Foster-Miller, Inc. v. Babcock ( 1995 )


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  • USCA1 Opinion









    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    _________________________

    No. 94-1498

    FOSTER-MILLER, INC.,

    Plaintiff, Appellant,

    v.

    BABCOCK & WILCOX CANADA,

    Defendant, Appellee.

    _________________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Richard G. Stearns, U.S. District Judge] ___________________

    _________________________

    Before

    Selya, Circuit Judge, _____________

    Aldrich, Senior Circuit Judge, ____________________

    and Boudin, Circuit Judge. _____________

    _________________________

    James J. Foster, with whom Michael A. Diener and Wolf, ________________ ___________________ _____
    Greenfield & Sacks, P.C. were on brief, for appellant. ________________________
    Peter L. Resnik, with whom Cherie L. Krigsman and McDermott, _______________ __________________ __________
    Will & Emery were on brief, for appellee. ____________

    _________________________

    February 9, 1995

    _________________________


















    SELYA, Circuit Judge. In Boit v. Gar-Tec Prods., Inc., SELYA, Circuit Judge. _____________ ____ ____________________

    967 F.2d 671 (1st Cir. 1992), we urged district courts to take a

    flexible approach in handling motions to dismiss for lack of in __

    personam jurisdiction, and, concomitantly, to tailor procedures ________

    for use in those purlieus. Turning from the general to the

    particular, we recommended that district courts employ varying

    levels of scrutiny in connection with such motions, adapting the

    level of scrutiny to the exigencies of the individual case. See ___

    id. at 674-78. Among other possibilities, we suggested using a ___

    special intermediate standard when "factual issues are common to

    both the jurisdictional question and the claim on the merits . .

    . ." Id. at 677. ___

    The case before us today an appeal by Foster-Miller,

    Inc. (FMI) from an order dismissing its commercial tort action

    against Babcock & Wilcox Canada (BWC) illustrates vividly that

    Boit's flexible approach demands circumspection in its ____

    application. In this case, the district court applied Boit's ____

    intermediate standard too rashly when, eager to test whether a

    legally sufficient showing of jurisdiction had been made, it

    neither gave the parties adequate notice that it intended to use

    this special standard nor ensured that FMI had a fair opportunity

    to gather and present the evidence necessary for such a showing.

    While we are not without sympathy for the district judge he

    inherited this case midstream, and Boit, in retrospect, should ____

    have emphasized the need to forewarn litigants of a trial court's

    intention to go beyond the prima facie standard typically


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    associated with motions to dismiss under Fed. R. Civ. P. 12(b)(2)

    we cannot permit the dismissal order to stand.

    I. THE FACTS I. THE FACTS

    We sketch the operative facts, drawing liberally from

    the lower court's opinion. See Foster-Miller, Inc. v. Babcock & ___ ___________________ _________

    Wilcox Can., 848 F. Supp. 271 (D. Mass. 1994). ___________

    The parties to this appeal are quondam competitors:

    FMI is a Massachusetts corporation engaged in furnishing sludge

    and particle removal services for nuclear steam generators; BWC

    is a Canadian firm that, among other things, services such

    generators. At its core, the litigation concerns a virtual

    meltdown of the parties' relationship, which in turn detonated a

    lawsuit. The tale follows.

    As early as 1988, FMI and BWC entertained the prospect

    of a joint venture to furnish sludge removal services to Ontario

    Hydro, a Canadian utility. Although the joint venture idea

    stalled and the principals went their separate ways, Canada

    remained an alluring target. But the road to prosperity had a

    large pothole. FMI's then-extant technology, known by the

    acronym "CECIL," featured flexible lances that directed powerful

    bursts of water at pockets of sludge found within the hard-to-

    reach crannies of nuclear steam boilers. While this system had

    distinct competitive advantages over BWC's rival rigid lance

    system, neither system performed satisfactorily in the cleansing

    of Canadian boilers (known in the trade as Candu boilers).

    Determined to detour around the "can't do Candu"


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    pothole and penetrate the Canadian market, BWC set out to design

    a lance of unprecedented flexibility. In 1989, while BWC's

    development efforts were underway, Ontario Hydro (acting on

    behalf of a consortium of Canadian utilities) retained FMI to

    study the feasibility of adapting FMI's flexible lance technology

    for use in Candu boilers. As part of this endeavor, FMI

    contracted with a well-known supplier, U.S. Composites (CompCo),

    to create a new type of hose.

    In March 1990, Robert A.S. Lee, an FMI employee who had

    been instrumental in perfecting CECIL, attended an industry

    conference in Tennessee. Daniel St. Louis, a BWC engineer

    involved in that company's push to fashion a flexible lance,

    attended the same session. During a previous encounter, the men

    had casually discussed high pressure hoses. On this occasion,

    their conversation became more detailed and focused on the

    possibility of reinforcing high pressure hoses with certain

    fibers. The discussion proved prophetic: a few weeks

    thereafter, CompCo delivered the special hose that FMI had asked

    it to design. The hose was thought in certain quarters to

    represent a technological breakthrough. One of its more

    revolutionary features was a double-layered Kevlar sheath that

    supplied desired reinforcement.

    On May 11, 1990, an Ontario Hydro representative, James

    Malaugh, traveled to FMI's plant in Waltham, Massachusetts, to

    assess FMI's progress. Seeking expertise and insight, Malaugh

    invited St. Louis to join him. Nonplussed, FMI allowed St. Louis


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    to attend only after BWC signed a confidentiality agreement. The

    agreement, duly executed by a ranking official of BWC and

    transmitted via facsimile machine from Canada, acknowledged that

    FMI "anticipate[d] disclosing . . . certain information of a

    novel, proprietary, or confidential nature," and memorialized

    BWC's promise "not to use [the] information for any purpose

    unless specifically authorized in writing by FMI." The agreement

    also stipulated that FMI would be entitled to relief for any

    breach.

