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7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
1/39
USCA1 Opinion
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
_________________________
No. 93-1692
TICKETMASTER-NEW YORK, INC.,
Plaintiff, Appellant,
v.
JOSEPH M. ALIOTO,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________
_________________________
Before
Torruella, Selya and Stahl, Circuit Judges. ______________
_________________________
Jonathan W. Lubell, with whom Malcolm I. Lewin,____________________ __________________
McClain-Sewer, Morrison Cohen Singer & Weinstein, Stephen_____________ ___________________________________ ______
Wainwright, and Wainwright, Wainwright, Wainwright, Wainwri__________ ____________________________________________
7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
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Wainwright were on brief, for appellant. __________ James A. G. Hamilton, with whom Theodore F. Schwartz,
____________________ ____________________Cohen, and Perkins, Smith & Cohen were on brief, for appellee
_____ ______________________
_________________________
April 13, 1994
_________________________
SELYA, Circuit Judge. This case probes the front SELYA, Circuit Judge. ______________
of the doctrine of personal jurisdiction in a context fra
with constitutional implications. The issue, simply put,
this: Can a Massachusetts-based court, consistent with the
Process Clause, assert jurisdiction over a California resi
who is alleged to have made a defamatory comment durin
unsolicited telephone interview with a staff reporter fo
Massachusetts newspaper? We conclude, on the facts of this c
that the lower court correctly disclaimed jurisdiction.
I. BACKGROUND
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I. BACKGROUND
Inasmuch as the district court dismissed this suit
failure of the plaintiff to make a prima facie jurisdicti _____ _____
showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675
___ ____ ____________________
Cir. 1992), we draw the facts from the pleadings and the part
supplementary filings, including affidavits, taking f
affirmatively alleged by plaintiff as true and constr
disputed facts in the light most hospitable to plaintiff.
course, we do not credit conclusory allegations or
farfetched inferences. See generally Dartmouth Review___ _________ _________________
Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (discussing_______________
between "facts" and "conclusions" for purposes of a motion
dismiss).
Defendant-appellee Joseph M. Alioto is an atto
practicing in California. Among his other cases, Alioto
pressing a class action in the California courts aga
Ticketmaster-Southern California, Inc. (T-SC). T-SC,
2
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California-based corporation, is affiliated with Ticketmaster
York, Inc. (T-NY), a Delaware corporation. Both Ticketma
entities are engaged in the business of selling ducats
entertainment events.
The litigation between T-NY and Alioto finds
genesis in the decision by the Boston Globe, a daily newspa ____________
to undertake an investigation into pricing practices
"Ticketmaster's" part.1 In conducting this investigation
Globe reporter conversed by telephone with Alioto. The plain
_____
does not allege, and the record does not suggest, that Al
dialed the telephone or otherwise initiated the call. The re
is equally barren of any showing that Alioto solicited
inquiry2 or that more than one call occurred. It is cl
nevertheless, that Alioto, who was in California, knew
speaking that his comments would inform a story slate
publication in a newspaper circulated chiefly in Massachusett
The investigation culminated in a front-page ex
that hit the newsstands on Sunday, September 20, 1992, under
banner headline, "Rising ticket fees pad concert profits."
ensuing article contained over fifty paragraphs. Well past
midpoint, the article mentioned mounting complaints about p
____________________
1The article that capped this investigation makes no att to distinguish among corporate entities (although it contains
vague reference to "Ticketmaster and its affiliates").
point does the article refer by name to either T-NY or T-SC.
2Although there is a passing allusion in the record tpress release issued by Alioto regarding the lawsuit againsSC, there is no indication that he forwarded this releas
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Massachusetts or that it sparked the Globe's story. _____
3
gouging in New York and California. It then reported that "t
class action antitrust lawsuits" had recently been filed "aga
Ticketmaster" in California. There followed the paragraph ar
which this controversy revolves (buried deep in the body of
article). We quote the allegedly offending paragraph in f
and, in the interests of context, add the beginning of
following paragraph.
Attorney Joseph M. Alioto, who filed one of the suits, charged that kickbacks are the key to Ticketmaster's California monopoly. "They're nothing more than a straight bribe," he said. Ticketmaster and its affiliates took on their California adversaries in typical
aggressive fashion, . . .
Based on this reported comment, T-NY brought
against Alioto in the United States District Court for
District of Massachusetts. Invoking diversity jurisdiction
U.S.C. 1332 (1988), it alleged that Alioto, with the requi
intent, conveyed and/or caused to be conveyed certain defama
impressions of and concerning T-NY, namely, that T-NY engage
bribery and related criminal conduct.
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In due season, Alioto moved to dismiss. T-NY objec
The district judge heard oral argument and dismissed the ac
for lack of in personam jurisdiction, concluding that appel __ ________
failed to make the requisite showing at every stage of
obligatory jurisdictional inquiry under the due process cla
See United Electrical Workers v. 163 Pleasant St. Corp., 960___ _________________________ ______________________
1080, 1089 (1st Cir. 1992) (Pleasant St. I) (discussing natur______________
requisite inquiry). Two perceptions figured prominently in
4
district court's reasoning. First, the defendant did
actively shape and focus the reporter's story, but, rat
passively responded to a telephone call. Second, the alle
defamatory comment dealt with the California activities o
California corporation, T-SC, and did not pertain to T-NY.
