Ticketmaster v. Alioto, 1st Cir. (1994)

7/26/2019 Ticketmaster v. Alioto, 1st Cir. (1994)

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USCA1 Opinion

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,____________________ __________________

McClain-Sewer, Morrison Cohen Singer & Weinstein, Stephen_____________ ___________________________________ ______

Wainwright, and Wainwright, Wainwright, Wainwright, Wainwri__________ ____________________________________________


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Wainwright were on brief, for appellant. __________ James A. G. Hamilton, with whom Theodore F. Schwartz,

____________________ ____________________Cohen, and Perkins, Smith & Cohen were on brief, for appellee

_____ ______________________

_________________________

April 13, 1994

_________________________

SELYA, Circuit Judge. This case probes the front SELYA, Circuit Judge. ______________

of the doctrine of personal jurisdiction in a context fra

with constitutional implications. The issue, simply put,

this: Can a Massachusetts-based court, consistent with the

Process Clause, assert jurisdiction over a California resi

who is alleged to have made a defamatory comment durin

unsolicited telephone interview with a staff reporter fo

Massachusetts newspaper? We conclude, on the facts of this c

that the lower court correctly disclaimed jurisdiction.

I. BACKGROUND


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I. BACKGROUND

Inasmuch as the district court dismissed this suit

failure of the plaintiff to make a prima facie jurisdicti _____ _____

showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675

___ ____ ____________________

Cir. 1992), we draw the facts from the pleadings and the part

supplementary filings, including affidavits, taking f

affirmatively alleged by plaintiff as true and constr

disputed facts in the light most hospitable to plaintiff.

course, we do not credit conclusory allegations or

farfetched inferences. See generally Dartmouth Review___ _________ _________________

Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (discussing_______________

between "facts" and "conclusions" for purposes of a motion

dismiss).

Defendant-appellee Joseph M. Alioto is an atto

practicing in California. Among his other cases, Alioto

pressing a class action in the California courts aga

Ticketmaster-Southern California, Inc. (T-SC). T-SC,

2


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California-based corporation, is affiliated with Ticketmaster

York, Inc. (T-NY), a Delaware corporation. Both Ticketma

entities are engaged in the business of selling ducats

entertainment events.

The litigation between T-NY and Alioto finds

genesis in the decision by the Boston Globe, a daily newspa ____________

to undertake an investigation into pricing practices

"Ticketmaster's" part.1 In conducting this investigation

Globe reporter conversed by telephone with Alioto. The plain

_____

does not allege, and the record does not suggest, that Al

dialed the telephone or otherwise initiated the call. The re

is equally barren of any showing that Alioto solicited

inquiry2 or that more than one call occurred. It is cl

nevertheless, that Alioto, who was in California, knew

speaking that his comments would inform a story slate

publication in a newspaper circulated chiefly in Massachusett

The investigation culminated in a front-page ex

that hit the newsstands on Sunday, September 20, 1992, under

banner headline, "Rising ticket fees pad concert profits."

ensuing article contained over fifty paragraphs. Well past

midpoint, the article mentioned mounting complaints about p

____________________

1The article that capped this investigation makes no att to distinguish among corporate entities (although it contains

vague reference to "Ticketmaster and its affiliates").

point does the article refer by name to either T-NY or T-SC.

2Although there is a passing allusion in the record tpress release issued by Alioto regarding the lawsuit againsSC, there is no indication that he forwarded this releas


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Massachusetts or that it sparked the Globe's story. _____

3

gouging in New York and California. It then reported that "t

class action antitrust lawsuits" had recently been filed "aga

Ticketmaster" in California. There followed the paragraph ar

which this controversy revolves (buried deep in the body of

article). We quote the allegedly offending paragraph in f

and, in the interests of context, add the beginning of

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

against Alioto in the United States District Court for

District of Massachusetts. Invoking diversity jurisdiction

U.S.C. 1332 (1988), it alleged that Alioto, with the requi

intent, conveyed and/or caused to be conveyed certain defama

impressions of and concerning T-NY, namely, that T-NY engage

bribery and related criminal conduct.


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In due season, Alioto moved to dismiss. T-NY objec

The district judge heard oral argument and dismissed the ac

for lack of in personam jurisdiction, concluding that appel __ ________

failed to make the requisite showing at every stage of

obligatory jurisdictional inquiry under the due process cla

See United Electrical Workers v. 163 Pleasant St. Corp., 960___ _________________________ ______________________

1080, 1089 (1st Cir. 1992) (Pleasant St. I) (discussing natur______________

requisite inquiry). Two perceptions figured prominently in

4

district court's reasoning. First, the defendant did

actively shape and focus the reporter's story, but, rat

passively responded to a telephone call. Second, the alle

defamatory comment dealt with the California activities o

California corporation, T-SC, and did not pertain to T-NY.

