend
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| jurisdiction is likely established. The
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| | "traditional notions of fair play and
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| other strong but less obvious basis for
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| | substantial justice." International Shoe
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| jurisdiction is waiver. This is when the
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| | Co. v. Washington, 326 U.S. 310, 316
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| Defendant does not reside in the state,
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| | (1945) (the landmark Supreme Court case
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| but comes to defend and litigate the case
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| | setting forth the requirements for
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| and does so to conclusion without raising
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| | personal jurisdiction).
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| lack of jurisdiction as an objection.
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| | With that in mind, the 209A Restraining
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| The Defendant is deemed to have "waived"
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| | Orders issued against the Defendant were
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| his lack of jurisdiction defense because
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| | dismissed.
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| by litigating the case he has voluntarily
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| submitted to the jurisdiction of the
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| | As to the question of whether 209A
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| Court. In the words of the Court, common
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| | Restraining Orders can be issued against
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| factor in waiver of personal jurisdiction
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| | out of state Defendants, the answer comes
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| are "dilatoriness and participation in,
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| | down to an unsatisfactory and terse
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| or encouragement of, judicial
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| | summary of everything discussed above,
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| proceedings."
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| | and a classic lawyerly answer: IT
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| | DEPENDS.-----------------------
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| The Defendant can also make a "special
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| | Boston Attorney Dmitry Lev handles
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| appearance" solely for the purpose of
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| | Criminal Defense and 209A Restraining
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| disputing personal jurisdiction without
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| | Order Defense cases in Massachusetts. In
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| waiving the defense.
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| | addition, Attorney Lev assists
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| | individuals who had Restraining Orders
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| When can a court assert jurisdiction
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| | issued against them and wish to have
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| over a nonresident Defendant?
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| | these orders removed, as well as those
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| | accused of violating these
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| There are two questions to be asked: is
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| | orders.Attorney Lev maintains a blog at
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| the assertion of jurisdiction authorized
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| | and a website at Offices of D. Lev, PC
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| by statute, and, if so, is the exercise
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| | 77 Franklin St.
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| of jurisdiction consistent with due
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