UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1692
TICKETMASTER-NEW YORK, INC.,
Plaintiff, Appellant,
v.
JOSEPH M. ALIOTO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Selya and Stahl, Circuit Judges.
Jonathan W. Lubell, with whom Malcolm I. Lewin, Frank
McClain-Sewer, Morrison Cohen Singer & Weinstein, Stephen R.
Wainwright, and Wainwright, Wainwright, Wainwright, Wainwright &
Wainwright were on brief, for appellant.
James A. G. Hamilton, with whom Theodore F. Schwartz, Jerry
Cohen, and Perkins, Smith & Cohen were on brief, for appellee.
April 13, 1994
SELYA, Circuit Judge. This case probes the frontiers SELYA, Circuit Judge.
of the doctrine of personal jurisdiction in a context fraught
with constitutional implications. The issue, simply put, is
this: Can a Massachusetts-based court, consistent with the Due
Process Clause, assert jurisdiction over a California resident
who is alleged to have made a defamatory comment during an
unsolicited telephone interview with a staff reporter for a
Massachusetts newspaper? We conclude, on the facts of this case,
that the lower court correctly disclaimed jurisdiction.
I. BACKGROUND
Inasmuch as the district court dismissed this suit for
failure of the plaintiff to make a prima facie jurisdictional
showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st
Cir. 1992), we draw the facts from the pleadings and the parties'
supplementary filings, including affidavits, taking facts
affirmatively alleged by plaintiff as true and construing
disputed facts in the light most hospitable to plaintiff. Of
course, we do not credit conclusory allegations or draw
farfetched inferences. See generally Dartmouth Review v.
Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (discussing line
between "facts" and "conclusions" for purposes of a motion to
dismiss).
Defendant-appellee Joseph M. Alioto is an attorney
practicing in California. Among his other cases, Alioto is
pressing a class action in the California courts against
Ticketmaster-Southern California, Inc. (T-SC). T-SC, a
California-based corporation, is affiliated with Ticketmaster-New
York, Inc. (T-NY), a Delaware corporation. Both Ticketmaster
entities are engaged in the business of selling ducats to
entertainment events.
The litigation between T-NY and Alioto finds its
genesis in the decision by the Boston Globe, a daily newspaper,
to undertake an investigation into pricing practices on
"Ticketmaster's" part.1 In conducting this investigation, a
Globe reporter conversed by telephone with Alioto. The plaintiff
does not allege, and the record does not suggest, that Alioto
dialed the telephone or otherwise initiated the call. The record
is equally barren of any showing that Alioto solicited the
inquiry2 or that more than one call occurred. It is clear,
nevertheless, that Alioto, who was in California, knew when
speaking that his comments would inform a story slated for
publication in a newspaper circulated chiefly in Massachusetts.
The investigation culminated in a front-page expose
that hit the newsstands on Sunday, September 20, 1992, under the
banner headline, "Rising ticket fees pad concert profits." The
ensuing article contained over fifty paragraphs. Well past the
midpoint, the article mentioned mounting complaints about price
1The article that capped this investigation makes no attempt to distinguish among corporate entities (although it contains one vague reference to "Ticketmaster and its affiliates"). At no point does the article refer by name to either T-NY or T-SC.
2Although there is a passing allusion in the record to a press release issued by Alioto regarding the lawsuit against T- SC, there is no indication that he forwarded this release to Massachusetts or that it sparked the Globe's story.
gouging in New York and California. It then reported that "three
class action antitrust lawsuits" had recently been filed "against
Ticketmaster" in California. There followed the paragraph around
which this controversy revolves (buried deep in the body of the
article). We quote the allegedly offending paragraph in full,
and, in the interests of context, add the beginning of the
following paragraph.
Attorney Joseph M. Alioto, who filed one of the suits, charged that kickbacks are the key to Ticketmaster's California monopoly. "They're nothing more than a straight bribe," he said. Ticketmaster and its affiliates took on their California adversaries in typical aggressive fashion, . . .
Based on this reported comment, T-NY brought suit
against Alioto in the United States District Court for the
District of Massachusetts. Invoking diversity jurisdiction, 28
U.S.C. 1332 (1988), it alleged that Alioto, with the requisite
intent, conveyed and/or caused to be conveyed certain defamatory
impressions of and concerning T-NY, namely, that T-NY engaged in
bribery and related criminal conduct.
In due season, Alioto moved to dismiss. T-NY objected.
The district judge heard oral argument and dismissed the action
for lack of in personam jurisdiction, concluding that appellant
failed to make the requisite showing at every stage of the
obligatory jurisdictional inquiry under the due process clause.
