Noonan v. The Winston ( 1998 )

United States Court of Appeals
For the First Circuit
No. 97-1132
GEORGE F. NOONAN AND ANN MARIE NOONAN,
Plaintiffs, Appellants,
v.
THE WINSTON COMPANY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Circuit Judge,
Stahl, Circuit Judge,
and Young,* District Judge.
Michael D. Lurie, with whom Alex H. MacDonald, H. Bissell Carey,
III, and Robinson & Cole, were on brief for appellants.
Ralph G. Elliot, with whom Tyler Cooper & Alcorn, Walter H. Mayo,
III, and Casner & Edwards, were on brief for Colour Library Books,
Ltd.
Robert M. Callagy, Joshua M. Rubins, Satterlee Stephens Burke &
Burke LLP, David R. Friedman, and Palmer & Dodge, were on brief for
The Winston Company, et al.
February 2, 1998
*Of the District of Massachusetts, sitting by designation.
STAHL, Circuit Judge. Plaintiffs-appellants George
STAHL, Circuit Judge.
and Anne Marie Noonan challenge the district court's
dismissal, on personal jurisdiction grounds, of their
defamation, misappropriation and violation of the right of
publicity, and related claims against Colour Library Books,
Ltd., Lintas:Paris, R.J. Reynolds Tobacco Company, R.J.
Reynolds Tobacco International, Inc., R.J. Reynolds France,
S.A., Worldwide Brands, Inc., and Lintas:Worldwide. Having
fully considered plaintiffs' arguments, we affirm.
I.
I.
A. General Background
George Noonan, a Boston Police Detective and a
devoted non-smoker, has spent the bulk of his twenty-two year
career educating Bostonians about the health risks of tobacco
use. During the summer of 1992, a magazine advertisement
sponsored by Winston cigarettes featuring Noonan's image
appeared in several French magazines. Noonan claims that the
unauthorized use of his image to benefit tobacco sellers has
caused him personal and professional harm and embarrassment.
The offending photograph has a long history. In
1979, Neil Sutherland, an employee of the English book
packaging house1 Colour Library Books ("CLB"), photographed
1. Packaging houses design and print books to be sold to
publishers.
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Noonan in Boston without his permission. Although the
photograph was meant to appear in a coffee table book titled
Boston: City of Dreams, it was never published or
distributed. The photograph remained in CLB files until
1990, when CLB published it in An American Moment. Two years
later, CLB sold the photograph to the French advertising
agency Lintas:Paris, with no restrictions on its use and
without advising Lintas:Paris that Noonan had not granted a
release. Lintas:Paris used the photograph in a campaign for
client R.J. Reynolds France, S.A. ("RJR France"), a French
cigarette manufacturer.
RJR France had retained Lintas:Paris to design an
advertising campaign both to publicize Winston cigarettes and
to market an informational communications system called The
Minitel Service, an interactive network that provides
consumer services such as personal shopping, banking, and
remittance of income taxes. Companies sponsor segments of
the service in exchange for a share of the revenues
generated. The Winston Way, one component of the Minitel
Service, provides information about dining and entertainment
in France and is sponsored by the Cooperation Gesellschaft
fuer Markendiversifikation mbh, a German company affiliated
with RJR France and unrelated to this action.
The full-page advertisement pictures Noonan in his
Boston Police uniform and on horseback at Faneuil Hall in
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Boston. The text reads, "The Winston Way," printed in the
form of the Winston cigarette logo -- white letters against a
red background. The advertisement also provides a phone
number for Minitel. Without the knowledge of Lintas:Paris,
at least 305 copies of various French magazines containing
the advertisements were distributed to, and at least 183 of
these were sold from, retail magazine outlets in the Boston
area.
Noonan became aware of the offending advertisement
during the summer of 1992. Fellow police officers told
Noonan that a magazine with a picture of him on the back
cover was circulating. Nancy Fay, a Massachusetts resident
who had seen the advertisement while vacationing in France,
brought the advertisement to Boston and wrote to Noonan to
inquire whether the cigarette manufacturer had paid Noonan
for the advertisement. Noonan's son Greg saw the
advertisement when his French teacher brought a copy of a
magazine containing the advertisement to class; Greg's
faculty advisor told Greg that he had seen the advertisement
in France. Some people, assuming that Noonan had consented
to the use of his image, denounced him for supporting the
cigarette industry. As a result of what Noonan felt was an
attack on his reputation, he initiated this suit.