    William Leary, the FMI engineer in charge of the

    Ontario Hydro project, hosted the Waltham session. The

    participants debated various aspects of flexible lance

    technology, including the preferred characteristics of the hose

    and possible methods of reinforcement. At one point Leary,

    responding to a direct question by St. Louis, identified CompCo

    as FMI's supplier. Not long after the Waltham meeting, St. Louis

    contacted CompCo and inquired about the possibility of that

    company fabricating a similar hose for BWC. St. Louis'

    suggestion that FMI would not object proved overly sanguine;

    after consulting with FMI, CompCo rebuffed BWC's overtures.1

    Undaunted, BWC forged ahead in its research effort. It

    eventually succeeded in manufacturing its own flexible lance,

    suitable for Candu boilers. Thereafter, Ontario Hydro awarded

    BWC a lucrative contract.
    ____________________

    1Nonetheless, BWC managed to obtain a sample of the special
    hose. The parties dispute whether this occurred before or after
    the May 11 meeting.

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    II. THE LITIGATION II. THE LITIGATION

    On November 12, 1993, FMI, claiming to have gotten

    hosed, commenced suit against BWC in the United States District

    Court for the District of Massachusetts. Invoking diversity

    jurisdiction, 28 U.S.C. 1332 (1988), FMI charged breach of the

    confidentiality agreement, misappropriation of trade secrets, and

    unfair competition. BWC moved to dismiss for lack of in personam __ ________

    jurisdiction or, in the alternative, on the basis of forum non _____ ___

    conveniens. __________

    Judge Keeton drew the case. Concerns about the

    parties' trade secrets slowed discovery to a crawl. At a

    conference held on December 16, 1993, Judge Keeton scheduled a

    hearing on the motion for January 4, 1994, restricted discovery

    for the time being to matters "bear[ing] upon the jurisdictional

    issue," and advised counsel that, absent an agreement dissolving

    the discovery deadlock, he would use the traditional prima facie

    standard, not the special intermediate standard, in evaluating

    the motion to dismiss.

    At that point, fate intervened. In a routine shuffling

    of cases ancillary to the appointment of several new judicial

    officers, this case was plucked from Judge Keeton and reassigned

    to Judge Stearns. The January 4 hearing never materialized.

    Instead, Judge Stearns heard the motion to dismiss on February 1

    and 2, 1994. Though the discovery dispute had not been resolved,

    Judge Stearns, to FMI's obvious chagrin, undertook not only to

    probe the existence of the basic facts on which jurisdiction


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    might be premised but also to adjudicate certain ultimate facts

    (e.g., whether the participants actually disclosed any ____

    confidential information at the Waltham meeting).2 And he

    applied the special intermediate level of scrutiny rather than

    the more easily satisfied prima facie standard.

    The district court granted the motion to dismiss.

    After stressing the importance of the Waltham meeting to the

    jurisdictional issue BWC, after all, had no other significant

    contacts with the forum Judge Stearns articulated two bases for

    refusing to exercise jurisdiction. First, he found it unlikely

    either that proprietary information had been disclosed at the

    meeting or that such information came into BWC's possession as a

    result of the meeting; therefore, FMI's cause of action did not

    arise from BWC's participation in the meeting as required by the

    Massachusetts long-arm statute. See Foster-Miller, 848 F. Supp. ___ _____________

    at 276-77. Second, and alternatively, the judge concluded that,

    even if FMI's claims did arise from BWC's participation in the

    Waltham meeting, it would be unreasonable for a Massachusetts-

    based court to exercise jurisdiction over BWC, in part because

    the court might not be able to grant effective injunctive relief.

    See id. at 277. ___ ___

    FMI moved for reconsideration, specifically withdrawing

    ____________________

    2Because the scope of this inquiry caught FMI off guard, it
    tendered a series of post-hearing offers of proof in an effort to
    make up lost ground. We do not comment on the timing of FMI's
    proffers. Further proceedings in the district court are
    obligatory, see infra Parts IV(C) & V, at which time new ___ _____
    evidentiary submissions can be assembled.

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    its prayer for an injunction. Judge Stearns denied the motion

    without comment. This appeal ensued.



    III. SPECIFIC PERSONAL JURISDICTION III. SPECIFIC PERSONAL JURISDICTION

    Prior to reexamining the Boit framework, we rehearse ____

    certain general principles of law relating to specific in __

    personam jurisdiction. ________

    Personal jurisdiction implicates the power of a court

    over a defendant. In a federal court, both its source and its

    outer limits are defined exclusively by the Constitution. See ___

    Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, ___________________________ _________________________________

    456 U.S. 694, 702 (1982).

    There are two different avenues by which a court may

    arrive at personal jurisdiction. One frequently traveled route

    leads to general jurisdiction. "General jurisdiction exists when

    the litigation is not directly founded on the defendant's forum-

    based contacts, but the defendant has nevertheless engaged in

    continuous and systematic activity, unrelated to the suit, in the

    forum state." United Elec. Workers v. 163 Pleasant St. Corp., _____________________ _______________________

    960 F.2d 1080, 1088 (1st Cir. 1992) (Pleasant St. I). Here, _______________

    BWC's forum-related contacts are far too scanty to justify the

    invocation of general jurisdiction. See Foster-Miller, 848 F. ___ _____________

    Supp. at 273 (marshalling certain undisputed facts).