See United Electrical Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1089 (1st Cir. 1992) (Pleasant St. I) (discussing nature of
requisite inquiry). Two perceptions figured prominently in the
district court's reasoning. First, the defendant did not
actively shape and focus the reporter's story, but, rather,
passively responded to a telephone call. Second, the allegedly
defamatory comment dealt with the California activities of a
California corporation, T-SC, and did not pertain to T-NY.
Plaintiff appeals. Because the court below dismissed
the case on legal grounds, without convening an evidentiary
hearing or resolving contested evidentiary questions, appellate
review is plenary. See United Electrical Workers v. 163 Pleasant
St. Corp., 987 F.2d 39, 43-44 (1st Cir. 1993) (Pleasant St. II);
Boit, 967 F.2d at 675. In conducting this tamisage, we are not
wedded to the district court's rationale, but remain free to
affirm the judgment below on any independently sufficient ground
made manifest by the record. See Martel v. Stafford, 992 F.2d
1244, 1245 (1st Cir. 1993).
II. ANALYSIS
To subject a non-resident defendant to its jurisdiction
in a diversity case, a court and for this purpose, a federal
court exercising diversity jurisdiction is the functional
equivalent of a state court sitting in the forum state, see
General Contracting & Trading Co. v. Interpole, Inc., 940 F.2d
20, 23 n.4 (1st Cir. 1991) must find contacts that, in the
aggregate, satisfy the requirements of both the forum state's
long-arm statute and the Fourteenth Amendment.3 See Pleasant
3To be sure, the extent of the necessary jurisdictional showing varies depending upon whether a litigant asserts jurisdiction over an adverse party under a theory of "general" or
St. I, 960 F.2d at 1086 ("In Massachusetts, a court may exercise
personal jurisdiction over a foreign defendant if such
jurisdiction is authorized by state statute or rule and its
exercise does not offend due process."); Bond Leather Co. v. Q.T.
Shoe Mfg. Co., 764 F.2d 928, 931 (1st Cir. 1985) (similar). The
district court determined that T-NY satisfied neither of these
two prerequisites. We explore these determinations.
A. The State Statute.
The applicable Massachusetts statute, familiarly known
as "section 3(c)," deals with torts committed by persons who have
no ongoing relationship with the forum state. The language of
this provision tracks the Uniform Interstate and International
Procedure Act, and differs significantly from other leading
formulations. See Murphy v. Erwin-Wasey, Inc., 460 F.2d 661,
663-64 (1st Cir. 1972); see also Margoles v. Johns, 483 F.2d
1212, 1216 (D.C. Cir. 1973). The statute states:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's . . . (c) causing tortious injury by an act or omission in this Commonwealth . . . .
Mass. Gen. Laws ch. 223A, 3 (1986).
Although the lower court did not reach the question of
jurisdiction under state law, we have pondered whether the case
might more appropriately be dispatched on that basis. After all,
"specific" jurisdiction. See Donatelli v. National Hockey
League, 893 F.2d 459, 462-63 (1st Cir. 1990) (elucidating
standards and enumerating differences). Here, plaintiff's case stands or falls on a theory of specific jurisdiction.
"[i]t has long been a basic tenet of the federal courts to eschew
the decision of cases on constitutional grounds unless and until
all other available avenues of resolution [have been] exhausted."
Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 726 (1st Cir.
1984). But here, as we explain below, the state-law issues are
extremely murky. Thus, on balance, we agree with the district
court that it makes sense to resolve the jurisdictional question
on constitutional grounds.
In the first place, although logic suggests that, on
these facts, the defendant cannot be said to have performed "an
act" in Massachusetts, that suggestion is not easily reconciled
with Murphy. There, we ruled that an allegedly tortious act
committed outside the borders of Massachusetts, purposefully
directed at the state and intended to cause injury there, could
constitute an in-forum act within the meaning of section 3(c).
See Murphy, 460 F.2d at 664. While Murphy can be distinguished
on the ground that it was decided in the context of fraudulent
misrepresentation, as opposed to defamation,4 its interpretation
of section 3(c) is worded in general terms and its reasoning
conceivably could be transferred to the defamation context.
Despite our profound reservations about extending the Murphy
4Appellant argues that we have already extended Murphy to
the defamation arena in Hugel v. McNell, 886 F.2d 1 (1st Cir.
1989), cert. denied, 494 U.S. 1079 (1990). We do not think Hugel
must necessarily be read so broadly. That case turned on a construction of the New Hampshire long-arm statute, N.H. Rev. Stat. Ann. 510:4 (1993), and the New Hampshire statute, unlike its Massachusetts counterpart, does not embody the language of the Uniform Act.
rationale,5 it spreads a shadow of uncertainty over the state-
law issues.