Given the number of parties to this litigation and
the importance of their relationships to plaintiffs'
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jurisdictional theories, we begin with a brief overview of
the defendants. Defendant Lintas:Paris is a French
corporation, with its only office in Paris, France.
Defendant RJR France, also a French corporation, has
corporate offices in Boulogne-Billancourt, France. Defendant
R.J. Reynolds Tobacco ("RJR Tobacco") is a New Jersey
corporation with its principal place of business in New York,
New York. RJR Tobacco is the organization through which its
parent company, RJR Nabisco, Inc., conducts its domestic
cigarette business. Defendant R.J. Reynolds Tobacco,
International ("RJRTI"), the international analogue to RJR
Tobacco and also a wholly-owned subsidiary of RJR Nabisco,
Inc., is a Delaware corporation with its principal place of
business in Winston-Salem, North Carolina. Defendant
Worldwide Brands, Inc. ("Worldwide"), a dealer in trademark
rights and licenses and another RJR Nabisco, Inc. subsidiary,
is also a Delaware corporation. Worldwide's French offices
are in Boulogne-Billancourt. Defendant Lintas:Paris is a
wholly-owned subsidiary of France C.C.P.M, in turn a wholly-
owned subsidiary of Lintas Holdings, B.V., itself a wholly-
owned subsidiary of the Interpublic Group of Companies, Inc.
("Interpublic"). Noonan asserts that defendant
Lintas:Worldwide is an advertising corporation managed by
Interpublic. Defendants claim, and the district court found,
that Lintas:Worldwide is not a legal entity. For reasons we
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shall explain infra, its existence vel non does not affect
our decision. Finally, defendant CLB is a British company
with offices in Surrey, England.
B. Prior Proceedings
The complaint sets forth five direct claims --
misappropriation and violation of the right of publicity, see
Mass. Gen. Laws Ann. ch. 214, 3A (West 1985 & Supp. 1996);
defamation, invasion of the right of privacy, see id. 1B;
reckless or intentional infliction of emotional distress;
unfair and deceptive acts, see id. ch. 93A, 2,11 -- and a
derivative claim for loss of consortium, brought by Mrs. Anne
Marie Noonan.
The district court initially dismissed all claims,
pursuant to Fed. R. Civ. P. 12(b)(2), except those against
CLB for lack of personal jurisdiction over named defendants.
See Noonan v. The Winston Co., 902 F. Supp. 298 (D. Mass
1995) ("Noonan I"). After allowing Noonan limited
jurisdictional discovery with respect to CLB, the court
dismissed all claims against CLB. See Noonan v. Colour
Library Books, LTD., 947 F. Supp. 564 (D. Mass. 1996)
("Noonan II"). Noonan appeals from these rulings.
Because the district court dismissed plaintiffs'
claims without holding an evidentiary hearing, we review the
rulings de novo, drawing facts from the parties' pleadings
and supplementary filings, and construing all inferences in
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the plaintiffs' favor. See Ticketmaster-New York, Inc. v.
Alioto, 26 F.3d 201, 203 (1st Cir. 1994).
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II.
II.
On appeal, plaintiffs advance four arguments.
First, they assert the district court erred in concluding
that it lacked specific jurisdiction over defendants CLB,
Lintas:Paris (as RJR France's agent), and RJR France (as
Lintas:Paris' principal). Second, they contend the district
court erred by failing to exercise general jurisdiction over
RJR Tobacco and CLB. Third, they claim the district court
abused its discretion when it denied them permission to take
jurisdictional discovery before it ruled on the motions to
dismiss for lack of personal jurisdiction filed by defendants
RJTC, RJRTI, RJR France, Lintas:Worldwide, Lintas:Paris, and
Worldwide Brands. Finally, they argue the district court
improperly limited jurisdictional discovery as to CLB.
