Motus, LLC v. CarData Consultants, Inc.

23 F.4th 115

• Court: Court of Appeals for the First Circuit
• Decided: January 18, 2022
• Docket: 21-1226P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1226

MOTUS, LLC, a Delaware Limited Liability Company,

Plaintiff, Appellant,

v.

CARDATA CONSULTANTS, INC., a Canada Corporation,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges, and McConnell,* District Judge.

Jeffrey K. Riffer, with whom Julie Z. Kimball, Elkins Kalt Weintraub Reuben Gartside LLP, Geoffrey M. Raux, Andrew C. Yost, and Foley & Lardner LLP were on brief, for appellant. Leah R. Bruno, with whom Philip A. O'Connell, Jr., Tony K. Lu, and Dentons US LLP were on brief, for appellee.

January 18, 2022

* Of the District of Rhode Island, sitting by designation. SELYA, Circuit Judge. Once challenged, in personam

jurisdiction cannot be assumed into existence but, rather, must be

demonstrated by the party who asserts it. This appeal illustrates

the frailty of a litigation strategy that disregards this baseline

rule.

In the underlying suit, plaintiff-appellant Motus, LLC

(Motus) contends that defendant-appellee CarData Consultants, Inc.

(CarData) committed trademark infringement and related wrongs by

using a particular phrase in the meta title of its website.1 After

Motus sued CarData in the United States District Court for the

District of Massachusetts, CarData moved to dismiss for want of in

personam jurisdiction.2 The district court dismissed Motus's suit

without prejudice and denied its request for jurisdictional

discovery. Motus appeals. After careful consideration, we affirm.

I

We start with the rudimentary facts. In view of the

nascent stage at which this action was dismissed, "we — like the

district court — take the facts from the pleadings and whatever

supplemental filings (such as affidavits) are contained in the

1 A "meta title" comprises the text that appears on a browser tab or in the headline for a web search result. 2 At the same time, CarData sought dismissal for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The district court did not reach this issue and, therefore, we do not elaborate upon it.

- 2 - record, giving credence to the plaintiff's version of genuinely

contested facts" and accounting for "undisputed facts put forth by

the defendant." Baskin-Robbins Franchising LLC v. Alpenrose

Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016). In that process, we

eschew any reliance on "unsupported allegations." Plixer Int'l,

Inc. v. Scrutinizer GmbH, 905 F.3d 1, 6 (1st Cir. 2018).

Motus and CarData are both firms that, among other

things, provide tools for managing businesses' reimbursement of

employee expenses (such as employees' use of personal automobiles

for business travel). Motus is a Delaware limited liability

company that has its principal place of business in Boston,

Massachusetts. CarData is a Toronto-based Canadian corporation.

At the heart of the parties' dispute is a claimed trademark

embodying the phrase "corporate reimbursement services" (the

Phrase), in which Motus allegedly had developed proprietary

rights.

As of the fall of 2019, the meta title of CarData's

website (https://www.cardataconsultants.com/) read "Corporate

Reimbursement Services, Vehicle Reimbursement Program | CarData."

On November 5, 2019, Motus wrote to CarData asking that it remove

the Phrase from the meta title. Within three days, CarData

complied. Motus nonetheless filed suit against CarData, invoking

the Lanham Act, 15 U.S.C. §§ 1051-1129, and seeking damages for

trademark infringement, trademark dilution, and unfair

- 3 - competition. Its complaint also contained a number of supplemental

state-law causes of action and prayers for additional remedies.

The centerpiece of the action was Motus's allegation that it had

developed "strong rights" in the use of the Phrase and that CarData

had improperly coopted the Phrase.

As relevant here, CarData moved to dismiss for lack of

in personam jurisdiction. See Fed. R. Civ. P. 12(b)(2). CarData

argued that Motus had failed to plead a prima facie case for

personal jurisdiction because "[w]hile [Motus] allege[d] that

CarData maintains a [w]ebsite, it says nothing about how or why

this Court would have jurisdiction over [CarData] as a result of

the operation of that site and the only conduct of CarData

identified in the Complaint relates to CarData's use of descriptive

words in connection with that [w]ebsite." In support, CarData

filed an affidavit and other exhibits.

