USCA1 Opinion

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 Car

_________________ _______________

III, and Robinson & Cole, were on brief for appellants.

___
_______________

Ralph G. Elliot, with whom Tyler Cooper & Alcorn, Walter H. Ma

_______________
______________________ ____________
III, and
___

Casner & Edwards, were on

_________________

brief for Colour

Library Boo

Ltd.
Robert M. Callagy, Joshua M. Rubins,
__________________ ________________

Satterlee Stephens Burke

________________________

Burke LLP, David R. Friedman, and Palmer & Dodge, were on

_________ __________________
_______________
The Winston Company, et al.
____________________
February 2, 1998
____________________
_____________________
*Of the District of Massachusetts, sitting by designation.

brief

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

and

Anne

dismissal,

Marie

on

Noonan

personal

challenge

Ltd.,

Lintas:Paris,

Reynolds Tobacco

S.A., Worldwide

the

jurisdiction

defamation, misappropriation

publicity, and related

Plaintiffs-appellants George

district

grounds,

and violation of

claims against Colour

R.J.

Reynolds

Tobacco

International, Inc., R.J.

court's

of

their

the right

of

Library Books,

Company,

R.J.

Reynolds France,

Brands, Inc., and Lintas:Worldwide.

Having

fully considered plaintiffs' arguments, we affirm.

I.
I.
__

A. General Background
______________________

George

Noonan,

a Boston

Police

Detective and

devoted non-smoker, has spent the bulk of his twenty-two year

career educating Bostonians about the health risks of tobacco

use.

During the

sponsored

by

summer of

Winston

1992, a magazine

cigarettes featuring

appeared in several French magazines.

unauthorized use of his image to

caused

Noonan's

image

Noonan claims that the

benefit tobacco sellers has

him personal and professional harm and embarrassment.

The

1979,

advertisement

offending photograph has

Neil Sutherland,

packaging house1

an

employee

Colour Library Books

a long history.

of

the

English

In

book

("CLB"), photographed

____________________

1.

Packaging houses

publishers.

design and

print books

to be

sold to

-22

Noonan

in Boston

without

his

photograph was meant to appear

Boston:
City of Dreams,
____________________________

distributed.

The

permission.

Although

the

in a coffee table book titled

it

was

photograph remained

never

in

published

CLB files

1990, when CLB published it in An American Moment.

__________________

or

until

Two years

later,

CLB sold

the photograph

agency

Lintas:Paris, with

client

the French

no restrictions

without advising Lintas:Paris

release.

to

advertising

on

its use

that Noonan had not

Lintas:Paris used the photograph

R.J. Reynolds France,

and

granted a

in a campaign for

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

Minitel

an informational communications system

Service,

consumer

services

remittance

the

service

generated.

an

interactive

such as

exchange

The Winston

that

personal shopping,

of income taxes.

in

network

Companies sponsor

for

share

Way, one component

called The

of

provides

banking, and

segments of

the

revenues

of the

Minitel

Service, provides information about dining and

in

France and is

sponsored by the

fuer Markendiversifikation

entertainment

Cooperation Gesellschaft

mbh, a German

company affiliated

with RJR France and unrelated to this action.

The full-page advertisement pictures

Boston

Police uniform and

on horseback

-33

Noonan in his

at Faneuil

Hall in

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

number for Minitel.

Without the knowledge

at

of various French

least 305 copies

the

of Lintas:Paris,

magazines containing

advertisements were distributed to,

these were sold from, retail

phone

and at least 183 of

magazine outlets in the

Boston

area.

Noonan became aware of

during the

summer

Noonan that a

of 1992.

magazine with

cover was circulating.

the offending advertisement

Fellow police

a picture

Nancy Fay, a

of him

officers

told

on the

back

Massachusetts resident

who had seen

brought the

the advertisement while vacationing

advertisement to Boston

inquire whether

for

the

advertisement.

advertisement

magazine

faculty

when his

containing

manufacturer had

Noonan's

son

French teacher

the

paid Noonan

saw

the

brought a copy

of a

advertisement

Greg

Noonan to

to

class;

Greg's

advisor told Greg that he had seen the advertisement

in France.

to the

the cigarette

and wrote to

in France,

Some people, assuming that

use of

his image, denounced

cigarette industry.