"Specific personal jurisdiction may be asserted
where the cause of action arises directly out of, or relates
to, the defendant's forum-based contacts." United Elec.,
Radio & Mach. Workers of America v. 163 Pleasant St. Corp.,
960 F.2d 1080, 1088-89 (1st Cir. 1992) ("Pleasant I") (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 & n.8 (1984)). "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." Id. at 1088 (citing
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Helicopteros, 466 U.S. at 414-16 & n.9). Three questions
constitute both the specific and general personal
jurisdiction analyses: 1) whether the Massachusetts long-arm
statute authorizes jurisdiction; 2) whether the defendant has
sufficient minimum contacts so that the exercise of
jurisdiction does not offend due process; and 3) whether the
exercise of jurisdiction is reasonable, and therefore does
not offend due process. Cf. United Elec., Radio & Mach.
Workers of America v. 163 Pleasant St. Corp., 987 F.2d 39(1st Cir. 1993) (setting out steps for jurisdictional
analysis generally) ("Pleasant II"). We determine
reasonableness by applying factors we have described as
"gestalt factors."2 If the requirements of either the state
statute or the Due Process Clause of the U.S. Constitution
are not met, the foreign defendant will not be subject to
personal jurisdiction.
A. Jurisdictional Issues
(i) Specific Jurisdiction over CLB
As an initial matter, we decline to consider
whether CLB is subject to personal jurisdiction under a
theory of specific jurisdiction because the Noonans did not
2. The criteria are: "(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." Pleasant I, 960 F.2d at 1088.
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assert this theory below. Plaintiffs initially opposed the
defendants' motions to dismiss by arguing that the district
court had specific jurisdiction over all the defendants.
After completing discovery over CLB, however, plaintiffs
abandoned their specific jurisdiction claim against CLB,
arguing only that the court had general jurisdiction over it
or, in the alternative, that jurisdiction should be found as
a sanction for CLB's failure to comply in good faith with its
discovery obligations. Plaintiffs, therefore, may not raise
a specific jurisdiction theory against CLB now, for "[i]f any
principle is settled in this circuit, it is that, absent the
most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first
time on appeal." Teamsters, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). There are no
extraordinary circumstances in this case; plaintiffs had
ample time to consider and advance their best arguments
supporting specific jurisdiction.
(ii) Specific Jurisdiction over Lintas:Paris and
RJR France
Because we determine that the assertion of personal
jurisdiction over Lintas:Paris and RJR France would offend
due process, we decline to decide the difficult question
whether plaintiffs have established a prima facie case
authorizing personal jurisdiction over these defendants under
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the Massachusetts long-arm statute. See Ticketmaster, 26
F.3d at 205; U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894
F.2d 9, 11 (1st Cir. 1990); Eveland v. Director of Cent.
Intelligence Agency, 843 F.2d 46, 50 (1st Cir. 1988).
The Due Process Clause of the Fourteenth Amendment
permits a state to exercise personal jurisdiction over a non-
resident defendant only when the defendant has sufficient
minimum contacts with the forum. See Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). Sufficient minimum
contacts exist for specific jurisdiction when "(1) the claim
underlying the litigation . . . directly arise[s] out of, or
relate[s] to, the defendant's forum-state activities, (2) the
defendant's in-state contacts . . . 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, and" (3)
exercising jurisdiction is fair under the gestalt factors.
Pleasant II, 987 F.2d at 43 n.9. The decisive due process
issue in this case is whether the defendants' activities
satisfy the purposeful availment requirement.
Plaintiffs correctly draw our attention to Calder
v. Jones, 465 U.S. 783 (1984), in which the Supreme Court
adopted an effects test for determining purposeful availment
in the context of defamation cases. Calder concerned two
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Florida reporters, employed by The National Enquirer, who
wrote a libelous article about California entertainer Shirley
Jones. Id. The Supreme Court held that jurisdiction
properly could be asserted over the reporters because the
defendants had aimed an act at the forum state, knew the act
would likely have a devastating effect, and knew the injury
would be felt in the forum state, where Jones lived and
worked "and in which the National Enquirer ha[d] its largest
circulation." Id. at 790. Plaintiffs' circumstances
satisfy only the injurious-effects part of the Calder test.
