UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-1501
ARTHUR F. SAWTELLE, ETC., ET AL.,
Plaintiffs, Appellants,
v.
GEORGE E. FARRELL, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya and Stahl, Circuit Judges,
and Gorton,* District Judge.
Stanley M. Brown, with whom Mark A. Abramson and Abramson,
Reis, Brown & Dugan were on brief for appellants.
Joseph M. Kerrigan, with whom Timothy G. Kerrigan and
Hamblett & Kerrigan, P.A. were on brief for appellees George E.
Farrell and Speiser, Krause, Madole & Lear; Joel S. Perwin with
whom Paul R. Kfoury and Kfoury & Elliott, P.A. were on brief for
appellees Michael S. Olin and Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A.
December 5, 1995
* Of the District of Massachusetts, sitting by designation.
GORTON, District Judge. New Hampshire residents, GORTON, District Judge.
Arthur and Judith Sawtelle (the "Sawtelles"), filed a legal
malpractice action in the United States District Court for the
District of New Hampshire to recover damages sustained as a
result of the alleged negligence of two attorneys and their law
firms with respect to litigation in the State of Florida. None
of the defendant-attorneys resides in New Hampshire, nor is any
one of them licensed to practice law there. The defendants moved
to dismiss the complaint for lack of specific in personam
jurisdiction and the district court allowed the motion.
Plaintiffs filed the present appeal. We affirm.
I. Standard of Review I. Standard of Review
When reviewing a district court's ruling on a motion to
dismiss an action for failure to make a prima facie showing of
personal jurisdiction over a defendant, the appellate court draws
the facts from the pleadings and the parties' supplementary
filings, including affidavits, taking facts affirmatively alleged
by the plaintiff as true and viewing disputed facts in the light
most favorable to plaintiff. Ticketmaster-New York, Inc. v.
Alioto, 26 F.3d 201, 203 (1st Cir. 1994); Kowalski v. Doherty,
Wallace, Pillsbury & Murphy, 787 F.2d 7, 9 (1st Cir. 1986).1 In
so doing, however, "we do not credit conclusory allegations or
1 Where the district court considers such a motion without holding an evidentiary hearing, that court applies the prima facie standard. United Elec. Workers v. 163 Pleasant Street
Corp., 987 F.2d 39, 43 (1st Cir. 1993) ("Pleasant St. II").
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draw farfetched inferences." Ticketmaster, 26 F.3d at 203.
Because the district court makes a legal determination when
applying the prima facie standard, review by this Court is de
novo (nondeferential). Boit v. Gar-Tec Products, Inc., 967 F.2d
671, 675 (1st Cir. 1992).
II. Background II. Background
On May 21, 1989, the plaintiffs' son, Corey, was killed
when the aircraft he was flying, as a pilot under instruction,
was struck over the New Hampshire-Vermont border by an aircraft
from Florida. Several months later, the Sawtelles contacted an
attorney in New Hampshire to discuss the filing of a wrongful
death suit on behalf of their son's estate. The local attorney
referred plaintiffs to the California-based law firm of Speiser,
Krause, Madole & Cook, presumably because of the firm's
reputation for expertise in aircraft litigation.2
In March 1990, an attorney at the California firm,
which is not a party to this litigation, sent duplicate originals
2 In an affidavit dated January 20, 1995, Mr. Sawtelle stated that plaintiffs obtained the name of the California firm when they saw an advertisement for that firm in a magazine published by the Aircraft Owners and Pilots Association ("AOPA"). The affidavit is identical to an unsigned and undated draft affidavit of Mr. Sawtelle except that the draft states that plaintiffs were referred to the California firm by the New Hampshire attorney. In defendants' counter-affidavit they deny ever having advertised in any AOPA publication and, in support of their contention, they submitted an affidavit of an advertising assistant at AOPA who confirms that there were no advertisements for the law firm in the AOPA magazine for the years 1988 through 1991. The district court discounted the Sawtelles' claim that they retained the California law firm on the basis of a magazine advertisement. We do not disturb that determination.
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of a retainer agreement, which had already been executed on
behalf of the firm, to the Sawtelles in New Hampshire. The
retainer agreement included a provision granting the firm a lien
upon any sum received in the plaintiffs' cause of action. The
Sawtelles signed the agreement and returned an executed original
to the California firm, which then transferred the case to its
Washington, D.C. (now Rosslyn, Virginia) affiliate, the defendant
Speiser, Krause, Madole & Lear ("the Speiser firm").
The case was assigned to defendant, George E. Farrell
("Farrell"), a Virginia resident and an attorney with the Speiser
firm. Mr. Farrell is not licensed to practice law in New
Hampshire. Although Farrell never personally met the plaintiffs,
he sent at least fifteen letters to them in New Hampshire and
spoke to them by telephone on numerous occasions during the
representation. Among the topics addressed in those
communications was Farrell's recommendation that Florida was the
most advantageous forum for the wrongful death claim.
To assist as local counsel in Florida, Farrell engaged
the Florida law firm, defendant, Podhurst, Orseck, Josefsberg,
Eaton, Meadow, Olin & Perwin, P.A. ("the Podhurst firm").