    When general jurisdiction is lacking, the lens of

    judicial inquiry narrows to focus on specific jurisdiction. As

    the label implies, this focus requires weighing the legal


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    sufficiency of a specific set of interactions as a basis for

    personal jurisdiction. See Helicopteros Nacionales de Colombia, ___ ____________________________________

    S.A. v. Hall, 466 U.S. 408, 414-15 & nn.8-9 (1984) (recognizing ____ ____

    "general" and "specific" jurisdiction and distinguishing between

    them); Pleasant St. I, 960 F.2d at 1088 (similar); Donatelli v. ______________ _________

    National Hockey League, 893 F.2d 459, 462-63 (1st Cir. 1990) _______________________

    (similar). In that exercise, the applicable constitutional

    limits assume critical importance. We explain briefly.

    The existence of specific personal jurisdiction depends

    upon the plaintiff's ability to satisfy two cornerstone

    conditions: "first, that the forum in which the federal district

    court sits has a long-arm statute that purports to grant

    jurisdiction over the defendant; and second, that the exercise of

    jurisdiction pursuant to that statute comports with the

    strictures of the Constitution." Pritzker v. Yari, ___ F.3d ___, ________ ____

    ___ (1st Cir. 1994) [No. 93-2374, slip op. at 9]; see also ___ ____

    Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. ___________________________ ______

    1994); Hahn v. Vermont Law Sch., 698 F.2d 48, 51 (1st Cir. ____ __________________

    1983).

    Although we deem the first of the cornerstone

    conditions to be self-explanatory, the second condition requires

    amplification. This condition implicates three distinct

    components, namely, relatedness, purposeful availment (sometimes

    called "minimum contacts"), and reasonableness:3
    ____________________

    3This trilogy forms an interesting contrast with the
    jurisprudence of the branch of the Massachusetts long-arm statute
    that applies in many business disputes. See Mass. Gen. L. ch. ___

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    First, the claim underlying the litigation
    must directly arise out of, or relate to, the
    defendant's forum-state activities. Second,
    the defendant's in-state contacts must
    represent a purposeful availment of the
    privilege of conducting activities in the
    forum state, thereby invoking the benefits
    and protections of that state's laws and
    making the defendant's involuntary presence
    before the state's courts foreseeable.
    Third, the exercise of jurisdiction must, in
    light of the Gestalt factors, be reasonable.

    Pleasant St. I, 960 F.2d at 1089; accord Pritzker, ___ F.3d at ______________ ______ ________

    ___ [slip op. at 10-11]; Ticketmaster, 26 F.3d at 206. ____________

    IV. APPLYING THE JURISDICTIONAL RULES IV. APPLYING THE JURISDICTIONAL RULES

    A long-arm statute is plainly available for FMI's use.

    See Mass. Gen. L. ch. 223A, 3(a) (1992). Section 3(a), quoted ___

    supra note 3, is not modest in its reach. Its language is _____

    expansive, and its words are to be generously applied in order to

    determine whether a given defendant fairly can be said to have

    participated in the forum's economic life. See Pleasant St. I, ___ _______________

    960 F.2d at 1087 (collecting cases). Since section 3(a) applies

    here, we turn directly to the second of the two cornerstone

    ____________________

    223A, 3(a) (1992) (providing in relevant part for the exercise
    of "personal jurisdiction over a person, who acts directly or by
    an agent, as to a cause of action in law or equity arising from
    the person's . . . transacting any business" in Massachusetts).
    The Massachusetts Supreme Judicial Court has held that, to
    animate the statute, the facts must show both that the defendant
    transacted business in Massachusetts, and that the plaintiff's
    claim arises out of the transaction of that business. See Tatro ___ _____
    v. Manor Care, Inc., 625 N.E.2d 549, 551 (Mass. 1994); Good Hope _________________ _________
    Indus., Inc. v. Ryder Scott Co., 389 N.E.2d 76 (Mass. 1979). _____________ ________________
    From our coign of vantage, these two requirements appear to
    correspond, in reverse order, to the first two of the three
    constitutional components, i.e., the "transacting any business" ____
    requirement corresponds to "minimum contacts," while the "arising
    from" requirement corresponds to relatedness.

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    conditions that constitute the foundation for a finding of

    specific in personam jurisdiction. __ ________

    As we have said, the condition comprises three

    components. The first minimum contacts is not legitimately

    in issue. The seminal jurisdictional fact that BWC voluntarily

    dispatched a representative to Massachusetts for commercial

    advantage pursuant to a written contract with a Massachusetts

    firm cannot be gainsaid. In taking this action, BWC

    purposefully conducted activities in the forum state, thereby

    making a suit foreseeable. See id. at 1089. Hence, we endorse ___ ___

    the district court's conclusion that BWC transacted business in

    Massachusetts to such an extent, and in such a manner, as to

    satisfy the minimum contacts requirement. See Foster-Miller, 848 ___ _____________

    F. Supp. at 276; compare Pritzker, ___ F.3d at ___ [slip op. at _______ ________

    14] (finding jurisdiction in part because the nonresident

    defendant, by contract, had "knowingly acquir[ed] an economically

    beneficial interest" in a forum-based commercial venture).

    Setting the matter of minimum contacts to rest, we come

    face to face with the next component: relatedness. In this

    case, evaluating that requirement reduces to whether FMI's claim

    arises from BWC's minimum contacts. To place this issue into

    proper perspective, we first limn the options that are available

    to a district court in handling a motion to dismiss for want of

    jurisdiction over the person. We then refine that framework and

    scrutinize the decision below in light of our handiwork.

