Foster-Miller, Inc. v. Babcock & Wilcox Canada

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1498

FOSTER-MILLER, INC.,

Plaintiff, Appellant,

v.

BABCOCK & WILCOX CANADA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Boudin, Circuit Judge.

James J. Foster, with whom Michael A. Diener and Wolf,

Greenfield & Sacks, P.C. were on brief, for appellant.

Peter L. Resnik, with whom Cherie L. Krigsman and McDermott,

Will & Emery were on brief, for appellee.

February 9, 1995

SELYA, Circuit Judge. In Boit v. Gar-Tec Prods., Inc.,
SELYA, Circuit Judge.

967 F.2d 671 (1st Cir. 1992), we urged district courts to take a

flexible approach in handling motions to dismiss for lack of in

personam jurisdiction, and, concomitantly, to tailor procedures

for use in those purlieus. Turning from the general to the

particular, we recommended that district courts employ varying

levels of scrutiny in connection with such motions, adapting the

level of scrutiny to the exigencies of the individual case. See

id. at 674-78. Among other possibilities, we suggested using a

special intermediate standard when "factual issues are common to

both the jurisdictional question and the claim on the merits . .

. ." Id. at 677.

The case before us today an appeal by Foster-Miller,

Inc. (FMI) from an order dismissing its commercial tort action

against Babcock & Wilcox Canada (BWC) illustrates vividly that

Boit's flexible approach demands circumspection in its

application. In this case, the district court applied Boit's

intermediate standard too rashly when, eager to test whether a

legally sufficient showing of jurisdiction had been made, it

neither gave the parties adequate notice that it intended to use

this special standard nor ensured that FMI had a fair opportunity

to gather and present the evidence necessary for such a showing.

While we are not without sympathy for the district judge he

inherited this case midstream, and Boit, in retrospect, should

have emphasized the need to forewarn litigants of a trial court's

intention to go beyond the prima facie standard typically

2

associated with motions to dismiss under Fed. R. Civ. P. 12(b)(2)

we cannot permit the dismissal order to stand.

I. THE FACTS
I. THE FACTS

We sketch the operative facts, drawing liberally from

the lower court's opinion. See Foster-Miller, Inc. v. Babcock &

Wilcox Can., 848 F. Supp. 271 (D. Mass. 1994).

The parties to this appeal are quondam competitors:

FMI is a Massachusetts corporation engaged in furnishing sludge

and particle removal services for nuclear steam generators; BWC

is a Canadian firm that, among other things, services such

generators. At its core, the litigation concerns a virtual

meltdown of the parties' relationship, which in turn detonated a

lawsuit. The tale follows.

As early as 1988, FMI and BWC entertained the prospect

of a joint venture to furnish sludge removal services to Ontario

Hydro, a Canadian utility. Although the joint venture idea

stalled and the principals went their separate ways, Canada

remained an alluring target. But the road to prosperity had a

large pothole. FMI's then-extant technology, known by the

acronym "CECIL," featured flexible lances that directed powerful

bursts of water at pockets of sludge found within the hard-to-

reach crannies of nuclear steam boilers. While this system had

distinct competitive advantages over BWC's rival rigid lance

system, neither system performed satisfactorily in the cleansing

of Canadian boilers (known in the trade as Candu boilers).

Determined to detour around the "can't do Candu"

3

pothole and penetrate the Canadian market, BWC set out to design

a lance of unprecedented flexibility. In 1989, while BWC's

development efforts were underway, Ontario Hydro (acting on

behalf of a consortium of Canadian utilities) retained FMI to

study the feasibility of adapting FMI's flexible lance technology

for use in Candu boilers. As part of this endeavor, FMI

contracted with a well-known supplier, U.S. Composites (CompCo),

to create a new type of hose.

In March 1990, Robert A.S. Lee, an FMI employee who had

been instrumental in perfecting CECIL, attended an industry

conference in Tennessee. Daniel St. Louis, a BWC engineer

involved in that company's push to fashion a flexible lance,

attended the same session. During a previous encounter, the men

had casually discussed high pressure hoses. On this occasion,

their conversation became more detailed and focused on the

possibility of reinforcing high pressure hoses with certain

fibers. The discussion proved prophetic: a few weeks

thereafter, CompCo delivered the special hose that FMI had asked

it to design. The hose was thought in certain quarters to

represent a technological breakthrough. One of its more

revolutionary features was a double-layered Kevlar sheath that

supplied desired reinforcement.

On May 11, 1990, an Ontario Hydro representative, James

Malaugh, traveled to FMI's plant in Waltham, Massachusetts, to

assess FMI's progress. Seeking expertise and insight, Malaugh

invited St. Louis to join him. Nonplussed, FMI allowed St. Louis

4

to attend only after BWC signed a confidentiality agreement. The

agreement, duly executed by a ranking official of BWC and

transmitted via facsimile machine from Canada, acknowledged that

FMI "anticipate[d] disclosing . . . certain information of a

novel, proprietary, or confidential nature," and memorialized

BWC's promise "not to use [the] information for any purpose

unless specifically authorized in writing by FMI." The agreement

also stipulated that FMI would be entitled to relief for any

breach.