Plaintiff appeals. Because the court below dismi

the case on legal grounds, without convening an evident

hearing or resolving contested evidentiary questions, appel

review is plenary. See United Electrical Workers v. 163 Plea ___ _________________________ _______


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St. Corp., 987 F.2d 39, 43-44 (1st Cir. 1993) (Pleasant St._________ ____________

Boit, 967 F.2d at 675. In conducting this tamisage, we are____

wedded to the district court's rationale, but remain fre

affirm the judgment below on any independently sufficient gr

made manifest by the record. See Martel v. Stafford, 992___ ______ ________

1244, 1245 (1st Cir. 1993).

II. ANALYSIS II. ANALYSIS

To subject a non-resident defendant to its jurisdic

in a diversity case, a court and for this purpose, a fe

court exercising diversity jurisdiction is the functi

equivalent of a state court sitting in the forum state,

General Contracting & Trading Co. v. Interpole, Inc., 940__________________________________ _______________

20, 23 n.4 (1st Cir. 1991) must find contacts that, in

aggregate, satisfy the requirements of both the forum sta

long-arm statute and the Fourteenth Amendment.3 See Plea ___ ___

____________________

3To be sure, the extent of the necessary jurisdicti showing varies depending upon whether a litigant ass jurisdiction over an adverse party under a theory of "general

5


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St. I, 960 F.2d at 1086 ("In Massachusetts, a court may exer _____

personal jurisdiction over a foreign defendant if

jurisdiction is authorized by state statute or rule and___

exercise does not offend due process."); Bond Leather Co. v.________________

Shoe Mfg. Co., 764 F.2d 928, 931 (1st Cir. 1985) (similar).______________

district court determined that T-NY satisfied neither of t

two prerequisites. We explore these determinations.

A. The State Statute. A. The State Statute. _________________

The applicable Massachusetts statute, familiarly

as "section 3(c)," deals with torts committed by persons who

no ongoing relationship with the forum state. The langua

this provision tracks the Uniform Interstate and Internati

Procedure Act, and differs significantly from other lea

formulations. See Murphy v. Erwin-Wasey, Inc., 460 F.2d___ ______ __________________

663-64 (1st Cir. 1972); see also Margoles v. Johns, 483___ ____ ________ _____

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 questio


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jurisdiction under state law, we have pondered whether the

might more appropriately be dispatched on that basis. After

____________________

"specific" jurisdiction. See Donatelli v. National Ho

___ _________ ___________ League, 893 F.2d 459, 462-63 (1st Cir. 1990) (elucida ______ standards and enumerating differences). Here, plaintiff's

stands or falls on a theory of specific jurisdiction.

6

"[i]t has long been a basic tenet of the federal courts to es

the decision of cases on constitutional grounds unless and u

all other available avenues of resolution [have been] exhaust

Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 726 (1st________ _______________________

1984). But here, as we explain below, the state-law issues

extremely murky. Thus, on balance, we agree with the dist

court that it makes sense to resolve the jurisdictional ques

on constitutional grounds.

In the first place, although logic suggests that

these facts, the defendant cannot be said to have performe

act" in Massachusetts, that suggestion is not easily reconc

with Murphy. There, we ruled that an allegedly tortious______


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committed outside the borders of Massachusetts, purposef

directed at the state and intended to cause injury there, c

constitute an in-forum act within the meaning of section 3

See Murphy, 460 F.2d at 664. While Murphy can be distingui

___ ______ ______

on the ground that it was decided in the context of fraudu

misrepresentation, as opposed to defamation,4 its interpreta

of section 3(c) is worded in general terms and its reason

conceivably could be transferred to the defamation cont

Despite our profound reservations about extending the Mu _

____________________

4Appellant argues that we have already extended Murp____

the defamation arena in Hugel v. McNell, 886 F.2d 1 (1st_____ ______

1989), cert. denied, 494 U.S. 1079 (1990). We do not think H _____ ______

must necessarily be read so broadly. That case turned oconstruction of the New Hampshire long-arm statute, N.H.Stat. Ann. 510:4 (1993), and the New Hampshire statute, un

its Massachusetts counterpart, does not embody the languathe Uniform Act.

7

rationale,5 it spreads a shadow of uncertainty over the st

law issues.


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In the second place, because we are skeptical

defendant made any remark "of and concerning" T-NY, we ha

doubts whether defendant can be said to have inflicte

"tortious injury" within the meaning of section 3(c).6 We

however, hesitant to move beyond an expression of skepticism.

this stage of the proceedings, appellant has not had the ben

of an evidentiary hearing or a comparable opportunity (

access to the full-dress summary judgment protocol afte

reasonable period of discovery) for presenting proof. Thus

may be too early to reach the state-law issues.