    A. Establishing and Testing Personal Jurisdiction. A. Establishing and Testing Personal Jurisdiction. ______________________________________________


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    It is apodictic that the plaintiff, who bears the

    burden of proving the existence of in personam jurisdiction, must __ ________

    carry the devoir of persuasion on the elements of relatedness and

    minimum contacts. See Ticketmaster, 26 F.3d at 207 n.9; Martel ___ ____________ ______

    v. Stafford, 992 F.2d 1244, 1247 n.5 (1st Cir. 1993); Donatelli, ________ _________

    893 F.2d at 468. But this is merely one step along the path; to

    allocate the burden is neither to define the evidentiary showing

    necessary to meet it nor to explain whether that showing varies

    from context to context.

    We addressed these important issues in Boit. There, we ____

    tried to formulate a procedural matrix that would serve to endow

    the decisional process with appropriate degrees of economy and

    manageability. That endeavor produced a trio of standards, each

    corresponding to a level of analysis, that might usefully be

    employed when a trial court comes to grips with a motion to

    dismiss for want of personal jurisdiction.

    The most conventional of these methods permits the

    district court "to consider only whether the plaintiff has

    proffered evidence that, if credited, is enough to support

    findings of all facts essential to personal jurisdiction." Boit, ____

    967 F.2d at 675. To make a prima facie showing of this calibre,

    the plaintiff ordinarily cannot rest upon the pleadings, but is

    obliged to adduce evidence of specific facts. See id. Withal, ___ ___

    the district court acts not as a factfinder, but as a data

    collector. That is to say, the court, in a manner reminiscent of

    its role when a motion for summary judgment is on the table, see ___


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    Fed. R. Civ. P. 56(c), must accept the plaintiff's (properly

    documented) evidentiary proffers as true for the purpose of

    determining the adequacy of the prima facie jurisdictional

    showing. Despite the lack of differential factfinding, this

    device is a useful means of screening out cases in which personal

    jurisdiction is obviously lacking, and those in which the

    jurisdictional challenge is patently bogus. However, the

    approach offers little assistance in closer, harder-to-call

    cases, particularly those that feature conflicting versions of

    the facts. See, e.g., General Contracting & Trading Co. v. ___ ____ ____________________________________

    Interpole, Inc., 899 F.2d 109 (1st Cir. 1990). _______________

    A second option open to the court is to embark on a

    factfinding mission in the traditional way, taking evidence and

    measuring the plaintiff's jurisdictional showing against a

    preponderance-of-the-evidence standard. In Boit, we stated that ____

    this standard may appropriately be invoked when a court

    determine[s] that in the circumstances of a
    particular case it is unfair to force an out-
    of-state defendant to incur the expense and
    burden of a trial on the merits in the local
    forum without first requiring more of the
    plaintiff than a prima facie showing of facts ___________
    essential to in personam jurisdiction. A __ ________
    court may so determine, for example, when the
    proffered evidence is conflicting and the
    record is rife with contradictions, or when a
    plaintiff's affidavits are "patently
    incredible . . . ."

    Boit, 967 F.2d at 676 (offering examples). Virtually by ____

    definition, the preponderance standard necessitates a full-blown

    evidentiary hearing at which the court will adjudicate the



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    jurisdictional issue definitively before the case reaches

    trial.4 In that mode, the court will "consider[] all relevant

    evidence proffered by the parties and mak[e] all factual findings

    essential to disposition of the motion." Id. But this method ___

    must be used discreetly. For one thing, pretrial evidentiary

    hearings are relatively cumbersome creatures, and, if used

    routinely, can squander judicial resources. For another thing,

    since this method contemplates a binding adjudication, the

    court's factual determinations ordinarily will have preclusive

    effect, and, thus, at least in situations in which the facts

    pertinent to jurisdiction and the facts pertinent to the merits

    are identical, or nearly so, profligate use of the preponderance

    method can all too easily verge on a deprivation of the right to

    trial by jury.

    In Boit, we recognized these difficulties. We also ____

    recognized that the prima facie and preponderance-of-the-evidence

    standards are merely two of several possible models, and that

    trial courts need not confine themselves to choosing between

    these two levels of evidentiary scrutiny. See id. at 677. In ___ ___

    the special circumstance in which the assertion of jurisdiction

    is bound up with the claim on the merits, the possibility of

    preclusion renders use of the preponderance standard troubling,

    ____________________

    4Such hearings frequently are convened under the aegis of
    Fed. R. Civ. P. 12(d), which provides in pertinent part that
    certain defenses, including the defense of lack of in personam __ ________
    jurisdiction, "shall be heard and determined before trial on
    application of any party," unless the court orders a deferral
    until time of trial.

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    while the possibility of permitting a dubious case to proceed

    beyond the pleading stage, and even to trial, though the court

    eventually will be found to lack jurisdiction, renders use of the

    prima facie standard undesirable.

    The Boit panel anticipated that, when this special ____

    circumstance arose, trial courts might steer a middle course by

    engaging in some differential factfinding, limited to probable

    outcomes as opposed to definitive findings of fact, thereby

    skirting potential preclusionary problems while at the same time

    enhancing the courts' ability to weed out unfounded claims of

    jurisdiction. Utilizing this intermediate standard, a district

    court, "even though allowing an evidentiary hearing and weighing

    evidence to make findings . . . may merely find whether the

    plaintiff has shown a likelihood of the existence of each fact

    necessary to support personal jurisdiction." Id. This showing ___

    constitutes an assurance that the circumstances justify imposing

    on a foreign defendant the burdens of trial in a strange forum,

    but leaves to the time of trial a binding resolution of the

    factual disputes common to both the jurisdictional issue and the

    merits of the claim. See id. at 678. ___ ___

    Unlike the prima facie standard, and like the

    preponderance standard, this third method, which we sometimes

    call the "likelihood standard,"

    involves factfinding rather than merely
    making a ruling of law regarding sufficiency
    of the evidence to present a fact question.
    Like the first and unlike the second method,
    however, the third method avoids potentially
    troubling issues of "issue preclusion" or

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    "law of the case" (at least when the court
    denies the motion) because a determination by
    such an intermediate standard . . . does not
    purport to be a finding by the same standard
    on the same issue as will be decided at
    trial.

