United States Court of Appeals For the First Circuit
No. 19-1382
KUAN CHEN,
Plaintiff, Appellant,
v.
UNITED STATES SPORTS ACADEMY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Kayatta, Circuit Judge, Souter, Associate Justice, and Selya, Circuit Judge.
Stanley D. Helinski, with whom Helinski Law Offices was on brief, for appellant. Bethany P. Minich, with whom Litchfield Cavo LLP was on brief, for appellee.
April 15, 2020
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation SELYA, Circuit Judge. The appeal in this case requires
us to explore the frontiers of personal jurisdiction in the
internet age. This expedition leads us to conclude — as did the
district court — that personal jurisdiction cannot
constitutionally be exercised over the defendant in Massachusetts.
Accordingly, we affirm the dismissal of the complaint for want of
jurisdiction.
I. BACKGROUND
When "[f]aced with a motion to dismiss for lack of
personal jurisdiction, a district court may choose from among
several methods for determining whether the plaintiff has met [his]
burden." Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc.,
825 F.3d 28, 34 (1st Cir. 2016) (internal quotation omitted)
(quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007)).
This choice is informed chiefly by the state of the record, the
extent to which the merits of the underlying claim are intertwined
with the jurisdictional issue, and the district court's assessment
of whether it would be "unfair to force an out-of-state defendant
to incur the expense and burden of a trial" without first requiring
a substantial showing of the facts necessary to establish
jurisdiction. Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145-46 (1st Cir. 1995) (quoting Boit v. Gar-Tec Prods.,
Inc., 967 F.2d 671, 676 (1st Cir. 1992)).
- 2 - Under the prima facie approach — typically used at the
early stages of a case — "the district court acts not as a
factfinder, but as a data collector," id. at 145, asking only
whether the plaintiff has proffered facts that, if credited, would
support all findings "essential to personal jurisdiction," id.
(quoting Boit, 967 F.2d at 675). If the court determines that it
would be unfair to the defendant to proceed with the litigation
without first requiring the plaintiff to make more than a prima
facie showing of jurisdiction, the preponderance-of-the-evidence
approach comes into play. See id. at 145-46. Under that approach,
the district court holds "a full-blown evidentiary hearing at which
the court will adjudicate the jurisdictional issue definitively
before the case reaches trial" using a preponderance-of-the-
evidence standard. Id. at 146.
If "the assertion of jurisdiction is bound up with the
claim on the merits, the possibility of preclusion [may] render[]
use of the preponderance standard troubling." Id. Where such
"special circumstance[s]" obtain, the district court's fallback
position typically involves an application of the "likelihood"
standard. Id. Under this approach, the district court holds an
evidentiary hearing and makes findings limited to "whether the
plaintiff has shown a likelihood of the existence of each fact
necessary to support personal jurisdiction," leaving for trial the
definitive resolution of factual controversies common to both the
- 3 - merits of the underlying claim and the jurisdictional dispute.
Id. (quoting Boit, 967 F.2d at 677). "[B]y engaging in some
differential factfinding, limited to probable outcomes as opposed
to definitive findings of fact," the district court can sidestep
thorny preclusionary quandaries. Id.
With this paradigm in place, we proceed to the relevant
facts and travel of the case. Here, the district court decided
the defendant's motion to dismiss for want of personal jurisdiction
at the inception of the case and without holding an evidentiary
hearing. See Cheng v. U.S. Sports Acad., Inc., No. 18-12533-FDS,
2019 WL 1207863, at *4 (D. Mass. Mar. 14, 2019).1 Thus, the
requirements of the prima facie approach control. See United
States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Consistent with that approach, we draw the relevant facts "from
the pleadings and whatever supplemental filings (such as
affidavits) are contained in the record, giving credence to the
plaintiff's version of genuinely contested facts." Baskin-
Robbins, 825 F.3d at 34. Similarly, we "take into account
undisputed facts put forth by the defendant." Id.
1Due to a scrivener's error, the plaintiff's name appeared as "Cheng" throughout most of the district court proceedings. Shortly after the plaintiff filed his notice of appeal, the district court granted a motion to correct the plaintiff's surname on the district court docket to "Chen." We use the corrected nomenclature throughout this opinion.
- 4 - Defendant-appellee United States Sports Academy, Inc.