Motus opposed the motion, arguing that CarData had

"purposefully availed itself of the privilege of conducting

activities within the U.S. and Massachusetts by, among other

reasons (a) maintaining numerous offices in the United States and

(b) marketing itself to and interacting with U.S. and Massachusetts

customers through its website." To buttress its argument, Motus

pointed to language and functionalities on CarData's website:

• "CarData's website claims that 'CarData is North

America's reliable source for "best in class" vehicle

- 4 - reimbursement solutions.'" (emphasis supplied by

Motus)

• "CarData's website claims that '[w]ith offices in

Denver, New York[,] and Toronto, CarData clients range

across industries, from Fortune 500 corporations to

regional businesses.'"

• CarData's website claims that "its online application

allows customers to '[e]nter information into CarData

Online, and it instantly calculates reimbursement

specific to each driver's fixed and variable costs.'"

(alteration by Motus)

• CarData's website — specifically the "'Our Solutions'

and 'Contact Us'" pages on the website — "invite[s]

users to 'Get a Free Consultation' or 'Request a

Demo.'" The message box "asks users to submit

information to CarData, including the user's name,

email address, company name, number of drivers, and

phone number, and states that a CarData representative

will contact the user 'shortly to schedule a free

consultation.'"

In addition, Motus proffered exhibits describing the

aforementioned features of CarData's website and noted that "[n]o

part of the website prohibits or discourages the participation of

Massachusetts users." And in a single sentence and accompanying

- 5 - footnote, it asked the court — if it was disposed to grant the

motion to dismiss for want of in personam jurisdiction — to allow

it to conduct jurisdictional discovery.

CarData rejoined that the website content and

functionalities did not show contacts with Massachusetts

sufficient to permit the exercise of personal jurisdiction there.

It also resisted Motus's contingent request for jurisdictional

discovery.

The district court granted CarData's motion to dismiss.

In a thoughtful rescript, it "conclude[d] that the purposeful

availment requirement [wa]s not met because there [wa]s not

'something more' connecting CarData to the forum state beyond its

website which is available to anyone with internet access, in any

state." Motus, LLC v. CarData Consultants, Inc., 520 F. Supp. 3d

87, 92 (D. Mass. 2021). What is more, the court denied Motus's

contingent request for jurisdictional discovery, noting that Motus

had not acted diligently to "present facts to the court which show

why jurisdiction would be found if discovery were permitted." Id.

at 94 (quoting United States v. Swiss Am. Bank, Ltd. (Swiss Am.

II), 274 F.3d 610, 626 (1st Cir. 2001)). This timely appeal

followed.

II

It is common ground that a plaintiff, confronted with a

motion to dismiss for want of in personam jurisdiction, must carry

- 6 - the burden of showing that personal jurisdiction is both

statutorily authorized and consistent with the constitutional

requirements of due process. See, e.g., Chen v. U.S. Sports Acad.,

Inc., 956 F.3d 45, 54 (1st Cir. 2020); United States v. Swiss Am.

Bank, Ltd. (Swiss Am. I), 191 F.3d 30, 36 (1st Cir. 1999). There

are several barometers that may be used to determine whether a

plaintiff has carried that burden, and the choice of which

barometer is appropriate is informed by considerations such as the

relative development of the record and the extent to which the

jurisdictional issue is intertwined with the merits. See Chen,

956 F.3d at 51; Foster-Miller, Inc. v. Babcock & Wilcox Can., 46

F.3d 138, 145-46 (1st Cir. 1995).

Where, as here, a motion to dismiss for want of in

personam jurisdiction is made at the inception of the case and the

issue of jurisdiction is not intertwined with the merits, the prima

facie approach controls. See Foster-Miller, 46 F.3d at 145-46;

Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676 (1st Cir. 1992).

That approach "ask[s] only whether the plaintiff has proffered

facts that, if credited, would support all facts 'essential to

personal jurisdiction.'" Chen, 956 F.3d at 51 (quoting Foster-

Miller, 46 F.3d at 146). When — as in this case — "a district

court dismisses a case for lack of personal jurisdiction based on

the prima facie record, rather than after an evidentiary hearing

or factual findings, our review is de novo." Baskin-Robbins, 825

- 7 - F.3d at 34 (quoting C.W. Downer & Co. v. Bioriginal Food & Sci.

