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Plaintiffs, Appellants,
v.
Defendants, Appellees.
____________________
____________________
Before
____________________
Library Boo
Ltd.
Robert M. Callagy, Joshua M. Rubins,
__________________ ________________
brief
and
Anne
dismissal,
Marie
on
Noonan
personal
challenge
Ltd.,
Lintas:Paris,
Reynolds Tobacco
S.A., Worldwide
the
jurisdiction
defamation, misappropriation
Plaintiffs-appellants George
district
grounds,
and violation of
R.J.
Reynolds
Tobacco
court's
of
their
the right
of
Library Books,
Company,
R.J.
Reynolds France,
Having
I.
I.
__
A. General Background
______________________
George
Noonan,
a Boston
Police
Detective and
use.
During the
sponsored
by
summer of
Winston
1992, a magazine
cigarettes featuring
caused
Noonan's
image
The
1979,
advertisement
Neil Sutherland,
packaging house1
an
employee
a long history.
of
the
English
In
book
("CLB"), photographed
____________________
1.
Packaging houses
publishers.
design and
print books
to be
sold to
-22
Noonan
in Boston
without
his
Boston:
City of Dreams,
____________________________
distributed.
The
permission.
Although
the
it
was
photograph remained
never
in
published
CLB files
or
until
Two years
later,
CLB sold
the photograph
agency
Lintas:Paris, with
client
the French
no restrictions
release.
to
advertising
on
its use
and
granted a
in a campaign for
a French
cigarette manufacturer.
retained Lintas:Paris to
design an
to market
Minitel
Service,
consumer
services
remittance
the
service
generated.
an
interactive
such as
exchange
The Winston
that
personal shopping,
of income taxes.
in
network
Companies sponsor
for
share
called The
of
provides
banking, and
segments of
the
revenues
of the
Minitel
in
France and is
sponsored by the
fuer Markendiversifikation
entertainment
Cooperation Gesellschaft
mbh, a German
company affiliated
Boston
on horseback
-33
Noonan in his
at Faneuil
Hall in
Boston.
in the
red
background.
The advertisement
also
provides a
at
of various French
the
of Lintas:Paris,
magazines containing
phone
Boston
area.
during the
summer
Noonan that a
of 1992.
magazine with
Fellow police
a picture
Nancy Fay, a
of him
officers
told
on the
back
Massachusetts resident
brought the
advertisement to Boston
inquire whether
for
the
advertisement.
advertisement
magazine
faculty
when his
containing
manufacturer had
Noonan's
son
French teacher
the
paid Noonan
saw
the
brought a copy
of a
advertisement
Greg
Noonan to
to
class;
Greg's
in France.
to the
the cigarette
and wrote to
in France,
use of
cigarette industry.
As
him for
supporting the
was an
Given
the
importance
of
their
relationships
to
plaintiffs'
-44
jurisdictional
the
theories, we begin
defendants.
corporation,
Defendant
RJR
Defendant
with
its
only
France,
also
with a brief
Lintas:Paris
office
in
French
is
overview of
French
Paris,
France.
corporation,
has
Defendant
R.J.
Reynolds
Tobacco
("RJR
Tobacco")
is
New
Jersey
New York.
parent
RJR Tobacco
company,
cigarette
RJR Nabisco,
business.
and also a
Inc., is a
business
Inc.,
Defendant
International ("RJRTI"),
Tobacco
conducts
R.J.
in
North
Tobacco,
analogue to
wholly-owned subsidiary of
Winston-Salem,
Worldwide Brands,
Reynolds
the international
its domestic
RJR
RJR Nabisco,
principal place of
Carolina.
Defendant
in trademark
is also a
are
Delaware corporation.
in Boulogne-Billancourt.
wholly-owned
Worldwide's
French offices
Defendant Lintas:Paris
is a
owned subsidiary of
owned
a wholly-
("Interpublic").
Lintas:Worldwide
Interpublic.
Noonan
is an
asserts
advertising
that
defendant
corporation managed
by
-55
legal entity.