Like Jones, plaintiffs felt a tortious effect in the forum
state where they lived and worked. Moreover, the content of
the picture -- a Boston Police Officer in uniform, sitting on
a saddle blanket decorated with the Boston Police insignia,
in front of a distinctive Boston landmark -- indicated where
any injury would be felt.
For the first part of Calder's framework to be
satisfied, however, the defendants must have acted toward the
forum state with sufficient intent to make them "reasonably
anticipate being haled into court there." World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). In
Calder, the court found that the defendants' intentional
conduct was "calculated to cause injury to respondent in
California." Calder, 465 U.S. at 791 (emphasis added).
There is no analogous intentional behavior here.
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Plaintiffs do not allege, and the record does not
suggest, that any acts by Lintas:Paris3 were committed with
sufficient purpose to satisfy the intent requirement.4 The
defendants did not direct their actions toward Massachusetts.
That the advertisement contains French text and a French
phone number suggests Lintas:Paris created it for a French
audience. This interpretation is corroborated, without
contradiction, by a Lintas:Paris representative who stated
that "[t]he advertisement was aimed solely at the French
consumer market." Roux Aff., 12. Furthermore,
Lintas:Paris "was not aware that some copies of the magazines
bearing the advertisement" would reach Massachusetts. Id.
15.
Although plaintiffs fleetingly refer to
Lintas:Paris' knowledge that the advertisements would reach
Massachusetts and passingly contest the district court's
3. We first consider Lintas:Paris' actions alone because the
Noonans' jurisdictional claims over RJR France rest on its
agency relationship with Lintas:Paris. The viability of
plaintiffs' claims against RJR France depends on our first
finding that Lintas:Paris purposefully availed itself of the
forum state.
4. The district court emphasizes that Noonan "did not allege
any of the defendants . . . even knew who he was, much less
that they published his picture intending that he be harmed
in Massachusetts." Noonan I, 902 F. Supp. at 305. In our
view this argument implies too high a jurisdictional hurdle.
Because this is an inquiry regarding jurisdiction, not the
underlying tort, the defendant must only be shown to have
intentionally directed an act, tortious or otherwise, toward
the forum state. The defendants' lack of a specific intent
to harm Noonan is irrelevant.
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denial of discovery as to what Lintas:Paris should have
known, they do not dispute Lintas:Paris' claims of actual
ignorance.5 Instead, relying on Calder and other cases where
the defendant intentionally sent fraudulent or defamatory
material into the forum, plaintiffs imply that the
defendants' intent to reach Massachusetts can be inferred
from the placement of advertisements in publications with
international circulations. Cf. Murphy v. Erwin-Wasey, Inc.,
460 F.2d 661 (1st Cir. 1972) (defendant intentionally sent
fraudulent material into forum); Borshow Hosp. & Med.
Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472(D.P.R. 1992) (defendant sent letters into forum).
In Calder, because the libelous story was generated
from California sources, concerned a California celebrity,
and appeared in a newspaper with a forum circulation of
600,000 copies, the Court found that California was the focal
point of both the effect and the story. See Calder, 465 U.S.
5. As noted above, plaintiffs only vaguely referred to
Lintas:Paris' knowledge in its appellate brief. Further,
plaintiffs perfunctorily asserted to the district court, in a
footnote, a need for discovery as to whether Lintas:Paris
should have known that the magazines would be distributed in
Massachusetts. These assertions are not tantamount to a
rebuttal of Lintas:Paris' claims of ignorance. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work, create
the ossature for the argument, and put flesh on its bones.").
Nor is the footnote sufficient to have preserved an argument
that negligence is sufficient to constitute purposeful
availment.
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at 789. Here, however, plaintiffs' claims rest on an
advertisement which appeared in 305 individual magazines,
circulated in Massachusetts. This small distribution, by
itself, does not merit a finding that Massachusetts was the
focal point of the events in question, or that Lintas:Paris
aimed the advertisements toward Massachusetts. The size of a
distribution of offending material helps determine whether a
defendant acted intentionally. The Supreme Court has held
that a publisher's regular circulation of a large number of
magazines containing allegedly libelous content in a forum
state indicated deliberate and continuous exploitation of a
market and, therefore, was sufficient to support
jurisdiction. See Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 781 (1984). Just as widespread circulation of a
publication indicates deliberate action, thin distribution
may indicate a lack of purposeful contact. See Chaiken v. VV
Publ. Corp., 119 F.3d 1018 (2d Cir. 1997) (holding that
jurisdiction over an Israeli publisher for a libel action
involving an insignificant distribution -- four copies or
.04% of total circulation -- offends due process), petition
for cert. filed, U.S.L.W. (U.S. Nov. 25, 1997) (No.