As

Noonan had consented

him for

supporting the

a result of what Noonan felt

was an

attack on his reputation, he initiated this suit.

Given

the

importance

the number of parties to this litigation and

of

their

relationships

to

plaintiffs'

-44

jurisdictional

the

theories, we begin

defendants.

corporation,

Defendant

RJR

Defendant

with

its

only

France,

also

with a brief

Lintas:Paris

office

in

French

is

overview of

French

Paris,

France.

corporation,

corporate offices in Boulogne-Billancourt, France.

has

Defendant

R.J.

Reynolds

Tobacco

("RJR

Tobacco")

is

New

Jersey

corporation with its principal place of business in New York,

New York.

parent

RJR Tobacco

company,

cigarette

RJR Nabisco,

business.

and also a

Inc., is a

business

Inc.,

Defendant

International ("RJRTI"),

Tobacco

is the organization through which its

conducts

R.J.

in

North

Tobacco,

analogue to

wholly-owned subsidiary of

Winston-Salem,

Worldwide Brands,

Reynolds

the international

Delaware corporation with its

its domestic

RJR

RJR Nabisco,

principal place of

Carolina.

Defendant

Inc. ("Worldwide"), a dealer

in trademark

rights and licenses and another RJR Nabisco, Inc. subsidiary,

is also a

are

Delaware corporation.

in Boulogne-Billancourt.

wholly-owned

Worldwide's

French offices

Defendant Lintas:Paris

is a

subsidiary of France C.C.P.M, in turn a wholly-

owned subsidiary of

owned

Lintas Holdings, B.V., itself

a wholly-

subsidiary of the Interpublic Group of Companies, Inc.

("Interpublic").

Lintas:Worldwide

Interpublic.

Noonan

is an

asserts

advertising

that

defendant

corporation managed

by

Defendants claim, and the district court found,

that Lintas:Worldwide is not a

-55

legal entity.

For reasons we

shall

explain infra, its

_____

our decision.

existence vel non

___ ___

Finally, defendant

CLB is a

does not affect

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,

defamation, invasion of

reckless

or

3A (West 1985 &

Supp. 1996);

the right of privacy, see

___

intentional infliction

of

id.
___

1B;

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

pursuant to

CLB

Fed. R. Civ.

initially dismissed all claims,

P. 12(b)(2), except

those against

for lack of personal jurisdiction over named defendants.

See
___

1995)

Noonan v.
______

The Winston Co.,

_______________

("Noonan

jurisdictional

dismissed all

I").

After

discovery

with

claims

Library Books, LTD.,

_____________________

("Noonan II").

allowing

respect

against CLB.

947

F. Supp.

to

298 (D. Mass

Noonan

CLB,

See Noonan
___ ______

564

(D.

limited

the court

v.

Colour
______

Mass.

1996)

Noonan appeals from these rulings.

Because

claims

902 F. Supp.

the district

court dismissed

plaintiffs'

without holding an evidentiary hearing, we review the

rulings

de novo, drawing
__ ____

and supplementary

facts from the

filings, and construing

parties' pleadings

all inferences in

-66

the

plaintiffs' favor.

See Ticketmaster-New York, Inc. v.

___ ____________________________

Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

______

-77

II.
II.
___

On

First, they

that

appeal,

assert the

it lacked

Lintas:Paris

plaintiffs

district court

specific

(as RJR

four

arguments.

erred in

concluding

jurisdiction over

France's agent),

Lintas:Paris' principal).

court

advance

and

defendants CLB,

RJR France

(as

Second, they contend the district

erred by failing to exercise general jurisdiction over

RJR Tobacco

and CLB.

Third, they claim the

abused its discretion when it denied

district court

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,

Worldwide Brands.

Lintas:Worldwide, Lintas:Paris, and

Finally,

they argue

the district

court

improperly limited jurisdictional discovery as to CLB.

"Specific

personal

where the cause of action

to, the

defendant's

jurisdiction may

be

asserted

arises directly out of, or relates

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,

__________________________________________
____

408, 414 &

n.8 (1984)).