In the second place, because we are skeptical that
defendant made any remark "of and concerning" T-NY, we harbor
doubts whether defendant can be said to have inflicted any
"tortious injury" within the meaning of section 3(c).6 We are,
however, hesitant to move beyond an expression of skepticism. At
this stage of the proceedings, appellant has not had the benefit
of an evidentiary hearing or a comparable opportunity (say,
access to the full-dress summary judgment protocol after a
reasonable period of discovery) for presenting proof. Thus, it
may be too early to reach the state-law issues.
To be sure, our reservations about one or both of these
5Intuitively, it would seem hard to characterize the act of publishing an allegedly defamatory remark outside the forum state as an act within the forum state. In fact, no fewer than five courts applying long-arm statutes patterned after the Uniform Act have eschewed Murphy's reasoning in the defamation context and
declined to assert jurisdiction on this basis. See Reuber v.
United States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dietrich v.
Wisconsin Patients Comp. Fund, 485 N.W.2d 614, 617-18 (Wis. Ct.
App. 1992); Wheeler v. Teufel, 443 N.W.2d 555, 558 (Minn. Ct.
App. 1989); Ramada Inns, Inc. v. Drinkhall, No. 83C-AU-ty,
unpaginated slip op. available on LEXIS (Del. Super. Ct. 1984); Zinz v. Evans & Mitchell Indus., Inc., 324 A.2d 140, 144 (Md.
App. 1974); see also St. Clair v. Righter, 250 F. Supp. 148, 151
(W.D. Va. 1966) (using similar reasoning to interpret long-arm statute containing "tortious act" language); see generally
Margoles, 483 F.2d at 1218-19 (criticizing Murphy's
interpretation of language drawn from the Uniform Act).
6In Massachusetts, a court has power to determine, as a matter of law, that a particular remark is not susceptible of any defamatory construction "of and concerning" the plaintiff, and, therefore, not actionable. See Eyal v. Helen Broadcasting Corp.,
583 N.E.2d 228, 232 (Mass. 1991). At least one court has used this type of power to dismiss a defamation case on jurisdictional grounds. See Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 1982).
points might well be resolved upon closer perscrutation. But
there is no need to sally forth. Because it is apodictic that a
jurisdiction-seeking plaintiff must satisfy the demands of not
only state law but also the federal Constitution, see Pleasant
St. I, 960 F.2d at 1086, and because T-NY's case cannot pass
constitutional muster, we choose to bypass the statutory phase of
the jurisdictional inquiry. Consistent with this approach, we
accept appellant's alleged facts as true for present purposes and
assume arguendo that the allegedly defamatory remark concerned T-
NY.
B. The Due Process Clause.
Divining personal jurisdiction is "more an art than a
science." Donatelli v. National Hockey League, 893 F.2d 459, 468
n.7 (1st Cir. 1990).7 In broad outline, a party wishing to
validate a court's jurisdiction must show that "minimum contacts"
exist between the defendant and the forum state. International
Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945). To
establish minimum contacts on a theory of specific jurisdiction,
a plaintiff must first demonstrate that its cause of action
"arises out of, or relates to" defendant's contacts with the
forum state, Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414 (1984). Then, the plaintiff must demonstrate
the deliberateness of the defendant's contacts, or, phrased
7In Donatelli, 893 F.2d at 462-65, we chronicled the
historical development of due process standards for personal jurisdiction, and in Pleasant St. I, 960 F.2d at 1089, we
rehearsed the current state of the law.
another way, that the defendant "purposefully avail[ed] itself of
the privilege of conducting activities within the forum State."
Hanson v. Denckla, 357 U.S. 235, 253 (1958).
Even if a plaintiff succeeds in making these two
showings, it is not home free. The defendant may nonetheless
avoid having to defend in a strange place if it can establish
that allowing the suit to go forward would be inconsistent with
"fair play and substantial justice," International Shoe, 326 U.S.
at 320.
Following this analytic model, we first assess
relatedness and purposeful availment in terms of their
applicability to the case at hand. Finding them to be
inconclusive in this rather odd situation, we then mull the
extent to which considerations of fairness and substantial
justice must influence our ultimate decision.
1. Relatedness. The requirement that a suit arise out 1. Relatedness.
of, or be related to, the defendant's in-forum activities
comprises the least developed prong of the due process inquiry.
See Pleasant St. I, 960 F.2d at 1089 & n.9; see also Carnival
Cruise Lines v. Shute, 499 U.S. 585, 589 (1991) (declining to
reach issue despite having certified it for review). We know to
a certainty only that the requirement focuses on the nexus
between the defendant's contacts and the plaintiff's cause of
action.