97-6984).
Plaintiffs urge us to rely on Gordy v. The Daily
News, 95 F.3d 829 (9th Cir. 1996), a case in which the Ninth
Circuit found that the distribution of under twenty
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newspapers was sufficient to confer jurisdiction over a
foreign newspaper and its reporter. Unlike Lintas:Paris,
however, the Gordy defendants targeted the forum state by
distributing newspapers via regular customer subscriptions to
forum addresses. Here, as noted, Lintas:Paris denies knowing
the ultimate destination of the magazines that reached
Massachusetts, and plaintiffs have not alleged otherwise.
While we sympathize with George Noonan's distress at seeing
his image used to promote a product he despises, his
Massachusetts-based injury is not enough to support
jurisdiction over the defendants. To find otherwise would
inappropriately credit random, isolated, or fortuitous
contacts and negate the reason for the purposeful availment
requirement. Without finding minimum contacts, we need not,
and do not, proceed to the reasonableness analysis. See
Donatelli v. National Hockey League, 893 F.2d 459, 471 (1st
Cir. 1990).
(iii) General Jurisdiction over CLB and RJR Tobacco
According to plaintiffs, CLB's and RJR Tobacco's
contacts with Massachusetts were sufficiently continuous and
systematic to permit the district court to exercise general
jurisdiction.
(a) CLB
We begin our analysis with the relevant section of
the Massachusetts long-arm statute:
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A court may exercise 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 . . .
(d) causing tortious injury in this
commonwealth by an act or omission
outside this commonwealth if he regularly
does or solicits business, or engages in
any other persistent course of conduct,
or derives substantial revenue from goods
used or consumed or services rendered, in
this commonwealth . . . .
Mass. Gen. Laws Ann. ch. 223A, 3(d) (1985 & Supp. 1996).
In our effort to "effectuate . . . [the Commonwealth's]
legitimate desire to protect its citizens," we construe the
statute broadly. Mark v. Obear & Sons, Inc., 313 F. Supp.
373, 376 (D. Mass. 1970).
Viewing the facts in a light most favorable to
plaintiffs, the threshold requirement of 3(d), that
plaintiffs' in-state harm was caused by the defendant's out-
of-state act, is easily met. The plaintiffs suffered an
injury in Massachusetts where the use of George Noonan's
image caused him shame and embarrassment and engendered the
loss of consortium of which Anne Marie Noonan complains.
Furthermore, CLB's allegedly improper act, the unauthorized
sale of the photograph containing Noonan's image, was a
foreign act that arguably contributed to plaintiffs' in-state
injuries.
Plaintiffs' appeal raises the issue of whether the
district court properly decided that plaintiffs failed to
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satisfy the second requirement of 3(d), that CLB had
sufficient additional contacts with the forum. The district
court assumed that plaintiffs' "best case [fell] under the
'substantial revenues' test of 3(d)," and found the
revenues insufficient to meet the test. Noonan II, 947 F.
Supp. at 571. We think, however, plaintiffs' best case falls
under the "doing or soliciting business" test. Because this
clause is disjunctive, only one of its prongs needs to be
satisfied. While the parties energetically debate the
success of CLB's Massachusetts solicitations, we measure only
the solicitations themselves.
CLB solicited business in Massachusetts with
sufficient regularity to satisfy the statute. Beginning in
the fall of 1992 and continuing until plaintiffs' complaint
was filed in May 1994, CLB employees regularly solicited
business from World Publications, Inc. ("World"), a remainder
house located in Dighton, Massachusetts. During the two-year
period, CLB employees telephoned, faxed, and wrote to World
to secure book orders.6 In addition, CLB employees traveled
6. The lower court sets forth the details regarding CLB's
courtship of World, beginning with the early 1994 contacts.