466 U.S.

"General jurisdiction exists

when

the litigation

is not

forum-based contacts,

engaged

the

directly founded

but

in continuous and

suit,

in

the

forum

the

defendant

on the

defendant's

has

nevertheless

systematic activity, unrelated to

state."

Id.
___

at

1088

(citing

-88

Helicopteros, 466
____________

U.S. at

414-16 & n.9).

Three

questions

constitute

both

the

specific

and

jurisdiction analyses: 1) whether

general

personal

the Massachusetts long-arm

statute authorizes jurisdiction; 2) whether the defendant has

sufficient

minimum

contacts

jurisdiction does not

exercise of

not

process.

Workers of America v.
___________________

(1st

Cir.

analysis

1993)

reasonableness by

"gestalt factors."2

statute or

the

exercise

reasonable, and

of

therefore does

Cf. United Elec., Radio & Mach.

___ _____________________________

163 Pleasant St. Corp., 987

_______________________

(setting

generally)

that

offend due process; and 3) whether the

jurisdiction is

offend due

so

out

steps

("Pleasant

applying

If the

the Due Process

factors

for

II").

we

jurisdictional

We

have

F.2d 39

determine

described

as

requirements of either the state

Clause of the

U.S. Constitution

are not

met, the

foreign defendant will

not be

subject to

personal jurisdiction.

A. Jurisdictional Issues
_________________________

(i)

whether

Specific Jurisdiction over CLB

______________________________

As

an

initial

CLB

is

subject to

theory of specific

matter,

we

personal

decline

to

consider

jurisdiction

under a

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

obtaining the most effective

and (5) the

resolution of the

common interests of all

substantive social policies."

interest in
controversy,

sovereigns in promoting

Pleasant I, 960 F.2d at 1088.

__________

-99

assert this theory

below.

defendants' motions to

court had

After

specific

completing

abandoned their

arguing only that

Plaintiffs initially

opposed the

dismiss by arguing that

jurisdiction over

discovery

specific

over CLB,

jurisdiction

all

the district

the

defendants.

however,

claim

plaintiffs

against

CLB,

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,

squarely in the lower court

time on

appeal."

ample

time

17, 21 (1st Cir. 1992).

circumstances

to

consider and

raised

cannot be broached for the first

Teamsters, Local No. 59

_________________________

Transp. Co., 953 F.2d

___________

extraordinary

legal theories not

in

this case;

advance

their

v.

Superline
_________

There are no

plaintiffs

had

best arguments

supporting specific jurisdiction.

(ii)

Specific Jurisdiction over Lintas:Paris and

_____________________________________________

RJR France
___________

Because we determine that the assertion of personal

jurisdiction over

due

process, we

whether

Lintas:Paris and

decline to

plaintiffs

have

RJR France

decide

established

would offend

the difficult

question

prima facie
____________

case

authorizing personal jurisdiction over these defendants under

-1010

the

Massachusetts long-arm

F.3d at 205;

F.2d

9, 11

statute.

See Ticketmaster,
___ ____________

26

U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894

___________________
___________________

(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

minimum

defendant only

contacts with

Washington, 326
__________

contacts

when the

the forum.

U.S. 310,

defendant has

sufficient

See Int'l Shoe Co.

___ _______________

316 (1945).

Sufficient

v.

minimum

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

availment

in-state contacts .

of the privilege

. . represent

a purposeful

of conducting activities

in the

forum state, thereby invoking the benefits and protections of

that

state's

laws and

presence before

the

issue

in this

the

defendant's involuntary

state's courts

exercising jurisdiction

Pleasant II,
___________

making

is fair under

987 F.2d at 43

case is

foreseeable,

n.9.

whether

and"

the gestalt

(3)

factors.

The decisive

due process

the defendants'

activities

satisfy the purposeful availment requirement.

Plaintiffs correctly

v.

Jones, 465

U.S. 783 (1984),

draw our attention

to Calder
______

in which the Supreme

Court

______

adopted an effects test for determining

in

the context of

defamation cases.

purposeful availment

Calder
______

concerned two

-1111

Florida

reporters, employed

by The National Enquirer,

______________________

who

wrote a libelous article about California entertainer Shirley

Jones.