William Leary, the FMI engineer in charge of the

Ontario Hydro project, hosted the Waltham session. The

participants debated various aspects of flexible lance

technology, including the preferred characteristics of the hose

and possible methods of reinforcement. At one point Leary,

responding to a direct question by St. Louis, identified CompCo

as FMI's supplier. Not long after the Waltham meeting, St. Louis

contacted CompCo and inquired about the possibility of that

company fabricating a similar hose for BWC. St. Louis'

suggestion that FMI would not object proved overly sanguine;

after consulting with FMI, CompCo rebuffed BWC's overtures.1

Undaunted, BWC forged ahead in its research effort. It

eventually succeeded in manufacturing its own flexible lance,

suitable for Candu boilers. Thereafter, Ontario Hydro awarded

BWC a lucrative contract.

1Nonetheless, BWC managed to obtain a sample of the special
hose. The parties dispute whether this occurred before or after
the May 11 meeting.

5

II. THE LITIGATION
II. THE LITIGATION

On November 12, 1993, FMI, claiming to have gotten

hosed, commenced suit against BWC in the United States District

Court for the District of Massachusetts. Invoking diversity

jurisdiction, 28 U.S.C. 1332 (1988), FMI charged breach of the

confidentiality agreement, misappropriation of trade secrets, and

unfair competition. BWC moved to dismiss for lack of in personam

jurisdiction or, in the alternative, on the basis of forum non

conveniens.

Judge Keeton drew the case. Concerns about the

parties' trade secrets slowed discovery to a crawl. At a

conference held on December 16, 1993, Judge Keeton scheduled a

hearing on the motion for January 4, 1994, restricted discovery

for the time being to matters "bear[ing] upon the jurisdictional

issue," and advised counsel that, absent an agreement dissolving

the discovery deadlock, he would use the traditional prima facie

standard, not the special intermediate standard, in evaluating

the motion to dismiss.

At that point, fate intervened. In a routine shuffling

of cases ancillary to the appointment of several new judicial

officers, this case was plucked from Judge Keeton and reassigned

to Judge Stearns. The January 4 hearing never materialized.

Instead, Judge Stearns heard the motion to dismiss on February 1

and 2, 1994. Though the discovery dispute had not been resolved,

Judge Stearns, to FMI's obvious chagrin, undertook not only to

probe the existence of the basic facts on which jurisdiction

6

might be premised but also to adjudicate certain ultimate facts

(e.g., whether the participants actually disclosed any

confidential information at the Waltham meeting).2 And he

applied the special intermediate level of scrutiny rather than

the more easily satisfied prima facie standard.

The district court granted the motion to dismiss.

After stressing the importance of the Waltham meeting to the

jurisdictional issue BWC, after all, had no other significant

contacts with the forum Judge Stearns articulated two bases for

refusing to exercise jurisdiction. First, he found it unlikely

either that proprietary information had been disclosed at the

meeting or that such information came into BWC's possession as a

result of the meeting; therefore, FMI's cause of action did not

arise from BWC's participation in the meeting as required by the

Massachusetts long-arm statute. See Foster-Miller, 848 F. Supp.

at 276-77. Second, and alternatively, the judge concluded that,

even if FMI's claims did arise from BWC's participation in the

Waltham meeting, it would be unreasonable for a Massachusetts-

based court to exercise jurisdiction over BWC, in part because

the court might not be able to grant effective injunctive relief.

See id. at 277.

FMI moved for reconsideration, specifically withdrawing

2Because the scope of this inquiry caught FMI off guard, it
tendered a series of post-hearing offers of proof in an effort to
make up lost ground. We do not comment on the timing of FMI's
proffers. Further proceedings in the district court are
obligatory, see infra Parts IV(C) & V, at which time new

evidentiary submissions can be assembled.

7

its prayer for an injunction. Judge Stearns denied the motion

without comment. This appeal ensued.

III. SPECIFIC PERSONAL JURISDICTION
III. SPECIFIC PERSONAL JURISDICTION

Prior to reexamining the Boit framework, we rehearse

certain general principles of law relating to specific in

personam jurisdiction.

Personal jurisdiction implicates the power of a court

over a defendant. In a federal court, both its source and its

outer limits are defined exclusively by the Constitution. See

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702 (1982).

There are two different avenues by which a court may

arrive at personal jurisdiction. One frequently traveled route

leads to general jurisdiction. "General jurisdiction exists when

the litigation is not directly founded on the defendant's forum-

based contacts, but the defendant has nevertheless engaged in

continuous and systematic activity, unrelated to the suit, in the

forum state." United Elec. Workers v. 163 Pleasant St. Corp.,

960 F.2d 1080, 1088 (1st Cir. 1992) (Pleasant St. I). Here,

BWC's forum-related contacts are far too scanty to justify the

invocation of general jurisdiction. See Foster-Miller, 848 F.

Supp. at 273 (marshalling certain undisputed facts).