The Court has kept its own counsel on the question of
whether, on the one hand, the two halves of the relatedness
requirement are merely two ways of expressing the same thought
or, on the other hand, they are meant to import different values
into the jurisdictional equation. See Helicopteros, 466 U.S. at
415 n.10 (reserving question). For our part, we think it
significant that the constitutional catchphrase is disjunctive in
nature, referring to suits "aris[ing] out of, or relat[ing] to,"
in-forum activities. Id. at 414 (emphasis supplied). We believe
that this added language portends added flexibility and signals a
relaxation of the applicable standard. A number of other courts
share this belief. See, e.g., City of Virginia Beach v. Roanoake
River Basin Ass'n, 776 F.2d 484, 487 (4th Cir. 1985); Southwire
Co. v. Trans-World Metals & Co., 735 F.2d 440, 442 (11th Cir.
1984); Thos. P. Gonzalez Corp. v. Consejo Nacional de Production,
614 F.2d 1247, 1254 (9th Cir. 1980); see also In re Oil Spill by
the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir. 1983).
While we do not have occasion today to give fuller
content to the relatedness requirement,8 it is evident that the
requirement serves two functions. First, relatedness is the
8At least one scholar reads a line of First Circuit cases as going beyond this point and proposing an innovative constitutional test. See Mark M. Maloney, Specific Personal
Jurisdiction and the "Arise From or Relate to" Requirement . . .
What Does it Mean? 50 Wash. & Lee L. Rev. 1265, nn. 118-130 &
accompanying text (1993). In our view, these cases which interpret the term "arising from" as that term is used in the long-arm statutes of Massachusetts, see Fournier v. Best Western
Treasure Island Resort, 962 F.2d 126, 127 (1st Cir. 1992); Marino
v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986), and Puerto
Rico, see Pizarro v. Hoteles Concorde Int'l, Inc., 907 F.2d 1256,
1259-60 (1st Cir. 1990) deal with state-law issues and have no real implications for the relatedness requirement specifically or for constitutional analysis generally.
divining rod that separates specific jurisdiction cases from
general jurisdiction cases. Second, it ensures that the element
of causation remains in the forefront of the due process
investigation. Even if the facts are such that a court may not
dismiss a given case for lack of relatedness per se, the
relatedness requirement, in serving its second function,
authorizes the court to take into account the strength (or
weakness) of the plaintiff's relatedness showing in passing upon
the fundamental fairness of allowing the suit to proceed.
In this vein, it is important to recognize that, when
the defendant in a defamation action is a journalist's source,
the link between the defendant's conduct and the cause of action
is attenuated by the intervening activities of third parties,
e.g., the reporter, the editor, the media outlet, and that those
intermediaries shape, amplify, and occasionally distort the
original utterance. This case illustrates the point. The
original comment, technically a tort in its own right (if
defamatory), inflicted no significant injury, except insofar as
it led to republication in the ensuing newspaper article and
the form and tone of the republication was not by any stretch of
the most active imagination within the defendant's effective
control.
2. Purposeful Availment. The question here must be 2. Purposeful Availment.
phrased in terms of whether an individual who merely answers a
telephone call, but, having done so, knowingly directs his
comments into the forum state, may be said to have purposefully
availed himself of the privilege of conducting activities in the
state.9
To answer the question, we begin by considering McBreen
v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), a case that
the district court thought highly pertinent and that Alioto touts
as dispositive. There, the Seventh Circuit refused to sanction
the exercise of jurisdiction because the defendant, a
journalistic source, did not initiate the defamatory exchange,
and, being unaware of either the reporter's whereabouts or the
magazine's reach, could not reasonably have foreseen that his
comment would cause injury in the forum state. See id. at 28.
The two conditions identified as salient in McBreen
correspond to the two cornerstones of purposeful availment. One
cornerstone is foreseeability. See, e.g., Escude Cruz v. Ortho
Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir. 1980); see also
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)
(stating that, for a court to assert jurisdiction, a defendant's
"conduct and connection with the forum State [must be] such that
he should reasonably anticipate being haled into court there").
The second cornerstone, less frequently recognized as such, is
9Appellant's efforts to reframe this question by hinting that Alioto instigated the call are unavailing. The burden of proving jurisdictional facts rests on the shoulders of the party who seeks to invoke the court's jurisdiction. See McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Martel, 992 F.2d at 1247 n.5; Pleasant St. I, 960 F.2d at 1090.
On this principle, and in the absence of even a representation or firm allegation to the contrary, we must presume, as did the court below, that Alioto played no part in initiating the telephone call.
voluntariness. See Vencedor Mfg. Co. v. Gougler Indus., Inc.,
557 F.2d 886, 891 (1st Cir. 1977); see also Burger King Corp. v.
Rudziewicz, 471 U.S. 462, 475 (1985) (cautioning that
jurisdiction may not rest on the "unilateral activity of another
party or a third person"). In McBreen, these two cornerstones
were poorly laid: a failed showing of foreseeability and a
questionable showing of voluntariness combined to form an
insufficiently sturdy foundation to support in personam
jurisdiction. The instant case, which amalgamates an arguably
successful showing of foreseeability with a dubious showing of
voluntariness, is a closer call. We turn, then, to a broader
survey of analogous case law.