    Id. ___

    We acknowledge that having an array of standards at the

    ready may be thought too much of a good thing. However, even

    though an intermediate standard will not be used with great

    frequency, the need for one is manifest. We can postulate a

    variety of "common facts" scenarios in which the facts necessary

    to sustain personal jurisdiction are intimately bound up with

    facts necessary to establish the merits of the underlying claim.

    See, e.g., Ann Althouse, The Use of Conspiracy Theory to ___ ____ ____________________________________

    Establish In Personam Jurisdiction: A Due Process Analysis, 52 ___________________________________ _______________________

    Fordham L. Rev. 234, 247-51 (1983) (noting, though not adequately

    resolving, the problem created in situations where proving the

    facts "upon which jurisdiction depends is viewed as inextricably

    tied to the substantive merits of the case"). It is precisely

    because of the incidence of these situations situations in

    which the issue of jurisdiction is factually enmeshed with the

    merits of the suit that we recognized in Boit the need for an ____

    intermediate standard of proof and, correspondingly, an

    intermediate standard of judicial analysis.

    B. Standards of Review. B. Standards of Review. ___________________

    We are reluctant to end our discussion of the methods

    available to district courts for testing jurisdictional waters

    without mentioning appellate review. As a practical matter, the

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    standard of review will depend in the first instance on whether

    the court of appeals is reviewing the district court's choice of

    an analytic method or its application of such a method. As for

    the court's initial choice from among the three standards we have

    discussed prima facie, likelihood, or preponderance appellate

    review is de novo. This accords with the general principle that

    a trial court's determinations as to the legal rules that govern

    a party's proof, including those that dictate what quantum of

    proof the law requires, are subject to plenary review. See, ___

    e.g., Putnam Resources v. Pateman, 958 F.2d 448, 471 (1st Cir. ____ ________________ _______

    1992); see also Soto v. United States, 11 F.3d 15, 17 (1st Cir. ___ ____ ____ _____________

    1993) (holding that "if a district court applie[s] an erroneous

    legal standard to the facts," de novo review obtains).

    As for the district court's subsequent application of

    the method that it chooses, the standard of review will vary from

    method to method. If the district court employs the prima facie

    standard, then appellate review is de novo. See United Elec. ___ _____________

    Workers v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. _______ _______________________

    1993) (Pleasant St. II); Boit, 967 F.2d at 675; see also Garita ________________ ____ ___ ____ ______

    Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st _______________________ _______________

    Cir. 1992) (explaining that appellate courts traditionally review

    rulings on motions to dismiss de novo, "applying the same

    criteria that obtained in the court below"). If the district

    court departs from the conventional method of adjudicating

    motions to dismiss and relies upon the preponderance-of-the-

    evidence standard to determine the existence vel non of personal ___ ___


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    jurisdiction, then appellate review is for clear error. See ___

    CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir. __________________ ________

    1986); see also Fed. R. Civ. P. 52(a). ___ ____

    If the district court employs the intermediate

    standard, then appellate review is for abuse of discretion. Cf. ___

    Boit, 967 F.2d at 678 (suggesting a deferential standard of ____

    appellate review). Two considerations point to the applicability

    of this deferential mode of review in this situation. First, the

    nature of a likelihood analysis is such that it falls naturally

    within the realm of discretionary decisionmaking. Second, from a

    practical standpoint, a likelihood analysis simply does not seem

    amenable to either of the other standards. Unlike the classic

    motion to dismiss, in which the plaintiff's assertions are

    accepted as true, a likelihood analysis requires the judge to

    pass upon the accuracy and integrity of the plaintiff's

    assertions. Yet, in contrast to a preponderance-of-the-evidence

    analysis, these determinations are not true findings of fact, for

    they lack definiteness to some degree, and they also lack the

    preclusive quality that would otherwise normally attach.

    Consequently, we believe that abuse of discretion is the proper

    standard of review. In practical terms, this means that we will

    set aside the challenged ruling only if we descry "a meaningful

    error in judgment." Anderson v. Cryovac, Inc., 862 F.2d 910, 923 ________ _____________

    (1st Cir. 1988); accord Rosario-Torres v. Hernandez-Colon, 889 ______ ______________ _______________

    F.2d 314, 323 (1st Cir. 1989) (en banc).

    Of course, whatever method is chosen and however it may


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    be applied, appellate review of the trial court's legal

    conclusions about whether its findings do or do not support

    the exercise of in personam jurisdiction is always nondeferential __ ________

    and plenary. See Boit, 967 F.2d at 678. ___ ____

    C. Applying the Likelihood Standard. C. Applying the Likelihood Standard. ________________________________

    After convening an evidentiary hearing and bringing the

    likelihood standard to bear, Judge Stearns found it unlikely

    either that FMI disclosed legally protected information at the

    Waltham meeting or that BWC obtained confidences as a consequence

    of the meeting. See Foster-Miller, 848 F. Supp. at 276-77. FMI ___ _____________

    assigns error. Its appeal raises potentially difficult questions

    about the application of Boit's likelihood standard in certain ____

    types of cases.