(USSA) is an educational institution incorporated in Alabama,
which has its principal place of business there. USSA is involved
mainly in online education, and it is accredited to award
bachelor's, master's, and doctoral degrees. USSA's Distance
Learning Program allows students to complete their coursework
"without leaving their homes or jobs" through an online learning
platform accessible twenty-four hours a day in all fifty states.
In 2008, plaintiff-appellant Kuan Chen enrolled in
USSA's doctoral program in sports management. At the time of
Chen's matriculation, USSA required him to complete all degree
requirements within ten years and to pass a comprehensive
examination. Between 2008 and 2010, Chen finished forty-two
credits of coursework. Chen resided in Alabama during this period,
with the exception of one term in Missouri and time spent in an
experiential "mentorship" program in New York.
In 2009, USSA gave Chen the option of switching his
"degree requirement" from the passage of a comprehensive
examination to the completion of a portfolio. Chen accepted USSA's
offer. He was subsequently assigned a portfolio advisor and began
working on his portfolio in 2010. Chen alleges that he "nearly
complete[d]" his portfolio (except for the submission of a few
papers) and finished all other requirements for his doctoral degree
except his dissertation.
- 5 - At some point in or after 2010, Chen moved to
Massachusetts and took a hiatus from his doctoral program to pursue
a master's degree in acupuncture.2 Chen does not claim that USSA
had any involvement with that degree.
Cognizant that he had only ten years in which to complete
his doctoral degree, Chen sought to resume work on his portfolio
in 2016 (while apparently still living in Massachusetts). But
upon attempting to access his coursework online, Chen discovered
that he was locked out and unable to log on to his account. When
he contacted USSA, he was informed that he had been "removed from
enrollment" and would need to reenroll in order to resume his
studies.
Chen submitted an application for reenrollment. In
February of 2016, he received an e-mail from USSA acknowledging
2 The origins of Chen's residence in Massachusetts are tenebrous. Chen alleged in his complaint (filed in 2018) that he was a resident of Massachusetts and that he had pursued a master's degree in acupuncture there at some point in or after 2010. In briefing, he asserts that he resided in Massachusetts and completed coursework for his doctoral degree on USSA's online learning platform "[a]t all relevant times" but leaves this phrase undefined. Beyond these allegations, the record contains no information about when he moved to Massachusetts. Because Chen has failed to furnish any facts that contradict USSA's declaration (in a sworn affidavit) that Chen resided in Alabama from 2008 to 2010, we deem that fact undisputed and assume that Chen moved to Massachusetts at some subsequent time. See Baskin-Robbins, 825 F.3d at 34 (explaining that courts employing prima facie approach may consider defendant's undisputed factual proffers); see also Foster-Miller, 46 F.3d at 145 (confirming that plaintiff must "adduce evidence of specific facts" showing personal jurisdiction exists).
- 6 - receipt of his application and advising him that he would have to
take a comprehensive examination if his application was accepted.
Chen protested that he had switched to the portfolio degree
requirement, and the USSA employee with whom he was corresponding
told him that she would "look into the issue." Later that month,
USSA accepted Chen's reenrollment application, and an admissions
counselor confirmed that Chen would only need to complete the
portfolio degree requirement.
In May of 2017, Chen again found himself unable to access
his online account. After some investigation, he learned that his
portfolio had been deleted. The following month, USSA's dean of
academic affairs informed Chen that, notwithstanding USSA's
previous representations to the contrary, he would be required to
pass a comprehensive examination in order to complete his degree.
Chen alleges that USSA's actions deprived him of the opportunity
to earn his degree "without starting from scratch," resulting in
wasted tuition dollars and "the loss of income associated with a
degree."
Aggrieved by his treatment, Chen sued USSA in a
Massachusetts state court, alleging breach of contract, unfair and
deceptive business practices, unjust enrichment, and fraudulent
inducement. Citing the existence of diversity jurisdiction, USSA
removed the case to the federal district court. See 28 U.S.C.
§§ 1332(a), 1441(b). It then moved to dismiss the complaint for
- 7 - want of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). In
a thoughtful rescript, the district court concluded that USSA's
general business contacts with Massachusetts did not render USSA
"essentially at home" in the Commonwealth such that general
jurisdiction could be exercised over USSA there. Cheng, 2019 WL
1207863, at *5 (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)). The court likewise concluded
that Chen's "enrollment in the distance-learning program while in
Alabama, followed by a unilateral move to Massachusetts," did not
provide a sufficient basis for the exercise of specific
jurisdiction. Id. at *8. This timely appeal ensued.