Courts are consentient that when, as in McBreen, the
source of an allegedly defamatory remark did not initiate the
pivotal contact, and the in-forum injury is not reasonably
foreseeable, jurisdiction may not be asserted over the source
based on the comment.10 See, e.g., Madara v. Hall, 916 F.2d
1510, 1517-19 (11th Cir. 1990); Mann v. Tom James Co., 802 F.
Supp. 1293, 1296-97 (E.D. Pa. 1992). However, when the source
10Appellant characterizes Hugel v. McNell, 886 F.2d 1 (1st
Cir. 1989), cert. denied, 494 U.S. 1079 (1990), and Advanced
Dictating Supply, Inc. v. Dale, 524 P.2d 1404 (Ore. 1974), as
cases in which courts asserted jurisdiction even though defamatory exchanges were initiated by persons other than the defendants. We reject the characterization. Our opinion in Hugel, read in context, makes it clear that the defendants played
an active role, meeting repeatedly with journalists and supplying them with audiotapes and other information. See Hugel, 886 F.2d
at 2-3. The Advanced Dictating court likewise found sufficient
evidence to conclude that the defendants incited the reporter's telephone call. See Advanced Dictating, 524 P.2d at 1406-07.
takes the initiative and causes foreseeable injury, jurisdiction
may lie. See, e.g., Brown v. Flowers Indus., Inc., 688 F.2d 328,
333-34 (5th Cir. 1982); Rusack v. Harsha, 470 F. Supp. 285, 291
(M.D. Pa. 1978); Fallang v. Hickey, 532 N.E.2d 117, 118-19 (Ohio
1988); see also supra note 10 and cases discussed therein.
This case falls between the stools, for, although the
source did not initiate the contact, the resultant in-forum
injury was foreseeable. In this posture, the authorities are
divided. Two courts have declined jurisdiction under such
circumstances. See National Ass'n of Real Estate Appraisers v.
Schaeffer, Bates & Co., 1989 U.S. Dist. LEXIS 3098 at *2, *10
(C.D. Cal. Mar. 23, 1989) (refusing to assert jurisdiction over a
Rhode Island source for comments made in the course of responding
to a telephone call from a reporter for a California newspaper);
McDonald v. St. Joseph's Hosp., 574 F. Supp. 123, 124, 126-27
(N.D. Ga. 1983) (similar; individual defendant answered several
telephone calls from a hospital interested in employing
plaintiff, and made allegedly defamatory remarks with full
knowledge of their potential consequences). At least one other
court has asserted jurisdiction in such a situation. See Dion v.
Kiev, 566 F. Supp. 1387, 1388-90 (E.D. Pa. 1983) (exercising
jurisdiction over a New York defendant who answered a telephone
call from a reporter for a Philadelphia newspaper). Other straws
in the decisional wind blow in differing directions.11
11In examining the case law, we have considered and rejected appellant's suggested analogy to a line of fraudulent misrepresentation cases. See, e.g., Ealing Corp. v. Harrods
Compare, e.g., Berrett v. Life Ins. Co. of the Southwest, 623 F.
Supp. 946, 950 n.3 (D. Utah 1985) (declining to assert
jurisdiction, discussing McBreen, and treating the fact that the
defendant did not initiate the contact as dispositive) with,
e.g., Cole v. Doe, 258 N.W.2d 165, 168 (Mich. 1977) (upholding
jurisdiction, without any discussion of initiation, where a
source, able to foresee republication in the forum state, made an
allegedly defamatory remark in a telephone interview with a
nationally syndicated columnist).
Having found the case law in a muddle, we consider
appellant's invitation that we adopt the classic analogy for an
out-of-state libel: the gunman firing across a state line. See
Buckley v. New York Post Corp., 373 F.2d 175, 179 (2d Cir. 1967).
In a situation like this one, the analogy is imperfect. The
person who responds to a journalist's question in the course of
an interview initiated by the latter is less like a traditional
sniper and more like a person who has been transported to the
border and eased into position behind a rifle aimed at a pre-
selected target. While such a person retains the choice of
pulling the trigger, or not, he cannot fairly be equated with an
individual who has achieved the same position through a series of
Ltd., 790 F.2d 978, 982 (1st Cir. 1986); Murphy, 460 F.2d at 663-
64; Johnson v. Witkowski, 573 N.E.2d 513, 523 (Mass. App. 1991);
Burtner v. Burnham, 430 N.E.2d 1233, 1236 (Mass. App. 1982).