    We hasten to note that the paradigm case involving

    the use of Boit's intermediate standard as a basis for exercising ____ __________

    jurisdiction, i.e., as a basis for denying a motion to dismiss ____ _______

    hardly seems problematic. In such a scenario, the plaintiff is

    permitted to proceed in its forum of choice, yet the defendant

    has the consolation of having been afforded a detailed

    demonstration, beyond a mere prima facie showing, of why the

    court deems it fair to exercise jurisdiction, at least

    provisionally. It is only when Boit's intermediate standard is ____

    used as a basis for declining the exercise of jurisdiction, i.e., _________ ____

    as a basis for granting a motion to dismiss, that the prospect of ________

    mischief looms. One can easily imagine cases in which the

    likelihood standard might be applied to adjudicate facts that are


    19












    only marginally related to jurisdiction, or are very closely

    related to the merits of the plaintiff's substantive claims, thus

    prematurely extinguishing a plaintiff's ability to present its

    case in a full and fair manner.5

    The short of it is that, whatever its merits in the

    abstract, Boit's intermediate standard requires caution in its ____

    application, especially when it appears that a dismissal may

    result. Indeed, although Boit does, in dictum, 967 F.2d at 677- ____

    78, propose to authorize such dismissals, it is noteworthy that,

    apart from the opinion of the court below, there is no other

    reported case, Boit included, that has sanctioned a dismissal ____

    pursuant to a district court's use of the likelihood standard.

    In general, this is as it should be. To the limited

    extent that dismissals under Boit's intermediate standard are ____

    justified at all, they will happen only rarely. Even then, the

    exact bounds of permissible application may not always be

    evident. Nonetheless, we believe it is better to tolerate the

    inconvenience of mild doctrinal uncertainty rather than to forgo

    altogether the utility of an intermediate standard and method of

    analysis. See generally Stephen L. Carter, Constitutional ___ _________ ______________

    Adjudication and the Indeterminate Text: A Preliminary Defense _________________________________________________________________
    ____________________

    5Conceivably, such an adjudication may also serve to thrust
    the judge into a role that, depending upon the circumstances,
    more appropriately belongs to the jury. See, e.g., Jacob v. City ___ ____ _____ ____
    of New York, 315 U.S. 752, 756 (1942) (noting basic principle ___________
    that merely because a "case is close and a jury might find either
    way . . . is no reason for a court to usurp the function of the
    jury"); Nunes v. Farrell Lines, Inc., 227 F.2d 619, 621-22 (1st _____ ____________________
    Cir. 1955) (applying principle of Jacob and vacating directed _____
    verdict).

    20












    of an Imperfect Muddle, 94 Yale L.J. 821 (1985) (recognizing the _______________________

    impossibility of removing all uncertainty from legal doctrine);

    Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. ___________________

    457, 465 (1897) (warning that, in respect to judicial decisions,

    "certainty generally is illusion, and repose is not the destiny

    of man"). The bottom line, clearly, is that judges employing

    Boit's intermediate standard should proceed with great care. ____

    In any event, these potential difficulties are

    peripheral to the instant appeal. In this instance, the flaw is

    less Judge Stearns' initial decision to switch the signals

    previously given by Judge Keeton and instead apply the

    intermediate standard, but more his failure to apprise FMI

    squarely of this change of plan a failure that was aggravated

    by FMI's inability to engage in appropriate discovery and then to

    present the totality of its evidence within the context of a

    likelihood analysis.

    When judges elect on their own initiative to use

    innovative methods in an effort to accelerate the progress of a

    case, they must take pains to ensure that parties are given

    satisfactory notice, reasonable access to discovery, and a

    meaningful opportunity to present evidence. See, e.g., Stella v. ___ ____ ______

    Town of Tewksbury, 4 F.3d 53, 55-56 (1st Cir. 1993) (stating __________________

    these principles in the context of sua sponte summary judgment); ___ ______

    Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1560-61 ______________________ ____________

    (1st Cir. 1989) (similar). While the likelihood standard has

    value, the latent risks associated with its use are not


    21












    insignificant, and they should be ameliorated to the extent

    practicable.

    Here, the lower court did not afford FMI the process

    that was due. To be sure, Judge Stearns advised counsel at a

    status conference on January 20, 1994, that he was pondering the

    use of the likelihood standard, but he neither eased the existing

    restriction on discovery nor superseded Judge Keeton's prior

    directives. The prima facie standard remained the default

    setting, and Judge Stearns' intentions remained open to

    conjecture until the day of the hearing. Indeed, while the court

    transmitted mixed signals to some degree, it closed the January

    20 conference by specifically announcing that the question of

    misappropriation would not be subject to anything more rigorous ___

    than scrutiny under a prima facie standard. On this point, Judge

    Stearns' intention could not have been more explicit. He told

    the lawyers: "I am going to, for purposes of this hearing, . . .

    basically accept whatever [FMI] allege[s] to be true in terms of

    the misappropriation."

    Following this pronouncement, the court never gave the

    litigants suitable forewarning of a change of heart, or of the

    extent to which it would apply the likelihood standard. To

    understand the gravity of this omission, it is important to

    understand the restriction imposed on discovery by Judge Keeton,

    and how that restriction arose. On December 15, 1993, FMI moved

    "to examine the documents and other materials maintained by BWC

    which would be relevant to statements in the affidavits of Mr.


    22












    St. Louis and others concerning contacts with, statements made

    by, and other information received from Foster-Miller . . . ."