For reasons we
shall
our decision.
Finally, defendant
CLB is a
British company
B. Prior Proceedings
_____________________
The
complaint
sets forth
five
direct claims
--
defamation, invasion of
reckless
or
Supp. 1996);
intentional infliction
of
id.
___
1B;
emotional distress;
2,11 --
and a
Marie Noonan.
pursuant to
CLB
Fed. R. Civ.
P. 12(b)(2), except
those against
See
___
1995)
Noonan v.
______
("Noonan
jurisdictional
dismissed all
I").
After
discovery
with
claims
("Noonan II").
allowing
respect
against CLB.
947
F. Supp.
to
Noonan
CLB,
See Noonan
___ ______
564
(D.
limited
the court
v.
Colour
______
Mass.
1996)
Because
claims
902 F. Supp.
the district
court dismissed
plaintiffs'
rulings
de novo, drawing
__ ____
and supplementary
parties' pleadings
all inferences in
-66
the
plaintiffs' favor.
-77
II.
II.
___
On
First, they
that
appeal,
assert the
it lacked
Lintas:Paris
plaintiffs
district court
specific
(as RJR
four
arguments.
erred in
concluding
jurisdiction over
France's agent),
Lintas:Paris' principal).
court
advance
and
defendants CLB,
RJR France
(as
RJR Tobacco
and CLB.
district court
jurisdictional
discovery before it
ruled on the
motions to
Worldwide Brands.
Finally,
they argue
the district
court
"Specific
personal
to, the
defendant's
jurisdiction may
be
asserted
forum-based contacts."
United Elec.,
______________
960 F.2d 1080, 1088-89 (1st Cir. 1992) ("Pleasant I") (citing
n.8 (1984)).
466 U.S.
when
the litigation
is not
forum-based contacts,
engaged
the
directly founded
but
in continuous and
suit,
in
the
forum
the
defendant
on the
defendant's
has
nevertheless
state."
Id.
___
at
1088
(citing
-88
Helicopteros, 466
____________
U.S. at
Three
questions
constitute
both
the
specific
and
general
personal
sufficient
minimum
contacts
exercise of
not
process.
Workers of America v.
___________________
(1st
Cir.
analysis
1993)
reasonableness by
"gestalt factors."2
statute or
the
exercise
reasonable, and
of
therefore does
(setting
generally)
that
jurisdiction is
offend due
so
out
steps
("Pleasant
applying
If the
factors
for
II").
we
jurisdictional
We
have
F.2d 39
determine
described
as
Clause of the
U.S. Constitution
are not
met, the
not be
subject to
personal jurisdiction.
A. Jurisdictional Issues
_________________________
(i)
whether
As
an
initial
CLB
is
subject to
theory of specific
matter,
we
personal
decline
to
consider
jurisdiction
under a
did not
____________________
2.
The
criteria
are:
"(1)
the
defendant's
burden
of
resolution of the
interest in
controversy,
sovereigns in promoting
-99
below.
defendants' motions to
court had
After
specific
completing
abandoned their
Plaintiffs initially
opposed the
jurisdiction over
discovery
specific
over CLB,
jurisdiction
all
the district
the
defendants.
however,
claim
plaintiffs
against
CLB,
be found as
discovery obligations.
Plaintiffs, therefore,
time on
appeal."
ample
time
circumstances
to
consider and
raised
extraordinary
in
this case;
advance
their
v.
Superline
_________
There are no
plaintiffs
had
best arguments
(ii)
RJR France
___________
jurisdiction over
due
process, we
whether
Lintas:Paris and
decline to
plaintiffs
have
RJR France
decide
established
would offend
the difficult
question
prima facie
____________
case
-1010
the
Massachusetts long-arm
F.3d at 205;
F.2d
9, 11
statute.
See Ticketmaster,
___ ____________
26
(1st Cir.
1990); Eveland
_______
v. Director of Cent.
__________________
The
resident
minimum
defendant only
contacts with
Washington, 326
__________
contacts
when the
the forum.
