Sunview v. Flexel

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 1997
• Docket: 96-2173
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 96-2173


SUNVIEW CONDOMINIUM ASSOCIATION, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                             FLEXEL INTERNATIONAL, LTD.,



                                 Defendant, Appellee.

                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________



                   [Hon. James R. Muirhead, U.S. Magistrate Judge]
                                            _____________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                              _________________________


Christopher J. Sorenson, with whom Gary J. Gordon, Katherine
               _______________________            ______________  _________

          A.  Killen Hall,  Fetterly &  Gordon, P.A.,  John L.  Putnam, and
          _______________   ________________________   _______________

          Stebbins, Bradley, Wood & Harvey were on brief, for appellants.
          ________________________________

               Mark  G. DeGiacomo,  with  whom M.  Carolina Avellaneda  and
               __________________              _______________________

          Roche, Carens & DeGiacomo, P.C. were on brief, for appellee.
          _______________________________


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                                    June 27, 1997



                              _________________________



SELYA, Circuit  Judge.  In this  appeal, the plaintiffs
                    SELYA, Circuit  Judge.
                           ______________



          make two related arguments.   First, they contend that  they were



          improperly precluded from  undertaking jurisdictional  discovery.



          Second,  they assert that this  initial error was compounded when



          the district  court subsequently dismissed their  action for want



          of jurisdiction over  the corporate person  of defendant-appellee



          Flexel International, Ltd. (Flexel).1   Discerning no  reversible



          error, we affirm.



          I.  BACKGROUND
          I.  BACKGROUND



                    The Sunview Condominium  Complex is located amidst  the



          serene  pastoral beauty of Derry, New Hampshire.  On December 17,



          1993,  that   tranquility  went   up  in  smoke,   literally  and



          figuratively, when a conflagration erupted at the complex.  Those



          flames,  in turn,  ignited the  controversy which  underlies this



          appeal.   Alleging  that radiant  heating panels  manufactured by



          Flexel's  predecessor in interest, Thermaflex International, Ltd.



          (Thermaflex),  had  caused  the  blaze, the  Sunview  Condominium



          Association  and its  management  company, Evergreen  Management,



          Inc.  (collectively, Sunview),  brought  this  product  liability



          class action to recover damages.2

                              
          ____________________



               1The  plaintiffs  originally  sued  both  Flexel and  Aztech

          International,  Ltd. (Aztech).  Aztech  is now in bankruptcy, and

          the  district court  certified  its order  dismissing the  action

          against Flexel as  a final judgment under Fed.  R. Civ. P. 54(b).

          Thus, we treat the appeal as if Flexel were the sole defendant.



               2Sunview alleges that Thermaflex (the actual manufacturer of

          the heating panels) transferred its assets to Flexel in mid-1993.

          For the purpose of resolving the jurisdictional issue,  the lower

          court assumed  arguendo that  Flexel, a Scottish  corporation, is
                         ________

          the  successor in interest to  Thermaflex, an English  firm.  We,



                                          2



The  relevant  chronology  is   as  follows.    Sunview



          commenced  its suit  in August  1995.   In February  1996, Flexel



          moved  to dismiss  for  want of  personal jurisdiction.   Without



          having  undertaken any  other discovery,  Sunview sought  to take



          depositions of Flexel officials in Scotland.   When Flexel turned



          a  cold shoulder, Sunview moved to  compel it to cooperate in the



          taking  of the  desired depositions.   Magistrate  Judge Muirhead



          denied  Sunview's motion.   See  Sunview  Condo. Ass'n  v. Aztech
                                      ___  _____________________     ______



          Int'l, Ltd., Civ.  No. 95-418-B, slip  op. at 2-6 (D.N.H.  May 1,
          ___________



          1996).



                    Sunview did not lodge  an objection to the magistrate's



          ruling.  On May 28, 1996, it filed an opposition to the dismissal



          motion.  On September  3, the district court, finding  an absence



          of  minimum contacts, granted the motion to dismiss.  This appeal



          ensued.