    BWC objected. The next day Judge Keeton, ruling ore tenus, ___ _____

    restricted FMI's discovery to matters "bear[ing] upon the

    jurisdictional issue." All other discovery, he ruled, was "out

    of bounds" for the time being. We think that this limitation,

    coupled with the judge's simultaneous indication that he would

    evaluate the motion to dismiss under the prima facie standard,

    effectively prevented FMI from engaging in merits-related

    discovery. And when Judge Stearns then shifted abruptly from the

    forecasted prima facie standard to the more intrusive likelihood

    standard, the preexisting restriction which remained intact on

    Judge Stearns' watch hamstrung FMI.6

    Since this imperfect communication obviously

    prejudiced FMI's ability fairly to meet the rigors that an

    across-the-board use of the likelihood standard imposed in the

    circumstances of this case, we must set aside the court's

    conclusion that FMI's suit did not "arise from" BWC's activities

    in the forum state. To that extent, then, the dismissal order

    ____________________

    6This is because the two standards involve markedly
    different quanta of proof. So long as a prima facie standard
    obtained, FMI had neither a right nor a reason, in the course of
    "jurisdictional discovery," to ferret out all the supporting
    evidence regarding the confidential nature of what had been
    discussed in Waltham. By the same token, it had neither a right
    nor a reason to document fully the allegedly improper uses of
    such confidences by BWC. But once the court shifted to a
    likelihood standard, the scope, tenor and degree of the
    prospective inquiry changed, and FMI was caught, like a fawn in
    the headlights of a speeding van, without the discovery it needed
    to prove its point.

    23












    succumbs.

    V. ASSESSING REASONABLENESS V. ASSESSING REASONABLENESS

    Our odyssey is not yet at an end. In addition to

    holding that FMI's claim did not arise from BWC's in-forum

    contacts, the district court held, alternatively, that it would

    be unreasonable to exercise jurisdiction over BWC. See Foster- ___ _______

    Miller, 848 F. Supp. at 277; see generally Asahi Metal Indus. Co. ______ ___ _________ ______________________

    v. Superior Court, 480 U.S. 102, 113-16 (1987) (undertaking _______________

    reasonableness inquiry); Burger King Corp. v. Rudzewicz, 471 U.S. _________________ _________

    462, 476-78, 482-85 (1985) (similar). Since the rapid-fire shift

    of standards probably tainted this conclusion as well, we could

    simply vacate the alternative holding. We choose instead to

    dissect it for three reasons: the district court's rationale is

    troubling, it has been reported in a published opinion, and the

    underlying issue may arise on remand.

    The hallmark of reasonableness in the context of

    personal jurisdiction is "fair play and substantial justice."

    International Shoe Co. v. State of Washington, 326 U.S. 310, 320 _______________________ ___________________

    (1945). We have tended to channel the quest for that imperative

    through a template that highlights five factors. The factors

    include:

    (1) the defendant's burden of appearing, (2)
    the forum state's interest in adjudicating
    the dispute, (3) the plaintiff's interest in
    obtaining convenient and effective relief,
    (4) the judicial system's interest in
    obtaining the most effective resolution of
    the controversy, and (5) the common interests
    of all sovereigns in promoting substantive
    social policies.


    24












    Pleasant St. I, 960 F.2d at 1088. We have called the points that ______________

    compose this template "the gestalt factors" because, in any given

    case, they may neither be amenable to mechanical application nor

    be capable of producing an open-and-shut result. Their primary

    function is simply to illuminate the equitable dimensions of a

    specific situation, thereby "put[ting] into sharper perspective

    the reasonableness and fundamental fairness of exercising

    jurisdiction" in that situation. Pritzker, ___ F.3d at ___ [slip ________

    op. at 19].

    In the case at bar, the trial court found that the

    first, fourth, and fifth factors did not favor one outcome over

    the other, but that the remaining two factors discouraged the

    exercise of jurisdiction. See Foster-Miller, 848 F. Supp. at ___ _____________

    277. The court then invoked a sixth factor the ability of a

    Canadian court to apply Massachusetts law competently and

    impartially and concluded that even if "some harm had flowed to

    Foster-Miller from the Waltham meeting," the suit should be

    dismissed based on "considerations of due process." Id. ___

    The district court's analysis is flawed. First and

    foremost, the court's added consideration the absence of any

    reason to believe that a Canadian court would display bias or

    prove incapable of applying Massachusetts law has no place in

    the minimum contacts calculus. Though the five gestalt factors

    should not necessarily be deemed collectively exhaustive, see, ___

    e.g., FDIC v. British-American Ins. Co., 828 F.2d 1439, 1442 (9th ____ ____ _________________________

    Cir. 1987) (recognizing additional factors), the element seized


    25












    upon by the court below is of no relevance here. Moreover, it is

    already committed to the doctrine of forum non conveniens. See _____ ___ __________ ___

    Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947); see also _______________ _______ ___ ____

    Burger King, 471 U.S. at 477 & n.20 (specifically distinguishing ___________

    between the primary role of the enumerated gestalt factors and

    the secondary role of considerations relevant to forum non _____ ___

    conveniens). The doctrines of personal jurisdiction and forum __________ _____

    non conveniens share certain similarities, but they embody ___ __________

    distinct concepts and should not casually be conflated. Compare _______

    Allan R. Stein, Forum Non Conveniens and the Redundancy of Court- _________________________________________________

    Access Doctrine, 133 U. Pa. L. Rev. 781, 788-89 (1985) ________________

    (distinguishing the doctrines) with Margaret G. Stewart, Forum ____ _____

    Non Conveniens: A Doctrine in Search of a Role, 74 Cal. L. Rev. ______________ _______________________________

    1259 (1986) (arguing that certain factors currently considered

    under forum non conveniens doctrine should be subsumed under _____________________

    personal jurisdiction analysis). Consequently, the district

    court's self-proclaimed sixth factor adds nothing useful to the

    jurisdictional mix.7

    The court also adopted several other questionable

    ____________________

    7To drive this conclusion home, we note two related points.
    First, the very case on which the district court relied in
    assigning weight to the added factor, Howe v. Goldcorp Invs., ____ ________________
    Ltd., 946 F.2d 944 (1st Cir. 1991), cert. denied, 112 S. Ct. 1172 ____ _____ ______
    (1992), is a forum non conveniens case, not a personal _____ ___ __________
    jurisdiction case. Second, we are unable to discern a link
    between the judge's hosannas to the Canadian court system and his
    conclusion that a federal district court sitting in Massachusetts
    lacks jurisdiction. Assuming that neither of two courts poses an
    undue risk of biased or incompetent adjudication, there is
    nothing to be counted against either of them in working the
    jurisdictional calculus.