When general jurisdiction is lacking, the lens of

judicial inquiry narrows to focus on specific jurisdiction. As

the label implies, this focus requires weighing the legal

8

sufficiency of a specific set of interactions as a basis for

personal jurisdiction. See Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 414-15 & nn.8-9 (1984) (recognizing

"general" and "specific" jurisdiction and distinguishing between

them); Pleasant St. I, 960 F.2d at 1088 (similar); Donatelli v.

National Hockey League, 893 F.2d 459, 462-63 (1st Cir. 1990)

(similar). In that exercise, the applicable constitutional

limits assume critical importance. We explain briefly.

The existence of specific personal jurisdiction depends

upon the plaintiff's ability to satisfy two cornerstone

conditions: "first, that the forum in which the federal district

court sits has a long-arm statute that purports to grant

jurisdiction over the defendant; and second, that the exercise of

jurisdiction pursuant to that statute comports with the

strictures of the Constitution." Pritzker v. Yari, F.3d ,

(1st Cir. 1994) [No. 93-2374, slip op. at 9]; see also

Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.

1994); Hahn v. Vermont Law Sch., 698 F.2d 48, 51 (1st Cir.

1983).

Although we deem the first of the cornerstone

conditions to be self-explanatory, the second condition requires

amplification. This condition implicates three distinct

components, namely, relatedness, purposeful availment (sometimes

called "minimum contacts"), and reasonableness:3

3This trilogy forms an interesting contrast with the
jurisprudence of the branch of the Massachusetts long-arm statute
that applies in many business disputes. See Mass. Gen. L. ch.

9

First, the claim underlying the litigation
must directly arise out of, or relate to, the
defendant's forum-state activities. Second,
the defendant's in-state contacts must
represent a purposeful availment of the
privilege of conducting activities in the
forum state, thereby invoking the benefits
and protections of that state's laws and
making the defendant's involuntary presence
before the state's courts foreseeable.
Third, the exercise of jurisdiction must, in
light of the Gestalt factors, be reasonable.

Pleasant St. I, 960 F.2d at 1089; accord Pritzker, F.3d at

[slip op. at 10-11]; Ticketmaster, 26 F.3d at 206.

IV. APPLYING THE JURISDICTIONAL RULES
IV. APPLYING THE JURISDICTIONAL RULES

A long-arm statute is plainly available for FMI's use.

See Mass. Gen. L. ch. 223A, 3(a) (1992). Section 3(a), quoted

supra note 3, is not modest in its reach. Its language is

expansive, and its words are to be generously applied in order to

determine whether a given defendant fairly can be said to have

participated in the forum's economic life. See Pleasant St. I,

960 F.2d at 1087 (collecting cases). Since section 3(a) applies

here, we turn directly to the second of the two cornerstone

223A, 3(a) (1992) (providing in relevant part for the exercise
of "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 . . . transacting any business" in Massachusetts).
The Massachusetts Supreme Judicial Court has held that, to
animate the statute, the facts must show both that the defendant
transacted business in Massachusetts, and that the plaintiff's
claim arises out of the transaction of that business. See Tatro

v. Manor Care, Inc., 625 N.E.2d 549, 551 (Mass. 1994); Good Hope

Indus., Inc. v. Ryder Scott Co., 389 N.E.2d 76 (Mass. 1979).

From our coign of vantage, these two requirements appear to
correspond, in reverse order, to the first two of the three
constitutional components, i.e., the "transacting any business"

requirement corresponds to "minimum contacts," while the "arising
from" requirement corresponds to relatedness.

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conditions that constitute the foundation for a finding of

specific in personam jurisdiction.

As we have said, the condition comprises three

components. The first minimum contacts is not legitimately

in issue. The seminal jurisdictional fact that BWC voluntarily

dispatched a representative to Massachusetts for commercial

advantage pursuant to a written contract with a Massachusetts

firm cannot be gainsaid. In taking this action, BWC

purposefully conducted activities in the forum state, thereby

making a suit foreseeable. See id. at 1089. Hence, we endorse

the district court's conclusion that BWC transacted business in

Massachusetts to such an extent, and in such a manner, as to

satisfy the minimum contacts requirement. See Foster-Miller, 848

F. Supp. at 276; compare Pritzker, F.3d at [slip op. at

14] (finding jurisdiction in part because the nonresident

defendant, by contract, had "knowingly acquir[ed] an economically

beneficial interest" in a forum-based commercial venture).

Setting the matter of minimum contacts to rest, we come

face to face with the next component: relatedness. In this

case, evaluating that requirement reduces to whether FMI's claim

arises from BWC's minimum contacts. To place this issue into

proper perspective, we first limn the options that are available

to a district court in handling a motion to dismiss for want of

jurisdiction over the person. We then refine that framework and

scrutinize the decision below in light of our handiwork.

A. Establishing and Testing Personal Jurisdiction.
A. Establishing and Testing Personal Jurisdiction.

11

It is apodictic that the plaintiff, who bears the

burden of proving the existence of in personam jurisdiction, must

carry the devoir of persuasion on the elements of relatedness and

minimum contacts. See Ticketmaster, 26 F.3d at 207 n.9; Martel

v. Stafford, 992 F.2d 1244, 1247 n.5 (1st Cir. 1993); Donatelli,

893 F.2d at 468. But this is merely one step along the path; to

allocate the burden is neither to define the evidentiary showing

necessary to meet it nor to explain whether that showing varies

from context to context.