These cases are unhelpful because a business relationship almost invariably entails some degree of initiative and forethought on the part of the persons involved, and, therefore, initiation and foreseeability are necessarily present.
personalized affirmative choices reaffirmed at every significant
juncture.12
The conclusion that we draw from this line of reasoning
is that appellant has made only the most marginal of showings
that Alioto purposefully availed himself of an opportunity to act
in Massachusetts. And the weakness of this showing assumes
decretory significance when we step back and evaluate the
fairness of asserting jurisdiction in the totality of the
circumstances.
3. The Gestalt Factors. In constitutional terms, the 3. The Gestalt Factors.
jurisdictional inquiry is not a mechanical exercise. The Court
has long insisted that concepts of reasonableness must inform a
properly performed minimum contacts analysis. See, e.g.,
Woodson, 444 U.S. at 292; International Shoe, 326 U.S. at 320.
"This means that, even where purposefully generated contacts
exist, courts must consider a panoply of other factors which bear
upon the fairness of subjecting a nonresident to the authority of
a foreign tribunal." Pleasant St. I, 960 F.2d at 1088; accord
Donatelli, 893 F.2d at 464-65. The Supreme Court has identified
five such factors, namely, (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
12Withal, we recognize that a person speaking on the telephone is free to refrain from making defamatory statements in the same way that a person standing beside a telephone is free to refrain from calling a reporter. In terms of moral philosophy, both persons, by acting, commit acts of will.
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. We have
labelled this group of considerations the "gestalt factors." See
Pleasant St. I, 960 F.2d at 1088; Donatelli, 893 F.2d at 465.
The gestalt factors are not ends in themselves, but
they are, collectively, a means of assisting courts in achieving
substantial justice. In very close cases, they may tip the
constitutional balance. See Burger King, 471 U.S. at 477-78
(explaining that "minimum requirements inherent in the concept of
'fair play and substantial justice' may defeat the reasonableness
of jurisdiction even if the defendant has purposefully engaged in
forum activities") (citation omitted). For example, in Asahi
Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987), eight
Justices agreed that asserting jurisdiction would be
unreasonable, although the question of minimum contacts was so
close that it divided the Court. See id. at 114-15. In the
estimation of at least four Justices, considerations of
reasonableness sufficed to defeat jurisdiction notwithstanding
that the defendant purposefully engaged in activities within the
forum. See id. at 116-17 (separate opinion of Brennan, J.,
joined by White, Marshall, & Blackmun, JJ.). Justice Stevens,
although not joining Justice Brennan's concurrence, expressed
satisfaction with the theory underlying this conclusion. See id.
at 121-22 (separate opinion of Stevens, J.).
This aspect of the jurisdictional inquiry remains
something of an unknown quantity. The gestalt factors have been
applied by the Court only once (in Asahi); beyond mere mention,
they have been discussed on rare occasions by the courts of
appeals, see, e.g., Gould v. Krakatau Steel, 957 F.2d 573, 576
(8th Cir.), cert. denied, 113 S. Ct. 304 (1992); Theunissen v.
Matthews, 935 F.2d 1454, 1460-61 (6th Cir. 1991), and they have
been used regularly to defeat jurisdiction only in the Ninth
Circuit, see Mona A. Lee, Burger King's Bifurcated Test for
Personal Jurisdiction, 66 Temp. L. Rev. 945 (1993) (surveying
circuits). That circuit has concluded that dismissal may be
appropriate on grounds of reasonableness even if considerations
of relatedness or purposefulness, taken in isolation, could
support the exercise of jurisdiction. See Fields v. Sedgwick
Associated Risks, Ltd., 796 F.2d 299, 302 (9th Cir. 1986)
(finding the assertion of jurisdiction unreasonable though the
showing of purposefulness was "certainly of a nature that would
support jurisdiction"); see also FDIC v. British-American Ins.
Co., 828 F.2d 1439, 1442 (9th Cir. 1987) (collecting cases in
which courts denied jurisdiction for lack of reasonableness
without resolving questions anent relatedness and
purposefulness); Decker Coal Co. v. Commonwealth Edison Co., 805
F.2d 834, 840 (9th Cir. 1986) (limning Ninth Circuit's multi-
factor reasonableness test).