To be sure, our reservations about one or both of t

____________________

5Intuitively, it would seem hard to characterize the actpublishing an allegedly defamatory remark outside the forum s

as an act within the forum state. In fact, no fewer thancourts applying long-arm statutes patterned after the Uniforhave eschewed Murphy's reasoning in the defamation context

______ declined to assert jurisdiction on this basis. See Reuber

___ _____ United States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dietric

______________ ______ Wisconsin Patients Comp. Fund, 485 N.W.2d 614, 617-18 (Wis.

______________________________ App. 1992); Wheeler v. Teufel, 443 N.W.2d 555, 558 (Minn.

_______ ______

App. 1989); Ramada Inns, Inc. v. Drinkhall, No. 83C-A ___________________ _________ unpaginated slip op. available on LEXIS (Del. Super. Ct. 19 Zinz v. Evans & Mitchell Indus., Inc., 324 A.2d 140, 144

____ _______________________________ App. 1974); see also St. Clair v. Righter, 250 F. Supp. 148,

___ ____ _________ _______ (W.D. Va. 1966) (using similar reasoning to interpret lon statute containing "tortious act" language); see gener ___ ____

Margoles, 483 F.2d at 1218-19 (criticizing Murp ________ ___ interpretation of language drawn from the Uniform Act).

6In Massachusetts, a court has power to determine, a


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matter of law, that a particular remark is not susceptible ofdefamatory construction "of and concerning" the plaintiff,therefore, not actionable. See Eyal v. Helen Broadcasting Co

___ ____ ____________________ 583 N.E.2d 228, 232 (Mass. 1991). At least one court has

this type of power to dismiss a defamation case on jurisdicti grounds. See Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 19 ___ _____ ______

8

points might well be resolved upon closer perscrutation.

there is no need to sally forth. Because it is apodictic t

jurisdiction-seeking plaintiff must satisfy the demands of

only state law but also the federal Constitution, see Plea ___ ___

St. I, 960 F.2d at 1086, and because T-NY's case cannot_____

constitutional muster, we choose to bypass the statutory phas

the jurisdictional inquiry. Consistent with this approac

accept appellant's alleged facts as true for present purposes

assume arguendo that the allegedly defamatory remark concerne________

NY.

B. The Due Process Clause. B. The Due Process Clause.

______________________

Divining personal jurisdiction is "more an art t

science." Donatelli v. National Hockey League, 893 F.2d 459,


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_________ ______________________

n.7 (1st Cir. 1990).7 In broad outline, a party wishin

validate a court's jurisdiction must show that "minimum conta

exist between the defendant and the forum state. Internati ________

Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945).________ ___________________

establish minimum contacts on a theory of specific jurisdict

a plaintiff must first demonstrate that its cause of ac

"arises out of, or relates to" defendant's contacts with

forum state, Helicopteros Nacionales de Colombia, S.A. v. H __________________________________________

466 U.S. 408, 414 (1984). Then, the plaintiff must demonst

the deliberateness of the defendant's contacts, or, phr

____________________

7In Donatelli, 893 F.2d at 462-65, we chronicled_________

historical development of due process standards for pers jurisdiction, and in Pleasant St. I, 960 F.2d at 1089,

_______________ rehearsed the current state of the law.

9

another way, that the defendant "purposefully avail[ed] itsel

the privilege of conducting activities within the forum Sta


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Hanson v. Denckla, 357 U.S. 235, 253 (1958). ______ _______

Even if a plaintiff succeeds in making these

showings, it is not home free. The defendant may nonethe

avoid having to defend in a strange place if it can estab

that allowing the suit to go forward would be inconsistent

"fair play and substantial justice," International Shoe, 326__________________

at 320.

Following this analytic model, we first as

relatedness and purposeful availment in terms of t

applicability to the case at hand. Finding them to

inconclusive in this rather odd situation, we then mull

extent to which considerations of fairness and substan

justice must influence our ultimate decision.

1. Relatedness. The requirement that a suit arise1. Relatedness.

___________

of, or be related to, the defendant's in-forum activi

comprises the least developed prong of the due process inqu

See Pleasant St. I, 960 F.2d at 1089 & n.9; see also Carn ___ _______________ ___ ____ ___

Cruise Lines v. Shute, 499 U.S. 585, 589 (1991) (declinin____________ _____

reach issue despite having certified it for review). We kno

a certainty only that the requirement focuses on the n

between the defendant's contacts and the plaintiff's caus

action.

The Court has kept its own counsel on the questio

whether, on the one hand, the two halves of the relate


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10

requirement are merely two ways of expressing the same tho

or, on the other hand, they are meant to import different va

into the jurisdictional equation. See Helicopteros, 466 U.S___ ____________

415 n.10 (reserving question). For our part, we thin

significant that the constitutional catchphrase is disjuncti

nature, referring to suits "aris[ing] out of, or relat[ing]__

in-forum activities. Id. at 414 (emphasis supplied). We bel ___

that this added language portends added flexibility and signa

relaxation of the applicable standard. A number of other co

share this belief. See, e.g., City of Virginia Beach v. Roan ___ ____ ______________________ ___

River Basin Ass'n, 776 F.2d 484, 487 (4th Cir. 1985); Sout _________________ ____

Co. v. Trans-World Metals & Co., 735 F.2d 440, 442 (11th___ _________________________

1984); Thos. P. Gonzalez Corp. v. Consejo Nacional de Product _______________________ __________________________

614 F.2d 1247, 1254 (9th Cir. 1980); see also In re Oil Spil___ ____ _____________

the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir. 1983). _______________


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While we do not have occasion today to give fu

content to the relatedness requirement,8 it is evident that

requirement serves two functions. First, relatedness is

____________________

8At least one scholar reads a line of First Circuit casegoing beyond this point and proposing an innova

constitutional test. See Mark M. Maloney, Specific Pers ___ _____________ Jurisdiction and the "Arise From or Relate to" Requirement .

