Jose D'ALMEIDA, Plaintiff, v. STORK BRABANT B.V. and Stork Brabant, Inc., Defendants/Third Party Plaintiffs-Appellants. v. GERRITSE PROJECTEN, Texmach, B.V., and Ing. Gerritse, B.V., Third Party Defendants-Appellees, 71 F.3d 50

PER Btork ]3rabant B.V. and Stork Bra-bant, Inc. (“Stork”) appeal from a judgment of the district court dismissing a third-party action for indemnification and contribution against Ing. Gerritse B.V. (“Gerritse”). The facts are set out at length in the Report and Recommendation of the magistrate judge; the legal issues are whether the Massachusetts long-arm statute, Mass.Gen.L. ch. 223A, § 3(d), authorizes the assertion of personal jurisdiction over Gerritse, and, if so, whether such an assertion of jurisdiction is consistent with due process.

Although we would normally decide the issue if possible on the basis of the statute, in this case there is real doubt as to how the Massachusetts courts would decide the statutory issue, and the resolution of the constitutional issue is, by contrast, reasonably clear. We therefore proceed to the due process analysis. The third-party complaint, which we accept at this stage, reveals that Stork, as a distributor, ordered a machine from Gerritse; after negligently and/or in breach of warranty producing a defective machine, Gerritse sent it to Massachusetts on Stork’s instruction.

Whether this course of conduct gave Gerritse “minimum contacts” with the forum state as to satisfy the requirements of the due process clause, see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), is a very close call. The arguments on both sides are ably set forth in the magistrate judge’s report; while she concluded that minimum contacts were not present, and the district court agreed, we need not decide the issue, which would be especially difficult if the injured plaintiff in this ease had brought suit against Gerritse.

But even if minimum contacts were arguably present, due process further imposes a requirement that the assertion of jurisdiction be “consistent with traditional notions of fair play and substantial justice” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158, and this additional requirement controls here. The sole cause of action against Ger-ritse is an action by Stork for indemnification and contribution.

The parties must reasonably have expected that any litigation between them would not take place in Massachusetts; indeed, their contract included a forum selection clause designating Holland as the locus of litigation. More important, Massachusetts’ interest in the indemnification and contribution dispute are extremely limited, the compensation of its citizen not being at stake. Extensive discussion is unnecessary because in our view this phase of the case is directly governed by Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113-16, 107 S.Ct. 1026, 1032-34, 94 L.Ed.2d 92 (1987).

There eight justices applied the “fair play and substantial justice” requirement to hold that jurisdiction was lacking in quite similar circumstances. Thus, even if minimum contacts were barely present, a question we decline to answer, the assertion of jurisdiction over Gerritse in this indemnification and contribution action would still be unconstitutional. Affirmed.