    26












    positions, likely influenced by its mistaken blending of the

    theories of personal jurisdiction and forum non conveniens, in _____ ___ __________

    the course of ascertaining that the second and third gestalt

    factors militated against the exercise of jurisdiction. For

    example, the court deviated from the thrust of the second factor

    by centering much of its discussion on "the implications of this

    litigation for a Canadian industry upon whom [sic] an entire

    population depends for electric power" and on the extent to which

    Canada's interests "dwarf" those of Massachusetts. Foster- _______

    Miller, 848 F. Supp. at 277. This emphasis distorts the ______

    directive that a court pondering the second factor must mull "the

    forum state's interest in adjudicating the dispute," Pleasant St. ____________

    I, 960 F.2d at 1088. The purpose of the inquiry is not to _

    compare the forum's interest to that of some other jurisdiction, _______

    but to determine the extent to which the forum has an interest. ___

    See, e.g., Burger King, 471 U.S. at 483 & n.26 (flatly rejecting ___ ____ ___________

    the notion that a non-forum state's "acknowledged interest might

    possibly render jurisdiction in [the forum] unconstitutional" and ________________

    observing that "minimum-contacts analysis presupposes that two or

    more States may be interested in the outcome of a dispute").

    The district court's analysis is equally awry in its

    treatment of the third gestalt factor (which requires an

    assessment of "the plaintiff's interest in obtaining convenient

    and effective relief," Pleasant St. I, 960 F.2d at 1088). ________________

    Although finding that "it is more convenient for the plaintiff to

    litigate this matter in domestic comfort," Foster-Miller, 848 F. _____________


    27












    Supp. at 277, the court offset this finding by invoking, inter _____

    alia, a presumed inability "to award plaintiff the full measure ____

    of relief that it seeks" because of doubts concerning both the

    propriety and the efficacy of enjoining a foreign national whose

    presence in Massachusetts had been fleeting. Id. This concern ___

    is beside any relevant point where a plaintiff's inability to

    obtain certain kinds of relief is wholly a product of her own

    choice of forum. At any rate, the plaintiff here explicitly

    informed the court of its willingness to forgo injunctive relief

    if necessary to salvage jurisdiction.

    We have another problem with the district court's

    assessment of the third gestalt factor. The court downplayed

    FMI's convenience because the company "does business in Canada

    and is represented by presumably capable Canadian attorneys."

    Id. Putting this spin on the matter emphasizing that the ___

    plaintiff could just as easily litigate in a Canadian court

    effectively nullifies the plaintiff's choice to litigate its suit

    not in Canada but in Massachusetts. Though such judicial second- ___

    guessing may be proper in deciding transfer-of-venue motions or

    when the plaintiff's supposed convenience "seems to be . . . a

    makeweight," contrived purely for strategic advantage, courts

    considering jurisdictional issues generally should "accord

    plaintiff's choice of forum a degree of deference in respect to

    the issue of its own convenience . . . ." Ticketmaster, 26 F.3d ____________

    at 211. So it is here.

    We will not comment on the lower court's assessment of


    28












    the first, fourth, and fifth gestalt factors. It is evident from

    what we have written to this point that the order of dismissal

    cannot plausibly rest on the existing assessment of

    reasonableness.

    VI. CONCLUSION VI. CONCLUSION

    We have come full circle, back to our beginnings. The

    Boit framework is an expression of pragmatism an authoritative ____

    recognition, informed both by experience and by the demands

    placed on the federal bench, that it is desirable for trial

    judges, when feasible, to give meaningful, yet not unduly

    burdensome, scrutiny to the question of jurisdiction at the early

    stages of particular types of cases. The pragmatic nature of the

    framework requires courts to proceed with caution, mindful of the

    risks of overapplication and of the need to give parties ample

    notice and opportunity to demonstrate that jurisdiction is, or is

    not, proper. In the case at hand, the district court failed to

    provide these latter necessities to FMI. The court then

    compounded its error by weighing extraneous elements in

    attempting to strike a balance on reasonableness. Thus, we find

    merit in FMI's appeal.

    We need go no further. We vacate the order of

    dismissal. On remand, the district court should alert the

    parties in advance to the level of scrutiny that it will apply to

    the pending motion and the factual questions to which the

    standard will pertain. The court should also allow such further

    discovery, if any, as may be desirable in light of its


    29












    intentions. At the appropriate juncture, the court may accept

    submissions in such form as it deems proper and make its

    determination on relatedness. If the court deems the basic

    jurisdictional tests satisfied, it should then undertake a

    reasonableness analysis that comports with our precedents.8 We

    take no view on the ultimate resolution of the issues to be

    addressed on remand, or on the proper weighing of the gestalt

    factors. Our concern at this stage is primarily with the court's

    methodology.

    Vacated and remanded. Costs in favor of appellant. Vacated and remanded. Costs in favor of appellant. ____________________ ___________________________


























    ____________________

    8We note that BWC's Rule 12(b) motion raised the matter of
    forum non conveniens as an independent basis for dismissal. The _____ ___ __________
    district court declined to reach that issue. See Foster-Miller, ___ _____________
    848 F. Supp. at 277 n.4. On remand, this issue may be raised
    again.

    30