We addressed these important issues in Boit. There, we

tried to formulate a procedural matrix that would serve to endow

the decisional process with appropriate degrees of economy and

manageability. That endeavor produced a trio of standards, each

corresponding to a level of analysis, that might usefully be

employed when a trial court comes to grips with a motion to

dismiss for want of personal jurisdiction.

The most conventional of these methods permits the

district court "to consider only whether the plaintiff has

proffered evidence that, if credited, is enough to support

findings of all facts essential to personal jurisdiction." Boit,

967 F.2d at 675. To make a prima facie showing of this calibre,

the plaintiff ordinarily cannot rest upon the pleadings, but is

obliged to adduce evidence of specific facts. See id. Withal,

the district court acts not as a factfinder, but as a data

collector. That is to say, the court, in a manner reminiscent of

its role when a motion for summary judgment is on the table, see

12

Fed. R. Civ. P. 56(c), must accept the plaintiff's (properly

documented) evidentiary proffers as true for the purpose of

determining the adequacy of the prima facie jurisdictional

showing. Despite the lack of differential factfinding, this

device is a useful means of screening out cases in which personal

jurisdiction is obviously lacking, and those in which the

jurisdictional challenge is patently bogus. However, the

approach offers little assistance in closer, harder-to-call

cases, particularly those that feature conflicting versions of

the facts. See, e.g., General Contracting & Trading Co. v.

Interpole, Inc., 899 F.2d 109 (1st Cir. 1990).

A second option open to the court is to embark on a

factfinding mission in the traditional way, taking evidence and

measuring the plaintiff's jurisdictional showing against a

preponderance-of-the-evidence standard. In Boit, we stated that

this standard may appropriately be invoked when a court

determine[s] that in the circumstances of a
particular case it is unfair to force an out-
of-state defendant to incur the expense and
burden of a trial on the merits in the local
forum without first requiring more of the
plaintiff than a prima facie showing of facts

essential to in personam jurisdiction. A

court may so determine, for example, when the
proffered evidence is conflicting and the
record is rife with contradictions, or when a
plaintiff's affidavits are "patently
incredible . . . ."

Boit, 967 F.2d at 676 (offering examples). Virtually by

definition, the preponderance standard necessitates a full-blown

evidentiary hearing at which the court will adjudicate the

13

jurisdictional issue definitively before the case reaches

trial.4 In that mode, the court will "consider[] all relevant

evidence proffered by the parties and mak[e] all factual findings

essential to disposition of the motion." Id. But this method

must be used discreetly. For one thing, pretrial evidentiary

hearings are relatively cumbersome creatures, and, if used

routinely, can squander judicial resources. For another thing,

since this method contemplates a binding adjudication, the

court's factual determinations ordinarily will have preclusive

effect, and, thus, at least in situations in which the facts

pertinent to jurisdiction and the facts pertinent to the merits

are identical, or nearly so, profligate use of the preponderance

method can all too easily verge on a deprivation of the right to

trial by jury.

In Boit, we recognized these difficulties. We also

recognized that the prima facie and preponderance-of-the-evidence

standards are merely two of several possible models, and that

trial courts need not confine themselves to choosing between

these two levels of evidentiary scrutiny. See id. at 677. In

the special circumstance in which the assertion of jurisdiction

is bound up with the claim on the merits, the possibility of

preclusion renders use of the preponderance standard troubling,

4Such hearings frequently are convened under the aegis of
Fed. R. Civ. P. 12(d), which provides in pertinent part that
certain defenses, including the defense of lack of in personam

jurisdiction, "shall be heard and determined before trial on
application of any party," unless the court orders a deferral
until time of trial.

14

while the possibility of permitting a dubious case to proceed

beyond the pleading stage, and even to trial, though the court

eventually will be found to lack jurisdiction, renders use of the

prima facie standard undesirable.

The Boit panel anticipated that, when this special

circumstance arose, trial courts might steer a middle course by

engaging in some differential factfinding, limited to probable

outcomes as opposed to definitive findings of fact, thereby

skirting potential preclusionary problems while at the same time

enhancing the courts' ability to weed out unfounded claims of

jurisdiction. Utilizing this intermediate standard, a district

court, "even though allowing an evidentiary hearing and weighing

evidence to make findings . . . may merely find whether the

plaintiff has shown a likelihood of the existence of each fact

necessary to support personal jurisdiction." Id. This showing

constitutes an assurance that the circumstances justify imposing

on a foreign defendant the burdens of trial in a strange forum,

but leaves to the time of trial a binding resolution of the

factual disputes common to both the jurisdictional issue and the

merits of the claim. See id. at 678.