Id.
___

The

properly could

Supreme

be asserted

Court

over the

defendants had aimed an act at

likely have a devastating

would

be felt

worked "and

circulation."

reporters because

the

effect, and knew the injury

state, where

Jones lived

and

in which the National Enquirer ha[d] its largest

Id. at 790.
___

satisfy only the

Like Jones,

forum

that jurisdiction

the forum state, knew the act

would

in the

held

Plaintiffs'

circumstances

injurious-effects part of the

plaintiffs felt a

state where they lived and

Calder test.
______

tortious effect in

worked.

the forum

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

anticipate

sufficient intent to make

being

Volkswagen Corp.
________________

into

court

v. Woodson, 444
_______

Calder,
______

the court

conduct

was

California."

haled

found

that

465 U.S.

there."

World-Wide
__________

U.S. 286, 297 (1980).

the defendants'

"calculated to cause
__________

Calder,
______

them "reasonably

injury

at

791

to

In

intentional

respondent in

(emphasis added).

There is no analogous intentional behavior here.

-1212

Plaintiffs do not

suggest, that any

allege, and the record

acts by Lintas:Paris3 were

sufficient purpose to

does not

committed with

satisfy the intent requirement.4

The

defendants did not direct their actions toward Massachusetts.

That

phone

the advertisement

contains French

number suggests Lintas:Paris

text

and a

created it for

French

a French

audience.

This

interpretation

is

contradiction, by

a Lintas:Paris

representative who

that

"[t]he advertisement

consumer

market."

corroborated,

was aimed

solely

Aff.,

12.

Roux

without

stated

at the

French

Furthermore,

Lintas:Paris "was not aware that some copies of the magazines

bearing

the advertisement" would reach Massachusetts.

Id.
___

15.

Although

plaintiffs

Lintas:Paris' knowledge that

Massachusetts

and

fleetingly

refer

the advertisements would

passingly

contest the

district

to

reach

court's

____________________

3.

We first consider Lintas:Paris' actions alone because the

Noonans'
agency

jurisdictional claims over

relationship with

plaintiffs'

RJR France rest

Lintas:Paris.

claims against RJR

on its

The viability

France depends on

of

our first

finding that Lintas:Paris purposefully

availed itself of the

forum state.

4.
any

The district court emphasizes that Noonan "did not allege

of the defendants . . . even

that they published his

in Massachusetts."
view

knew who he was, much less

picture intending that he be

Noonan I, 902 F.
________

harmed

Supp. at 305.

In our

this argument implies too high a jurisdictional hurdle.

Because

this is an

underlying tort,

inquiry regarding jurisdiction,

the defendant

intentionally directed
the forum state.

must only be

not the

shown to

have

an act, tortious or otherwise, toward

The defendants' lack of

to harm Noonan is irrelevant.

-1313

a specific intent

denial

of

discovery

as to

what

Lintas:Paris

known, they

do not

ignorance.5

Instead, relying on Calder and other cases where

______

the

defendant intentionally

material

into

defendants'

from

dispute Lintas:Paris'

should have

the

forum,

intent to

the placement

F.2d 661 (1st

fraudulent

material

Supplies, Inc.
_______________

v.

fraudulent or

plaintiffs

imply

reach Massachusetts

of advertisements

international circulations.

460

sent

claims of

defamatory

that

the

be inferred

in publications

with

Cf. Murphy v. Erwin-Wasey, Inc.,

___ ______
_________________

Cir. 1972) (defendant

into

can

actual

forum);

intentionally sent

Borshow Hosp.
& Med.
________________________

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

and

appeared

sources, concerned

in a

newspaper

a California

with a

forum

celebrity,

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,

Lintas:Paris'

plaintiffs

knowledge in

only

vaguely

its appellate

referred to

brief.

Further,

plaintiffs perfunctorily asserted to the district court, in a

footnote, a

need for

discovery as

to whether

should have known that the magazines would

Massachusetts.
rebuttal

These

assertions are

of Lintas:Paris' claims

not

Lintas:Paris

be distributed in
tantamount to

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
that

footnote sufficient to have preserved an argument

negligence

is

sufficient

to

constitute

purposeful

availment.

-1414

at 789.