Plaintiff appeals. Because the court below dismi
the case on legal grounds, without convening an evident
hearing or resolving contested evidentiary questions, appel
review is plenary. See United Electrical Workers v. 163 Plea ___ _________________________ _______
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St. Corp., 987 F.2d 39, 43-44 (1st Cir. 1993) (Pleasant St._________ ____________
Boit, 967 F.2d at 675. In conducting this tamisage, we are____
wedded to the district court's rationale, but remain fre
affirm the judgment below on any independently sufficient gr
made manifest by the record. See Martel v. Stafford, 992___ ______ ________
1244, 1245 (1st Cir. 1993).
II. ANALYSIS II. ANALYSIS
To subject a non-resident defendant to its jurisdic
in a diversity case, a court and for this purpose, a fe
court exercising diversity jurisdiction is the functi
equivalent of a state court sitting in the forum state,
General Contracting & Trading Co. v. Interpole, Inc., 940__________________________________ _______________
20, 23 n.4 (1st Cir. 1991) must find contacts that, in
aggregate, satisfy the requirements of both the forum sta
long-arm statute and the Fourteenth Amendment.3 See Plea ___ ___
____________________
3To be sure, the extent of the necessary jurisdicti showing varies depending upon whether a litigant ass jurisdiction over an adverse party under a theory of "general
5
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St. I, 960 F.2d at 1086 ("In Massachusetts, a court may exer _____
personal jurisdiction over a foreign defendant if
jurisdiction is authorized by state statute or rule and___
exercise does not offend due process."); Bond Leather Co. v.________________
Shoe Mfg. Co., 764 F.2d 928, 931 (1st Cir. 1985) (similar).______________
district court determined that T-NY satisfied neither of t
two prerequisites. We explore these determinations.
A. The State Statute. A. The State Statute. _________________
The applicable Massachusetts statute, familiarly
as "section 3(c)," deals with torts committed by persons who
no ongoing relationship with the forum state. The langua
this provision tracks the Uniform Interstate and Internati
Procedure Act, and differs significantly from other lea
formulations. See Murphy v. Erwin-Wasey, Inc., 460 F.2d___ ______ __________________
663-64 (1st Cir. 1972); see also Margoles v. Johns, 483___ ____ ________ _____
1212, 1216 (D.C. Cir. 1973). The statute states:
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 . . . (c) causing tortious injury by an act
or omission in this Commonwealth . . . .
Mass. Gen. Laws ch. 223A, 3 (1986).
Although the lower court did not reach the questio
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jurisdiction under state law, we have pondered whether the
might more appropriately be dispatched on that basis. After
____________________
"specific" jurisdiction. See Donatelli v. National Ho
___ _________ ___________ League, 893 F.2d 459, 462-63 (1st Cir. 1990) (elucida ______ standards and enumerating differences). Here, plaintiff's
stands or falls on a theory of specific jurisdiction.
6
"[i]t has long been a basic tenet of the federal courts to es
the decision of cases on constitutional grounds unless and u
all other available avenues of resolution [have been] exhaust
Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 726 (1st________ _______________________
1984). But here, as we explain below, the state-law issues
extremely murky. Thus, on balance, we agree with the dist
court that it makes sense to resolve the jurisdictional ques
on constitutional grounds.
In the first place, although logic suggests that
these facts, the defendant cannot be said to have performe
act" in Massachusetts, that suggestion is not easily reconc
with Murphy. There, we ruled that an allegedly tortious______
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committed outside the borders of Massachusetts, purposef
directed at the state and intended to cause injury there, c
constitute an in-forum act within the meaning of section 3
See Murphy, 460 F.2d at 664. While Murphy can be distingui
___ ______ ______
on the ground that it was decided in the context of fraudu
misrepresentation, as opposed to defamation,4 its interpreta
of section 3(c) is worded in general terms and its reason
conceivably could be transferred to the defamation cont
Despite our profound reservations about extending the Mu _
____________________
4Appellant argues that we have already extended Murp____
the defamation arena in Hugel v. McNell, 886 F.2d 1 (1st_____ ______
1989), cert. denied, 494 U.S. 1079 (1990). We do not think H _____ ______
must necessarily be read so broadly. That case turned oconstruction of the New Hampshire long-arm statute, N.H.Stat. Ann. 510:4 (1993), and the New Hampshire statute, un
its Massachusetts counterpart, does not embody the languathe Uniform Act.
7
rationale,5 it spreads a shadow of uncertainty over the st
law issues.
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In the second place, because we are skeptical
defendant made any remark "of and concerning" T-NY, we ha
doubts whether defendant can be said to have inflicte
"tortious injury" within the meaning of section 3(c).6 We
however, hesitant to move beyond an expression of skepticism.
this stage of the proceedings, appellant has not had the ben
of an evidentiary hearing or a comparable opportunity (
access to the full-dress summary judgment protocol afte
reasonable period of discovery) for presenting proof. Thus
may be too early to reach the state-law issues.