Defendant Michael S. Olin ("Olin"), a Florida resident and a
member of the Podhurst firm, handled the Sawtelles' claims. He
is licensed to practice law in Florida, but not in New Hampshire.
Like Farrell, Olin never personally met the Sawtelles but did
send numerous letters to them in New Hampshire and participated
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in several telephone conversations with them concerning his legal
representation.
In March 1991, Attorney Olin filed a wrongful death
action on behalf of the Sawtelles in the Broward County Judicial
Circuit Court in Florida. The complaint for the estate was
signed on behalf of the Speiser firm and the Podhurst firm. In
July 1991, negotiations with the defendants in the underlying
wrongful death claim resulted in a settlement offer of $155,000.
By letter dated August 7, 1991, and in response to plaintiffs'
concerns regarding the sufficiency of the settlement, Attorney
Farrell told the Sawtelles that "[he] believe[ed] it [was] in
[their] best interest to accept the settlement." Plaintiffs
allege that Olin, too, advised them, by telephone, that the
settlement was in their best interest. The Sawtelles ultimately
accepted the settlement offer.
Olin later became concerned about the disbursement of
settlement funds to Corey Sawtelle's brother Jason, who was a
minor at the time. To determine his obligations under New
Hampshire law, Olin contacted an attorney in New Hampshire for
advice regarding the distribution of the funds. Having obtained
such advice, Attorney Olin finally disbursed the settlement funds
in December 1991.
The Sawtelles subsequently learned that: 1) the estate
of Ronald Brown, Corey's flight instructor who had also died in
the crash, had filed a wrongful death suit in Florida; 2) the
action had been consolidated with the case brought by Corey's
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estate; and 3) the instructor's claim had been settled for
$500,000. That discovery prompted the Sawtelles to file the
present legal malpractice action against defendants in federal
district court in New Hampshire.
The Sawtelles' malpractice claims allege that the
defendants negligently negotiated an inadequate settlement of the
wrongful death claim of their son's estate. Among the alleged
shortcomings in defendants' performance were the failures: 1) to
take depositions; 2) to obtain an economist's projection of their
son's lost earning capacity; and 3) to consult liability experts
or engage in significant investigative efforts. The Sawtelles
further allege that defendants negligently directed settlement
advice into New Hampshire (by telephone and mail), causing them
to rely on that advice and thereby suffer economic loss in New
Hampshire.
The defendants moved to dismiss for lack of personal
jurisdiction. The motion was granted by the district court on
April 28, 1995, and this appeal followed.
III. Analysis III. Analysis
When a court's jurisdiction is contested, the plaintiff
bears the burden of proving that jurisdiction lies in the forum
state. McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936); Dalmau Rodr guez v. Hughes Aircraft Co., 781 F.2d 9,
10 (1st Cir. 1986). In determining whether a non-resident
defendant is subject to its jurisdiction, a federal court
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exercising diversity jurisdiction "is the functional equivalent
of a state court sitting in the forum state." Ticketmaster, 26
F.3d at 204; see also General Contracting & Trading Co. v.
Interpole, Inc. 940 F.2d 20, 23 n.4 (1st Cir. 1991). The court
must, therefore, find sufficient contacts between the defendant
and the forum to satisfy both that state's long-arm statute and
the Fourteenth Amendment's Due Process clause. See Ticketmaster,
26 F.3d at 204; United Electrical Workers v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1086 (1st Cir. 1992)("Pleasant St. I");
Hahn v. Vermont Law School, 698 F.2d 48, 51 (1st Cir. 1983).3
We explore these requirements seriatim.
A. The New Hampshire Long-Arm Statute A. The New Hampshire Long-Arm Statute
It is well established in diversity cases that "the
district court's personal jurisdiction over a nonresident
defendant is governed by the forum's long-arm statute." Goldman,
Antonetti, Ferraiouli, Axtmayer & Hertell v. Medfit Int'l, Inc.,
982 F.2d 686, 690 (1st Cir. 1993)(quoting Pizarro v. Hoteles
Concorde Int'l, C.A., 907 F.2d 1256, 1258 (1st Cir. 1990)). In
the case at bar, the group of defendants includes two
individuals, a professional association and a partnership.
3 In Ticketmaster, we observed that the extent of the required
jurisdictional showing by a plaintiff depends upon whether the litigant is asserting jurisdiction over a defendant under a theory of "general" or "specific" jurisdiction. 26 F.3d at 204 n.3; see also Donatelli v. National Hockey League, 893 F.2d 459,
462-63 (1st Cir. 1990)(detailing differences). In the case at hand, the Sawtelles' action turns on a theory of specific jurisdiction (i.e., jurisdiction which a state may assert when a claim arises directly out of forum-based activities. Id. at 462.
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Accordingly, we must consider the New Hampshire long-arm statutes
applicable to each of these defendants.
The New Hampshire long-arm statute applicable to the
individual defendants, Olin and Farrell, is N.H. Rev. Stat. Ann.
("RSA") 510:4, I (Supp. 1994), which permits the exercise of
personal jurisdiction over a defendant who "transacts any
business within [the] state" or "commits a tortious act within
[the] state." In Estabrook v. Wetmore, 129 N.H. 520, 523 (1987),
the Supreme Court of New Hampshire interpreted the latter phrase
to include situations where a defendant's out-of-state activity
results in an injury within New Hampshire. The Sawtelles
exhaustively argue that their claims against the individual
defendants satisfy each of the possible bases for personal
jurisdiction. Not surprisingly, defendants disagree.
