Guideline 5:01B
When personal jurisdiction is contested, the plaintiff bears the burden of demonstrating that jurisdiction over the defendant is proper. Exercise of personal jurisdiction over a non-resident defendant is proper when he or she acts directly, or by an agent, and causes tortious injury in this Commonwealth by either (1) an act or omission in this Commonwealth, or (2) an act or omission outside this Commonwealth if the defendant engages in any persistent course of conduct in this Commonwealth. G.L. c. 223A, § 3. Examples of such circumstances would include a non-resident who commits an act of abuse while in the Commonwealth, or a non-resident who repeatedly targets a person who is in the Commonwealth, by telephone and/or through social media, with harassing or threatening conduct from outside the Commonwealth. A plaintiff may also obtain personal jurisdiction over a non-resident defendant by serving the defendant with process while the defendant is physically within the territorial boundary of Massachusetts (a/k/a “tagging”). Additionally, a non-resident defendant is deemed to have consented to personal jurisdiction by actively participating in hearings without bringing the issue of personal jurisdiction to the attention of the court.
Even in the absence of personal jurisdiction over a non-resident defendant, a court may nevertheless issue an abuse prevention order, provided that it is limited to prohibitory, as opposed to affirmative, orders. An affirmative order is one that imposes a personal obligation on a defendant, such as an order to surrender firearms or to pay child support. A prohibitory order is an order that is limited to prohibiting actions of the defendant, such as ordering the defendant not to abuse the plaintiff, not to contact the plaintiff, to stay away from the plaintiff, or prohibiting the possession of firearms in the Commonwealth. Such prohibitory orders are enforceable even without personal jurisdiction over the defendant.
Commentary
In Caplan v. Donovan, the Supreme Judicial Court held that “a court may issue . . . an order of prevention and protection even without personal jurisdiction over the defendant, but may not impose affirmative obligations on the defendant if there is no personal jurisdiction.” 450 Mass. 463, 463-464 (2008), cert. denied, Donovan v. Caplan, 553 U.S. 1018 (2008).
In evaluating whether a pro se defendant has waived personal jurisdiction, “our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses” and submissions should be liberally construed. I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 560-61 (2013). In I.S.H., a parentage judgment entered when the pro se defendant, who lived in Florida, failed to appear. Subsequently, he communicated with the court by facsimile transmission, filed a complaint for modification, and participated in a telephonic hearing; at each point, the defendant stated his belief that his rights would or should have been determined by the Florida courts. “Although the father, acting pro se, did not use the words ‘personal jurisdiction,’ it was sufficiently clear from the father's reluctance to come to Massachusetts, his statements about proceedings in Florida, and his undisputed nonresident status that he was not having the case heard in Massachusetts voluntarily.” Id. at 561. As such, there was no waiver of personal jurisdiction. Id.
For additional discussion of obtaining personal jurisdiction by “tagging,” see Roch v. Mollica, 481 Mass. 164 (2019).
Contact
Phone
Address
| Last updated: | October 20, 2025 |
|---|