          II.  ANALYSIS
          II.  ANALYSIS



                    Although   Sunview's   two   claims   of    error   are



          interconnected,  a separate  set of  legal principles  applies in



          each   instance.     Consequently,  we   treat  the   two  claims



          sequentially.



                       A.  Denial of Jurisdictional Discovery.
                       A.  Denial of Jurisdictional Discovery.
                           __________________________________



                    Sunview  argues  heatedly  that  it  should  have  been



          permitted   to  engage   in  jurisdictional   discovery.     This



          asseveration has  some superficial appeal.  After all, a diligent



          plaintiff who sues an out-of-state corporation  and who makes out

                              
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          too, proceed on that assumption.



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a colorable case  for the existence  of in personam  jurisdiction
                                                  __ ________



          may  well be entitled to a modicum of jurisdictional discovery if



          the  corporation  interposes  a  jurisdictional  defense.3    See
                                                                        ___



          Whittaker Corp.  v. United  Aircraft Corp.,  482 F.2d 1079,  1086
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          (1st Cir. 1973); Surpitski v. Hughes-Keenan Corp.,  362 F.2d 254,
                           _________    ___________________



          255-56 (1st Cir. 1966) (per curiam).  But that entitlement is not



          absolute; in all  events, it  presupposes that  the plaintiff  is



          reasonably  attentive to the preservation of its rights.  That is



          not the situation here.



                    When   Sunview  could  not  convince  Magistrate  Judge



          Muirhead  to approve the depositions  that it wished  to take, it



          dropped  the matter.  Specifically,  it eschewed the  filing of a



          timely objection to  the magistrate's order denying its motion to



          compel discovery.    This omission  is fatal  to Sunview's  first



          assignment of error.  We explain briefly.



                    Since  the  motion  to   compel  discovery  involved  a



          nondispositive matter, the magistrate's order  was effective when



          made, and it was therefore immediately appealable to the district



          court.  See 28 U.S.C.   636(b)(1)(A).  To receive  such review, a
                  ___



                              
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               3This rule  has its limitations.   See,  e.g., Compagnie  De
                                                  ___   ____  _____________

          Bauxites  De Guinee v. L'Union Atlantique S.A., 723 F.2d 357, 362
          ___________________    _______________________

          (3d Cir. 1983)  (indicating that discovery  may be disallowed  if

          the assertion of jurisdiction appears frivolous).  Moreover, even

          when the rule applies, the plaintiff is  not necessarily entitled

          to take  depositions.   Here,  Sunview never  attempted to  learn

          jurisdictional  facts  through  interrogatories  or  demands  for

          document production, see Fed. R.  Civ. P. 33, 34, and we  have no
                               ___

          way to tell either how effective these less intrusive devices may

          have been or to  what extent Flexel would have  sought protection

          from them (and if so, whether the magistrate would have permitted

          their use).



                                          4



party must file objections within ten days from service of a copy



          of the order.  See Fed. R. Civ. P. 72(a).  Unless an objection is
                         ___



          filed within this window of opportunity, a magistrate's  order on



          a nondispositive matter, such as a self-operating order granting,



          denying,  or  limiting  pretrial  discovery,  is  not  thereafter



          reviewable on  appeal.  See  Pagano v. Frank,  983 F.2d  343, 346
                                  ___  ______    _____



          (1st Cir. 1993); see also  Keating v. Secretary of HHS,  848 F.2d
                           ___ ____  _______    ________________



          271, 275 (1st Cir.  1988) (per curiam) (explicating same  rule in



          respect  to a  party's failure  to file  timeous objections  to a



          magistrate's  recommended disposition  of a  dispositive motion).



          The Civil Rules are quite explicit on this point:



                    Within 10 days after being served with a copy

                    of the magistrate judge's  order, a party may

                    serve and  file objections  to  the order;  a

                    party may not  thereafter assign  as error  a

                    defect in  the  magistrate judge's  order  to

                    which objection was not timely made.



          Fed.  R. Civ.  P.  72(a);  see  also  28  U.S.C.     636(b)(1)(A)
                                     ___  ____



          (empowering  the district  court  to reconsider  and set  aside a



          magistrate's  order on a nondispositive  matter when the order is



          clearly erroneous or contrary to law).