II. ANALYSIS
We divide our analysis into four parts. First, we sketch
the contours of the personal jurisdiction inquiry under the prima
facie approach. Second, we address Chen's contention that the
district court should not have considered an affidavit attached to
USSA's motion to dismiss. We then examine, in sequence, whether
USSA's contacts with Massachusetts permit the exercise of either
general or specific jurisdiction.
A. The Contours of the Inquiry.
The burden of proving that personal jurisdiction may be
exercised in the forum state lies squarely with the plaintiff.
See Baskin-Robbins, 825 F.3d at 34. "Where, as here, a district
court dismisses a case for lack of personal jurisdiction based on
- 8 - the prima facie record, rather than after an evidentiary hearing
or factual findings, our review is de novo." Id. (quoting C.W.
Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st
Cir. 2014)). In undertaking this tamisage, we are not married to
the district court's reasoning but, rather, may uphold the judgment
on any ground made manifest by the record. See id.
Under the prima facie approach, an inquiring court must
ask whether the plaintiff has "proffer[ed] evidence which, taken
at face value, suffices to show all facts essential to personal
jurisdiction." Id. To make such a showing, the plaintiff cannot
rely solely on conclusory averments but must "adduce evidence of
specific facts." Foster-Miller, 46 F.3d at 145. When deciding a
motion to dismiss using the prima facie approach, the court must
accept the plaintiff's properly documented evidentiary proffers as
true and give "credence to the plaintiff's version of genuinely
contested facts." Baskin-Robbins, 825 F.3d at 34. At the same
time, the court must consider undisputed facts proffered by the
defendant that bear on jurisdiction. See id.
This case comes to the federal courts through the medium
of diversity jurisdiction. See 28 U.S.C. § 1332(a). When
assessing whether personal jurisdiction exists with respect to a
non-resident defendant, a federal court exercising diversity
jurisdiction acts as the "functional equivalent of a state court
sitting in the forum state." Baskin-Robbins, 825 F.3d at 34
- 9 - (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995)).
Therefore, Chen must show that the exercise of personal
jurisdiction over USSA in Massachusetts would satisfy not only the
strictures of the Due Process Clause but also the strictures of
the Massachusetts long-arm statute, see Mass. Gen. Laws ch. 223A,
§ 3. Although the reach of the Massachusetts long-arm statute may
not be entirely congruent with the reach of the Due Process Clause,
see Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st
Cir. 2016), we need not parse any such distinctions here. Neither
party has advanced any argument specific to the Massachusetts long-
arm statute and, thus, any claim that the long-arm statute is less
elastic than the Due Process Clause has been waived. See id. As
a result, we train the lens of our inquiry exclusively on the
federal constitutional analysis.
The Due Process Clause dictates that, as a prerequisite
to the exercise of personal jurisdiction, an out-of-state
defendant must "have certain minimum contacts with [the forum
state] such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'" Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)). This benchmark "is flexible
and fact-specific, 'written more in shades of grey than in black
and white.'" Baskin-Robbins, 825 F.3d at 35 (quoting Phillips
- 10 - Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st
Cir. 1999)).
As long as due process concerns are satisfied, a federal
court "may exercise either general or specific jurisdiction over
a defendant." Id. We outline here only the basic distinction
between these two forms of personal jurisdiction, reserving a
fuller elaboration for later discussion. See infra Parts II(C)-
(D). When a defendant corporation's general business contacts
with the forum, even if unrelated to the litigation at hand, are
"'so "continuous and systematic" as to render [the defendant]
essentially at home in the forum State,' that state holds general
jurisdiction over the defendant as to all claims." Copia, 812
F.3d at 4 (quoting Goodyear, 564 U.S. at 919). In contrast,
"[s]pecific jurisdiction allows a court to hear a particular case
as long as 'that case relates sufficiently to, or arises from, a
significant subset of contacts between the defendant and the
forum.'" Baskin-Robbins, 825 F.3d at 35 (quoting Phillips Exeter,
196 F.3d at 288).3
3 Chen frequently alludes to the "sliding scale" analysis that some courts use to evaluate whether a defendant's online contacts with the forum state permit the exercise of personal jurisdiction. See Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 36 n.5 (1st Cir. 2010) (describing "sliding scale" analysis as articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). This court has never embraced that sliding scale analysis, and we have no occasion to consider the matter today. We note, though, that we previously have indicated that the sliding scale analysis — which was developed in a case involving specific
- 11 - B. The Rosandich Affidavit.