Corp., 771 F.3d 59, 65 (1st Cir. 2014)).

Subject-matter jurisdiction in this case is premised

chiefly on the existence of a federal question. See 28 U.S.C.

§ 1331; see also 15 U.S.C. § 1121. In the mine-run of federal

question cases, Federal Rule of Civil Procedure 4(k)(1) erects the

framework for establishing personal jurisdiction by service of

process. Under this framework, personal jurisdiction may derive

either from a state long-arm statute that sets the boundaries of

a state court's jurisdictional reach or from a federal statute

permitting nationwide personal jurisdiction by service of process.

See Fed. R. Civ. P. 4(k)(1)(A); (C). Here, the forum state is

Massachusetts and there is no federal statute specially

authorizing nationwide personal jurisdiction. Consequently, we

must look to the compendium of Massachusetts statutes. See Swiss

Am. I, 191 F.3d at 37.

Massachusetts has a long-arm statute. See Mass. Gen.

Laws ch. 223A, § 3. To establish the existence of in personam

jurisdiction, a plaintiff who seeks to hale a defendant into court

in a particular forum not only must comply with the forum's long-

arm statute but also must show that exercising such jurisdiction

will comport with the requirements of due process. See Chen, 956

F.3d at 54.

- 8 - Of course, objections to personal jurisdiction may be

waived. See Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1,

4 (1st Cir. 2016). If a defendant limits its jurisdictional

objection to either statutory grounds or constitutional grounds,

the court need only consider those particular grounds. See id.

So it is here: in the district court, CarData objected to

jurisdiction only on constitutional grounds. We circumscribe our

analysis accordingly.

In terms of personal jurisdiction, the touchstone of due

process is that the defendant must "have certain minimum contacts

with [the forum] 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)). In this

case, Motus submits that the district court had specific

jurisdiction over CarData, arguing (in effect) that CarData's

particular engagements with the forum support personal

jurisdiction for the limited class of claims that Motus asserts.

See Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct.

1017, 1024-25 (2021).3 To determine whether specific jurisdiction

3 Specific jurisdiction is different than general jurisdiction, which exists when the defendant's contacts with the forum state are so extensive that it is "essentially at home" in that state and may be sued there for "any and all claims." Ford Motor, 141 S. Ct. at 1024 (quoting Goodyear Dunlop Tires

- 9 - exists, we look to three criteria: relatedness, purposeful

availment, and reasonableness. See Ford Motor, 141 S. Ct. at 1024;

Chen, 956 F.3d at 59.

"First, the plaintiff's claim must directly arise from

or relate to the defendant's activities in the forum." Chen, 956

F.3d at 59. "Second, the defendant's forum-state contacts must

'represent a purposeful availment of the privilege of conducting

activities in that state.'" Id. (quoting Scottsdale Cap. Advisors

Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018)). Finally,

"the exercise of specific jurisdiction in the forum must be

reasonable under the circumstances." Id. The plaintiff must carry

the devoir of persuasion on all three of these elements, and the

plaintiff's failure as to any one of them defenestrates its claim

of specific jurisdiction. See id.

III

Against this backdrop, Motus's arguments on appeal boil

down to four principal assignments of error. First, it argues

that the district court misconstrued the prima facie approach

because it did not require CarData to produce evidence showing a

lack of contacts with Massachusetts. Second, it argues that the

district court erred in concluding that Motus had not made out a

sufficient prima facie case for personal jurisdiction over CarData

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). In this case, Motus makes no claim of general jurisdiction.

- 10 - in Massachusetts. Third, it argues that the district court should

have found in personam jurisdiction under Federal Rule of Civil

Procedure 4(k)(2). Fourth, it argues that the district court

abused its discretion in rejecting Motus's passing request for

jurisdictional discovery.4 We address these arguments

sequentially.

A

Motus asserts that it was not required to plead facts

showing personal jurisdiction. In its view, CarData had the burden

of adducing evidence showing the absence of contacts within the

forum state, and CarData waived its jurisdictional defense by

failing to adduce any such evidence. Motus's assertion places the

shoe on the wrong foot and misallocates the parties' burdens.