We need not dwell on this issue. The New Hampshire
long-arm statute applicable to individuals has been interpreted
to afford jurisdiction over foreign defendants "to the full
extent that the statutory language and due process will allow."
Phelps v. Kingston, 130 N.H. 166, 171 (1987). As recognized by
the court below, when a state's long-arm statute is coextensive
with the outer limits of due process, the court's attention
properly turns to the issue of whether the exercise of personal
jurisdiction comports with federal constitutional standards. See
Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777 (5th Cir.
1986), cert. denied, 481 U.S. 1015 (1987).
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We reach a similar conclusion with respect to the
professional association defendant. New Hampshire's long-arm
statute governing unregistered foreign corporations, such as the
Podhurst professional association, is RSA 293-A:15.10 (Supp.
1994). That statute includes no restriction upon the scope of
jurisdiction available under state law and thus authorizes
jurisdiction over such entities to the full extent permitted by
the federal Constitution. See McClary v. Erie Engine & Mfg. Co.,
856 F. Supp. 52, 55 (D.N.H. 1994)(because RSA 293-A:15.10 reaches
to the federal limit, the traditional two-part analysis for
personal jurisdiction "collapses into the single question of
whether the constitutional requirements of due process have been
met").
The appropriate treatment of the Speiser firm is less
clear. The New Hampshire long-arm statutes do not, by their
terms, apply to partnerships, and the case law does not discuss
any long-arm provision applicable to such entities. To address
that unresolved issue of state law, the Sawtelles turn for
guidance to RSA 305-A:6-8 (Supp. 1994), which relates to service
of process on a foreign partnership. Observing that service on a
foreign partnership is treated nearly identically to service on a
foreign corporation under RSA 293-A:15.10, plaintiffs argue that
partnerships are to be treated as corporations for determining
personal jurisdiction. If that is so, then, as in the individual
and corporate contexts discussed above, the scope of jurisdiction
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over the Speiser firm partnership is commensurate with that
permitted under the Constitution.
We find it unnecessary to resolve this unsettled issue
of state law because a plaintiff seeking to establish
jurisdiction over a foreign defendant must satisfy the demands
not only of state law but also of the federal Constitution. When
confronted with a similar quandary in Ticketmaster, we chose to
bypass the statutory phase of the jurisdictional inquiry because
the plaintiff's case could not pass constitutional muster. 26
F.3d at 206. We therefore assume, arguendo, that under New
Hampshire law the scope of personal jurisdiction over the Speiser
firm partnership is, as in the case of the corporate defendant,
coextensive with the outer limits of due process.
B. The Due Process Clause B. The Due Process Clause
When embarking upon the fact-sensitive inquiry of
whether a forum may assert personal jurisdiction over a
defendant, the court's task is not a rote, mechanical exercise.
Indeed, "[d]ivining personal jurisdiction is 'more an art than a
science.'" Ticketmaster, 26 F.3d at 206 (quoting Donatelli, 893
F.2d at 468 n.7). The Fourteenth Amendment's concern of
fundamental fairness is achieved by the central requirement that
certain "minimum contacts" exist between the defendant and the
forum state. International Shoe Co. v. State of Washington, 326
U.S. 310, 316 (1945); Ticketmaster, 26 F.3d at 206. This Circuit
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utilizes a three-part analysis to determine if sufficient
contacts exist to exercise specific personal jurisdiction:
First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.
Pleasant St. I, 960 F.2d at 1089; see also Pritzker v. Yari, 42
F.3d 53, 60-61 (1st Cir. 1994), cert. denied, U.S. , 115
S. Ct. 1959 (1995); Ticketmaster, 26 F.3d at 206. Central to
each step of the established analysis, therefore, are the
contacts which are attributable to each defendant in this case.4
1. Relatedness. 1. Relatedness.
Our first consideration under the tripartite framework
is whether the plaintiffs' claim arises out of, or relates to,
defendants' in-forum activities. Ticketmaster, 26 F.3d at 206.
Although this requirement is "the least developed prong of the
due process inquiry," it serves the important function of
4 Under elemental principles of agency, the contacts of Attorneys Olin and Farrell with New Hampshire are attributable to the Podhurst and Speiser firm, respectively. See Pleasant St. I,
960 F.2d at 1090 (contacts of corporation's agent can subject the corporation to personal jurisdiction); Donatelli, 893 F.2d at 467
(contacts of a partner committed in furtherance of partnership business are imputed to the partnership).
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focusing the court's attention on the nexus between a plaintiff's
claim and the defendant's contacts with the forum. Id.; see also
Pleasant St. I, 960 F.2d at 1089. Relatively speaking, the
relatedness test is a "flexible, relaxed standard," Pritzker, 42
F.3d at 61, as suggested by the disjunctive nature of the
requirement. See Ticketmaster, 26 F.3d at 206.