____________________________________________________________ What Does it Mean? 50 Wash. & Lee L. Rev. 1265, nn. 118-1

___________________

accompanying text (1993). In our view, these casesinterpret the term "arising from" as that term is used inlong-arm statutes of Massachusetts, see Fournier v. Best Wes

___ ________ _______ Treasure Island Resort, 962 F.2d 126, 127 (1st Cir. 1992); Ma ______________________ _ v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986), and Pu ____________ Rico, see Pizarro v. Hoteles Concorde Int'l, Inc., 907 F.2d 1 ___ _______ ____________________________ 1259-60 (1st Cir. 1990) deal with state-law issues and ha

real implications for the relatedness requirement specificallfor constitutional analysis generally.

11

divining rod that separates specific jurisdiction cases

general jurisdiction cases. Second, it ensures that the ele

of causation remains in the forefront of the due pro

investigation. Even if the facts are such that a court may


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dismiss a given case for lack of relatedness per se,___ __

relatedness requirement, in serving its second funct

authorizes the court to take into account the strength

weakness) of the plaintiff's relatedness showing in passing

the fundamental fairness of allowing the suit to proceed.

In this vein, it is important to recognize that,

the defendant in a defamation action is a journalist's sou

the link between the defendant's conduct and the cause of ac

is attenuated by the intervening activities of third part

e.g., the reporter, the editor, the media outlet, and that t ____

intermediaries shape, amplify, and occasionally distort

original utterance. This case illustrates the point.

original comment, technically a tort in its own right

defamatory), inflicted no significant injury, except insofa

it led to republication in the ensuing newspaper article

the form and tone of the republication was not by any stretc

the most active imagination within the defendant's effec

control.

2. Purposeful Availment. The question here mus2. Purposeful Availment.

____________________

phrased in terms of whether an individual who merely answe

telephone call, but, having done so, knowingly directs

comments into the forum state, may be said to have purposef

12


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availed himself of the privilege of conducting activities in

state.9

To answer the question, we begin by considering McB __

v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), a case____________________

the district court thought highly pertinent and that Alioto t

as dispositive. There, the Seventh Circuit refused to sanc

the exercise of jurisdiction because the defendant

journalistic source, did not initiate the defamatory excha

and, being unaware of either the reporter's whereabouts or

magazine's reach, could not reasonably have foreseen that

comment would cause injury in the forum state. See id. at 28 ___ ___

The two conditions identified as salient in McB __

correspond to the two cornerstones of purposeful availment.

cornerstone is foreseeability. See, e.g., Escude Cruz v.___ ____ ___________

Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir. 1980); see____________________ ___

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1 ___________________________ _______

(stating that, for a court to assert jurisdiction, a defenda

"conduct and connection with the forum State [must be] such


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he should reasonably anticipate being haled into court ther

The second cornerstone, less frequently recognized as suc

____________________

9Appellant's efforts to reframe this question by hin

that Alioto instigated the call are unavailing. The burdeproving jurisdictional facts rests on the shoulders of the p

who seeks to invoke the court's jurisdiction. See McNut___ ____

General Motors Acceptance Corp., 298 U.S. 178, 189 (19 __________________________________ Martel, 992 F.2d at 1247 n.5; Pleasant St. I, 960 F.2d at 1 ______ ______________ On this principle, and in the absence of even a representatio

firm allegation to the contrary, we must presume, as di

court below, that Alioto played no part in initiatingtelephone call.

13

voluntariness. See Vencedor Mfg. Co. v. Gougler Indus., I ___ _________________ _________________

557 F.2d 886, 891 (1st Cir. 1977); see also Burger King Corp___ ____ _______________

Rudziewicz, 471 U.S. 462, 475 (1985) (cautioning__________

jurisdiction may not rest on the "unilateral activity of ano

party or a third person"). In McBreen, these two cornerst _______

were poorly laid: a failed showing of foreseeability a

questionable showing of voluntariness combined to for


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insufficiently sturdy foundation to support in pers __ ___

jurisdiction. The instant case, which amalgamates an argu

successful showing of foreseeability with a dubious showin

voluntariness, is a closer call. We turn, then, to a bro

survey of analogous case law.