U.S. 310,
defendant has
sufficient
316 (1945).
Sufficient
v.
minimum
defendant's
availment
in-state contacts .
of the privilege
. . represent
a purposeful
of conducting activities
in the
that
state's
laws and
presence before
the
issue
in this
the
defendant's involuntary
state's courts
exercising jurisdiction
Pleasant II,
___________
making
is fair under
987 F.2d at 43
case is
foreseeable,
n.9.
whether
and"
the gestalt
(3)
factors.
The decisive
due process
the defendants'
activities
Plaintiffs correctly
v.
Jones, 465
to Calder
______
Court
______
in
the context of
defamation cases.
purposeful availment
Calder
______
concerned two
-1111
Florida
reporters, employed
who
Jones.
Id.
___
The
properly could
Supreme
be asserted
Court
over the
would
be felt
worked "and
circulation."
reporters because
the
state, where
Jones lived
and
Id. at 790.
___
Like Jones,
forum
that jurisdiction
would
in the
held
Plaintiffs'
circumstances
plaintiffs felt a
Calder test.
______
tortious effect in
worked.
the forum
a saddle blanket
Police insignia,
in front of
For
the first
part of
Calder's
______
framework to
be
anticipate
being
Volkswagen Corp.
________________
into
court
v. Woodson, 444
_______
Calder,
______
the court
conduct
was
California."
haled
found
that
465 U.S.
there."
World-Wide
__________
the defendants'
"calculated to cause
__________
Calder,
______
them "reasonably
injury
at
791
to
In
intentional
respondent in
(emphasis added).
-1212
Plaintiffs do not
sufficient purpose to
does not
committed with
The
That
phone
the advertisement
contains French
text
and a
created it for
French
a French
audience.
This
interpretation
is
contradiction, by
a Lintas:Paris
representative who
that
"[t]he advertisement
consumer
market."
corroborated,
was aimed
solely
Aff.,
12.
Roux
without
stated
at the
French
Furthermore,
bearing
Id.
___
15.
Although
plaintiffs
Massachusetts
and
fleetingly
refer
passingly
contest the
district
to
reach
court's
____________________
3.
Noonans'
agency
plaintiffs'
Lintas:Paris.
on its
The viability
France depends on
of
our first
forum state.
4.
any
Noonan I, 902 F.
________
harmed
Supp. at 305.
In our
Because
this is an
underlying tort,
the defendant
intentionally directed
the forum state.
must only be
not the
shown to
have
-1313
a specific intent
denial
of
discovery
as to
what
Lintas:Paris
known, they
do not
ignorance.5
the
defendant intentionally
material
into
defendants'
from
dispute Lintas:Paris'
should have
the
forum,
intent to
the placement
fraudulent
material
Supplies, Inc.
_______________
v.
fraudulent or
plaintiffs
imply
reach Massachusetts
of advertisements
international circulations.
460
sent
claims of
defamatory
that
the
be inferred
in publications
with
into
can
actual
forum);
intentionally sent
Borshow Hosp.
& Med.
________________________
Burdick-Siemens Corp.,
______________________
143
F.R.D. 472
from California
and
appeared
sources, concerned
in a
newspaper
a California
with a
forum
celebrity,
circulation of
600,000 copies, the Court found that California was the focal
____________________
5.
As
noted
above,
Lintas:Paris'
plaintiffs
knowledge in
only
vaguely
its appellate
referred to
brief.
Further,
need for
discovery as
to whether
These
assertions are
of Lintas:Paris' claims
not
Lintas:Paris
be distributed in
tantamount to
of ignorance.
See United
___ ______
merely
to mention
a possible
argument in
the most
work, create
the ossature for the argument, and put flesh on its bones.").
Nor is the
that
negligence
is
sufficient
to
constitute
purposeful
availment.
-1414
at 789.
Here,
however,
plaintiffs'
advertisement
which appeared
circulated in
Massachusetts.
in
claims
305 individual
This
rest
on
an
magazines,
small distribution,
by
focal
magazines
market
and,
jurisdiction.