The relatedness requirement is not met merely because a
plaintiff's cause of action arose out of the general relationship
between the parties; rather, the action must directly arise out
of the specific contacts between the defendant and the forum
state. See, e.g., Fournier v. Best Western Treasure Island
Resort, 962 F.2d 126, 127 (1st Cir. 1992)(where plaintiff had
made vacation arrangements in Massachusetts but was injured out-
of-state, cause of action did not "arise from" the defendant
resort operator's contacts with Massachusetts within the meaning
of the state long-arm statute); Marino v. Hyatt Corp., 793 F.2d
427 (1st Cir. 1986)(same); Pickens v. Hess, 573 F.2d 380, 386
(6th Cir. 1978)(no personal jurisdiction over defendants under
state long-arm statute which extends to limits of due process
when "the cause of action between the parties did not arise from
any acts of the defendants in [the forum state]"); Bryant v.
Weintraub, Genshlea, Hardy, Erich & Brown, 844 F. Supp. 640, 642
(D. Or. 1994) (where Oregon resident sued California law firm for
failure to obtain service in California, the injury arose
directly from alleged malpractice in California and had no
connection to the firm's other Oregon contacts), aff'd, 42 F.3d
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1398 (9th Cir. 1994). We therefore must consider the contacts
between the defendants and the forum state viewed through the
prism of plaintiffs' legal malpractice claim.
Of the limited contacts between the defendants and New
Hampshire during their legal representation, few are relevant to
the Sawtelles' claim of legal malpractice and thus few assist
them in satisfying the relatedness element of the jurisdictional
inquiry. For the Virginia defendants, Attorney Farrell and the
Speiser firm, the relevant contact was the August 7, 1991 letter
mailed to the plaintiffs in New Hampshire, in which Farrell
stated that he believed it to be in the Sawtelles' best interests
to accept the $155,000 settlement offer. For the Florida
defendants, Attorney Olin and the Podhurst firm, the relevant
contact with the forum, for purposes of the Sawtelles'
malpractice claim, was Olin's telephone call to New Hampshire in
which he concurred in the settlement recommendation.
The transmission of information into New Hampshire by
way of telephone or mail is unquestionably a contact for purposes
of our analysis. See Burger King Corp. v. Rudzewicz, 471 U.S.
462, 476 (1985). It would, however, be illogical to conclude
that those isolated recommendations constituted the negligent
conduct that caused the Florida injury and thus were in-forum
acts sufficient to establish specific personal jurisdiction in
New Hampshire.5 A review of all the allegedly negligent actions
5 The injury suffered by the Sawtelles as a result of the alleged negligent activities--the loss of their right to an adequate recovery on the wrongful death claim which had been
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of the defendants preceding the injury indicates numerous non-
forum decisions reached by the defendants in Virginia and
Florida, but not in New Hampshire. It was the defendants'
investigation, in Florida and Virginia, which informed their
judgment about the amount and propriety of the proposed
settlement. In short, it was the aggregate of the defendants'
allegedly negligent acts and omissions which caused the Florida
injury, and the out-of-forum negligence was the effective cause.
See Ticketmaster, 26 F.3d at 207; Pleasant St. I, 960 F.2d at
1089 (noting how causation principles inform the due process
analysis).
In its analysis of the relatedness requirement, the
district court relied upon Kowalski v. Doherty, Wallace,
Pillsbury & Murphy, 787 F.2d 7 (1st Cir. 1986). In Kowalski, a
New Hampshire resident filed suit in New Hampshire against a
Massachusetts law firm alleging that the firm had negligently
permitted the dismissal of a wrongful death suit pending in
Massachusetts. Id. at 8. Although the firm was aware of its
client's New Hampshire residency at the time it filed the
wrongful death action, this Court affirmed the dismissal of the
malpractice action for lack of personal jurisdiction under the
New Hampshire long-arm statute. In so doing, we rejected the
plaintiff's contention that, because the "effects" of the firm's
filed in Florida--occurred in Florida when the state court approved the recommended settlement and terminated the pending lawsuit. See Kowalski v. Doherty, Wallace, Pillsbury & Murphy,
787 F.2d 7, 11 (1st Cir. 1986).
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negligence were felt in New Hampshire, the law firm had caused an
injury there by conduct directed at that forum. See id. at 11.
Instead, we observed that:
[the client's] injury occurred when the suit was dismissed by the Massachusetts court. The consequence of the dismissal is that plaintiffs are barred from bringing a wrongful death action in the Massachusetts courts. The injury, if any, occurred in Massachusetts.
Id.; see also Cote v. Wadel, 796 F.2d 981, 984 (7th Cir.
1986)(where the negligence of a Michigan law firm resulted in a
Wisconsin plaintiff losing "a valuable property in Michigan
consisting of a cause of action against a doctor, . . . [t]he
handful of letters and phone calls" that passed between the
client and firm was not enough for personal jurisdiction over the
firm in Wisconsin).
The Sawtelles attempt to distinguish Kowalski and Cote
by pointing out that, unlike the instant action, those cases
involved legal malpractice claims based upon the failure of
attorneys to comply with procedural rules, thereby causing the
loss of rights of their respective clients. In such cases, the
Sawtelles contend, the exercise of personal jurisdiction would
have been improper because the malpractice actions did not arise
out of the contacts between the attorneys and the forum states.