Courts are consentient that when, as in McBreen,_______

source of an allegedly defamatory remark did not initiate

pivotal contact, and the in-forum injury is not reason

foreseeable, jurisdiction may not be asserted over the so

based on the comment.10 See, e.g., Madara v. Hall, 916___ ____ ______ ____

1510, 1517-19 (11th Cir. 1990); Mann v. Tom James Co., 80____ ______________

Supp. 1293, 1296-97 (E.D. Pa. 1992). However, when the so

____________________

10Appellant characterizes Hugel v. McNell, 886 F.2d 1_____ ______

Cir. 1989), cert. denied, 494 U.S. 1079 (1990), and Adva _____ ______ ___ Dictating Supply, Inc. v. Dale, 524 P.2d 1404 (Ore. 1974),

______________________ ____ cases in which courts asserted jurisdiction even t defamatory exchanges were initiated by persons other than

defendants. We reject the characterization. Our opinionHugel, read in context, makes it clear that the defendants pl

_____ an active role, meeting repeatedly with journalists and suppl them with audiotapes and other information. See Hugel, 886

___ _____ at 2-3. The Advanced Dictating court likewise found suffic __________________ evidence to conclude that the defendants incited the report telephone call. See Advanced Dictating, 524 P.2d at 1406-07.

___ __________________

14


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takes the initiative and causes foreseeable injury, jurisdic

may lie. See, e.g., Brown v. Flowers Indus., Inc., 688 F.2d___ ____ _____ ____________________

333-34 (5th Cir. 1982); Rusack v. Harsha, 470 F. Supp. 285,

______ ______

(M.D. Pa. 1978); Fallang v. Hickey, 532 N.E.2d 117, 118-19 ( _______ ______

1988); see also supra note 10 and cases discussed therein. ___ ____ _____

This case falls between the stools, for, althoug

source did not initiate the contact, the resultant in-f

injury was foreseeable. In this posture, the authorities

divided. Two courts have declined jurisdiction under

circumstances. See National Ass'n of Real Estate Appraiser___ _______________________________________

Schaeffer, Bates & Co., 1989 U.S. Dist. LEXIS 3098 at *2,_______________________

(C.D. Cal. Mar. 23, 1989) (refusing to assert jurisdiction o

Rhode Island source for comments made in the course of respon

to a telephone call from a reporter for a California newspap

McDonald v. St. Joseph's Hosp., 574 F. Supp. 123, 124, 12 ________ ___________________

(N.D. Ga. 1983) (similar; individual defendant answered se

telephone calls from a hospital interested in emplo

plaintiff, and made allegedly defamatory remarks with


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knowledge of their potential consequences). At least one o

court has asserted jurisdiction in such a situation. See Dio___ __

Kiev, 566 F. Supp. 1387, 1388-90 (E.D. Pa. 1983) (exerci ____

jurisdiction over a New York defendant who answered a telep

call from a reporter for a Philadelphia newspaper). Other st

in the decisional wind blow in differing direction

____________________

11In examining the case law, we have considered

rejected appellant's suggested analogy to a line of fraudu misrepresentation cases. See, e.g., Ealing Corp. v. Har ___ ____ _____________ __

15

Compare, e.g., Berrett v. Life Ins. Co. of the Southwest, 623_______ ____ _______ ______________________________

Supp. 946, 950 n.3 (D. Utah 1985) (declining to as

jurisdiction, discussing McBreen, and treating the fact that_______

defendant did not initiate the contact as dispositive)

e.g., Cole v. Doe, 258 N.W.2d 165, 168 (Mich. 1977) (uphol

____ ____ ___

jurisdiction, without any discussion of initiation, wher

source, able to foresee republication in the forum state, ma


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allegedly defamatory remark in a telephone interview wit

nationally syndicated columnist).

Having found the case law in a muddle, we cons

appellant's invitation that we adopt the classic analogy fo

out-of-state libel: the gunman firing across a state line.

Buckley v. New York Post Corp., 373 F.2d 175, 179 (2d Cir. 19 _______ ___________________

In a situation like this one, the analogy is imperfect.

person who responds to a journalist's question in the cours

an interview initiated by the latter is less like a traditi

sniper and more like a person who has been transported to

border and eased into position behind a rifle aimed at a

selected target. While such a person retains the choic

pulling the trigger, or not, he cannot fairly be equated wit

individual who has achieved the same position through a serie

____________________

Ltd., 790 F.2d 978, 982 (1st Cir. 1986); Murphy, 460 F.2d at____ ______

64; Johnson v. Witkowski, 573 N.E.2d 513, 523 (Mass. App. 19 _______ _________

Burtner v. Burnham, 430 N.E.2d 1233, 1236 (Mass. App. 19 _______ _______ These cases are unhelpful because a business relationship al invariably entails some degree of initiative and forethoug

the part of the persons involved, and, therefore, initiationforeseeability are necessarily present.

16


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personalized affirmative choices reaffirmed at every signifi

juncture.12

The conclusion that we draw from this line of reaso

is that appellant has made only the most marginal of sho

that Alioto purposefully availed himself of an opportunity to

in Massachusetts. And the weakness of this showing ass

decretory significance when we step back and evaluate

fairness of asserting jurisdiction in the totality of

circumstances.