Unlike the prima facie standard, and like the

preponderance standard, this third method, which we sometimes

call the "likelihood standard,"

involves factfinding rather than merely
making a ruling of law regarding sufficiency
of the evidence to present a fact question.
Like the first and unlike the second method,
however, the third method avoids potentially
troubling issues of "issue preclusion" or

15

"law of the case" (at least when the court
denies the motion) because a determination by
such an intermediate standard . . . does not
purport to be a finding by the same standard
on the same issue as will be decided at
trial.

Id.

We acknowledge that having an array of standards at the

ready may be thought too much of a good thing. However, even

though an intermediate standard will not be used with great

frequency, the need for one is manifest. We can postulate a

variety of "common facts" scenarios in which the facts necessary

to sustain personal jurisdiction are intimately bound up with

facts necessary to establish the merits of the underlying claim.

See, e.g., Ann Althouse, The Use of Conspiracy Theory to

Establish In Personam Jurisdiction: A Due Process Analysis, 52

Fordham L. Rev. 234, 247-51 (1983) (noting, though not adequately

resolving, the problem created in situations where proving the

facts "upon which jurisdiction depends is viewed as inextricably

tied to the substantive merits of the case"). It is precisely

because of the incidence of these situations situations in

which the issue of jurisdiction is factually enmeshed with the

merits of the suit that we recognized in Boit the need for an

intermediate standard of proof and, correspondingly, an

intermediate standard of judicial analysis.

B. Standards of Review.
B. Standards of Review.

We are reluctant to end our discussion of the methods

available to district courts for testing jurisdictional waters

without mentioning appellate review. As a practical matter, the

16

standard of review will depend in the first instance on whether

the court of appeals is reviewing the district court's choice of

an analytic method or its application of such a method. As for

the court's initial choice from among the three standards we have

discussed prima facie, likelihood, or preponderance appellate

review is de novo. This accords with the general principle that

a trial court's determinations as to the legal rules that govern

a party's proof, including those that dictate what quantum of

proof the law requires, are subject to plenary review. See,

e.g., Putnam Resources v. Pateman, 958 F.2d 448, 471 (1st Cir.

1992); see also Soto v. United States, 11 F.3d 15, 17 (1st Cir.

1993) (holding that "if a district court applie[s] an erroneous

legal standard to the facts," de novo review obtains).

As for the district court's subsequent application of

the method that it chooses, the standard of review will vary from

method to method. If the district court employs the prima facie

standard, then appellate review is de novo. See United Elec.

Workers v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir.

1993) (Pleasant St. II); Boit, 967 F.2d at 675; see also Garita

Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st

Cir. 1992) (explaining that appellate courts traditionally review

rulings on motions to dismiss de novo, "applying the same

criteria that obtained in the court below"). If the district

court departs from the conventional method of adjudicating

motions to dismiss and relies upon the preponderance-of-the-

evidence standard to determine the existence vel non of personal

17

jurisdiction, then appellate review is for clear error. See

CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir.

1986); see also Fed. R. Civ. P. 52(a).

If the district court employs the intermediate

standard, then appellate review is for abuse of discretion. Cf.

Boit, 967 F.2d at 678 (suggesting a deferential standard of

appellate review). Two considerations point to the applicability

of this deferential mode of review in this situation. First, the

nature of a likelihood analysis is such that it falls naturally

within the realm of discretionary decisionmaking. Second, from a

practical standpoint, a likelihood analysis simply does not seem

amenable to either of the other standards. Unlike the classic

motion to dismiss, in which the plaintiff's assertions are

accepted as true, a likelihood analysis requires the judge to

pass upon the accuracy and integrity of the plaintiff's

assertions. Yet, in contrast to a preponderance-of-the-evidence

analysis, these determinations are not true findings of fact, for

they lack definiteness to some degree, and they also lack the

preclusive quality that would otherwise normally attach.

Consequently, we believe that abuse of discretion is the proper

standard of review. In practical terms, this means that we will

set aside the challenged ruling only if we descry "a meaningful

error in judgment." Anderson v. Cryovac, Inc., 862 F.2d 910, 923

(1st Cir. 1988); accord Rosario-Torres v. Hernandez-Colon, 889

F.2d 314, 323 (1st Cir. 1989) (en banc).

Of course, whatever method is chosen and however it may

18

be applied, appellate review of the trial court's legal

conclusions about whether its findings do or do not support

the exercise of in personam jurisdiction is always nondeferential

and plenary. See Boit, 967 F.2d at 678.

C. Applying the Likelihood Standard.
C. Applying the Likelihood Standard.

After convening an evidentiary hearing and bringing the

likelihood standard to bear, Judge Stearns found it unlikely

either that FMI disclosed legally protected information at the

Waltham meeting or that BWC obtained confidences as a consequence

of the meeting. See Foster-Miller, 848 F. Supp. at 276-77. FMI

assigns error. Its appeal raises potentially difficult questions

about the application of Boit's likelihood standard in certain

types of cases.