See Noonan II, 947 F. Supp. at 567-68. Because the district
court recognized only successful solicitations, it did not
recount the following pre-1994 contacts: In October 1992,
CLB's International Sales Director, Bill Dancer, began
soliciting World's business. World provided CLB with a
credit reference, and CLB provided World with a credit
application form. In November 1992, Dancer traveled to
Massachusetts, met with World, and secured a $210,000 order.
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from England to Massachusetts on at least two occasions with
the intention of developing a relationship with World.
Finally, in the spring of 1994, World employees visited CLB
in England to negotiate orders.7 In sum, CLB's direct
solicitations of forum companies are adequately regular and
targeted to satisfy 3(d). Cf. Keds Corp. v. Renee Int'l
Trading Corp., 888 F.2d 215, 217-19 (1st Cir. 1989) (the sale
of 6000 pairs of shoes to a Massachusetts wholesaler and the
subsequent shipping of 18 sample shoes indicated defendants'
intent to begin ongoing relations).
We therefore turn to whether these contacts are
sufficient to satisfy the Constitution. Until the date
plaintiffs filed their complaint, CLB's relevant contacts
with Massachusetts were Neil Sutherland's visits to
Massachusetts in 1979, the business solicitations discussed
above, and approximately $585,000 of orders from World.8 The
7. In 1993, CLB also sought business relationships with two
other Massachusetts publishers, Lauriat's Booksellers and
Little Brown and Company. CLB disputes the propriety of
counting the Little Brown and Company contact because, in
response to CLB's overture, Little Brown and Company directed
CLB to contact a New York office. We need not resolve this
dispute because, for purposes of 3(d), CLB's solicitations
are sufficient even without the Little Brown and Company
solicitation.
8. The parties clash over which contacts should be
considered in the general jurisdiction analysis. First, they
dispute whether a foreign corporation's contacts with the
forum should be measured up to the time of the alleged tort,
up to the time the complaint is filed, or at any time. We
have considered all contacts established up to the time
Noonan filed his complaint. See infra. at 23-25. Second,
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standard for evaluating whether these contacts satisfy the
constitutional general jurisdiction test "is considerably
more stringent" than that applied to specific jurisdiction
questions. Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st
Cir. 1984). In addition, courts must exercise even greater
care before exercising personal jurisdiction over foreign
nationals. See Asahi Metal Indust. Co. v. Superior Court,
480 U.S. 102, 115 (1987) (citing United States v. First Nat'l
City Bank, 379 U.S. 378, 404 (1965) (Harlan, J.,
dissenting)).
Plaintiffs assert CLB's contacts were sufficient to
establish general jurisdiction because they are purposeful,
frequent, intense, and successful. Although our decision
must be based on a fact-specific evaluation of CLB's
contacts, we are guided by the types of contacts deemed
sufficiently continuous and systematic in other cases.
We look to two of our previous cases in which the
appellants argued, as plaintiffs do now, that general
jurisdiction applied to an out-of-state seller. In both
they disagree over whether it is appropriate to consider
revenues other than those actually paid to CLB prior to the
filing of the complaint. On this point we part company with
the district court and think it reasonable to include amounts
owed, but not yet paid, to CLB from orders placed by
Massachusetts companies. Third, they arrive at different
totals of the amounts owed, but not yet paid, to CLB because
some orders were changed before the complaint date. For
purposes of this analysis, we have included amounts paid to
and ordered from CLB, but not cancelled before the date
Noonan filed his complaint.
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cases, the defendant had more continuous and systematic
contact with the forum state than CLB had with Massachusetts.
In both cases, we judged the contacts insufficient to permit
an assertion of general jurisdiction.
First, in Glater, we found that a manufacturer who
advertised, employed eight sales representatives to
distribute information, and sold products to distributors in
the forum was not subject to general jurisdiction. See 744
F.2d at 217. Although CLB's selling efforts by its England-
based sales-force represented substantial work, they were not
as intense, active, and frequent as those of the Glater
manufacturer's full-time sales representatives. Compare id.
at 214-15, 217 with Noonan II, 947 F. Supp. at 567-68; see
also supra notes 6 & 7.