770,
circulation of a large
state indicated
781
publication
therefore,
The size of a
was
content in
held
number of
a forum
exploitation of a
sufficient
to
support
(1984).
Just
as
widespread
indicates deliberate
circulation of
action, thin
distribution
See Chaiken v. VV
___ _______
__
F.3d
jurisdiction over
an Israeli
involving an
.04% of total
1018 (2d
Cir.
1997) (holding
publisher for
insignificant distribution
--
a libel
that
action
four copies
or
process), petition
________
97-6984).
Plaintiffs urge
us to rely
Circuit
found
that
the
on Gordy v.
_____
distribution
-1515
The Daily
_________
of
under
twenty
newspapers
foreign
was
sufficient
newspaper
however, the
and its
to confer
reporter.
Gordy defendants
_____
jurisdiction
over
Unlike Lintas:Paris,
targeted the
forum state
by
forum addresses.
the
ultimate
Massachusetts,
destination
of
and plaintiffs
While we sympathize
the
have
magazines
that
not alleged
reached
otherwise.
at seeing
his
image
used
to
Massachusetts-based
jurisdiction
do not,
injury
is
credit
and
product
not
inappropriately
requirement.
promote
random,
he
despises,
enough
To find
support
otherwise would
isolated,
to
his
or
fortuitous
purposeful availment
proceed to
the reasonableness
analysis.
See
___
(1st
Cir. 1990).
According
to plaintiffs,
CLB's and
RJR Tobacco's
systematic to permit
and
exercise general
jurisdiction.
(a) CLB
___
We
-1616
court
may
jurisdiction
exercise
over
personal
person,
who
acts
person's . . .
(d)
causing
commonwealth
tortious
by
an
injury
act
or
in
this
omission
persistent course
in
of conduct,
In
. .
our
effort to
"effectuate
legitimate desire to
statute broadly.
[the Commonwealth's]
construe the
Supp.
Viewing
the facts
in a
light
most favorable
to
plaintiffs,
the
plaintiffs'
of-state act,
injury
is
sale
of
the
The
where the
of
3(d),
of which
use
Anne
of George
an
Noonan's
engendered the
Marie Noonan
photograph containing
that
plaintiffs suffered
of consortium
Furthermore, CLB's
requirement
easily met.
in Massachusetts
loss
threshold
complains.
the unauthorized
Noonan's
image,
was a
injuries.
district
court properly
decided
-1717
that plaintiffs
whether the
failed to
satisfy
the
sufficient
court
second requirement
of
3(d),
that CLB
'substantial
revenues'
revenues insufficient
Supp. at 571.
test
The district
of
to meet the
3(d),"
test.
and
had
under the
found
Noonan II,
_________
the
947 F.
clause is
disjunctive, only
satisfied.
While
the
one of its
parties
Because this
prongs needs
energetically
debate
to be
the
CLB
solicited
sufficient regularity to
the fall of
was
filed in
business
in
May 1994,
Massachusetts
CLB
with
Beginning in
plaintiffs' complaint
employees regularly
solicited
to
to World
____________________
6.
The
courtship of World,
credit
International
World's
Sales
form.
CLB
contacts:
Director,
business.
reference, and
application
1994 contacts.
soliciting
regarding CLB's
In November
Bill
World
provided
In
it did
October 1992,
Dancer,
provided
World
1992,
not
with
Dancer
began
CLB
with a
credit
traveled to
-1818
from
the
intention
of
developing
relationship
Finally, in
in
to negotiate
England
solicitations of forum
targeted to
satisfy
orders.7
with
In sum,
CLB's
3(d).
World.
direct
regular and
v. Renee Int'l
___________
Trading Corp., 888 F.2d 215, 217-19 (1st Cir. 1989) (the sale
_____________
We
sufficient
therefore turn
to
satisfy
to
whether these
the Constitution.
contacts are
Until
the date
plaintiffs
with
filed their
Massachusetts
complaint,
were
Massachusetts in 1979,
Neil
CLB's relevant
Sutherland's
contacts
visits
to
discussed
The
____________________
7.