We hasten to note that the paradigm case involving

the use of Boit's intermediate standard as a basis for exercising

jurisdiction, i.e., as a basis for denying a motion to dismiss

hardly seems problematic. In such a scenario, the plaintiff is

permitted to proceed in its forum of choice, yet the defendant

has the consolation of having been afforded a detailed

demonstration, beyond a mere prima facie showing, of why the

court deems it fair to exercise jurisdiction, at least

provisionally. It is only when Boit's intermediate standard is

used as a basis for declining the exercise of jurisdiction, i.e.,

as a basis for granting a motion to dismiss, that the prospect of

mischief looms. One can easily imagine cases in which the

likelihood standard might be applied to adjudicate facts that are

19

only marginally related to jurisdiction, or are very closely

related to the merits of the plaintiff's substantive claims, thus

prematurely extinguishing a plaintiff's ability to present its

case in a full and fair manner.5

The short of it is that, whatever its merits in the

abstract, Boit's intermediate standard requires caution in its

application, especially when it appears that a dismissal may

result. Indeed, although Boit does, in dictum, 967 F.2d at 677-

78, propose to authorize such dismissals, it is noteworthy that,

apart from the opinion of the court below, there is no other

reported case, Boit included, that has sanctioned a dismissal

pursuant to a district court's use of the likelihood standard.

In general, this is as it should be. To the limited

extent that dismissals under Boit's intermediate standard are

justified at all, they will happen only rarely. Even then, the

exact bounds of permissible application may not always be

evident. Nonetheless, we believe it is better to tolerate the

inconvenience of mild doctrinal uncertainty rather than to forgo

altogether the utility of an intermediate standard and method of

analysis. See generally Stephen L. Carter, Constitutional

Adjudication and the Indeterminate Text: A Preliminary Defense

5Conceivably, such an adjudication may also serve to thrust
the judge into a role that, depending upon the circumstances,
more appropriately belongs to the jury. See, e.g., Jacob v. City

of New York, 315 U.S. 752, 756 (1942) (noting basic principle

that merely because a "case is close and a jury might find either
way . . . is no reason for a court to usurp the function of the
jury"); Nunes v. Farrell Lines, Inc., 227 F.2d 619, 621-22 (1st

Cir. 1955) (applying principle of Jacob and vacating directed

verdict).

20

of an Imperfect Muddle, 94 Yale L.J. 821 (1985) (recognizing the

impossibility of removing all uncertainty from legal doctrine);

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev.

457, 465 (1897) (warning that, in respect to judicial decisions,

"certainty generally is illusion, and repose is not the destiny

of man"). The bottom line, clearly, is that judges employing

Boit's intermediate standard should proceed with great care.

In any event, these potential difficulties are

peripheral to the instant appeal. In this instance, the flaw is

less Judge Stearns' initial decision to switch the signals

previously given by Judge Keeton and instead apply the

intermediate standard, but more his failure to apprise FMI

squarely of this change of plan a failure that was aggravated

by FMI's inability to engage in appropriate discovery and then to

present the totality of its evidence within the context of a

likelihood analysis.

When judges elect on their own initiative to use

innovative methods in an effort to accelerate the progress of a

case, they must take pains to ensure that parties are given

satisfactory notice, reasonable access to discovery, and a

meaningful opportunity to present evidence. See, e.g., Stella v.

Town of Tewksbury, 4 F.3d 53, 55-56 (1st Cir. 1993) (stating

these principles in the context of sua sponte summary judgment);

Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1560-61

(1st Cir. 1989) (similar). While the likelihood standard has

value, the latent risks associated with its use are not

21

insignificant, and they should be ameliorated to the extent

practicable.

Here, the lower court did not afford FMI the process

that was due. To be sure, Judge Stearns advised counsel at a

status conference on January 20, 1994, that he was pondering the

use of the likelihood standard, but he neither eased the existing

restriction on discovery nor superseded Judge Keeton's prior

directives. The prima facie standard remained the default

setting, and Judge Stearns' intentions remained open to

conjecture until the day of the hearing. Indeed, while the court

transmitted mixed signals to some degree, it closed the January

20 conference by specifically announcing that the question of

misappropriation would not be subject to anything more rigorous

than scrutiny under a prima facie standard. On this point, Judge

Stearns' intention could not have been more explicit. He told

the lawyers: "I am going to, for purposes of this hearing, . . .

basically accept whatever [FMI] allege[s] to be true in terms of

the misappropriation."

Following this pronouncement, the court never gave the

litigants suitable forewarning of a change of heart, or of the

extent to which it would apply the likelihood standard. To

understand the gravity of this omission, it is important to

understand the restriction imposed on discovery by Judge Keeton,

and how that restriction arose. On December 15, 1993, FMI moved

"to examine the documents and other materials maintained by BWC

which would be relevant to statements in the affidavits of Mr.

22

St. Louis and others concerning contacts with, statements made

by, and other information received from Foster-Miller . . . ."