We agree in principle with the Ninth Circuit. We hold,
therefore, that the Due Process Clause bars a court from
asserting jurisdiction over the person of a defendant if doing so
would be fundamentally unfair. In this context, gauging fairness
requires an assessment of reasonableness for, in certain
circumstances, unreasonableness can trump a minimally sufficient
showing of relatedness and purposefulness. We think, moreover,
that the reasonableness prong of the due process inquiry evokes a
sliding scale: the weaker the plaintiff's showing 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. See Donatelli, 893
F.2d at 465. It is against this backdrop, then, that we proceed
to sift the gestalt factors.13
a. The Burden of Appearance. The burden associated a. The Burden of Appearance.
with forcing a California resident to appear in a Massachusetts
court is onerous in terms of distance, and there are no
mitigating factors to cushion that burdensomeness here. This
burden, and its inevitable concomitant, great inconvenience, are
entitled to substantial weight in calibrating the jurisdictional
scales. Indeed, the Court has stated that this element, alone
13The approach that we endorse today differs slightly from that of the Ninth Circuit, which has crafted its own version of a sliding scale approach. The Ninth Circuit's methodology, as we understand it, incorporates the element of purposefulness into the third prong of the inquiry, and weighs it against the remaining considerations of reasonableness. See Core-Vent Corp.
v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993); see also
Insurance Co. of North Am. v. Marina Salina Cruz, 649 F.2d 1266,
1271 (9th Cir. 1981) ("The smaller the element of purposeful interjection, the less is jurisdiction to be anticipated and the less reasonable is its exercise.").
among the gestalt factors, is "always a primary concern."
Woodson, 444 U.S. at 292.
These are not empty words, for most of the cases that
have been dismissed on grounds of unreasonableness are cases in
which the defendant's center of gravity, be it place of residence
or place of business, was located at an appreciable distance from
the forum. See, e.g., Asahi, 480 U.S. at 114 (Japanese defendant
sued in California); Core-Vent Corp. v. Novel Indus. AB, 11 F.3d
1482, 1488-90 (9th Cir. 1993) (Swedish defendant sued in
California; defamation action); Amoco Egypt Oil Co. v. Leonis
Navigation Co., 1 F.3d 848, 852 (9th Cir. 1993) (Filipino
defendant sued in Washington); Casualty Assur. Risk Ins.
Brokerage Co. v. Dillon, 976 F.2d 596, 600 (9th Cir. 1992)
(District of Columbia defendant sued in Guam; defamation action);
Fields, 796 F.2d at 302 (British defendant sued in California).
The effect of distance on jurisdictional outcomes is graphically
illustrated by the two cases in which a defendant's contacts with
the forum were most strikingly reminiscent of those that have
been assembled here. Compare National Ass'n of Real Estate
Appraisers, 1989 U.S. Dist. LEXIS at *11 (declining to assert
jurisdiction over Rhode Island defendant who would have had to
defend defamation suit in California) with Dion, 566 F. Supp. at
1387 (asserting jurisdiction over New York defendant forced to
defend defamation suit in Pennsylvania).
Furthermore, as the court below observed, the
circumstances surrounding this case suggest that the
inconvenience to the defendant may not be coincidental. It is
the rare libel case in which both the newspaper and the reporter,
though amenable to process, are relegated to the sidelines at the
behest of an avowedly defamed plaintiff. It is rarer still to
discover that such a plaintiff has intentionally selected a forum
in which punitive damages are unavailable, bypassing other fora
in which such damages might be awarded.
Such considerations are important. One reason that the
factor of inconvenience to the defendant weighs heavily in the
jurisdictional balance is that it provides a mechanism through
which courts may guard against harassment. It is firmly settled
that a "plaintiff may not, by choice of an inconvenient forum,
`vex,' `harass,' or `oppress' the defendant by inflicting upon
him expense or trouble not necessary to his own right to pursue
his remedy." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)
(citations omitted). And although vexatious suits are more
frequently dismissed under the doctrine of forum non conveniens,
we believe that the reasonableness analysis required by the third
prong of the due process inquiry must be in service to the same
ends.
b. Interest of the Forum. The forum state has a b. Interest of the Forum.
demonstrable interest in exercising jurisdiction over one who
causes tortious injury within its borders. See Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 776 (1984). Though we deem it
inappropriate to correlate the strength or weakness of
appellant's case on the merits with the strength or weakness of
the forum state's interest in this regard, we think it is both
appropriate and useful to note two special considerations.
First, the Commonwealth's interest in the litigation sub judice
is arguably lessened by the doubts surrounding whether
defendant's act can be said to have been committed in the forum,
see supra p. 7. Second, if appellant in fact filed suit
primarily to retaliate against Alioto's role in the California
litigation rather than to right an independent wrong and as
previously mentioned there are some clues in the record that
could lead to such a deduction the Commonwealth's interest
would be much diminished. Cf., e.g., Asahi, 480 U.S. at 114-15
(minimizing forum state's interest in protecting its citizens
from tortious injury because a dispute was "primarily about
indemnification rather than safety standards"). Mindful of these
special considerations, we conclude that the forum has a milder
than usual interest in the further prosecution of T-NY's suit.
c. The Plaintiff's Convenience. Given the sparseness c. The Plaintiff's Convenience.