3. The Gestalt Factors. In constitutional terms,3. The Gestalt Factors.

___________________

jurisdictional inquiry is not a mechanical exercise. The C

has long insisted that concepts of reasonableness must info

properly performed minimum contacts analysis. See, e ___

Woodson, 444 U.S. at 292; International Shoe, 326 U.S. at_______ __________________

"This means that, even where purposefully generated cont

exist, courts must consider a panoply of other factors which

upon the fairness of subjecting a nonresident to the authorit

a foreign tribunal." Pleasant St. I, 960 F.2d at 1088; ac _______________ _

Donatelli, 893 F.2d at 464-65. The Supreme Court has identi

_________

five such factors, namely, (1) the defendant's burden

appearing, (2) the forum state's interest in adjudicatin


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dispute, (3) the plaintiff's interest in obtaining convenient

effective relief, (4) the judicial system's interest in obtai

____________________

12Withal, we recognize that a person speaking on

telephone is free to refrain from making defamatory statementthe same way that a person standing beside a telephone is frerefrain from calling a reporter. In terms of moral philoso

both persons, by acting, commit acts of will.

17

the most effective resolution of the controversy, and (5)

common interests of all sovereigns in promoting substan

social policies. See Burger King, 471 U.S. at 477. We___ ___________

labelled this group of considerations the "gestalt factors."

Pleasant St. I, 960 F.2d at 1088; Donatelli, 893 F.2d at 465.

______________ _________

The gestalt factors are not ends in themselves,

they are, collectively, a means of assisting courts in achie

substantial justice. In very close cases, they may tip

constitutional balance. See Burger King, 471 U.S. at 47 ___ ____________

(explaining that "minimum requirements inherent in the concep

'fair play and substantial justice' may defeat the reasonable


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of jurisdiction even if the defendant has purposefully engage

forum activities") (citation omitted). For example, in

Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987), e _________________ _______________

Justices agreed that asserting jurisdiction would

unreasonable, although the question of minimum contacts wa

close that it divided the Court. See id. at 114-15. In___ ___

estimation of at least four Justices, considerations

reasonableness sufficed to defeat jurisdiction notwithstan

that the defendant purposefully engaged in activities within

forum. See id. at 116-17 (separate opinion of Brennan,___ ___

joined by White, Marshall, & Blackmun, JJ.). Justice Ste

although not joining Justice Brennan's concurrence, expre

satisfaction with the theory underlying this conclusion. See__

at 121-22 (separate opinion of Stevens, J.).

This aspect of the jurisdictional inquiry re

18

something of an unknown quantity. The gestalt factors have

applied by the Court only once (in Asahi); beyond mere ment


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_____

they have been discussed on rare occasions by the court

appeals, see, e.g., Gould v. Krakatau Steel, 957 F.2d 573,___ ____ _____ ______________

(8th Cir.), cert. denied, 113 S. Ct. 304 (1992); Theunisse

_____ ______ ________

Matthews, 935 F.2d 1454, 1460-61 (6th Cir. 1991), and they________

been used regularly to defeat jurisdiction only in the

Circuit, see Mona A. Lee, Burger King's Bifurcated Test___ _______________________________

Personal Jurisdiction, 66 Temp. L. Rev. 945 (1993) (surve ______________________

circuits). That circuit has concluded that dismissal may

appropriate on grounds of reasonableness even if considerat

of relatedness or purposefulness, taken in isolation, c

support the exercise of jurisdiction. See Fields v. Sed ___ ______ ___

Associated Risks, Ltd., 796 F.2d 299, 302 (9th Cir. 1 ________________________

(finding the assertion of jurisdiction unreasonable thoug

showing of purposefulness was "certainly of a nature that

support jurisdiction"); see also FDIC v. British-American___ ____ ____ _________________

Co., 828 F.2d 1439, 1442 (9th Cir. 1987) (collecting cases___

which courts denied jurisdiction for lack of reasonable

without resolving questions anent relatedness

purposefulness); Decker Coal Co. v. Commonwealth Edison Co.,_______________ _______________________

F.2d 834, 840 (9th Cir. 1986) (limning Ninth Circuit's mu

factor reasonableness test).