In Donatelli, we found that ten years of providing
league officials at exhibition hockey games, scouting,
providing television broadcasts, and selling products bearing
the National Hockey League (NHL) logo, taken together, did
not meet the due process test. See Donatelli v. Nat'l Hockey
League, 708 F. Supp. 31, 35 (D.R.I. 1989) (reciting facts),
reversed 893 F.2d 459 (1st Cir. 1990). Although CLB's
contacts were arguably more intense than the NHL's contacts
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in Rhode Island, its two-year history in Massachusetts is far
less continuous than the ten years of activity in that case.9
Having determined that sufficient minimum contacts
to authorize general jurisdiction over CLB do not exist, we
do not need to assess whether asserting jurisdiction would be
reasonable under the gestalt factors. See Donatelli, 893
F.2d at 471.
9. We note that in Keeton, the Supreme Court suggested that
the distribution of 10-15,000 copies of a magazine in the
forum state each month may not have been substantial enough
to support general jurisdiction. 465 U.S. at 779. CLB's
efforts were not as regular as those of Hustler Magazine's in
New Hampshire, where Hustler had built up a subscription
base.
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(b) RJR Tobacco
Plaintiffs also argue that general jurisdiction
over RJR Tobacco is proper under 3(d) and Mass. Gen. Laws
ch. 223, 38. We will not, however, consider whether
jurisdiction lies over RJR Tobacco because we do not agree
with the premise that purportedly connects RJR Tobacco to
this litigation. Cf. Hachikian v. Federal Deposit Ins.
Corp., 96 F.3d 502, 504 (1996) (concluding that we may
affirm the entry of summary judgment on any alternate ground
made manifest by the record).
While not disputing that it is the actions of RJR
France, and not RJR Tobacco, that are put in issue by the
allegations in their complaint, plaintiffs have nonetheless
named RJR Tobacco as a defendant because (1) it, like RJR
France, sells Winston cigarettes; and (2) it belongs to the
same family of corporations as RJR Tobacco. These two
assertions ignore the corporate form, and are patently
insufficient to raise a claim involving an attribution of
liability to RJR Tobacco under a veil-piercing theory in
Massachusetts. Cf. Birbara v. Locke, 99 F.3d 1233 (1st Cir.
1996) (discussing the stringent test for corporate veil-
piercing in Massachusetts); Omni-Wave Elec. Corp. v. Marshall
Indus., 127 F.R.D. 644, 647 (D. Mass. 1989) (stating that the
mere assertion that defendants are alter egos or joint
ventures is not sufficient to withstand a motion to dismiss);
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American Home Assurance Co. v. Sport Maska, Inc., 808 F.
Supp. 67, 73 (D. Mass. 1992) ("Piercing the corporate veil is
permitted only where there is confused intermingling between
corporate entities or where one corporation actively and
directly participates in the activities of the second
corporation, apparently exercising pervasive control.").
B. Discovery Issues
Plaintiffs contend that the district court abused
its discretion in denying them permission to take
jurisdictional discovery over defendants RJR Tobacco, R.J.
Reynolds Tobacco International, Inc., R.J. Reynolds France,
S.A., Lintas:Worldwide, Lintas:Paris, and Worldwide Brands,
Inc. In addition, plaintiffs assert that the district court
improperly limited discovery over CLB. We apply a
deferential standard in reviewing the lower court's discovery
rulings, reversing only if the orders were "plainly wrong and
resulted in substantial prejudice to the aggrieved party."
Crocker v. The Hilton Int'l Barbados, Ltd., 976 F.2d 797, 801
(1st Cir. 1992) (citing Santiago v. Fenton, 891 F.2d 373, 379
(1st Cir. 1989)).
(i) The Advertising and Tobacco Defendants
The denial of plaintiffs' request for
jurisdictional discovery as to the tobacco and advertising
defendants was not an abuse of discretion. Throughout this
litigation, plaintiffs have argued that the denial of this
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request deprived them of the opportunity to ascertain the
interrelationships among the defendants. Proving ties among
the tobacco defendants or between Lintas:Paris and the
tobacco defendants would not assist plaintiffs' cause absent
a concomitant demonstration that Lintas:Paris availed itself
of the Massachusetts forum. We have already ruled against
plaintiffs on this point.