Here,

however,

plaintiffs'

advertisement

which appeared

circulated in

Massachusetts.

in

claims

305 individual

This

rest

on

an

magazines,

small distribution,

by

itself, does not

focal

merit a finding that

point of the events in

Massachusetts was the

question, or that Lintas:Paris

aimed the advertisements toward Massachusetts.

distribution of offending material

defendant acted intentionally.

that a publisher's regular

magazines

market

and,

jurisdiction.

770,

helps determine whether a

The Supreme Court has

circulation of a large

containing allegedly libelous

state indicated

781

publication

deliberate and continuous

therefore,

The size of a

was

content in

held

number of

a forum

exploitation of a

sufficient

to

support

See Keeton v. Hustler Magazine, Inc., 465 U.S.

___ ______
______________________

(1984).

Just

as

widespread

indicates deliberate

circulation of

action, thin

may indicate a lack of purposeful contact.

distribution

See Chaiken v. VV
___ _______
__

Publ. Corp., 119

____________

F.3d

jurisdiction over

an Israeli

involving an

.04% of total

1018 (2d

Cir.

1997) (holding

publisher for

insignificant distribution

circulation -- offends due

for cert. filed,

___ _____ _____

--

a libel

that

action

four copies

or

process), petition
________

___ U.S.L.W. ___ (U.S. Nov.

25, 1997) (No.

97-6984).

Plaintiffs urge

us to rely

News, 95 F.3d 829 (9th Cir. 1996),

____

Circuit

found

that

the

on Gordy v.
_____

a case in which the Ninth

distribution

-1515

The Daily
_________

of

under

twenty

newspapers

foreign

was

sufficient

newspaper

however, the

and its

to confer

reporter.

Gordy defendants
_____

jurisdiction

over

Unlike Lintas:Paris,

targeted the

forum state

by

distributing newspapers via regular customer subscriptions to

forum addresses.

the

ultimate

Massachusetts,

Here, as noted, Lintas:Paris denies knowing

destination

of

and plaintiffs

While we sympathize

the

have

magazines

that

not alleged

with George Noonan's distress

reached

otherwise.

at seeing

his

image

used

to

Massachusetts-based

jurisdiction

do not,

injury

is

credit

contacts and negate

and

product

not

over the defendants.

inappropriately

requirement.

promote

random,

he

despises,

enough

To find

support

otherwise would

isolated,

the reason for the

to

his

or

fortuitous

purposeful availment

Without finding minimum contacts, we need not,

proceed to

the reasonableness

Donatelli v. National Hockey League,

_________
______________________

analysis.

See
___

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

systematic to permit

the district court to

and

exercise general

jurisdiction.

(a) CLB
___

We

begin our analysis with the relevant section of

the Massachusetts long-arm statute:

-1616

court

may

jurisdiction

exercise

over

personal

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

commonwealth

tortious
by

an

injury
act

or

in

this

omission

outside this commonwealth if he regularly

does or solicits business, or engages
any other

persistent course

in

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

legitimate desire to

statute broadly.

[the Commonwealth's]

protect its citizens," we

construe the

Mark v. Obear & Sons, Inc., 313 F.

____
___________________

Supp.

373, 376 (D. Mass. 1970).

Viewing

the facts

in a

light

most favorable

to

plaintiffs,

the

plaintiffs'

in-state harm was caused by the defendant's out-

of-state act,

injury

is

sale

of

the

The

where the

of

3(d),

of which

use

Anne

of George

allegedly improper act,

an

Noonan's

engendered the

Marie Noonan

photograph containing

that

plaintiffs suffered

shame and embarrassment and

of consortium

Furthermore, CLB's

requirement

easily met.

in Massachusetts

image caused him

loss

threshold

complains.

the unauthorized

Noonan's

image,

was a

foreign act that arguably contributed to plaintiffs' in-state

injuries.

Plaintiffs' appeal raises the issue of

district

court properly

decided

-1717

that plaintiffs

whether the

failed to

satisfy

the

sufficient

court

second requirement

of

3(d),

that CLB

additional contacts with the forum.

assumed that plaintiffs'

'substantial

revenues'

revenues insufficient

Supp. at 571.

test

The district

"best case [fell]

of

to meet the

3(d),"

test.

and

had

under the

found

Noonan II,
_________

the

947 F.

We think, however, plaintiffs' best case falls

under the "doing or soliciting business" test.

clause is

disjunctive, only

satisfied.