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We agree in principle with the Ninth Circuit. We

therefore, that the Due Process Clause bars a court

asserting jurisdiction over the person of a defendant if doin

19

would be fundamentally unfair. In this context, gauging fair

requires an assessment of reasonableness for, in cer

circumstances, unreasonableness can trump a minimally suffic

showing of relatedness and purposefulness. We think, moreo

that the reasonableness prong of the due process inquiry evo

sliding scale: the weaker the plaintiff's showing on the f

two prongs (relatedness and purposeful availment), the le

defendant need show in terms of unreasonableness to de

jurisdiction. The reverse is equally true: an especially st

showing of reasonableness may serve to fortify a border

showing of relatedness and purposefulness. See Donatelli,___ _________

F.2d at 465. It is against this backdrop, then, that we pro

to sift the gestalt factors.13

a. The Burden of Appearance. The burden associ a. The Burden of Appearance. _________________________

with forcing a California resident to appear in a Massachus


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court is onerous in terms of distance, and there are

mitigating factors to cushion that burdensomeness here.

burden, and its inevitable concomitant, great inconvenience,

entitled to substantial weight in calibrating the jurisdicti

scales. Indeed, the Court has stated that this element, a

____________________

13The approach that we endorse today differs slightlythat of the Ninth Circuit, which has crafted its own versionsliding scale approach. The Ninth Circuit's methodology, aunderstand it, incorporates the element of purposefulnessthe third prong of the inquiry, and weighs it against

remaining considerations of reasonableness. See Core-Vent C ___ __________ v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993); see

________________ ___Insurance Co. of North Am. v. Marina Salina Cruz, 649 F.2d 1

__________________________ ___________________ 1271 (9th Cir. 1981) ("The smaller the element of purpos interjection, the less is jurisdiction to be anticipated an

less reasonable is its exercise.").

20

among the gestalt factors, is "always a primary conce

Woodson, 444 U.S. at 292. _______

These are not empty words, for most of the cases

have been dismissed on grounds of unreasonableness are case

which the defendant's center of gravity, be it place of resi


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or place of business, was located at an appreciable distance

the forum. See, e.g., Asahi, 480 U.S. at 114 (Japanese defen ___ ____ _____

sued in California); Core-Vent Corp. v. Novel Indus. AB, 11_______________ _______________

1482, 1488-90 (9th Cir. 1993) (Swedish defendant sue

California; defamation action); Amoco Egypt Oil Co. v. Le ____________________ _

Navigation Co., 1 F.3d 848, 852 (9th Cir. 1993) (Fili _______________

defendant sued in Washington); Casualty Assur. Risk________________________

Brokerage Co. v. Dillon, 976 F.2d 596, 600 (9th Cir. 1 ______________ ______

(District of Columbia defendant sued in Guam; defamation acti

Fields, 796 F.2d at 302 (British defendant sued in Californ ______

The effect of distance on jurisdictional outcomes is graphic

illustrated by the two cases in which a defendant's contacts

the forum were most strikingly reminiscent of those that

been assembled here. Compare National Ass'n of Real Es _______ ___________________________

Appraisers, 1989 U.S. Dist. LEXIS at *11 (declining to as __________

jurisdiction over Rhode Island defendant who would have ha

defend defamation suit in California) with Dion, 566 F. Supp____ ____

1387 (asserting jurisdiction over New York defendant force

defend defamation suit in Pennsylvania).

Furthermore, as the court below observed,

circumstances surrounding this case suggest that

21


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inconvenience to the defendant may not be coincidental. I

the rare libel case in which both the newspaper and the repor

though amenable to process, are relegated to the sidelines at

behest of an avowedly defamed plaintiff. It is rarer stil

discover that such a plaintiff has intentionally selected a f

in which punitive damages are unavailable, bypassing other

in which such damages might be awarded.

Such considerations are important. One reason that

factor of inconvenience to the defendant weighs heavily in

jurisdictional balance is that it provides a mechanism thr

which courts may guard against harassment. It is firmly set

that a "plaintiff may not, by choice of an inconvenient fo

`vex,' `harass,' or `oppress' the defendant by inflicting

him expense or trouble not necessary to his own right to pu

his remedy." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1 ______________ _______

(citations omitted). And although vexatious suits are

frequently dismissed under the doctrine of forum non convenie_________________

we believe that the reasonableness analysis required by the t

prong of the due process inquiry must be in service to the


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ends.

b. Interest of the Forum. The forum state hab. Interest of the Forum.

______________________

demonstrable interest in exercising jurisdiction over one

causes tortious injury within its borders. See Keeton v. Hus ___ ______ __

Magazine, Inc., 465 U.S. 770, 776 (1984). Though we dee______________

inappropriate to correlate the strength or weakness

appellant's case on the merits with the strength or weaknes

22

the forum state's interest in this regard, we think it is

appropriate and useful to note two special considerati

First, the Commonwealth's interest in the litigation sub ju

___ _

is arguably lessened by the doubts surrounding whe

defendant's act can be said to have been committed in the fo

see supra p. 7. Second, if appellant in fact filed___ _____

primarily to retaliate against Alioto's role in the Califo

litigation rather than to right an independent wrong an

previously mentioned there are some clues in the record


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could lead to such a deduction the Commonwealth's inte

would be much diminished. Cf., e.g., Asahi, 480 U.S. at 11 ___ ____ _____

(minimizing forum state's interest in protecting its citi

from tortious injury because a dispute was "primarily a

indemnification rather than safety standards"). Mindful of t

special considerations, we conclude that the forum has a mi

than usual interest in the further prosecution of T-NY's suit

c. The Plaintiff's Convenience. Given the sparse c. The Plaintiff's Convenience. ____________________________

of the record, it is difficult to say whether trying the cas

Massachusetts would be more convenient for plaintiff than tr

it in California. Certain key witnesses on the issue of in

may be in Massachusetts, including the reporter. But other

witnesses may well be residents of California. While we

accord plaintiff's choice of forum a degree of deference

respect to the issue of its own convenience, see Piper Airc ___ _________

Co. v. Reyno, 454 U.S. 235, 241 (1981), the plaintiff's ac ___ _____ _

convenience seems to be at best a makeweight in this situatio

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d. The Administration of Justice. Apart fromd. The Administration of Justice.