In contrast, the plaintiffs argue that their malpractice claim
satisfies the relatedness requirement because the defendants
directed negligent settlement advice into New Hampshire, thereby
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causing plaintiffs harm in New Hampshire as a result of their
reliance upon such advice.
We are not convinced that the plaintiffs have
distinguished themselves from the plaintiff in Kowalski. It may
be true that the defendants' alleged malpractice was not
consummated until they communicated their misconceived advice to
plaintiffs in New Hampshire by telephone and mail and the
plaintiffs' relied on the advice to their detriment. Ultimately,
however, the gravamen of the Sawtelles' claim is that they
suffered in New Hampshire the "effects" of the defendants'
negligence committed elsewhere. See Kowalski, 787 F.2d at 11.
The communications sent into New Hampshire were ancillary to the
allegedly negligent non-forum activities, and because those
communications were the only relevant contacts with the forum for
purposes of the Sawtelles' malpractice claim, we conclude that
the plaintiffs' showing of relatedness should be characterized as
tenuous at best. It hangs, as it were, by a thread.
2. Purposeful Availment. 2. Purposeful Availment.
We next consider whether defendants' contacts with New
Hampshire represent a purposeful availment by defendants of the
privilege of conducting business in that State. The function of
the purposeful availment requirement is to assure that personal
jurisdiction is not premised solely upon a defendant's "random,
isolated, or fortuitous" contacts with the forum state. See
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984). Our
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focus is on whether a defendant has "engaged in any purposeful
activity related to the forum that would make the exercise of
jurisdiction fair, just, or reasonable." Rush v. Savchuk, 444
U.S. 320, 329 (1980). In Ticketmaster, 26 F.3d at 207, this
Court observed that the cornerstones upon which the concept of
purposeful availment rest are voluntariness and foreseeability.
a. Voluntariness a. Voluntariness
The Sawtelles contend that the requisite voluntariness
is present because "in the context of attorney-client
relationships the act of knowingly agreeing to represent an out-
of-state client is plainly sufficient." Plaintiffs' Brief at 36.
Plaintiffs aim to bolster their argument by pointing to their law
firms' alleged promotion of their reputations beyond their
respective borders. We consider these arguments in turn.
At the time they agreed to provide legal advice and
representation to the plaintiffs, the defendants knew the
Sawtelles were residents of New Hampshire. Defendants' contacts
with New Hampshire, however, were limited to communicating with
the clients in their home state. The wrongful death litigation
was prosecuted in Florida, while other legal services were being
rendered in Florida and other places outside New Hampshire. A
review of the totality of the defendants' contacts with the forum
state leaves us gravely doubtful that the defendants purposefully
availed themselves of the benefits and protections of New
Hampshire law.
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The Eighth Circuit case of Austad Co. v. Pennie &
Edmonds, 823 F.2d 223 (8th Cir. 1987), is instructive on this
requirement for personal jurisdiction. In Austad, a New York law
firm represented a South Dakota client in patent litigation
pending in Maryland. The contacts between the firm and South
Dakota during the representation included numerous phone calls,
mailings, and a three-day factfinding visit to South Dakota by a
lawyer from the firm. See id. at 224-25. The client later sued
the firm for malpractice in federal district court in South
Dakota. The Court of Appeals held that the defendant law firm's
contacts with the forum were insufficient to satisfy the
"purposeful availment" requirement, stating:
While we do not dispute [the client's] claim that an attorney-client relationship existed between [the parties], we do not believe that [the firm] had sufficient contacts with South Dakota to confer personal jurisdiction.
823 F.2d at 226. The Austad court thus deemed the firm's only
"substantial connection" with the forum, its voluntary
representation of a South Dakota corporation in litigation
outside of South Dakota, as insufficient to support a finding of
purposeful availment. See id. at 227.
In the case at bar, as in Austad, the contacts of the
defendants with New Hampshire were limited, consisting primarily
of written and telephone communications with the clients in the
state where they happened to live. Compare Sher v. Johnson, 911
F.2d 1357, 1362-63 (9th Cir. 1990) (contacts between client and
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non-resident law firm consisting of telephone calls, mailings,
and three visits by lawyer to forum state to visit client were
not, by themselves, sufficient connections with forum to
establish purposeful availment) with Trinity Industries, Inc. v.
Myers & Associates, Ltd., 41 F.3d 229, 230-31 (5th Cir.
1995)(jurisdiction over an Illinois law firm sued by a Texas
client for malpractice was upheld because the firm had
purposefully availed itself of privileges of doing business in
Texas by extended representation of the client in at least 40
matters, including a court appearance in the forum).
The mere existence of an attorney-client relationship,
unaccompanied by other sufficient contacts with the forum, does
not confer personal jurisdiction over the non-resident in the
forum state; more is required. See Burger King, 471 U.S. at 479-
80; Hanson v. Denckla, 357 U.S. 235, 253 (1958); Trinity
Industries, 41 F.3d at 230 & n.6; Cote, 796 F.2d at 984
("[p]ersonal jurisdiction over nonresidents...is a quid for a quo
that consists of the state's extending protection or other
services to the nonresident"). In this case, the defendant-
attorneys' only connection with New Hampshire was the Sawtelles'
residence there. See Trinity Industries, 41 F.3d at 231 n.8.