While

the

one of its

parties

Because this

prongs needs

energetically

debate

to be

the

success of CLB's Massachusetts solicitations, we measure only

the solicitations themselves.

CLB

solicited

sufficient regularity to

the fall of

was

filed in

business

in

satisfy the statute.

1992 and continuing until

May 1994,

Massachusetts

CLB

with

Beginning in

plaintiffs' complaint

employees regularly

solicited

business from World Publications, Inc. ("World"), a remainder

house located in Dighton, Massachusetts.

period, CLB employees

to

During the two-year

telephoned, faxed, and wrote

secure book orders.6

to World

In addition, CLB employees traveled

____________________

6.

The

lower court sets

courtship of World,

forth the details

beginning with the early

See Noonan II, 947 F. Supp. at 567-68.

___ __________
court recognized
recount
CLB's

credit

International
World's

Sales

form.

Because the district

CLB

contacts:

Director,

business.

reference, and

application

1994 contacts.

only successful solicitations,

the following pre-1994

soliciting

regarding CLB's

In November

Bill

World

provided

In

it did

October 1992,
Dancer,

provided
World

1992,

not

with

Dancer

began

CLB

with a

credit

traveled to

Massachusetts, met with World, and secured a $210,000 order.

-1818

from

the

England to Massachusetts on at least two occasions with

intention

of

developing

relationship

Finally, in

the spring of 1994, World

in

to negotiate

England

solicitations of forum

targeted to

satisfy

orders.7

with

employees visited CLB

In sum,

CLB's

companies are adequately

3(d).

World.

Cf. Keds Corp.

___ __________

direct

regular and

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

sufficient

therefore turn

to

satisfy

to

whether these

the Constitution.

contacts are

Until

the date

plaintiffs

with

filed their

Massachusetts

complaint,

were

Massachusetts in 1979,

Neil

CLB's relevant

Sutherland's

contacts

visits

the business solicitations

to

discussed

above, and approximately $585,000 of orders from World.8

The

____________________

7.

In

1993, CLB also sought business relationships with two

other

Massachusetts

Little

Brown

counting the

publishers, Lauriat's

and Company.
Little Brown

CLB

Booksellers

disputes the

and Company

and

propriety of

contact because,

in

response to CLB's overture, Little Brown and Company directed

CLB to contact a
dispute
are

New York office.

because, for purposes of

sufficient even

without the

We need

not resolve this

3(d), CLB's solicitations

Little

Brown and

Company

solicitation.

8.

The

parties

clash

over

which

contacts

should

considered in the general jurisdiction analysis.

dispute whether

a foreign

corporation's

up to
have

the time the complaint

considered

all

First, they

contacts with

forum should be measured up to the time of the

up

the

alleged tort,

is filed, or at any

contacts established

be

to

time.

We

the time

Noonan

filed his complaint.

See infra.
___ ______

at 23-25.

Second,

-1919

standard for

evaluating whether

constitutional

more

jurisdiction test

stringent" than that

questions.

Cir.

general

1984).

these contacts

applied to

"is

satisfy the

considerably

specific jurisdiction

Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st
______
_______________

In addition, courts

must exercise even greater

care

before

nationals.

exercising personal

jurisdiction

See Asahi Metal Indust. Co.

___ ________________________

over foreign

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

frequent,

intense, and

successful.

must

based

fact-specific

be

contacts,

we

on

are guided

by

Although

the types

purposeful,

our decision

evaluation

of

of

CLB's

contacts deemed

sufficiently continuous and systematic in other cases.

We look to

two of our previous cases

in which the

appellants

argued,

jurisdiction

as

applied to

plaintiffs

do

now,

an out-of-state

that

seller.

general

In

both

____________________

they

disagree over

whether it

revenues other than

is

appropriate to

those actually paid to CLB

filing of the complaint.

consider

prior to the

On this point we part company

with

the district court and think it reasonable to include amounts

owed,

but

not

Massachusetts

yet

paid,

companies.

to CLB

from

Third, they

totals of the amounts owed, but not yet

some

orders were

purposes
and

changed before

of this analysis, we

ordered from

CLB,

the

orders
arrive at

placed

by

different

paid, to CLB because

complaint date.