Against this backdrop, we turn to the particulars of the
case at hand. In moving to dismiss the complaint, USSA attached
to its motion an affidavit executed by its president, Thomas J.
Rosandich. The affidavit contained a plethora of facts bearing on
the jurisdictional inquiry.
To begin, Rosandich made clear that USSA is both
incorporated and headquartered in Alabama; that it does not have
any physical presence (say, an office, a registered agent, or even
a telephone number) in Massachusetts; and that it does not pay
taxes there. According to the school's records, "between 2008 and
2010, [Chen] completed his courses in residence in Alabama," except
for the term he spent in Missouri and his "mentorship" stint in
New York. Moreover, as of the date of the affidavit (January 10,
2019), USSA had only two enrolled students who were physically
present in Massachusetts.4
Chen did not dispute the contents of Rosandich's
affidavit either with a dueling affidavit or with any other
evidentiary proffer. Not surprisingly, then, the district court
jurisdiction — is ill-suited for the general jurisdiction inquiry. See id. And where, as here, purposeful availment is plainly lacking, see infra Part II(D), the sliding scale adds nothing of consequence to the specific jurisdiction analysis. 4 Neither of these students was enrolled in a program leading to a degree. Instead, each of them was taking only a single online course.
- 12 - relied on the affidavit in adjudicating the motion to dismiss.
See Cheng, 2019 WL 1207863, at *2-3. Chen strives to convince us
that this reliance was misplaced. We are not persuaded.
Chen's fundamental premise is that the affidavit is a
document extraneous to the complaint and, thus, "should not have
been relied upon" in evaluating the motion to dismiss. This
premise is flawed. USSA moved to dismiss the complaint for lack
of personal jurisdiction under Rule 12(b)(2). It is clear beyond
hope of contradiction that a district court confronted with a
motion to dismiss under that rule must, when employing the prima
facie approach, look beyond the pleadings to examine not only the
plaintiff's properly documented evidentiary proffers but also the
defendant's undisputed jurisdictional facts. See PREP Tours, Inc.
v. Am. Youth Soccer Org., 913 F.3d 11, 16-17 (1st Cir. 2019);
Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290
F.3d 42, 51 (1st Cir. 2002). Such jurisdictional facts may be
adduced by means of an affidavit made by a person who — like
Rosandich — has adequate knowledge of the situation. See Baskin-
Robbins, 825 F.3d at 34; Sawtelle, 70 F.3d at 1385.
Next, Chen argues that the district court should not
have taken the affidavit into account because its contents were
disputed. But for this purpose, facts are not deemed disputed
merely because defense counsel, in an unsworn brief or in argument
before a court, challenges them. See Mass. Sch. of Law at Andover,
- 13 - Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) (observing
that "despite the liberality" of prima facie approach, courts are
not required "struthiously to 'credit conclusory allegations'"
(quoting Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st
Cir. 1994))); cf. Corrada Betances v. Sea-Land Serv., Inc., 248
F.3d 40, 43 (1st Cir. 2001) (observing that "statements contained
in a memorandum or lawyer's brief" are "manifestly insufficient to
create genuine issues of material fact"). Here, the record reveals
that Chen failed to offer any evidence to counter the contents of
the Rosandich affidavit. Indeed, his memorandum in opposition to
USSA's motion to dismiss did not even mention the affidavit. Under
these circumstances, the district court had every right to treat
the factual assertions embedded in the affidavit as undisputed and
to rely on those facts when resolving the motion to dismiss.
Chen has another arrow in his quiver. He argues that
the affidavit's validity was "unchecked" inasmuch as the parties
"had not yet commenced discovery." This arrow, too, flies wide of
the mark. Chen had ample opportunity to move for jurisdictional
discovery but failed to do so. A party who chooses not to avail
himself of an opportunity for discovery can scarcely be heard to
complain when the lack of such discovery thereafter redounds to
his detriment. See Mass. Sch. of Law, 142 F.3d at 37 (rejecting
claim based on lack of jurisdictional discovery because plaintiff
never requested discovery); cf. Jones v. Secord, 684 F.3d 1, 6
- 14 - (1st Cir. 2012) ("[C]ourts, like the deity, tend to help those who
help themselves . . . .").