To be sure, our reservations about one or both of t
____________________
5Intuitively, it would seem hard to characterize the actpublishing an allegedly defamatory remark outside the forum s
as an act within the forum state. In fact, no fewer thancourts applying long-arm statutes patterned after the Uniforhave eschewed Murphy's reasoning in the defamation context
______ declined to assert jurisdiction on this basis. See Reuber
___ _____ United States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dietric
______________ ______ Wisconsin Patients Comp. Fund, 485 N.W.2d 614, 617-18 (Wis.
______________________________ App. 1992); Wheeler v. Teufel, 443 N.W.2d 555, 558 (Minn.
_______ ______
App. 1989); Ramada Inns, Inc. v. Drinkhall, No. 83C-A ___________________ _________ unpaginated slip op. available on LEXIS (Del. Super. Ct. 19 Zinz v. Evans & Mitchell Indus., Inc., 324 A.2d 140, 144
____ _______________________________ App. 1974); see also St. Clair v. Righter, 250 F. Supp. 148,
___ ____ _________ _______ (W.D. Va. 1966) (using similar reasoning to interpret lon statute containing "tortious act" language); see gener ___ ____
Margoles, 483 F.2d at 1218-19 (criticizing Murp ________ ___ interpretation of language drawn from the Uniform Act).
6In Massachusetts, a court has power to determine, a
7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
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matter of law, that a particular remark is not susceptible ofdefamatory construction "of and concerning" the plaintiff,therefore, not actionable. See Eyal v. Helen Broadcasting Co
___ ____ ____________________ 583 N.E.2d 228, 232 (Mass. 1991). At least one court has
this type of power to dismiss a defamation case on jurisdicti grounds. See Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 19 ___ _____ ______
8
points might well be resolved upon closer perscrutation.
there is no need to sally forth. Because it is apodictic t
jurisdiction-seeking plaintiff must satisfy the demands of
only state law but also the federal Constitution, see Plea ___ ___
St. I, 960 F.2d at 1086, and because T-NY's case cannot_____
constitutional muster, we choose to bypass the statutory phas
the jurisdictional inquiry. Consistent with this approac
accept appellant's alleged facts as true for present purposes
assume arguendo that the allegedly defamatory remark concerne________
NY.
B. The Due Process Clause. B. The Due Process Clause.
______________________
Divining personal jurisdiction is "more an art t
science." Donatelli v. National Hockey League, 893 F.2d 459,
7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
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_________ ______________________
n.7 (1st Cir. 1990).7 In broad outline, a party wishin
validate a court's jurisdiction must show that "minimum conta
exist between the defendant and the forum state. Internati ________
Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945).________ ___________________
establish minimum contacts on a theory of specific jurisdict
a plaintiff must first demonstrate that its cause of ac
"arises out of, or relates to" defendant's contacts with
forum state, Helicopteros Nacionales de Colombia, S.A. v. H __________________________________________
466 U.S. 408, 414 (1984). Then, the plaintiff must demonst
the deliberateness of the defendant's contacts, or, phr
____________________
7In Donatelli, 893 F.2d at 462-65, we chronicled_________
historical development of due process standards for pers jurisdiction, and in Pleasant St. I, 960 F.2d at 1089,
_______________ rehearsed the current state of the law.
9
another way, that the defendant "purposefully avail[ed] itsel
the privilege of conducting activities within the forum Sta
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Hanson v. Denckla, 357 U.S. 235, 253 (1958). ______ _______
Even if a plaintiff succeeds in making these
showings, it is not home free. The defendant may nonethe
avoid having to defend in a strange place if it can estab
that allowing the suit to go forward would be inconsistent
"fair play and substantial justice," International Shoe, 326__________________
at 320.
Following this analytic model, we first as
relatedness and purposeful availment in terms of t
applicability to the case at hand. Finding them to
inconclusive in this rather odd situation, we then mull
extent to which considerations of fairness and substan
justice must influence our ultimate decision.
1. Relatedness. The requirement that a suit arise1. Relatedness.
___________
of, or be related to, the defendant's in-forum activi
comprises the least developed prong of the due process inqu
See Pleasant St. I, 960 F.2d at 1089 & n.9; see also Carn ___ _______________ ___ ____ ___
Cruise Lines v. Shute, 499 U.S. 585, 589 (1991) (declinin____________ _____
reach issue despite having certified it for review). We kno
a certainty only that the requirement focuses on the n
between the defendant's contacts and the plaintiff's caus
action.