For

have included amounts paid to

but not

Noonan filed his complaint.

-2020

cancelled

before the

date

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,

advertised,

in Glater, we found that a manufacturer who

______

employed

eight

distribute information, and sold

the forum was

F.2d at 217.

sales

representatives

products to distributors in

not subject to general jurisdiction.

Although

to

See 744
___

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

manufacturer's full-time sales representatives.

at 214-15, 217 with

Noonan II, 947 F.

_________

Glater
______

Compare id.
_______ ___

Supp. at 567-68;

see
___

also supra notes 6 & 7.

____ _____

In

league

Donatelli, we found that ten years of providing

_________

officials

at

exhibition

hockey

games,

scouting,

providing television broadcasts, and selling products bearing

the

National Hockey League

(NHL) logo, taken

not meet the due process test.

League, 708 F.
______

reversed
________

See Donatelli v. Nat'l Hockey

___ _________
____________

Supp. 31, 35 (D.R.I.

893 F.2d

459

(1st

together, did

Cir.

1989) (reciting facts),

1990).

Although

CLB's

contacts were arguably

more intense than the

NHL's contacts

-2121

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

to authorize general

sufficient minimum contacts

jurisdiction over CLB do

not exist, we

do not need to assess whether asserting jurisdiction would be

reasonable under

F.2d at 471.

the gestalt

factors.

See Donatelli,
___ _________

893

____________________

9.

We note that in Keeton,

______

the distribution of
forum

the Supreme Court suggested that

10-15,000 copies

state each month may not

to support

of a

magazine in

the

have been substantial enough

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

base.

-2222

built

up a

subscription

(b)

RJR Tobacco
___________

Plaintiffs

also

over RJR Tobacco is proper

ch.

223,

38.

jurisdiction lies

with the

this

We will

under

not,

over RJR Tobacco

premise that

litigation.

argue that

general

3(d) and Mass. Gen.

however, consider

because we do

purportedly connects

Cf. Hachikian
___ _________

jurisdiction

v.

Laws

whether

not agree

RJR Tobacco

to

Federal Deposit Ins.

_____________________

Corp.,
_____

96

F.3d 502,

504

(1996) (concluding

affirm the entry of summary judgment

that we

may

on any alternate ground

made manifest by the record).

While not disputing

France,

and not RJR

allegations in

named RJR

France,

same

Tobacco, that are

a defendant because

sells Winston cigarettes; and

assertions

of

corporations

ignore

insufficient to

raise a

to RJR

Massachusetts.

the

as RJR

corporate

Cf. Birbara v.
___ _______

have nonetheless

(1) it,

Tobacco.

form,

by the

like RJR

(2) it belongs to the

claim involving

Tobacco under

actions of RJR

put in issue

their complaint, plaintiffs

Tobacco as

family

liability

that it is the

and

These two

are

patently

an attribution

of

veil-piercing theory

in

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);

-2323

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

corporate

entities or

where

directly

participates

in

intermingling between

one corporation

the

activities

actively

of

the

and

second

corporation, apparently exercising pervasive control.").

B. Discovery Issues
____________________

Plaintiffs contend

its

discretion

jurisdictional

Reynolds Tobacco

in

denying

discovery over

that the district

them

permission

defendants RJR

International, Inc., R.J.

S.A., Lintas:Worldwide,

court abused

Lintas:Paris, and

to

take

Tobacco, R.J.

Reynolds France,

Worldwide Brands,

Inc.

In addition, plaintiffs

improperly

limited

assert that the district court

discovery

over

CLB.

We

apply

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

The Advertising and Tobacco Defendants

______________________________________

denial

of

jurisdictional discovery as

defendants

litigation,

was not an abuse

plaintiffs'

to the

tobacco and

of discretion.

plaintiffs have argued

request

for

advertising

Throughout this

that the denial

of this

-2424

request deprived

them of

the opportunity

interrelationships among the defendants.

the

tobacco

defendants

or

between

to ascertain

the

Proving ties among

Lintas:Paris

tobacco defendants would not assist plaintiffs' cause

and

the

absent

a concomitant demonstration that Lintas:Paris availed

of the Massachusetts

forum.