As a technical matter, Motus is correct in stating that

it was not required to plead facts in its complaint sufficient to

4 Motus also suggests that the district court erred in withholding leave to amend its complaint. Motus, however, requested leave to amend below only with respect to CarData's effort to have the complaint dismissed for failure to state a claim. See supra note 2. Because Motus never requested that the district court grant leave to amend with respect to CarData's effort to dismiss for want of in personam jurisdiction, Motus has waived any right to argue for that anodyne here. See United States v. Adams, 971 F.3d 22, 37 (1st Cir. 2020) (explaining that a "party cannot ask the court of appeals for relief that he did not seek in the district court"); see also Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("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.").

- 11 - show personal jurisdiction. See Baskin-Robbins, 825 F.3d at 34.

Under the prima facie approach, the plaintiff may plead sufficient

jurisdictional facts in its complaint, may rely on jurisdictional

facts documented in "supplemental filings (such as affidavits) []

contained in the record," and/or may point to "undisputed facts."

Id. In this instance, however, Motus not only failed to plead

sufficient jurisdictional facts but also failed to proffer any

such facts in supplemental filings. Although it submitted exhibits

bearing on the content and functionality of CarData's website,

none of these exhibits strengthened its jurisdictional hand. As

the district court observed, Motus "put forward no evidence showing

that CarData . . . actually and purposefully conducted business

with Massachusetts residents through its website." Motus, 520 F.

Supp. 3d at 92-93.

Even though a plaintiff need not plead facts that suffice

to ground the exercise of in personam jurisdiction, it must — if

challenged — ensure that the record contains such facts. See

Baskin-Robbins, 825 F.3d at 34; Foster-Miller, 46 F.3d at 145.

Motus wholly failed to carry this burden. The upshot is a record

devoid of anything indicating that CarData either did business

with Massachusetts residents or specifically targeted such

residents.

To be sure, Motus points to CarData's website to fill

this conspicuous void. But CarData's website does not contain

- 12 - content that is any more likely to solicit or serve customers in

Massachusetts than anywhere else.

In an effort to turn this void to its advantage, Motus

suggests that CarData was required to prove a negative: that

CarData was required to produce evidence as to its lack of contacts

with Massachusetts. Only then, Motus suggests, would Motus be

obliged to make out a prima facie case for jurisdiction. This

suggestion is topsy-turvy: it turns upside-down the principle

that "the burden of proving that personal jurisdiction may be

exercised in the forum state lies squarely with the plaintiff."

Chen, 956 F.3d at 54. A plaintiff cannot carry this burden simply

by playing possum and proclaiming that the burden belongs to the

defendant. It is the plaintiff's obligation to proffer facts that

adequately make out a case for jurisdiction before any burden

devolves upon the defendant to proffer contrary facts.

B

We turn next to the question of whether, on the existing

record, Motus made out a prima facie case for personal jurisdiction

over CarData in Massachusetts. We think not.

We need not tarry over the matter of statutory

authorization. Although we recently have "suggested that

Massachusetts' long-arm statute might impose more restrictive

limits on the exercise of personal jurisdiction than does the

Constitution," Copia, 812 F.3d at 4 (discussing Mass. Gen. Laws

- 13 - ch. 223A, § 3), it would serve no useful purpose to explore those

differences here. To dispose of this appeal, it suffices to say

that Motus has not satisfied the federal constitutional

requirements for the exercise of in personam jurisdiction.

Because Motus argues only for specific jurisdiction, the

three elements of that inquiry are dispositive. See Chen, 956

F.3d at 59. To succeed on its claim, Motus must satisfy all of

those elements — relatedness, purposeful availment, and

reasonableness. See id. In website cases, we have recognized

that the "purposeful availment" element often proves dispositive.

See, e.g., id.; Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 35-36

(1st Cir. 2010). We begin — and end — there.

In assessing whether the defendant's in-state contacts

represent a purposeful availment of the privilege of conducting

business in the forum, we look to the voluntariness of the contacts

and the foreseeability of being haled into court based on those

contacts. See Chen, 956 F.3d at 59. "[V]oluntariness demands

that the defendant's contacts with the forum result proximately

from its own actions." Id. Foreseeability demands that "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)). Under this binary standard, "a finding of purposeful

- 14 - availment necessarily requires more than the unilateral activities

of third parties." Chen, 956 F.3d at 59; see Plixer, 905 F.3d at

9.