The Court has kept its own counsel on the questio
whether, on the one hand, the two halves of the relate
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10
requirement are merely two ways of expressing the same tho
or, on the other hand, they are meant to import different va
into the jurisdictional equation. See Helicopteros, 466 U.S___ ____________
415 n.10 (reserving question). For our part, we thin
significant that the constitutional catchphrase is disjuncti
nature, referring to suits "aris[ing] out of, or relat[ing]__
in-forum activities. Id. at 414 (emphasis supplied). We bel ___
that this added language portends added flexibility and signa
relaxation of the applicable standard. A number of other co
share this belief. See, e.g., City of Virginia Beach v. Roan ___ ____ ______________________ ___
River Basin Ass'n, 776 F.2d 484, 487 (4th Cir. 1985); Sout _________________ ____
Co. v. Trans-World Metals & Co., 735 F.2d 440, 442 (11th___ _________________________
1984); Thos. P. Gonzalez Corp. v. Consejo Nacional de Product _______________________ __________________________
614 F.2d 1247, 1254 (9th Cir. 1980); see also In re Oil Spil___ ____ _____________
the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir. 1983). _______________
7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
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While we do not have occasion today to give fu
content to the relatedness requirement,8 it is evident that
requirement serves two functions. First, relatedness is
____________________
8At least one scholar reads a line of First Circuit casegoing beyond this point and proposing an innova
constitutional test. See Mark M. Maloney, Specific Pers ___ _____________ Jurisdiction and the "Arise From or Relate to" Requirement .
____________________________________________________________ What Does it Mean? 50 Wash. & Lee L. Rev. 1265, nn. 118-1
___________________
accompanying text (1993). In our view, these casesinterpret the term "arising from" as that term is used inlong-arm statutes of Massachusetts, see Fournier v. Best Wes
___ ________ _______ Treasure Island Resort, 962 F.2d 126, 127 (1st Cir. 1992); Ma ______________________ _ v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986), and Pu ____________ Rico, see Pizarro v. Hoteles Concorde Int'l, Inc., 907 F.2d 1 ___ _______ ____________________________ 1259-60 (1st Cir. 1990) deal with state-law issues and ha
real implications for the relatedness requirement specificallfor constitutional analysis generally.
11
divining rod that separates specific jurisdiction cases
general jurisdiction cases. Second, it ensures that the ele
of causation remains in the forefront of the due pro
investigation. Even if the facts are such that a court may
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dismiss a given case for lack of relatedness per se,___ __
relatedness requirement, in serving its second funct
authorizes the court to take into account the strength
weakness) of the plaintiff's relatedness showing in passing
the fundamental fairness of allowing the suit to proceed.
In this vein, it is important to recognize that,
the defendant in a defamation action is a journalist's sou
the link between the defendant's conduct and the cause of ac
is attenuated by the intervening activities of third part
e.g., the reporter, the editor, the media outlet, and that t ____
intermediaries shape, amplify, and occasionally distort
original utterance. This case illustrates the point.
original comment, technically a tort in its own right
defamatory), inflicted no significant injury, except insofa
it led to republication in the ensuing newspaper article
the form and tone of the republication was not by any stretc
the most active imagination within the defendant's effec
control.
2. Purposeful Availment. The question here mus2. Purposeful Availment.
____________________
phrased in terms of whether an individual who merely answe
telephone call, but, having done so, knowingly directs
comments into the forum state, may be said to have purposef
12
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availed himself of the privilege of conducting activities in
state.9
To answer the question, we begin by considering McB __
v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), a case____________________
the district court thought highly pertinent and that Alioto t
as dispositive. There, the Seventh Circuit refused to sanc
the exercise of jurisdiction because the defendant
journalistic source, did not initiate the defamatory excha
and, being unaware of either the reporter's whereabouts or
magazine's reach, could not reasonably have foreseen that
comment would cause injury in the forum state. See id. at 28 ___ ___
The two conditions identified as salient in McB __
correspond to the two cornerstones of purposeful availment.
cornerstone is foreseeability. See, e.g., Escude Cruz v.___ ____ ___________
Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir. 1980); see____________________ ___
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1 ___________________________ _______
(stating that, for a court to assert jurisdiction, a defenda
"conduct and connection with the forum State [must be] such
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he should reasonably anticipate being haled into court ther
The second cornerstone, less frequently recognized as suc
____________________
9Appellant's efforts to reframe this question by hin
that Alioto instigated the call are unavailing. The burdeproving jurisdictional facts rests on the shoulders of the p
who seeks to invoke the court's jurisdiction. See McNut___ ____
General Motors Acceptance Corp., 298 U.S. 178, 189 (19 __________________________________ Martel, 992 F.2d at 1247 n.5; Pleasant St. I, 960 F.2d at 1 ______ ______________ On this principle, and in the absence of even a representatio
firm allegation to the contrary, we must presume, as di
court below, that Alioto played no part in initiatingtelephone call.
13
voluntariness. See Vencedor Mfg. Co. v. Gougler Indus., I ___ _________________ _________________
557 F.2d 886, 891 (1st Cir. 1977); see also Burger King Corp___ ____ _______________
Rudziewicz, 471 U.S. 462, 475 (1985) (cautioning__________
jurisdiction may not rest on the "unilateral activity of ano
party or a third person"). In McBreen, these two cornerst _______
were poorly laid: a failed showing of foreseeability a
questionable showing of voluntariness combined to for
7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)
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insufficiently sturdy foundation to support in pers __ ___
jurisdiction. The instant case, which amalgamates an argu
successful showing of foreseeability with a dubious showin
voluntariness, is a closer call. We turn, then, to a bro
survey of analogous case law.