The case on which the plaintiffs rely as "most like"
the instant action is Waterval v. District Court, 620 P.2d 5
(Colo. 1980), cert. denied, 452 U.S. 960 (1981), in which the
Colorado courts exercised jurisdiction over a Virginia attorney
who had rendered negligent financial services to a Colorado
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resident. In Waterval, the attorney-client relationship arose
when both parties were residents of Virginia and the attorney
established and oversaw for the client the administration of a
discretionary investment account in a Virginia bank. Id. at 7.
After the client moved to Colorado, the attorney-client
relationship continued when the lawyer handled a real estate
transaction in connection with the sale of his client's house in
Virginia. He later dealt negligently, by telephone and
correspondence, with the client in Colorado with respect to a
recommended transfer and eventual liquidation of certain
investment account assets. Id.
After determining that the defendant-attorney's
contacts satisfied the Colorado long-arm statute, the Waterval
court held that the exercise of jurisdiction comported with
federal due process requirements. Id. at 7-8. With respect to
the issue of purposeful availment, the court described several
contacts between the defendant and the forum state but, most
significantly, that defendant voluntarily:
1) chose to continue an attorney-client relationship which had originated in Virginia even after the client had moved to Colorado,
2) engaged in contacts which were "personal in character and resulted in a tangible and monetary benefit to [himself]," and
3) acted in a way to impact directly upon the legal and financial interests of a Colorado resident.
Id. at 10. Because the cause of action stemmed, in part, from
the adverse consequences of defendant's negligent legal and
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financial counseling directed to a Colorado resident over a two-
year period, the court concluded that defendant could have
reasonably anticipated being held accountable in Colorado for
those activities. Id.
The instant action is distinguishable. Whereas Mr.
Sawtelle initially contacted the Speiser firm which, in turn,
retained the Podhurst firm, the defendant-attorney in Waterval
initiated contact and actively solicited, and negligently
handled, his client's investment business after the client had
moved to Colorado. Furthermore, the relationship between the
Sawtelles and the Speiser firm was not extended and was much less
pervasive than the relationship in Waterval.
The Sawtelles next attempt to demonstrate the requisite
voluntariness by claiming that the defendants' efforts to
cultivate their images as "national" firms were deliberate,
significant activities within the forum sufficient to satisfy the
purposeful availment requirement. See Burger King, 471 U.S. at
475-76; Keeton, 465 U.S. at 781. For example, the Sawtelles
point to the Podhurst firm's listing in Martindale-Hubbell which
proudly reports of "serv[ing] clients and corporations throughout
the United States."6 As a result of those efforts, plaintiffs
contend, the defendants purposefully derived benefits from their
interstate activities.
6 Plaintiffs seek to fortify this argument by reference to the Speiser firm's alleged advertisement in an AOPA publication discussed in note 2, supra. For the reasons articulated therein,
we choose to disregard the discounted allegation in our consideration of purposeful availment.
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This Court has previously declined to adopt the
"stream of commerce" theory of personal jurisdiction, a form of
which is thus advanced by the Sawtelles. See Boit v. Gar-Tec
Products, Inc., 967 F.2d 671, 681-82 (1st Cir. 1992); Dalmau
Rodr guez v. Hughes Aircraft Co., 781 F.2d 9, 15 (1st Cir. 1986).
We are guided to this conclusion by the Supreme Court's rejection
of the claim that a commercial enterprise should be subject to
personal jurisdiction wherever its conduct foreseeably causes
injury, regardless of whether the defendant directed its conduct
toward the forum state. See Asahi Metal Indus. Co. v. Superior
Court of California, 480 U.S. 102, 112 (1987) ("The placement of
a product into the stream of commerce, without more, is not an
act of the defendant purposefully directed toward the forum
State").
The Podhurst firm's promotional activity falls
substantially short of sufficing to subject that firm to personal
jurisdiction in New Hampshire. First, the Florida firm became
involved in the subject representation not as the result of
affirmative efforts to promote business in New Hampshire, but
only after being requested by the Virginia firm to commence
litigation in Florida. More importantly, to treat the Podhurst
firm's general statement in Martindale-Hubbell as a sufficiently
direct "targeting" of New Hampshire would, in effect, embrace the
"stream of commerce" theory of personal jurisdiction which this
Court has already rejected. See Boit, 967 F.2d at 681-82; Dalmau
Rodr guez, 781 F.2d at 15.
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b. Foreseeability b. Foreseeability
Bearing in mind the second pillar of the purposeful
availment requirement, we proceed to consider the Sawtelles'
contention that it was foreseeable that the defendants would be
haled into a New Hampshire court as a result of their legal
representation of New Hampshire residents. The enforcement of
personal jurisdiction over a non-resident defendant is
foreseeable when that defendant has established a continuing
obligation between itself and the forum state. See Burger King,
471 U.S. at 476; Travelers Health Ass'n v. Virginia, 339 U.S.
643, 648 (1950). Among the continuing obligations between the
defendants and the forum state relied upon by the Sawtelles are
1) the involvement of New Hampshire law in the distribution of
the settlement proceeds, and 2) the contract by which the Speiser
firm obtained a lien on any proceeds received in connection with
the plaintiffs' cause of action.