We

have already ruled

itself

against

plaintiffs on this point.

(ii) Limitation of Discovery over CLB

_________________________________

Plaintiffs contend that

allowed

had

them leeway to discover all contacts between CLB and

Massachusetts throughout

have

if the district court

been able to

In its decision

the litigation

period, they

establish general jurisdiction

to deny jurisdiction over

would

over CLB.

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

time . . . ?"

Noonan II, 947 F. Supp. at 571.

_________

at any

Judge Stearns

applied the

requests

filed.

middle approach, and

to

We

contacts

limited Noonan's discovery

through the

agree with this

("In

Robertson-Ceco Corp., 84
____________________

general

jurisdiction

examine a defendant's

period

complaint was

F.3d 560, 569-70

cases,

district

(2d Cir.)

courts

should

forum state over

under the circumstances

-2525

rejects as

Metropolitan Life Ins.

_______________________

contacts with the

that is reasonable

the

ruling insofar as it

irrelevant post-complaint contacts.

Co. v.
___

date

-- up to

and

including the

whether

they

date

satisfy

the

the

suit was

filed

'continuous

-- to

and

assess

systematic'

standard."), cert. denied, 117 S. Ct. 508 (1996).

_____ ______

Plaintiffs dispute this approach on the grounds

law and policy.

They first contend that a majority of courts

routinely analyze contacts

with the forum based

from both before and after

the date of the complaint.

of the cases they cite

directly

Energy

speaks

of

to the

on evidence

None

in support of this argument, however,

question posed

Corp. v. Metallgesellschaft

here.

See Wheeler
___ _______

AG, No. 91-214-SLR, 1993

_____________

______________________

U.S. Dist. LEXIS 20450 (D.

Assurance, 808
_________

F. Supp.

Del. Jan. 4, 1993); American Home

_____________

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

survey

of

data

that

spans

proceeding years) in its minimum-contacts analysis.

the

majority

Robertson-Ceco,
______________

approach is

84 F.3d

not as

at 569

several

Finally,

plaintiffs suggest.

(surveying

cases from

See
___

the

Supreme Court and the Second, Fifth, and Ninth Circuits).

Plaintiffs also

claim that

the complaint date is unfair.

limiting discovery

to

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

-2626

existed even though

it enjoys the benefits of

the forum and

was,

prior to

They

also warn that

limitations

analysis

plaintiffs

to

market entry,

period

result

from limiting

before the

who wait until the

maximize the

of the

litigation.

undesirable exploitation of

periods will

to the

on notice

chance of

statute of

the contact

complaint date.

Savvy

end of the limitations period

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

It

incoherent

over the defendant.

to permit

contacts

in proving

time.10

Therefore,

the court

that

while

to

it had

Noonan

would be conceptually

look to

authority

may

post-complaint

at a

have

previous

discovered

____________________

10.
have

Given our

basis for

considerable

sufficiency of
assessed at

doubt

rejecting
about

contacts for

the time

plaintiffs' claims,

CLB's

argument

that

general jurisdiction should

of the alleged

tort.

we
the
be

Although Judge

Stearns used the complaint date to bound the minimum contacts

analysis, he appears to have agreed with CLB,
"to the

extent that

foreseeability is a

positing that,

touchstone of

due

process[,] logic would measure general jurisdiction as of the

date the tortious act is committed."
at 571.

CLB argues

that might
only at the
the

Noonan II, 947 F. Supp.

_________

the choice to forbear

cause the injury

from the conduct

inspiring the suit can

be made

time the tort is about to be committed.

We note

foreseeability question

is

not whether

the

defendant

should reasonably expect to be called into court but whether,

given that

the

defendant

defendant would be
called him.
defendant

has

been called

surprised to find a

to

court,

the

particular court has

__________

Asking this question from the perspective of the

at the

time he

allegedly committed

likely premature because not until the complaint

-2727

the tort

is

is filed is

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

district court is affirmed.

affirmed.
________

stated above, the judgment

Costs to appellees.

of the

____________________

the court asked to exercise its sovereignty.

-2828