Courts are consentient that when, as in McBreen,_______
source of an allegedly defamatory remark did not initiate
pivotal contact, and the in-forum injury is not reason
foreseeable, jurisdiction may not be asserted over the so
based on the comment.10 See, e.g., Madara v. Hall, 916___ ____ ______ ____
1510, 1517-19 (11th Cir. 1990); Mann v. Tom James Co., 80____ ______________
Supp. 1293, 1296-97 (E.D. Pa. 1992). However, when the so
____________________
10Appellant characterizes Hugel v. McNell, 886 F.2d 1_____ ______
Cir. 1989), cert. denied, 494 U.S. 1079 (1990), and Adva _____ ______ ___ Dictating Supply, Inc. v. Dale, 524 P.2d 1404 (Ore. 1974),
______________________ ____ cases in which courts asserted jurisdiction even t defamatory exchanges were initiated by persons other than
defendants. We reject the characterization. Our opinionHugel, read in context, makes it clear that the defendants pl
_____ an active role, meeting repeatedly with journalists and suppl them with audiotapes and other information. See Hugel, 886
___ _____ at 2-3. The Advanced Dictating court likewise found suffic __________________ evidence to conclude that the defendants incited the report telephone call. See Advanced Dictating, 524 P.2d at 1406-07.
___ __________________
14
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takes the initiative and causes foreseeable injury, jurisdic
may lie. See, e.g., Brown v. Flowers Indus., Inc., 688 F.2d___ ____ _____ ____________________
333-34 (5th Cir. 1982); Rusack v. Harsha, 470 F. Supp. 285,
______ ______
(M.D. Pa. 1978); Fallang v. Hickey, 532 N.E.2d 117, 118-19 ( _______ ______
1988); see also supra note 10 and cases discussed therein. ___ ____ _____
This case falls between the stools, for, althoug
source did not initiate the contact, the resultant in-f
injury was foreseeable. In this posture, the authorities
divided. Two courts have declined jurisdiction under
circumstances. See National Ass'n of Real Estate Appraiser___ _______________________________________
Schaeffer, Bates & Co., 1989 U.S. Dist. LEXIS 3098 at *2,_______________________
(C.D. Cal. Mar. 23, 1989) (refusing to assert jurisdiction o
Rhode Island source for comments made in the course of respon
to a telephone call from a reporter for a California newspap
McDonald v. St. Joseph's Hosp., 574 F. Supp. 123, 124, 12 ________ ___________________
(N.D. Ga. 1983) (similar; individual defendant answered se
telephone calls from a hospital interested in emplo
plaintiff, and made allegedly defamatory remarks with
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knowledge of their potential consequences). At least one o
court has asserted jurisdiction in such a situation. See Dio___ __
Kiev, 566 F. Supp. 1387, 1388-90 (E.D. Pa. 1983) (exerci ____
jurisdiction over a New York defendant who answered a telep
call from a reporter for a Philadelphia newspaper). Other st
in the decisional wind blow in differing direction
____________________
11In examining the case law, we have considered
rejected appellant's suggested analogy to a line of fraudu misrepresentation cases. See, e.g., Ealing Corp. v. Har ___ ____ _____________ __
15
Compare, e.g., Berrett v. Life Ins. Co. of the Southwest, 623_______ ____ _______ ______________________________
Supp. 946, 950 n.3 (D. Utah 1985) (declining to as
jurisdiction, discussing McBreen, and treating the fact that_______
defendant did not initiate the contact as dispositive)
e.g., Cole v. Doe, 258 N.W.2d 165, 168 (Mich. 1977) (uphol
____ ____ ___
jurisdiction, without any discussion of initiation, wher
source, able to foresee republication in the forum state, ma
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allegedly defamatory remark in a telephone interview wit
nationally syndicated columnist).
Having found the case law in a muddle, we cons
appellant's invitation that we adopt the classic analogy fo
out-of-state libel: the gunman firing across a state line.
Buckley v. New York Post Corp., 373 F.2d 175, 179 (2d Cir. 19 _______ ___________________
In a situation like this one, the analogy is imperfect.
person who responds to a journalist's question in the cours
an interview initiated by the latter is less like a traditi
sniper and more like a person who has been transported to
border and eased into position behind a rifle aimed at a
selected target. While such a person retains the choic
pulling the trigger, or not, he cannot fairly be equated wit
individual who has achieved the same position through a serie
____________________
Ltd., 790 F.2d 978, 982 (1st Cir. 1986); Murphy, 460 F.2d at____ ______
64; Johnson v. Witkowski, 573 N.E.2d 513, 523 (Mass. App. 19 _______ _________
Burtner v. Burnham, 430 N.E.2d 1233, 1236 (Mass. App. 19 _______ _______ These cases are unhelpful because a business relationship al invariably entails some degree of initiative and forethoug
the part of the persons involved, and, therefore, initiationforeseeability are necessarily present.