We are underwhelmed by the force of the plaintiffs'
argument. The requirements of New Hampshire law with respect to
the distribution of settlement proceeds procured from the Florida
litigation has no bearing upon the question of whether or not the
defendants purposefully availed themselves of that law. More
importantly, although the plaintiffs required the assistance of
New Hampshire counsel in order to distribute settlement proceeds
to their minor son, the defendant law firms themselves performed
no legal services in New Hampshire in that regard.
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In support of their contention that the lien granted to
the Speiser firm by the retainer agreement constitutes purposeful
availment of the privileges and benefits of New Hampshire law,
the Sawtelles rely upon Sher v. Johnson, 911 F.2d 1357 (9th Cir.
1990). Sher involved a legal malpractice action brought in
California by a resident of that State who had hired a Florida
law firm to represent him in a criminal matter in Florida. The
Florida firm's contact with California included: 1) phone calls
and letters sent to the client; 2) three California visits with
the client by a member of the firm; and 3) execution of a deed of
trust whereby the law firm obtained a lien on the client's home
in California. Id. at 1360.
In reversing the district court's dismissal of the
malpractice action for lack of personal jurisdiction, the Ninth
Circuit Court of Appeals found that the deed of trust tipped the
scale in favor of a finding of purposeful availment. See id. at
1363. Although neither the written and telephonic communications
nor the California visits sufficed, by themselves, to establish
purposeful availment, the addition of the execution of the deed
of trust signified a sufficient invocation of the benefits and
protections of the laws of California to warrant the exercise of
jurisdiction. See id. at 1363-64. The Court reasoned that the
security interest "contemplated [significant] future
consequences" in the forum-state, i.e., perfecting an interest in
real estate would require recording in California, while
obtaining and enforcing a judgment on the deed would require both
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the application of the forum's law and court action in
California. Id. at 1363.
The Sher decision is readily distinguishable from the
case before us, however. While the deed of trust in Sher gave
the Florida partnership a security interest in real property
located in California, the lien granted to the Speiser firm did
not encumber or affect title to any New Hampshire real estate.
The Speiser lien was a transitory obligation which traveled
wherever the Sawtelles or the holder of the proceeds might go.
Even without a lien, a contractual obligation to pay the Speiser
firm's fee existed, an obligation enforceable wherever the
Sawtelles were located. Unlike the Sher deed of trust,
therefore, the Speiser lien required no entanglement with the law
of the forum state.
Consequently, the frailty of plaintiffs' showing at
this second stage of the personal jurisdiction analysis is even
more pronounced than the tenuous showing of relatedness,
discussed supra. This "thread" is frayed and tattered. The mere
act of agreeing to represent (and then representing) an out-of-
state client, without more, does not suffice to demonstrate
voluntary purposeful availment of the benefits and protections of
the laws of the client's home state. Furthermore, the alleged
continuing obligation between the defendants and New Hampshire is
virtually non-existent. Ultimately, the weakness of plaintiffs'
arguments with respect to the first two stages of the personal
jurisdiction analysis provides insufficient support for their
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appeal, even when stitched together with their argument as to the
final stage, to which we now turn.
3. The Gestalt Factors. 3. The Gestalt Factors.
A court's jurisdictional inquiry is not merely a
"mechanical exercise," Ticketmaster, 26 F.3d at 208, and concepts
of reasonableness must illuminate the minimum contacts analysis.
See World-Wide Volkswagen Corp., 444 U.S. 286, 292 (1980);
Pleasant St. I, 960 F.2d at 1088 ("[E]ven where purposefully
generated contacts exist, courts must consider . . . other
factors which bear upon the fairness of subjecting [nonresidents]
to the authority of a foreign tribunal"). The Supreme Court has
identified five such considerations, which this Court has termed
the "gestalt factors": (1) the defendant's burden of appearing;
(2) the forum state's interest in adjudicating the dispute; (3)
the plaintiff's interest in obtaining convenient and effective
relief; (4) the judicial system's interest in obtaining the most
effective resolution of the controversy; and (5) the common
interests of all sovereigns in promoting substantive social
policies. See Burger King, 471 U.S. at 477. Although this part
of the jurisdictional analysis has parameters which are not well
defined, we know it serves the purpose of assisting courts to
achieve substantial justice. See Pritzker, 42 F.3d at 63-64;
Ticketmaster, 26 F.3d at 209.
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In Ticketmaster, this Court observed that the
reasonableness stage of the jurisdictional analysis evokes a
sliding scale:
[T]he weaker the plaintiff's showings on the first two prongs (relatedness and purposeful availment), the less a defendant need show in terms of unreasonableness to defeat jurisdiction. The reverse is equally true: an especially strong showing of reasonableness may serve to fortify a borderline showing of relatedness and purposefulness.