(ii) Limitation of Discovery over CLB
Plaintiffs contend that if the district court had
allowed them leeway to discover all contacts between CLB and
Massachusetts throughout the litigation period, they would
have been able to establish general jurisdiction over CLB.
In its decision to deny jurisdiction over CLB, the district
court posed the question, "Is a foreign corporation's contact
with the forum to be measured at the time of the alleged tort
. . . , at the time the Complaint is filed . . . , or at any
time . . . ?" Noonan II, 947 F. Supp. at 571. Judge Stearns
applied the middle approach, and limited Noonan's discovery
requests to contacts through the date the complaint was
filed. We agree with this ruling insofar as it rejects as
irrelevant post-complaint contacts. Metropolitan Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-70 (2d Cir.)
("In general jurisdiction cases, district courts should
examine a defendant's contacts with the forum state over a
period that is reasonable under the circumstances -- up to
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and including the date the suit was filed -- to assess
whether they satisfy the 'continuous and systematic'
standard."), cert. denied, 117 S. Ct. 508 (1996).
Plaintiffs dispute this approach on the grounds of
law and policy. They first contend that a majority of courts
routinely analyze contacts with the forum based on evidence
from both before and after the date of the complaint. None
of the cases they cite in support of this argument, however,
directly speaks to the question posed here. See Wheeler
Energy Corp. v. Metallgesellschaft AG, No. 91-214-SLR, 1993
U.S. Dist. LEXIS 20450 (D. Del. Jan. 4, 1993); American Home
Assurance, 808 F. Supp. 67; Kolikof v. Samuelson, 488 F.
Supp. 881 (D. Mass. 1980); Mark v. Obear & Sons, 313 F. Supp.
at 375. Moreover, all of these cases, at best, involve a
court's inclusion of fiscal-year sales or revenue figures (in
each case, from a survey of data that spans several
proceeding years) in its minimum-contacts analysis. Finally,
the majority approach is not as plaintiffs suggest. See
Robertson-Ceco, 84 F.3d at 569 (surveying cases from the
Supreme Court and the Second, Fifth, and Ninth Circuits).
Plaintiffs also claim that limiting discovery to
the complaint date is unfair. They maintain that, under such
a rule, an entity which causes an injury in Massachusetts
from its non-forum based operations and thereafter chooses to
enter the forum market could deny that jurisdiction over it
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existed even though it enjoys the benefits of the forum and
was, prior to market entry, on notice of the litigation.
They also warn that undesirable exploitation of statute of
limitations periods will result from limiting the contact
analysis to the period before the complaint date. Savvy
plaintiffs who wait until the end of the limitations period
to maximize the chance of asserting jurisdiction will be
rewarded for their dilatory tactics.
Whatever merit such policy arguments might have,
the central fact remains that the time the complaint is filed
is the time at which the plaintiff urges the court to assert
its authority over the defendant. It would be conceptually
incoherent to permit the court to look to post-complaint
contacts in proving that it had authority at a previous
time.10 Therefore, while Noonan may have discovered
10. Given our basis for rejecting plaintiffs' claims, we
have considerable doubt about CLB's argument that the
sufficiency of contacts for general jurisdiction should be
assessed at the time of the alleged tort. Although Judge
Stearns used the complaint date to bound the minimum contacts
analysis, he appears to have agreed with CLB, positing that,
"to the extent that foreseeability is a touchstone of due
process[,] logic would measure general jurisdiction as of the
date the tortious act is committed." Noonan II, 947 F. Supp.
at 571. CLB argues the choice to forbear from the conduct
that might cause the injury inspiring the suit can be made
only at the time the tort is about to be committed. We note
the foreseeability question is not whether the defendant
should reasonably expect to be called into court but whether,
given that the defendant has been called to court, the
defendant would be surprised to find a particular court has
called him. Asking this question from the perspective of the
defendant at the time he allegedly committed the tort is
likely premature because not until the complaint is filed is
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additional contacts between CLB and Massachusetts had he been
permitted to continue discovery throughout the litigation,
such contacts have no bearing on the jurisdictional analysis.
Accordingly, the district court did not abuse its discretion
in ruling as it did.
For the reasons stated above, the judgment of the
district court is affirmed. Costs to appellees.
affirmed.
the court asked to exercise its sovereignty.
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