_______________________________

possibility that plaintiff's action might be thought vexati

see supra Part II(B)(3)(a), the interest of the judicial sy

___ _____

in the effective administration of justice does not appear to

in either direction.

e. Pertinent Policy Arguments. One substantive so e. Pertinent Policy Arguments. __________________________

policy that seems to counsel against exercising jurisdictio

the widely shared interest in preserving citizens' willin

to talk openly with the press. Forcing an individual to

cross-country on the strength of one answered telephone call

a journalist likely would tend to dry up sources of informa

and thereby impede the press in the due performance of its pr

function. Nonetheless, the Court has shied away from allo

First Amendments concerns to enter into the jurisdicti

analysis. See Keeton, 465 U.S. at 780 n.12; Calder v. Jones,___ ______ ______ _____

U.S. 783, 790 (1984). Although it might be argued convinci

that the jurisdictional calculus ought to produce some

different results in defamation actions filed against report

sources than in actions filed against the journalists respons

for republication of a source's remark, as in Calder, or aga ______

the media corporation itself, as in Keeton, these precedents

______

us pause. Consequently, we place no weight on First Amen

values for purposes of this appeal.


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4. Tallying the Results. We begin the final phas4. Tallying the Results.

_____________________

our analysis by retracing our steps. At the first stage of

due process inquiry, appellant succeeded in showing that

24

putative cause of action arose from, or related to, defenda

contacts with the forum. See supra Part II(B)(1). At the se ___ _____

stage of the inquiry, appellant succeeded in showing defenda

purposeful availment. See supra Part II(B)(2). On nei ___ _____

prong, however, did appellant demonstrate more than a

minimum; we found its claim of relatedness enfeebled by

attenuated causal link between the allegedly defamatory utter

and the harm allegedly suffered, and its claim of purposeful

enfeebled by the fact that the defendant did not initiate ei

the telephone call or the resultant interview.

The frailty of appellant's showings on the first

furcula of the due process inquiry required us to consider

gestalt factors and assess the reasonableness of an assertio

jurisdiction by a Massachusetts court. Doing so, see supra


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___ _____

II(C), we found that, while many of those factors possess li

significance for purposes of this case, there is one factor

defendant's convenience that stands out from the crowd. I

this factor that consistently has been declared deserving of

greatest weight in kindred cases. And it is this factor that

serve as an amulet to ward off vexatiousness and harassment.

now conclude, considering the totality of the circumstances,

defendant's burden of appearance is so onerous that it ren

the exercise of in personam jurisdiction unreasonable.__ ________

conclusion carries the day. A distant court ca

constitutionally exercise in personam jurisdiction over a__ ________

resident defendant at the behest of a plaintiff who can mu

25

only the most tenuous showings of relatedness and purposeful

if, as in this case, forcing the defendant to defend in the f

would be plainly unreasonable.

This is as it should be, for, at bottom, the dict

of due process demand that a court's assertion of in pers __ ___


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jurisdiction comport with considerations of fair play

substantial justice. See, e.g., International Shoe, 326 U.S___ ____ ___________________

320. To ensure achievement of this goal, the machinery

jurisdictional analysis is designed to refine judges' intuit

about the relevant equities, not to eliminate those equities

the decisional process. Relatedness and purposeful availment

cogs in this analytic machinery. The gestalt factors comp

the machinery's fail-safe device; they are not a necessary

of the machinery's day-to-day operation, but if, in the cours

a particularized analysis, the gears mesh imperfectly becau

given set of facts does not fit into any of the standard mo

the gestalt factors take hold.

This case exemplifies the proper operation of the f

safe device. It hardly seems fair, on the strength of a si

remark uttered in the course of a single unsolicited telep

call from a Massachusetts-based journalist, to compel

California resident to defend a tort suit in a court 3000

away. The unfairness is heightened because the link between

remark and the injury has been attenuated by republication in

popular press. Our commitment to fair play and substan

justice precludes us from subjecting a person to the rigor

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long-distance litigation on the basis of so gossamer a showin

causation and voluntariness.

We need go no further. When all is said and

courts must assert jurisdiction, or abjure its assertion, wit

eye toward fundamental fairness. Thus, here, the dist

court's dismissal of the instant action for want of in pers __ ___

jurisdiction must be

Affirmed. Affirmed. ________


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Ticketmaster v. Alioto, 1st Cir. (1994)

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