To cinch the matter, Chen never moved to strike the
Rosandich affidavit. Nor did he object to the district court's
consideration of the affidavit in his opposition to USSA's motion
to dismiss. These omissions are fatal to his belated attempt to
challenge the affidavit on appeal. "If 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
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992). There is nothing out of the ordinary about the
circumstances here.
To say more about the Rosandich affidavit would be to
paint the lily. We hold, without serious question, that the
Rosandich affidavit formed an appropriate part of the district
court's decisional calculus.
C. General Jurisdiction.
This brings us to the question of whether USSA's contacts
with Massachusetts are sufficient to warrant the exercise of
general jurisdiction over it. We have sometimes framed the general
jurisdiction inquiry as comprising three distinct requirements:
first, that the defendant's general business contacts with the
forum state, unrelated to the suit at hand, be continuous and
- 15 - systematic; second, that those contacts represent the defendant's
purposeful availment of the privilege of conducting business in
the forum; and third, that the exercise of general jurisdiction
over the defendant be reasonable. See, e.g., Cossaboon v. Me.
Med. Ctr., 600 F.3d 25, 32-33 (1st Cir. 2010).
In recent years, the Supreme Court has refined this
inquiry, emphasizing that the focus of the general jurisdiction
analysis is not merely whether an out-of-forum corporation's "in-
forum contacts can be said to be in some sense 'continuous and
systematic.'" Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)
(quoting Goodyear, 564 U.S. at 919). Instead, the lodestar of the
inquiry is whether the corporation's general business contacts
with the forum are sufficiently continuous and systematic "as to
render [it] essentially at home in the forum State." Id.
(alteration in original) (quoting Goodyear, 564 U.S. at 919).
The paradigmatic examples of locales in which a
defendant corporation is considered at home are its state of
incorporation and the state that houses its principal place of
business. See BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558
(2017). In "exceptional case[s]," though, a defendant
corporation's general business operations in a state in which it
is neither incorporated nor headquartered "may be so substantial
and of such a nature as to render the corporation at home in that
State." Daimler, 134 S. Ct. at 761 n.19. The Court has singled
- 16 - out Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437
(1952), as an avatar of such an exceptional case. See BNSF Ry.,
137 S. Ct. at 1558; Daimler, 134 S. Ct. at 755-56, 761 n.19.
There, the Court concluded that general jurisdiction could be
exercised over a defendant corporation in the forum because "war
had forced the defendant corporation's owner to temporarily
relocate the enterprise from the Philippines to [the forum]," which
thereafter functioned as the nerve center of the corporation's
wartime operations. BNSF Ry., 137 S. Ct. at 1558.
In this case, it is evident that USSA is not, in the
paradigmatic sense, at home in Massachusetts. After all, it is
undisputed that USSA is incorporated in Alabama and has its
principal place of business there. By the same token, this is not
the exceptional case in which USSA's general business operations
in Massachusetts are so unusually substantial that USSA can fairly
be described as at home there.
We do not discount the possibility that a corporation's
pervasive virtual presence in a forum may be the linchpin for a
finding that its business contacts are so continuous and systematic
as to render it at home in the forum — especially since a
corporation, like an individual, may have a number of homes. But
the mere whiff of a virtual presence will not suffice. Here, it
is true that USSA maintains an informational website, accessible
in Massachusetts, that advertises USSA's educational offerings to
- 17 - prospective students.5 It is equally true that USSA has an
interactive online learning platform that is accessible in
Massachusetts and that two Massachusetts-based students were
enrolled in a single USSA online course as of January 2019.6 But
nothing in the record would support a finding that these contacts
with Massachusetts, whether viewed singly or in the aggregate,
constitute a pattern of general business operations so unusually
substantial as to render USSA "essentially at home" in the
Commonwealth. Id. (quoting Daimler, 134 S. Ct. at 754).