BWC objected. The next day Judge Keeton, ruling ore tenus,

restricted FMI's discovery to matters "bear[ing] upon the

jurisdictional issue." All other discovery, he ruled, was "out

of bounds" for the time being. We think that this limitation,

coupled with the judge's simultaneous indication that he would

evaluate the motion to dismiss under the prima facie standard,

effectively prevented FMI from engaging in merits-related

discovery. And when Judge Stearns then shifted abruptly from the

forecasted prima facie standard to the more intrusive likelihood

standard, the preexisting restriction which remained intact on

Judge Stearns' watch hamstrung FMI.6

Since this imperfect communication obviously

prejudiced FMI's ability fairly to meet the rigors that an

across-the-board use of the likelihood standard imposed in the

circumstances of this case, we must set aside the court's

conclusion that FMI's suit did not "arise from" BWC's activities

in the forum state. To that extent, then, the dismissal order

6This is because the two standards involve markedly
different quanta of proof. So long as a prima facie standard
obtained, FMI had neither a right nor a reason, in the course of
"jurisdictional discovery," to ferret out all the supporting
evidence regarding the confidential nature of what had been
discussed in Waltham. By the same token, it had neither a right
nor a reason to document fully the allegedly improper uses of
such confidences by BWC. But once the court shifted to a
likelihood standard, the scope, tenor and degree of the
prospective inquiry changed, and FMI was caught, like a fawn in
the headlights of a speeding van, without the discovery it needed
to prove its point.

23

succumbs.

V. ASSESSING REASONABLENESS
V. ASSESSING REASONABLENESS

Our odyssey is not yet at an end. In addition to

holding that FMI's claim did not arise from BWC's in-forum

contacts, the district court held, alternatively, that it would

be unreasonable to exercise jurisdiction over BWC. See Foster-

Miller, 848 F. Supp. at 277; see generally Asahi Metal Indus. Co.

v. Superior Court, 480 U.S. 102, 113-16 (1987) (undertaking

reasonableness inquiry); Burger King Corp. v. Rudzewicz, 471 U.S.

462, 476-78, 482-85 (1985) (similar). Since the rapid-fire shift

of standards probably tainted this conclusion as well, we could

simply vacate the alternative holding. We choose instead to

dissect it for three reasons: the district court's rationale is

troubling, it has been reported in a published opinion, and the

underlying issue may arise on remand.

The hallmark of reasonableness in the context of

personal jurisdiction is "fair play and substantial justice."

International Shoe Co. v. State of Washington, 326 U.S. 310, 320

(1945). We have tended to channel the quest for that imperative

through a template that highlights five factors. The factors

include:

(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating
the dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief,
(4) the judicial system's interest in
obtaining the most effective resolution of
the controversy, and (5) the common interests
of all sovereigns in promoting substantive
social policies.

24

Pleasant St. I, 960 F.2d at 1088. We have called the points that

compose this template "the gestalt factors" because, in any given

case, they may neither be amenable to mechanical application nor

be capable of producing an open-and-shut result. Their primary

function is simply to illuminate the equitable dimensions of a

specific situation, thereby "put[ting] into sharper perspective

the reasonableness and fundamental fairness of exercising

jurisdiction" in that situation. Pritzker, F.3d at [slip

op. at 19].

In the case at bar, the trial court found that the

first, fourth, and fifth factors did not favor one outcome over

the other, but that the remaining two factors discouraged the

exercise of jurisdiction. See Foster-Miller, 848 F. Supp. at

277. The court then invoked a sixth factor the ability of a

Canadian court to apply Massachusetts law competently and

impartially and concluded that even if "some harm had flowed to

Foster-Miller from the Waltham meeting," the suit should be

dismissed based on "considerations of due process." Id.

The district court's analysis is flawed. First and

foremost, the court's added consideration the absence of any

reason to believe that a Canadian court would display bias or

prove incapable of applying Massachusetts law has no place in

the minimum contacts calculus. Though the five gestalt factors

should not necessarily be deemed collectively exhaustive, see,

e.g., FDIC v. British-American Ins. Co., 828 F.2d 1439, 1442 (9th

Cir. 1987) (recognizing additional factors), the element seized

25

upon by the court below is of no relevance here. Moreover, it is

already committed to the doctrine of forum non conveniens. See

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947); see also

Burger King, 471 U.S. at 477 & n.20 (specifically distinguishing

between the primary role of the enumerated gestalt factors and

the secondary role of considerations relevant to forum non

conveniens). The doctrines of personal jurisdiction and forum

non conveniens share certain similarities, but they embody

distinct concepts and should not casually be conflated. Compare

Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-

Access Doctrine, 133 U. Pa. L. Rev. 781, 788-89 (1985)

(distinguishing the doctrines) with Margaret G. Stewart, Forum

Non Conveniens: A Doctrine in Search of a Role, 74 Cal. L. Rev.

1259 (1986) (arguing that certain factors currently considered

under forum non conveniens doctrine should be subsumed under

personal jurisdiction analysis). Consequently, the district

court's self-proclaimed sixth factor adds nothing useful to the

jurisdictional mix.7

The court also adopted several other questionable

7To drive this conclusion home, we note two related points.
First, the very case on which the district court relied in
assigning weight to the added factor, Howe v. Goldcorp Invs.,

Ltd., 946 F.2d 944 (1st Cir. 1991), cert. denied, 112 S. Ct. 1172

(1992), is a forum non conveniens case, not a personal

jurisdiction case. Second, we are unable to discern a link
between the judge's hosannas to the Canadian court system and his
conclusion that a federal district court sitting in Massachusetts
lacks jurisdiction. Assuming that neither of two courts poses an
undue risk of biased or incompetent adjudication, there is
nothing to be counted against either of them in working the
jurisdictional calculus.