For example, a corporation's specific targeting of a

forum's residents may show voluntariness. See Calder v. Jones,

465 U.S. 783, 789 (1984); Plixer, 905 F.3d at 9. So, too, a

corporation's "'regular course of sale in the forum' [may] make

the exercise of jurisdiction foreseeable." Chen (quoting Knox v.

MetalForming, Inc., 914 F.3d 685, 691 (1st Cir. 2019)); see Asahi

Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 117 (1987)

(Brennan, J., concurring in part and in the judgment). In

addition, there may be "'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." Chen, 956 F.3d at 59-60; see Ford Motor, 141

S. Ct. at 1028 (noting myriad of plus factors indicating awareness

that after-market vehicles were entering forum).

Against this backdrop, Motus proposes two theories for

purposeful availment sufficient to support specific jurisdiction.

We consider each theory separately.

Motus's principal route to purposeful availment runs

through CarData's operation of a website that is available to serve

- 15 - Massachusetts residents and its maintenance of offices elsewhere

in the United States (Colorado and New York). This route is a

dead end.

The mere availability of a primarily informational

website is not enough — by itself — to render a defendant

susceptible to jurisdiction in a particular forum. See Chen, 956

F.3d at 60; 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" and

render website operators amenable to suit anywhere within the vast

reach of the internet. Chen, 956 F.3d at 60. To establish specific

jurisdiction, there must be more. See Cossaboon, 600 F.3d at 35.

In the case at hand, there is no "more." When assessing

whether a defendant's commercial operation of a website amounts to

purposeful availment, we typically look to factors such as evidence

of specific targeting of forum residents and evidence that the

website has generated "substantial revenue from forum residents."

Chen, 956 F.3d at 60; see Plixer, 905 F.3d at 9-10. Here, however,

Motus has adduced no such evidence. Nothing in the record

indicates that CarData has sought to serve Massachusetts residents

at all, let alone that CarData has sought to serve Massachusetts

residents in particular. CarData's styling of itself as the "best

in class" provider of corporate reimbursement services in "North

America" and the fact that it apparently sells some services in

- 16 - the United States are unilluminating as to what, if any, commercial

links it may have with Massachusetts. Nor does CarData's

maintenance of offices in Colorado and New York, without more,

support Motus's claim of specific jurisdiction in Massachusetts.

We acknowledge that CarData's website identifies means

for potential customers — including those in Massachusetts — to

reach out to CarData. There is nothing in the record, though,

indicating that even a single Massachusetts resident has accepted

this invitation. By the same token, there is nothing in the record

indicating that CarData has initiated any contacts with, or has

responded to, any Massachusetts residents. In a nutshell, Motus

left the district court to guess whether CarData has any

Massachusetts customers, receives any revenue from Massachusetts,

or has any other business connection with Massachusetts.

Jurisdiction cannot be premised on guesswork, and the record does

not support a finding that the operation of CarData's website

and/or its commercial contacts elsewhere in the country constitute

purposeful availment with respect to Massachusetts.

Motus has a fallback position. Motus alleges that by

using the Phrase in the meta title of its website, CarData

committed intentional torts (trademark infringement and the like)

that caused injury to Motus (a Massachusetts company). Because

CarData's intentional tortious conduct was directed at a

- 17 - Massachusetts corporation, Motus's thesis runs, jurisdiction lies

in Massachusetts.

The premise underlying this position is sound:

intentional tortious conduct causing an injury in a given state

may in certain circumstances constitute purposeful availment and,

thus, give rise to specific jurisdiction in that state. See

Calder, 465 U.S. at 789 (finding specific jurisdiction when

defendants' intentional tortious conduct was "expressly aimed at

[the forum state]"). Even so, Motus has failed to show that this

premise applies here.