In an attempt to change the trajectory of the debate,
Chen contends that USSA "affects the Massachusetts economy by
drawing students away from Massachusetts educational
5 Our description of USSA's website as "informational" tracks the focus of Chen's evidentiary proffer, which consists of images of webpages recounting USSA's history, mission, and Distance Learning Program. It seems highly probable that this website has at least some interactive features. For instance, one of the webpages Chen provides references USSA's "[o]nline writing tutorials" and "extensive online reference database system." And it appears that individuals viewing the website can send messages to USSA through it. The website also appears to include links to a "Central Login" and to "Free Courses." Be that as it may, Chen presents no argument about the significance of these features, stating only that his evidentiary proffer shows that USSA "advertises that a student is able to conduct all of his or her studying, online, from his or her home state." 6 It is possible (and perhaps likely) that students may be able to access the online learning platform by way of USSA's website. The record, though, sheds no light on the degree of interconnection between these two components of USSA's online presence. Preferring to err (if at all) on the side of caution, we assess each component as a separate data point.
- 18 - institutions." Relatedly, he asserts that Massachusetts licensing
authorities recognize USSA degrees. But Chen offers nothing in
the way of proof, apart from his own bare statements, to support
these charges.7 See Sawtelle, 70 F.3d at 1386 (observing that
courts undertaking prima facie approach "do not credit conclusory
allegations" (quoting Ticketmaster-N.Y., 26 F.3d at 203)). And
even if substantiated, Chen's averments would still be inadequate
to show that USSA's general business operations are so anchored in
the Massachusetts economy that USSA can be "fairly regarded as at
home" there. Goodyear, 564 U.S. at 924.
Finally — even though evidence of such contacts would
not, on this record, alter our decisional calculus — it bears
mentioning that USSA lacks certain basic links with Massachusetts.
For instance, USSA maintains no physical presence in the
Commonwealth and pays no taxes there. Nor is there any evidence
in the record that USSA recruits Massachusetts-based students
through participation in career fairs, television media,
pinpointed print advertising, or the like. To echo the district
court's words, USSA's generalized contacts with Massachusetts
appear "sporadic, at best." Cheng, 2019 WL 1207863, at *5.
7The record contains no facts, for instance, identifying Massachusetts schools that allegedly compete with USSA, let alone any facts relating to the diversion of educational dollars from such schools to USSA's coffers.
- 19 - That ends this aspect of the matter. Massachusetts is
neither USSA's state of incorporation nor its principal place of
business. And it is nose-on-the-face plain that USSA's general
business operations are not sufficiently entrenched in
Massachusetts as to render USSA at home there. Consequently, the
district court appropriately determined that general jurisdiction
may not constitutionally be exercised over USSA in Massachusetts.
D. Specific Jurisdiction.
The last leg of our journey traverses the question of
whether, for purposes of Chen's case, specific jurisdiction over
USSA lies in Massachusetts. The Due Process Clause imposes three
requirements for exercising specific jurisdiction over out-of-
forum defendants. First, the plaintiff's claim must directly arise
from or relate to the defendant's activities in the forum. See
Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17,
20 (1st Cir. 2018). Second, the defendant's forum-state contacts
must "represent a purposeful availment of the privilege of
conducting activities in that state." Id. Third, the exercise of
specific jurisdiction in the forum must be reasonable under the
circumstances. See id. "Failure to make any one of these showings
dooms any effort to establish specific personal jurisdiction."
Id.
The basis on which Chen contends that USSA is subject to
jurisdiction in Massachusetts with respect to his claims is by now
- 20 - familiar: USSA solicits Massachusetts-based students online
through its informational website and maintains an interactive
online learning platform, accessible in Massachusetts, for the
purpose of facilitating students' coursework (including, he
alleges, his own). He also gestures to two other hooks on which
a finding of specific jurisdiction might potentially be hung.
These involve USSA's receipt of tuition that Chen allegedly paid
from Massachusetts and the "continuous email communications" that
purportedly occurred between the parties while Chen was in
Massachusetts. Our analysis of these contacts centers on the
purposeful availment prong of the specific jurisdiction inquiry,
and so we start with a brief primer on that element.
"[W]e have explained that 'the two cornerstones of
purposeful availment' are 'voluntariness' and 'foreseeability.'"
PREP Tours, 913 F.3d at 19-20 (quoting Ticketmaster-N.Y. 26 F.3d
at 207). Achieving voluntariness demands that the defendant's
contacts with the forum result proximately from its own actions.