In
other
Massachusetts
Little
Brown
counting the
publishers, Lauriat's
and Company.
Little Brown
CLB
Booksellers
disputes the
and Company
and
propriety of
contact because,
in
sufficient even
without the
We need
Brown and
Company
solicitation.
8.
The
parties
clash
over
which
contacts
should
a foreign
corporation's
up to
have
all
First, they
contacts with
up
the
alleged tort,
is filed, or at any
contacts established
be
to
time.
We
the time
Noonan
See infra.
___ ______
at 23-25.
Second,
-1919
standard for
evaluating whether
constitutional
more
jurisdiction test
questions.
Cir.
general
1984).
these contacts
applied to
"is
satisfy the
considerably
specific jurisdiction
Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st
______
_______________
In addition, courts
care
before
nationals.
exercising personal
jurisdiction
over foreign
v. Superior Court,
______________
480 U.S. 102, 115 (1987) (citing United States v. First Nat'l
_____________
___________
City
Bank,
___________
379
U.S.
378,
404
(1965)
(Harlan,
J.,
dissenting)).
frequent,
intense, and
successful.
must
based
fact-specific
be
contacts,
we
on
are guided
by
Although
the types
purposeful,
our decision
evaluation
of
of
CLB's
contacts deemed
We look to
in which the
appellants
argued,
jurisdiction
as
applied to
plaintiffs
do
now,
an out-of-state
that
seller.
general
In
both
____________________
they
disagree over
whether it
is
appropriate to
consider
prior to the
with
but
not
Massachusetts
yet
paid,
companies.
to CLB
from
Third, they
orders were
purposes
and
changed before
of this analysis, we
ordered from
CLB,
the
orders
arrive at
placed
by
different
For
but not
-2020
cancelled
before the
date
cases,
the
defendant
had more
continuous
and
systematic
contact with the forum state than CLB had with Massachusetts.
permit
First,
advertised,
employed
eight
F.2d at 217.
sales
representatives
products to distributors in
Although
to
See 744
___
as
intense, active,
and
frequent as
those
of the
Glater
______
Compare id.
_______ ___
Supp. at 567-68;
see
___
In
league
officials
at
exhibition
hockey
games,
scouting,
the
League, 708 F.
______
reversed
________
893 F.2d
459
(1st
together, did
Cir.
1990).
Although
CLB's
NHL's contacts
-2121
to authorize general
not exist, we
reasonable under
F.2d at 471.
the gestalt
factors.
See Donatelli,
___ _________
893
____________________
9.
the distribution of
forum
10-15,000 copies
to support
of a
magazine in
the
general jurisdiction.
465 U.S.
at 779.
CLB's
Hampshire, where
Hustler had
base.
-2222
built
up a
subscription
(b)
RJR Tobacco
___________
Plaintiffs
also
ch.
223,
38.
jurisdiction lies
with the
this
We will
under
not,
premise that
litigation.
argue that
general
however, consider
because we do
purportedly connects
Cf. Hachikian
___ _________
jurisdiction
v.
Laws
whether
not agree
RJR Tobacco
to
Corp.,
_____
96
F.3d 502,
504
(1996) (concluding
that we
may
France,
allegations in
named RJR
France,
same
a defendant because
assertions
of
corporations
ignore
insufficient to
raise a
to RJR
Massachusetts.
the
as RJR
corporate
Cf. Birbara v.