The Calder approach makes eminent sense as applied to

intentional torts directed at a particular victim. The conduct is

voluntary, and the tortfeasor can reasonably foresee that the

location of the victim is likely to be the place where he will be

haled into court. This logic loses some coherence in cases in

which it is unclear that the conduct is tortious, let alone that

there is a victim. Trademark infringement is a paradigmatic

example because the defendant need not know it is infringing

another's mark in order for its conduct to be actionable. See

Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 116

(1st Cir. 2006) (noting that only elements of trademark

infringement action are that the "mark merits protection and that

the allegedly infringing use is likely to result in consumer

confusion"); see also Romag Fasteners, Inc. v. Fossil, Inc., 140

- 18 - S. Ct. 1492, 1497 (2020). Taking the Calder approach when such

torts are based on web publications would create "a substantial

risk that defendants would be dragged into court in foreign

jurisdictions with which they had little to no actual contact

simply because a trademark holder happened to reside there." Sun

Life Assur. Co. of Canada v. Sun Bancorp, Inc., 946 F. Supp. 2d

182, 191 (D. Mass. 2012). It follows that to satisfy the

foreseeability requirement for tortious conduct of the kind

alleged here, the defendant would have to have known of both the

existence of a potential victim and the victim's likely

whereabouts. See Chen, 956 F.3d at 61-62.

That ends this aspect of the matter.5 There is nothing

in the record showing that CarData knew that Motus existed, let

alone that Motus was based in Massachusetts. Nor is there anything

in the record to support an inference that CarData — prior to

receiving Motus's cease-and-desist letter — associated the Phrase

with Motus. Motus's attempt to base jurisdiction on a theory of

intentional tortious conduct is, therefore, unavailing.

C

Motus has another arrow in its quiver. This arrow is

fashioned from Federal Rule of Civil Procedure 4(k)(2), which

Motus's failure to make a prima facie showing of purposeful 5

availment makes it unnecessary for us to consider what the record shows as to either relatedness or reasonableness. See Chen, 956 F.3d at 59.

- 19 - provides a means for obtaining in personam jurisdiction when "the

defendant is not subject to jurisdiction in any state's courts of

general jurisdiction" yet the exercise of "jurisdiction [in the

United States] is consistent with the United States Constitution

and laws." Fed. R. Civ. P. 4(k)(2). Motus asseverates that, given

CarData's contacts with the United States as a whole, Rule 4(k)(2)

applies. We reject Motus's asseveration.6

When Rule 4(k)(2) is put in play, a burden-shifting

framework applies. See Swiss Am. I, 191 F.3d at 41. To begin,

the plaintiff must make out a prima facie case for federal

jurisdiction. Such a case consists of a showing "(1) that the

claim asserted arises under federal law, (2) that personal

jurisdiction is not available under any situation-specific federal

statute, and (3) that the putative defendant's contacts with the

nation as a whole suffice to satisfy the applicable constitutional

requirements." Id. That three-part showing must be accompanied

by a certification to the effect that, "based on the information

that is readily available to the plaintiff and his counsel, the

defendant is not subject to suit in the courts of general

6CarData claims that this line of argument was not preserved below and, thus, engenders only plain error review. See, e.g., Ira Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d 12, 26 (1st Cir. 2014). Motus demurs. We need not resolve this contretemps: even assuming, favorably to Motus, that the line of argument was preserved and that de novo review applies, the argument nonetheless fails.

- 20 - jurisdiction of any state." Id. It is only when the plaintiff

has satisfied these requirements that "the burden shifts to the

defendant to produce evidence which, if credited, would show either

that one or more specific states exist in which it would be subject

to suit or that its contacts with the United States are

constitutionally insufficient." Id. Unless and until the

plaintiff has carried his initial burden of production, the

defendant has no burden at all.

The certification is a necessary component of the

showing that the plaintiff must make. Here, however, Motus never

produced the required certification in the district court and,

thus, never carried its initial burden. See Motus, 520 F. Supp.

3d at 90-91 (observing that "nothing in the record indicates that

defendant is excluded from jurisdictional reach of every state").

In an effort to ease the sting of this failure, Motus

contends that CarData had an antecedent burden to show that one or

more specific states exists in which it would be subject to suit.