See id. at 20; Phillips v. Prairie Eye Ctr., 530 F.3d 22, 28 (1st
Cir. 2008). And to clear the foreseeability hurdle, "the
defendant's conduct and connection with the forum State [must be]
such that he should reasonably anticipate being haled into court
there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)
(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)). Given these criteria, a finding of purposeful availment
- 21 - necessarily requires more than the unilateral activities of third
parties. See Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1,
9 (1st Cir. 2018); see also PREP Tours, 913 F.3d at 20 ("[A]
plaintiff's 'unilateral activity' cannot establish the requisite
connection between the defendants and the forum jurisdiction."
(quoting Burger King, 471 U.S. at 474-75)).
Importantly, evidence of "specific targeting of a forum"
is not "the only means of showing that the purposeful availment
test has been met." Plixer, 905 F.3d at 9. Under appropriate
circumstances, a defendant corporation's "'regular course of
sale[s] in the [forum]' could make the exercise of jurisdiction
foreseeable to the defendant." Knox v. MetalForming, Inc., 914
F.3d 685, 691 (1st Cir. 2019) (second alteration in original)
(internal quotation marks omitted) (quoting Plixer, 905 F.3d at
10). And on the right factual record, jurisdiction might be
predicated on a showing of "plus" factors evincing a corporate
defendant's deliberate attempt to serve the forum state, that is,
factors indicating something over and above the defendant's mere
awareness that its products were entering a given market in the
stream of commerce. See Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102, 111-12 (1987) (plurality opinion); Knox, 914 F.3d at
691-92.
Having laid this foundation, we begin our journey with
an assessment of Chen's sweeping contention that USSA is "subject
- 22 - to jurisdiction in Massachusetts and everywhere else where it
solicits online students" through its informational website and
facilitates students' coursework through its interactive online
learning platform. With respect to USSA's informational website,
Chen's argument is plainly foreclosed by precedent. We have made
pellucid that "the mere availability" of a defendant's primarily
informational website in a forum is insufficient, without more, to
subject a defendant to jurisdiction there. A Corp. v. All Am.
Plumbing, Inc., 812 F.3d 54, 61 (1st Cir. 2016). Otherwise, the
universality of websites in the modern world would overwhelm
constitutional limitations on the exercise of personal
jurisdiction. See Cossaboon, 600 F.3d at 35.
There is, moreover, no evidence in the record that USSA
either aims its informational website specifically at prospective
students in Massachusetts or derives significant revenue from
Massachusetts-based individuals through its maintenance of this
website. Similarly, the record is barren of evidence that USSA
solicited either Chen's enrollment or his reenrollment through
this website while Chen was in Massachusetts. Accordingly, we
conclude, without serious difficulty, that USSA cannot
constitutionally be subjected to specific jurisdiction in
Massachusetts simply because it operates a primarily informational
website that happens to be available there.
- 23 - USSA's maintenance of an interactive online learning
platform in Massachusetts — on which Chen allegedly completed
coursework and attempted to resume work on his portfolio — presents
a closer question. We have upheld the exercise of specific
jurisdiction over a foreign corporation in the United States when
the corporation used its interactive website to sell its services
to customers in the United States and the corporation was aware
that it had derived substantial revenue from those sales over the
course of several years. See Plixer, 905 F.3d at 9-10. This case,
however, presents the novel question of whether a finding of
purposeful availment sufficient to warrant the exercise of
specific jurisdiction can be sustained on the basis of a
defendant's maintenance of a highly interactive website available
in the forum and allegedly accessed by the plaintiff there, even
though no accompanying evidence shows that the website either
specifically targets the forum or has resulted in the defendant's
knowing receipt of substantial revenue from forum residents.
On this record, that question must be answered in the
negative: we conclude that USSA cannot be subjected to specific
jurisdiction in Massachusetts based on its maintenance of an online
learning platform accessible in (and allegedly accessed by Chen
from) the Commonwealth. As a general matter, USSA perhaps could
have anticipated that Massachusetts residents (like residents of
any other state) might enroll in its Distance Learning Program and
- 24 - access its online learning platform from the Commonwealth. But
this broad and generic degree of foreseeability is insufficient,
standing alone, to rise to the level of purposeful availment with
respect to Chen's claims. See Kloth v. S. Christian Univ., 320 F.