16
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personalized affirmative choices reaffirmed at every signifi
juncture.12
The conclusion that we draw from this line of reaso
is that appellant has made only the most marginal of sho
that Alioto purposefully availed himself of an opportunity to
in Massachusetts. And the weakness of this showing ass
decretory significance when we step back and evaluate
fairness of asserting jurisdiction in the totality of
circumstances.
3. The Gestalt Factors. In constitutional terms,3. The Gestalt Factors.
___________________
jurisdictional inquiry is not a mechanical exercise. The C
has long insisted that concepts of reasonableness must info
properly performed minimum contacts analysis. See, e ___
Woodson, 444 U.S. at 292; International Shoe, 326 U.S. at_______ __________________
"This means that, even where purposefully generated cont
exist, courts must consider a panoply of other factors which
upon the fairness of subjecting a nonresident to the authorit
a foreign tribunal." Pleasant St. I, 960 F.2d at 1088; ac _______________ _
Donatelli, 893 F.2d at 464-65. The Supreme Court has identi
_________
five such factors, namely, (1) the defendant's burden
appearing, (2) the forum state's interest in adjudicatin
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dispute, (3) the plaintiff's interest in obtaining convenient
effective relief, (4) the judicial system's interest in obtai
____________________
12Withal, we recognize that a person speaking on
telephone is free to refrain from making defamatory statementthe same way that a person standing beside a telephone is frerefrain from calling a reporter. In terms of moral philoso
both persons, by acting, commit acts of will.
17
the most effective resolution of the controversy, and (5)
common interests of all sovereigns in promoting substan
social policies. See Burger King, 471 U.S. at 477. We___ ___________
labelled this group of considerations the "gestalt factors."
Pleasant St. I, 960 F.2d at 1088; Donatelli, 893 F.2d at 465.
______________ _________
The gestalt factors are not ends in themselves,
they are, collectively, a means of assisting courts in achie
substantial justice. In very close cases, they may tip
constitutional balance. See Burger King, 471 U.S. at 47 ___ ____________
(explaining that "minimum requirements inherent in the concep
'fair play and substantial justice' may defeat the reasonable
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of jurisdiction even if the defendant has purposefully engage
forum activities") (citation omitted). For example, in
Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987), e _________________ _______________
Justices agreed that asserting jurisdiction would
unreasonable, although the question of minimum contacts wa
close that it divided the Court. See id. at 114-15. In___ ___
estimation of at least four Justices, considerations
reasonableness sufficed to defeat jurisdiction notwithstan
that the defendant purposefully engaged in activities within
forum. See id. at 116-17 (separate opinion of Brennan,___ ___
joined by White, Marshall, & Blackmun, JJ.). Justice Ste
although not joining Justice Brennan's concurrence, expre
satisfaction with the theory underlying this conclusion. See__
at 121-22 (separate opinion of Stevens, J.).
This aspect of the jurisdictional inquiry re
18
something of an unknown quantity. The gestalt factors have
applied by the Court only once (in Asahi); beyond mere ment
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_____
they have been discussed on rare occasions by the court
appeals, see, e.g., Gould v. Krakatau Steel, 957 F.2d 573,___ ____ _____ ______________
(8th Cir.), cert. denied, 113 S. Ct. 304 (1992); Theunisse
_____ ______ ________
Matthews, 935 F.2d 1454, 1460-61 (6th Cir. 1991), and they________
been used regularly to defeat jurisdiction only in the
Circuit, see Mona A. Lee, Burger King's Bifurcated Test___ _______________________________
Personal Jurisdiction, 66 Temp. L. Rev. 945 (1993) (surve ______________________
circuits). That circuit has concluded that dismissal may
appropriate on grounds of reasonableness even if considerat
of relatedness or purposefulness, taken in isolation, c
support the exercise of jurisdiction. See Fields v. Sed ___ ______ ___
Associated Risks, Ltd., 796 F.2d 299, 302 (9th Cir. 1 ________________________
(finding the assertion of jurisdiction unreasonable thoug
showing of purposefulness was "certainly of a nature that
support jurisdiction"); see also FDIC v. British-American___ ____ ____ _________________
Co., 828 F.2d 1439, 1442 (9th Cir. 1987) (collecting cases___
which courts denied jurisdiction for lack of reasonable
without resolving questions anent relatedness
purposefulness); Decker Coal Co. v. Commonwealth Edison Co.,_______________ _______________________
F.2d 834, 840 (9th Cir. 1986) (limning Ninth Circuit's mu
factor reasonableness test).