___ _______
have nonetheless
(1) it,
Tobacco.
form,
by the
like RJR
claim involving
Tobacco under
actions of RJR
put in issue
Tobacco as
family
liability
that it is the
and
These two
are
patently
an attribution
of
veil-piercing theory
in
1996)
(discussing the
stringent
test
for corporate
veil-
Indus., 127 F.R.D. 644, 647 (D. Mass. 1989) (stating that the
______
mere
assertion that
defendants
are
alter
egos
or
joint
-2323
808 F.
corporate
entities or
where
directly
participates
in
intermingling between
one corporation
the
activities
actively
of
the
and
second
B. Discovery Issues
____________________
Plaintiffs contend
its
discretion
jurisdictional
Reynolds Tobacco
in
denying
discovery over
them
permission
defendants RJR
S.A., Lintas:Worldwide,
court abused
Lintas:Paris, and
to
take
Tobacco, R.J.
Reynolds France,
Worldwide Brands,
Inc.
In addition, plaintiffs
improperly
limited
discovery
over
CLB.
We
apply
resulted
in substantial prejudice
to the
aggrieved party."
Crocker v. The Hilton Int'l Barbados, Ltd., 976 F.2d 797, 801
_______
_______________________________
(1st Cir. 1992) (citing Santiago v. Fenton, 891 F.2d 373, 379
________
______
(i)
The
denial
of
jurisdictional discovery as
defendants
litigation,
plaintiffs'
to the
tobacco and
of discretion.
request
for
advertising
Throughout this
of this
-2424
request deprived
them of
the opportunity
the
tobacco
defendants
or
between
to ascertain
the
Lintas:Paris
and
the
absent
of the Massachusetts
forum.
We
itself
against
allowed
had
Massachusetts throughout
have
been able to
In its decision
the litigation
period, they
would
over CLB.
time . . . ?"
at any
Judge Stearns
applied the
requests
filed.
to
We
contacts
through the
("In
Robertson-Ceco Corp., 84
____________________
general
jurisdiction
examine a defendant's
period
complaint was
cases,
district
(2d Cir.)
courts
should
-2525
rejects as
that is reasonable
the
ruling insofar as it
Co. v.
___
date
-- up to
and
including the
whether
they
date
satisfy
the
the
suit was
filed
'continuous
-- to
and
assess
systematic'
directly
Energy
speaks
of
to the
on evidence
None
question posed
Corp. v. Metallgesellschaft
here.
See Wheeler
___ _______
_____________
______________________
Assurance, 808
_________
F. Supp.
67;
Kolikof v.
_______
Samuelson, 488
_________
F.
Supp. 881 (D. Mass. 1980); Mark v. Obear & Sons, 313 F. Supp.
____
____________
at
375.
Moreover,
all of these
cases, at
best, involve a
each
case,
from
survey
of
data
that
spans
the
majority
Robertson-Ceco,
______________
approach is
84 F.3d
not as
at 569
several
Finally,
plaintiffs suggest.
(surveying
cases from
See
___
the
Plaintiffs also
claim that
limiting discovery
to
a rule,
an entity which
causes an
injury in
Massachusetts
it
-2626
was,
prior to
They
limitations
analysis
plaintiffs
to
market entry,
period
result
from limiting
before the
maximize the
of the
litigation.
undesirable exploitation of
periods will
to the
on notice
chance of
statute of
the contact
complaint date.
Savvy
asserting
jurisdiction will
be
Whatever merit
such policy
arguments might
have,
the central fact remains that the time the complaint is filed
its authority
It
incoherent
to permit
contacts
in proving
time.10
Therefore,
the court
that
while
to
it had
Noonan
would be conceptually
look to
authority
may
post-complaint
at a
have
previous
discovered
____________________
10.
have
Given our
basis for
considerable
sufficiency of
assessed at
doubt
rejecting
about
contacts for
the time
plaintiffs' claims,
CLB's
argument
that
of the alleged
tort.
we
the
be
Although Judge
extent that
foreseeability is a
positing that,
touchstone of
due
CLB argues
that might
only at the
the
be made
We note
foreseeability question
is
not whether
the
defendant
the
defendant
defendant would be
called him.
defendant
has
been called
surprised to find a
to
court,
the
time he
allegedly committed
-2727
the tort
is
is filed is
permitted to
continue discovery
throughout the
litigation,
Accordingly,
in ruling as it did.
Costs to appellees.
of the
____________________
-2828