                    This  court has  applied  the plain  directive of  Rule



          72(a) straightforwardly and  in accordance with  its tenor.   See
                                                                        ___



          Pagano,  983 F.2d at 346;  Unauthorized Practice of  Law Comm. v.
          ______                     ___________________________________



          Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992) (per curiam); see also
          ______                                                   ___ ____



          United States  v. Ecker,  923  F.2d 7,  9  (1st Cir.  1991)  (per
          _____________     _____



          curiam) (citing  28 U.S.C.    636(b)(1)(A)).   These  cases stand



          unambiguously  for  the proposition  that,  in  order to  receive



          review  of a magistrate's order  on a nondispositive  matter in a



                                          5



court of  appeals, the  aggrieved  party first  must have  sought



          district court review by timely filing an objection to the order.



                    The instant  case presents no occasion  for a departure



          from this salutary  proposition.  Because Sunview never sought to



          have the district court review the magistrate's ruling, the issue



          of jurisdictional discovery is  by the boards and Sunview  cannot



          resurrect it in this venue.



                       B.  Dismissal for Want of Jurisdiction.
                       B.  Dismissal for Want of Jurisdiction.
                           __________________________________



                    Sunview argued below, as it does here, that Thermaflex,



          Flexel's predecessor in interest,  see supra note 2, purposefully
                                             ___ _____



          availed  itself  of  the  privilege  of  doing  business  in  New



          Hampshire,  and therefore  subjected itself  (and Flexel,  as its



          successor)  to  suits in  New Hampshire  arising  out of  its New



          Hampshire-directed activities.    Judge Barbadoro  rejected  this



          thesis, holding, after an  exhaustive review of the record,  that



          Sunview  had pointed  to  "insufficient  contact[s] to  establish



          Thermaflex's  purposeful availment of New Hampshire as a place to



          do business."  Sunview  Condo. Ass'n v. Aztech Int'l,  Ltd., Civ.
                         _____________________    ___________________



          No. 95-418-B,  slip op. at  10 (D.N.H.  Sept. 3, 1996).   Sunview



          assigns error to this order.4  We see none.



                    To wax longiloquent would serve no useful purpose.   We



          have  stated before, and today reaffirm, that "when a lower court



          produces  a comprehensive,  well-reasoned decision,  an appellate



                              
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               4Because Sunview  never  raised the  discovery issue  before

          Judge Barbadoro, see supra Part II(A), we pay no heed to its vain
                           ___ _____

          attempt to attack  the judge's  order on the  basis of  curtailed

          discovery.



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court should refrain from writing at length to no other end  than



          to  hear its  own words  resonate."   Lawton v.  State  Mut. Life
                                                ______     ________________



          Assur. Co. of  Am., 101 F.3d 218, 220 (1st  Cir. 1996); accord In
          __________________                                      ______ __



          re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d  36, 38 (1st
          __________________________________________



          Cir.  1993).    That  principle  is  dispositive   here.    Judge



          Barbadoro's  rescript cites  the  relevant case  law, see,  e.g.,
                                                                ___   ____



          Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Foster-Miller,
          ________    _______                                ______________



          Inc. v.  Babcock & Wilcox  Canada, 46  F.3d 138 (1st  Cir. 1995);
          ____     ________________________



          Ticketmaster-N.Y., Inc. v.  Alioto, 26 F.3d 201  (1st Cir. 1994);
          _______________________     ______



          Boit  v. Gar-Tech  Prods., Inc.,  967 F.2d  671 (1st  Cir. 1992),
          ____     ______________________



          applies the legal principles  derived therefrom to the documented



          facts in an impeccable manner, and reaches an  unarguably correct



          conclusion.   Hence, we  dispense with  this aspect of  Sunview's



          appeal  for substantially  the  reasons elucidated  in the  lower



          court's opinion.



                    We  need go  no  further.   Given Sunview's  procedural



          default on the discovery front and the paucity of  its proffer on



          the merits of  the jurisdictional issue, the  judgment below must



          be


Affirmed.
          Affirmed.
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