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We agree in principle with the Ninth Circuit. We
therefore, that the Due Process Clause bars a court
asserting jurisdiction over the person of a defendant if doin
19
would be fundamentally unfair. In this context, gauging fair
requires an assessment of reasonableness for, in cer
circumstances, unreasonableness can trump a minimally suffic
showing of relatedness and purposefulness. We think, moreo
that the reasonableness prong of the due process inquiry evo
sliding scale: the weaker the plaintiff's showing on the f
two prongs (relatedness and purposeful availment), the le
defendant need show in terms of unreasonableness to de
jurisdiction. The reverse is equally true: an especially st
showing of reasonableness may serve to fortify a border
showing of relatedness and purposefulness. See Donatelli,___ _________
F.2d at 465. It is against this backdrop, then, that we pro
to sift the gestalt factors.13
a. The Burden of Appearance. The burden associ a. The Burden of Appearance. _________________________
with forcing a California resident to appear in a Massachus
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court is onerous in terms of distance, and there are
mitigating factors to cushion that burdensomeness here.
burden, and its inevitable concomitant, great inconvenience,
entitled to substantial weight in calibrating the jurisdicti
scales. Indeed, the Court has stated that this element, a
____________________
13The approach that we endorse today differs slightlythat of the Ninth Circuit, which has crafted its own versionsliding scale approach. The Ninth Circuit's methodology, aunderstand it, incorporates the element of purposefulnessthe third prong of the inquiry, and weighs it against
remaining considerations of reasonableness. See Core-Vent C ___ __________ v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993); see
________________ ___Insurance Co. of North Am. v. Marina Salina Cruz, 649 F.2d 1
__________________________ ___________________ 1271 (9th Cir. 1981) ("The smaller the element of purpos interjection, the less is jurisdiction to be anticipated an
less reasonable is its exercise.").
20
among the gestalt factors, is "always a primary conce
Woodson, 444 U.S. at 292. _______
These are not empty words, for most of the cases
have been dismissed on grounds of unreasonableness are case
which the defendant's center of gravity, be it place of resi
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or place of business, was located at an appreciable distance
the forum. See, e.g., Asahi, 480 U.S. at 114 (Japanese defen ___ ____ _____
sued in California); Core-Vent Corp. v. Novel Indus. AB, 11_______________ _______________
1482, 1488-90 (9th Cir. 1993) (Swedish defendant sue
California; defamation action); Amoco Egypt Oil Co. v. Le ____________________ _
Navigation Co., 1 F.3d 848, 852 (9th Cir. 1993) (Fili _______________
defendant sued in Washington); Casualty Assur. Risk________________________
Brokerage Co. v. Dillon, 976 F.2d 596, 600 (9th Cir. 1 ______________ ______
(District of Columbia defendant sued in Guam; defamation acti
Fields, 796 F.2d at 302 (British defendant sued in Californ ______
The effect of distance on jurisdictional outcomes is graphic
illustrated by the two cases in which a defendant's contacts
the forum were most strikingly reminiscent of those that
been assembled here. Compare National Ass'n of Real Es _______ ___________________________
Appraisers, 1989 U.S. Dist. LEXIS at *11 (declining to as __________
jurisdiction over Rhode Island defendant who would have ha
defend defamation suit in California) with Dion, 566 F. Supp____ ____
1387 (asserting jurisdiction over New York defendant force
defend defamation suit in Pennsylvania).
Furthermore, as the court below observed,
circumstances surrounding this case suggest that
21
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inconvenience to the defendant may not be coincidental. I
the rare libel case in which both the newspaper and the repor
though amenable to process, are relegated to the sidelines at
behest of an avowedly defamed plaintiff. It is rarer stil
discover that such a plaintiff has intentionally selected a f
in which punitive damages are unavailable, bypassing other
in which such damages might be awarded.
Such considerations are important. One reason that
factor of inconvenience to the defendant weighs heavily in
jurisdictional balance is that it provides a mechanism thr
which courts may guard against harassment. It is firmly set
that a "plaintiff may not, by choice of an inconvenient fo
`vex,' `harass,' or `oppress' the defendant by inflicting
him expense or trouble not necessary to his own right to pu
his remedy." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1 ______________ _______
(citations omitted). And although vexatious suits are
frequently dismissed under the doctrine of forum non convenie_________________
we believe that the reasonableness analysis required by the t
prong of the due process inquiry must be in service to the
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ends.
b. Interest of the Forum. The forum state hab. Interest of the Forum.
______________________
demonstrable interest in exercising jurisdiction over one
causes tortious injury within its borders. See Keeton v. Hus ___ ______ __
Magazine, Inc., 465 U.S. 770, 776 (1984). Though we dee______________
inappropriate to correlate the strength or weakness
appellant's case on the merits with the strength or weaknes
22
the forum state's interest in this regard, we think it is
appropriate and useful to note two special considerati
First, the Commonwealth's interest in the litigation sub ju
___ _
is arguably lessened by the doubts surrounding whe
defendant's act can be said to have been committed in the fo
see supra p. 7. Second, if appellant in fact filed___ _____
primarily to retaliate against Alioto's role in the Califo
litigation rather than to right an independent wrong an
previously mentioned there are some clues in the record
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could lead to such a deduction the Commonwealth's inte
would be much diminished. Cf., e.g., Asahi, 480 U.S. at 11 ___ ____ _____
(minimizing forum state's interest in protecting its citi
from tortious injury because a dispute was "primarily a
indemnification rather than safety standards"). Mindful of t
special considerations, we conclude that the forum has a mi
than usual interest in the further prosecution of T-NY's suit
c. The Plaintiff's Convenience. Given the sparse c. The Plaintiff's Convenience. ____________________________
of the record, it is difficult to say whether trying the cas
Massachusetts would be more convenient for plaintiff than tr
it in California. Certain key witnesses on the issue of in
may be in Massachusetts, including the reporter. But other
witnesses may well be residents of California. While we
accord plaintiff's choice of forum a degree of deference
respect to the issue of its own convenience, see Piper Airc ___ _________
Co. v. Reyno, 454 U.S. 235, 241 (1981), the plaintiff's ac ___ _____ _
convenience seems to be at best a makeweight in this situatio
23
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d. The Administration of Justice. Apart fromd. The Administration of Justice.