This contention puts the cart before the horse: CarData had no

obligation to show that it was subject to suit in some state unless

and until Motus met its initial burden. See Swiss Am. I, 191 F.3d

at 41-42; see also Base Metal Trading, Ltd. v. OJSC "Novokuznetsky

Aluminum Factory", 283 F.3d 208, 215 (4th Cir. 2002) (discussing

requirement for initial showing). We hold that Motus's failure to

provide the required certification sounds the death knell for

- 21 - Motus's attempted invocation of Rule 4(k)(2). See Swiss Am. I,

191 F.3d at 41 (explaining that "a plaintiff who seeks to invoke

Rule 4(k)(2) must make a prima facie case for the applicability of

the rule"). Consequently, Motus's arrow lands wide of the mark.7

D

In a last-ditch effort to snatch victory from the jaws

of defeat, Motus asserts that the district court abused its

discretion in refusing to allow Motus to conduct jurisdictional

discovery. This assertion rests on a flimsy foundation: Motus

did not move for jurisdictional discovery in the district court

but, rather, merely mentioned the option of jurisdictional

discovery in its opposition to CarData's motion to dismiss.

If a party anticipates that jurisdictional discovery may

be needed, the best way to ensure that a request for jurisdictional

discovery is preserved for appeal if denied is to file a timely

motion. After all, it is elementary that a "request for a court

order must be made by motion," Fed. R. Civ. P. 7(b), and that an

informal request for a court order ordinarily will not suffice to

preserve a party's rights, see 5 Charles Alan Wright, Arthur R.

Miller & A. Benjamin Spencer, Federal Practice & Procedure Civil

Although the absence of a certification is fatal in and of 7

itself, we note — for the sake of completeness — the existence of record evidence that CarData maintains offices both in Colorado and in New York. Motus has not offered any reason to believe that CarData is not subject to jurisdiction in the courts of those states.

- 22 - § 1191 (4th ed. 2021). Of course, district courts have a certain

amount of leeway to treat informal requests for jurisdictional

discovery made in opposition papers as if made by motion when there

is no prejudice to the other party, and the district court did so

here. See id.; Motus, 520 F. Supp. 3d at 94.

Unlike videos on the C-SPAN website, jurisdictional

discovery is not available on demand. Instead, a plaintiff who

seeks jurisdictional discovery must make "a colorable claim of

jurisdiction" and must show that it "has been diligent in

preserving [its] rights to be entitled to jurisdictional

discovery." Swiss Am. II, 274 F.3d at 625-27. The threshold is

low: a party must identify a non-frivolous dispute about facts

that may yield a sufficient predicate for in personam jurisdiction.

See Blair v. City of Worcester, 522 F.3d 105, 111 (1st Cir. 2008).

A "timely and properly supported request for

jurisdictional discovery merits solicitous attention." Swiss Am.

II, 274 F.3d at 625 (quoting Swiss Am. I, 191 F.3d at 45). Even

so, the district court possesses "broad discretion" to determine

whether jurisdictional discovery is warranted. Id. at 626. We

review decisions granting or denying jurisdictional discovery

solely for abuse of discretion. See Negrón-Torres v. Verizon

Commc'ns, Inc., 478 F.3d 19, 23 (1st Cir. 2007). This standard is

deferential, and an order denying jurisdictional discovery will be

overturned "only upon a clear showing" that "the lower court's

- 23 - discovery order was plainly wrong and resulted in substantial

prejudice to the aggrieved party." Swiss Am. II, 274 F.3d at 626

(quoting Crocker v. Hilton Int'l Barbados, Ltd., 976 F.2d 797, 801

(1st Cir. 1992)).

Motus's request for jurisdictional discovery comprised

a single conclusory sentence, accompanied by a footnote, and

contained no indication of what facts might be developed through

discovery. With nothing more before it, the court below concluded

that jurisdictional discovery was unwarranted because Motus did

not act diligently to preserve its rights. See Motus, 520 F. Supp.

3d at 94. Given Motus's utter failure to explain why

jurisdictional discovery was appropriate and what relevant

information it hoped to glean through such discovery, the court

further concluded that granting its request promised to be an

exercise in futility. See id.

These conclusions were not "plainly wrong." Swiss Am.

II, 274 F.3d at 626. In view of the barebones nature of Motus's

presentation, we cannot say that the district court abused its

broad discretion in denying jurisdictional discovery. See id. at

626-27 (affirming denial of jurisdictional discovery because "only

on appeal did the government flesh out its description of contacts

it hope[d] to discover").

- 24 - IV

We need go no further. For the reasons elucidated above,

the district court's order dismissing the action without prejudice

for want of in personam jurisdiction is

Affirmed. Costs shall be taxed in favor of CarData.

- 25 -