26 F.3d at 210. Moreover, we note that a failure to demonstrate
the necessary minimum contacts eliminates the need even to reach
the issue of reasonableness: "[t]he [g]estalt factors come into
play only if the first two segments of the test for specific
jurisdiction have been fulfilled." Pleasant St. I, 960 F.2d at
1091 n.11. We proceed to consider the gestalt factors, bearing
in mind the flimsy showings of relatedness and purposeful
availment made by the plaintiffs in this case.
a. The Defendants' Burden of Appearance a. The Defendants' Burden of Appearance
The extent of the burden on the defendants to litigate
the malpractice action in New Hampshire falls short of reaching
constitutional significance. For Attorney Farrell and the
Speiser firm, the burden of defending in New Hampshire would not
be substantively different from the burden of litigating in
Florida. Of course, the comparative burden on Attorney Olin and
the Podhurst firm of litigating in New Hampshire rather than
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their home state would be greater. In Pritzker, however, this
Court recognized that defending in a foreign jurisdiction almost
always presents some measure of inconvenience, and hence this
factor becomes meaningful only where a party can demonstrate a
"special or unusual burden." 42 F.3d at 64. When, as here, a law
firm regularly represents clients outside its home state, we
conclude that the burden is neither special nor unusual.
b. The Forum State's Adjudicatory Interest b. The Forum State's Adjudicatory Interest
This Court has recently observed that "[t]he purpose of
[this] inquiry is not to compare the forum's interest to that of
some other jurisdiction, but to determine the extent to which the
forum has an interest." Foster-Miller, Inc. v. Babcock & Wilcox
Canada, 46 F.3d 138, 151 (1st Cir. 1995)(emphasis in original).
Although it is true that a forum state has a demonstrable
interest in obtaining jurisdiction over a defendant who causes
tortious injury within its borders, see Ticketmaster, 26 F.3d at
211, New Hampshire has a far less compelling interest in the
prosecution of a legal malpractice suit stemming from an injury
that occurred outside of its borders. Here, the acts comprising
the defendants' alleged negligence occurred almost entirely
outside of New Hampshire. See Donatelli, 893 F.2d at 472
("[A]part from a generalized concern for the rights of its own
domiciliaries, the [forum] state has no real interest in
adjudicating the controversy"). This factor thus cuts against
jurisdiction.
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c. The Plaintiffs' Interest in Obtaining Convenient Relief c. The Plaintiffs' Interest in Obtaining Convenient Relief
The third factor to consider is the plaintiffs'
interest in obtaining convenient and effective relief. We need
not dwell long here. This Court has repeatedly observed that a
plaintiff's choice of forum must be accorded a degree of
deference with respect to the issue of its own convenience. See,
e.g., Foster-Miller, Inc., 46 F.3d at 151; Pritzker, 42 F.3d at
64; Ticketmaster, 26 F.3d at 211. Here, unquestionably, it would
be more convenient for the Sawtelles to litigate their
malpractice claim in their home state rather than elsewhere.
d. The Administration of Justice d. The Administration of Justice
We next evaluate the judicial system's interest in
obtaining the most effective resolution of the controversy.
Although the Virginia defendants contend that this consideration
would best be satisfied by litigating the case in Florida, where
some of the defendants reside and where the wrongful death action
was pending, as in our oft-cited earlier case, "the interest of
the judicial system in the effective administration of justice
does not appear to cut in either direction" here. Ticketmaster,
26 F.3d at 211.
e. Pertinent Policy Arguments e. Pertinent Policy Arguments
This final "gestalt" factor requires us to consider the
common interests of all sovereigns in promoting substantive
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social policies. Here, the most prominent policy implicated is
the ability of a state to provide a convenient forum for its
residents to redress injuries inflicted by out-of-forum actors.
See Burger King, 471 U.S. at 473. This policy assumes added
importance in our age of advanced telecommunications, which has
so facilitated the representation of geographically distant
clients that it is not uncommon for a firm to represent a client
without meeting him or her in person or traveling to the client's
state of residence.
Although the concept of long-arm jurisdiction must
adjust as technological advances render blurry the boundaries
between the states, see World-Wide Volkswagen, 444 U.S. at 308-09
(Brennan, J., dissenting), we must heed the warning that "it is a
mistake to assume that this trend heralds the eventual demise of
all restrictions on the personal jurisdiction of state courts."
Pickens v. Hess, 573 F.2d 380, 387 (6th Cir. 1978)(quoting Hanson
v. Denckla, 357 U.S. at 251). To permit the exercise of personal
jurisdiction over the defendants in this case would require this
Court to disregard that sage advice.
IV. Conclusion IV. Conclusion
In review, the Sawtelles have demonstrated little more
than a bare minimum, if that, with respect to the first two
stages of the due process inquiry. The plaintiffs' showing of
relatedness is weak because their claim for legal malpractice did
not directly arise out of, nor was it related (in any meaningful
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way) to the law firms' contacts with New Hampshire. Moreover,
the law firms' telephone communications and correspondence into
the forum did not represent a "purposeful availment" by the firms
of the privilege of conducting business activities in New
Hampshire. The law firms did not meaningfully invoke the
benefits and protections of the laws of New Hampshire and the
haling of such defendants into New Hampshire's courts was not
foreseeable.
The frailty of plaintiffs' showings on relatedness and
purposeful availment is not strengthened as a result of our
consideration of the reasonableness of an exercise of
jurisdiction over the defendants by a New Hampshire court.
Although the exercise of jurisdiction may be proper when a
borderline showing of relatedness and purposeful availment is
supported by an especially solid showing of reasonableness, see
Ticketmaster, 26 F.3d at 210, our "gestalt" analysis in the
instant case fails to reveal any such fortification.
Accordingly, the decision of the district court is AFFIRMED. AFFIRMED
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