of the record, it is difficult to say whether trying the case in
Massachusetts would be more convenient for plaintiff than trying
it in California. Certain key witnesses on the issue of injury
may be in Massachusetts, including the reporter. But other key
witnesses may well be residents of California. While we must
accord plaintiff's choice of forum a degree of deference in
respect to the issue of its own convenience, see Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 241 (1981), the plaintiff's actual
convenience seems to be at best a makeweight in this situation.
d. The Administration of Justice. Apart from the d. The Administration of Justice.
possibility that plaintiff's action might be thought vexatious,
see supra Part II(B)(3)(a), the interest of the judicial system
in the effective administration of justice does not appear to cut
in either direction.
e. Pertinent Policy Arguments. One substantive social e. Pertinent Policy Arguments.
policy that seems to counsel against exercising jurisdiction is
the widely shared interest in preserving citizens' willingness
to talk openly with the press. Forcing an individual to fly
cross-country on the strength of one answered telephone call from
a journalist likely would tend to dry up sources of information
and thereby impede the press in the due performance of its proper
function. Nonetheless, the Court has shied away from allowing
First Amendments concerns to enter into the jurisdictional
analysis. See Keeton, 465 U.S. at 780 n.12; Calder v. Jones, 465
U.S. 783, 790 (1984). Although it might be argued convincingly
that the jurisdictional calculus ought to produce somewhat
different results in defamation actions filed against reporters'
sources than in actions filed against the journalists responsible
for republication of a source's remark, as in Calder, or against
the media corporation itself, as in Keeton, these precedents give
us pause. Consequently, we place no weight on First Amendment
values for purposes of this appeal.
4. Tallying the Results. We begin the final phase of 4. Tallying the Results.
our analysis by retracing our steps. At the first stage of the
due process inquiry, appellant succeeded in showing that its
putative cause of action arose from, or related to, defendant's
contacts with the forum. See supra Part II(B)(1). At the second
stage of the inquiry, appellant succeeded in showing defendant's
purposeful availment. See supra Part II(B)(2). On neither
prong, however, did appellant demonstrate more than a bare
minimum; we found its claim of relatedness enfeebled by the
attenuated causal link between the allegedly defamatory utterance
and the harm allegedly suffered, and its claim of purposefulness
enfeebled by the fact that the defendant did not initiate either
the telephone call or the resultant interview.
The frailty of appellant's showings on the first two
furcula of the due process inquiry required us to consider the
gestalt factors and assess the reasonableness of an assertion of
jurisdiction by a Massachusetts court. Doing so, see supra Part
II(C), we found that, while many of those factors possess little
significance for purposes of this case, there is one factor the
defendant's convenience that stands out from the crowd. It is
this factor that consistently has been declared deserving of the
greatest weight in kindred cases. And it is this factor that may
serve as an amulet to ward off vexatiousness and harassment. We
now conclude, considering the totality of the circumstances, that
defendant's burden of appearance is so onerous that it renders
the exercise of in personam jurisdiction unreasonable. This
conclusion carries the day. A distant court cannot
constitutionally exercise in personam jurisdiction over a non-
resident defendant at the behest of a plaintiff who can muster
only the most tenuous showings of relatedness and purposefulness
if, as in this case, forcing the defendant to defend in the forum
would be plainly unreasonable.
This is as it should be, for, at bottom, the dictates
of due process demand that a court's assertion of in personam
jurisdiction comport with considerations of fair play and
substantial justice. See, e.g., International Shoe, 326 U.S. at
320. To ensure achievement of this goal, the machinery of
jurisdictional analysis is designed to refine judges' intuitions
about the relevant equities, not to eliminate those equities from
the decisional process. Relatedness and purposeful availment are
cogs in this analytic machinery. The gestalt factors comprise
the machinery's fail-safe device; they are not a necessary part
of the machinery's day-to-day operation, but if, in the course of
a particularized analysis, the gears mesh imperfectly because a
given set of facts does not fit into any of the standard molds,
the gestalt factors take hold.
This case exemplifies the proper operation of the fail-
safe device. It hardly seems fair, on the strength of a single
remark uttered in the course of a single unsolicited telephone
call from a Massachusetts-based journalist, to compel a
California resident to defend a tort suit in a court 3000 miles
away. The unfairness is heightened because the link between the
remark and the injury has been attenuated by republication in the
popular press. Our commitment to fair play and substantial
justice precludes us from subjecting a person to the rigors of
long-distance litigation on the basis of so gossamer a showing of
causation and voluntariness.
We need go no further. When all is said and done,
courts must assert jurisdiction, or abjure its assertion, with an
eye toward fundamental fairness. Thus, here, the district
court's dismissal of the instant action for want of in personam
jurisdiction must be
Affirmed.