26

positions, likely influenced by its mistaken blending of the

theories of personal jurisdiction and forum non conveniens, in

the course of ascertaining that the second and third gestalt

factors militated against the exercise of jurisdiction. For

example, the court deviated from the thrust of the second factor

by centering much of its discussion on "the implications of this

litigation for a Canadian industry upon whom [sic] an entire

population depends for electric power" and on the extent to which

Canada's interests "dwarf" those of Massachusetts. Foster-

Miller, 848 F. Supp. at 277. This emphasis distorts the

directive that a court pondering the second factor must mull "the

forum state's interest in adjudicating the dispute," Pleasant St.

I, 960 F.2d at 1088. The purpose of the inquiry is not to

compare the forum's interest to that of some other jurisdiction,

but to determine the extent to which the forum has an interest.

See, e.g., Burger King, 471 U.S. at 483 & n.26 (flatly rejecting

the notion that a non-forum state's "acknowledged interest might

possibly render jurisdiction in [the forum] unconstitutional" and

observing that "minimum-contacts analysis presupposes that two or

more States may be interested in the outcome of a dispute").

The district court's analysis is equally awry in its

treatment of the third gestalt factor (which requires an

assessment of "the plaintiff's interest in obtaining convenient

and effective relief," Pleasant St. I, 960 F.2d at 1088).

Although finding that "it is more convenient for the plaintiff to

litigate this matter in domestic comfort," Foster-Miller, 848 F.

27

Supp. at 277, the court offset this finding by invoking, inter

alia, a presumed inability "to award plaintiff the full measure

of relief that it seeks" because of doubts concerning both the

propriety and the efficacy of enjoining a foreign national whose

presence in Massachusetts had been fleeting. Id. This concern

is beside any relevant point where a plaintiff's inability to

obtain certain kinds of relief is wholly a product of her own

choice of forum. At any rate, the plaintiff here explicitly

informed the court of its willingness to forgo injunctive relief

if necessary to salvage jurisdiction.

We have another problem with the district court's

assessment of the third gestalt factor. The court downplayed

FMI's convenience because the company "does business in Canada

and is represented by presumably capable Canadian attorneys."

Id. Putting this spin on the matter emphasizing that the

plaintiff could just as easily litigate in a Canadian court

effectively nullifies the plaintiff's choice to litigate its suit

not in Canada but in Massachusetts. Though such judicial second-

guessing may be proper in deciding transfer-of-venue motions or

when the plaintiff's supposed convenience "seems to be . . . a

makeweight," contrived purely for strategic advantage, courts

considering jurisdictional issues generally should "accord

plaintiff's choice of forum a degree of deference in respect to

the issue of its own convenience . . . ." Ticketmaster, 26 F.3d

at 211. So it is here.

We will not comment on the lower court's assessment of

28

the first, fourth, and fifth gestalt factors. It is evident from

what we have written to this point that the order of dismissal

cannot plausibly rest on the existing assessment of

reasonableness.

VI. CONCLUSION
VI. CONCLUSION

We have come full circle, back to our beginnings. The

Boit framework is an expression of pragmatism an authoritative

recognition, informed both by experience and by the demands

placed on the federal bench, that it is desirable for trial

judges, when feasible, to give meaningful, yet not unduly

burdensome, scrutiny to the question of jurisdiction at the early

stages of particular types of cases. The pragmatic nature of the

framework requires courts to proceed with caution, mindful of the

risks of overapplication and of the need to give parties ample

notice and opportunity to demonstrate that jurisdiction is, or is

not, proper. In the case at hand, the district court failed to

provide these latter necessities to FMI. The court then

compounded its error by weighing extraneous elements in

attempting to strike a balance on reasonableness. Thus, we find

merit in FMI's appeal.

We need go no further. We vacate the order of

dismissal. On remand, the district court should alert the

parties in advance to the level of scrutiny that it will apply to

the pending motion and the factual questions to which the

standard will pertain. The court should also allow such further

discovery, if any, as may be desirable in light of its

29

intentions. At the appropriate juncture, the court may accept

submissions in such form as it deems proper and make its

determination on relatedness. If the court deems the basic

jurisdictional tests satisfied, it should then undertake a

reasonableness analysis that comports with our precedents.8 We

take no view on the ultimate resolution of the issues to be

addressed on remand, or on the proper weighing of the gestalt

factors. Our concern at this stage is primarily with the court's

methodology.

Vacated and remanded. Costs in favor of appellant.
Vacated and remanded. Costs in favor of appellant.

8We note that BWC's Rule 12(b) motion raised the matter of
forum non conveniens as an independent basis for dismissal. The

district court declined to reach that issue. See Foster-Miller,

848 F. Supp. at 277 n.4. On remand, this issue may be raised
again.

30