_______________________________
possibility that plaintiff's action might be thought vexati
see supra Part II(B)(3)(a), the interest of the judicial sy
___ _____
in the effective administration of justice does not appear to
in either direction.
e. Pertinent Policy Arguments. One substantive so e. Pertinent Policy Arguments. __________________________
policy that seems to counsel against exercising jurisdictio
the widely shared interest in preserving citizens' willin
to talk openly with the press. Forcing an individual to
cross-country on the strength of one answered telephone call
a journalist likely would tend to dry up sources of informa
and thereby impede the press in the due performance of its pr
function. Nonetheless, the Court has shied away from allo
First Amendments concerns to enter into the jurisdicti
analysis. See Keeton, 465 U.S. at 780 n.12; Calder v. Jones,___ ______ ______ _____
U.S. 783, 790 (1984). Although it might be argued convinci
that the jurisdictional calculus ought to produce some
different results in defamation actions filed against report
sources than in actions filed against the journalists respons
for republication of a source's remark, as in Calder, or aga ______
the media corporation itself, as in Keeton, these precedents
______
us pause. Consequently, we place no weight on First Amen
values for purposes of this appeal.
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4. Tallying the Results. We begin the final phas4. Tallying the Results.
_____________________
our analysis by retracing our steps. At the first stage of
due process inquiry, appellant succeeded in showing that
24
putative cause of action arose from, or related to, defenda
contacts with the forum. See supra Part II(B)(1). At the se ___ _____
stage of the inquiry, appellant succeeded in showing defenda
purposeful availment. See supra Part II(B)(2). On nei ___ _____
prong, however, did appellant demonstrate more than a
minimum; we found its claim of relatedness enfeebled by
attenuated causal link between the allegedly defamatory utter
and the harm allegedly suffered, and its claim of purposeful
enfeebled by the fact that the defendant did not initiate ei
the telephone call or the resultant interview.
The frailty of appellant's showings on the first
furcula of the due process inquiry required us to consider
gestalt factors and assess the reasonableness of an assertio
jurisdiction by a Massachusetts court. Doing so, see supra
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___ _____
II(C), we found that, while many of those factors possess li
significance for purposes of this case, there is one factor
defendant's convenience that stands out from the crowd. I
this factor that consistently has been declared deserving of
greatest weight in kindred cases. And it is this factor that
serve as an amulet to ward off vexatiousness and harassment.
now conclude, considering the totality of the circumstances,
defendant's burden of appearance is so onerous that it ren
the exercise of in personam jurisdiction unreasonable.__ ________
conclusion carries the day. A distant court ca
constitutionally exercise in personam jurisdiction over a__ ________
resident defendant at the behest of a plaintiff who can mu
25
only the most tenuous showings of relatedness and purposeful
if, as in this case, forcing the defendant to defend in the f
would be plainly unreasonable.
This is as it should be, for, at bottom, the dict
of due process demand that a court's assertion of in pers __ ___
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jurisdiction comport with considerations of fair play
substantial justice. See, e.g., International Shoe, 326 U.S___ ____ ___________________
320. To ensure achievement of this goal, the machinery
jurisdictional analysis is designed to refine judges' intuit
about the relevant equities, not to eliminate those equities
the decisional process. Relatedness and purposeful availment
cogs in this analytic machinery. The gestalt factors comp
the machinery's fail-safe device; they are not a necessary
of the machinery's day-to-day operation, but if, in the cours
a particularized analysis, the gears mesh imperfectly becau
given set of facts does not fit into any of the standard mo
the gestalt factors take hold.
This case exemplifies the proper operation of the f
safe device. It hardly seems fair, on the strength of a si
remark uttered in the course of a single unsolicited telep
call from a Massachusetts-based journalist, to compel
California resident to defend a tort suit in a court 3000
away. The unfairness is heightened because the link between
remark and the injury has been attenuated by republication in
popular press. Our commitment to fair play and substan
justice precludes us from subjecting a person to the rigor
26
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long-distance litigation on the basis of so gossamer a showin
causation and voluntariness.
We need go no further. When all is said and
courts must assert jurisdiction, or abjure its assertion, wit
eye toward fundamental fairness. Thus, here, the dist
court's dismissal of the instant action for want of in pers __ ___
jurisdiction must be
Affirmed. Affirmed. ________
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27