App'x 113, 116 (3d Cir. 2008) (per curiam); see also Plixer, 905
F.3d at 10 (distinguishing "a situation where a defendant merely
[makes] a website accessible in the forum" from substantial and
"voluntary service" of forum market in purposeful availment
inquiry). When all is said and done, Chen has failed to show that
USSA deliberately used its online learning platform (or any other
component of its online presence) to target him while he was in
Massachusetts. Nor is there any evidence that USSA's maintenance
of an online learning platform resulted in its knowing receipt of
significant tuition dollars from Chen while he was billeted in
Massachusetts. Therefore, we cannot say that USSA purposefully
availed itself of the privilege of conducting business in
Massachusetts simply by virtue of maintaining an interactive
online learning platform accessible in Massachusetts and all other
states.
We are aware, of course, that two Massachusetts-based
students were enrolled in a single online course through USSA as
of January 2019. Although Chen's discrete claims do not concern
USSA's contacts with either or both of these students, such
contacts might nonetheless prove relevant to a holistic assessment
- 25 - of whether USSA has purposefully availed itself of the privilege
of doing business in Massachusetts. The record, though, is utterly
devoid of evidence sufficient to ground either a finding that USSA
used its online presence to target these two students while they
were in Massachusetts or a finding that USSA derived substantial
revenue from them. For instance, the record does not reveal how
these students' enrollments came about, the duration of their
studies, whether they ever conducted their studies from states
other than Massachusetts, or the amounts of tuition they paid.
The raw fact of USSA's awareness of two Massachusetts-based
students — neither of whom was seeking a degree — is insufficient
to show that USSA purposefully availed itself of the benefit of
doing business in Massachusetts such that it reasonably could have
expected to face suit there by Chen. See Kloth, 320 F. App'x at
116 (finding no purposeful availment absent any evidence that
"school engaged in business with any one in [the forum] other than
[the plaintiff] and one other student").
The sockdolager is that all of USSA's alleged case-
specific contacts with Massachusetts — apart from its general
maintenance of a website and online learning platform accessible
in all fifty states — stem from Chen's unilateral activity.
Although Chen indicates that he took various actions while he was
in Massachusetts (including coursework, tuition payments, and
e-mail correspondence with USSA), the record is bereft of any
- 26 - evidence that USSA knew of Chen's whereabouts at the relevant
times. There is simply no basis for a reasonable inference, let
alone a finding, that USSA knew, prior to Chen's filing of his
complaint, that he had accessed the online learning platform from
Massachusetts, unsuccessfully attempted to log in from
Massachusetts, or made tuition payments while in Massachusetts.
See id. at 117 (finding no specific jurisdiction when plaintiff
moved to forum years after enrolling in distance learning program,
without updating school "records to reflect her move"). So, too,
we are unable to discern any evidentiary predicate for a finding
that USSA corresponded with Chen about his reenrollment with
knowledge that he had moved to Massachusetts.8
A defendant cannot be said to have purposefully availed
itself of the benefits of a forum with respect to a given plaintiff
when it has neither initiated any in-forum activity involving that
plaintiff nor dealt with him knowing that he was located in the
forum. See PREP Tours, 913 F.3d at 19 (explaining that purposeful
availment requirement "represents a rough quid pro quo" triggered
only when "defendant deliberately targets its behavior toward"
forum (quoting Carreras v. PMG Collins, LLC, 660 F.3d 549, 555
(1st Cir. 2011))); Phillips, 530 F.3d at 28-29 (finding no
8 The e-mails between Chen and USSA are nowhere to be found in the record. A party cannot plausibly request a court to draw inferences from communications that the party has not seen fit to make part of the record.
- 27 - purposeful availment even when defendant knew plaintiff resided in
forum, mailed contract there, and followed up by e-mail). Simply
put, jurisdiction cannot be carted from state to state, enabling
a plaintiff to sue in any state to which he chooses to roam. See
Harlow v. Children's Hosp., 432 F.3d 50, 63 (1st Cir. 2005) (noting
that in personam jurisdiction "does not travel with the plaintiff
. . . wherever [he] goes").
Given the absence of any facts indicating that USSA knew
of Chen's relocation to Massachusetts before he brought suit, the
case-specific contacts upon which Chen relies can only be seen as
rooted in his own unilateral activities. Consequently, there is
no principled way we can conclude that USSA purposefully availed
itself of the privilege of doing business in Massachusetts when
dealing with Chen. See PREP Tours, 913 F.3d at 20; Plixer, 905
F.3d at 9. The district court's declination of specific
jurisdiction was, therefore, unimpugnable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the dismissal of Chen's complaint for want of jurisdiction is
Affirmed.
- 28 -