United States Court of Appeals
For the First Circuit
____________________
No. 01-2481
JET WINE & SPIRITS, INC.,
Plaintiff, Appellant,
v.
BACARDI & COMPANY LTD.,
Defendant, Appellee,
BACARDI LTD., BACARDI U.S.A., INC.,
Defendants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
____________________
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
____________________
Evan T. Lawson with whom J. Mark Dickison and Lawson &
Weitzen, LLP were on brief for appellant.
Gerald J. Caruso with whom Carlene A. Pennell, Nur-ul-
Haq, and Rubin and Rudman, LLP were on brief for appellee.
____________________
July 18, 2002
____________________
LYNCH, Circuit Judge. This case raises the issue of the
exercise of personal jurisdiction by a federal district court over
an international corporation that has been allocated certain
responsibilities within a complex corporate family. Jet Wine &
Spirits, a broker of alcoholic beverages in New Hampshire, appeals
the dismissal, for lack of personal jurisdiction, of its action
based on state contract and tort law against Bacardi & Company
(BACO), an owner of various trademarks and intellectual property
related to internationally sold alcoholic beverages.
BACO owns several brands of Dewar's Scotch and Bombay
Gin, which it acquired from Diageo, which had a relationship with
Jet Wine. Jet Wine had previously distributed Dewar's in several
New England states, including New Hampshire, and Bombay in Maine.
As distributor, Jet Wine had been party to a contract with
subsidiaries of the companies that merged to form Diageo. After
BACO's acquisition of the brands, a corporate cousin of BACO
terminated Jet Wine as distributor. Jet Wine then sued a number of
members of the Bacardi corporate family on several theories. In
this appeal, only its claims against BACO are at issue. Jet Wine
says that BACO assumed Diageo's contractual obligations to Jet Wine
and then reached into New Hampshire (among other states) to violate
the contract terms and disrupt Jet Wine's various protected
interests. BACO says it has nothing to do with New Hampshire, and,
for that matter, nothing to do with Jet Wine's contract. We
conclude that whatever the ultimate merits of Jet Wine's
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substantive claims, there is enough of a prima facie showing to
support the exercise of personal jurisdiction, and reverse.
I.
We first describe the facts as we take them for the
purpose of this appeal. As we discuss in more detail in Part III,
the facts of the case are at present merely Jet Wine's allegations
so far as evidence supports them after preliminary jurisdictional
discovery, supplemented by BACO's uncontested allegations.
Jet Wine is a New Hampshire corporation that does
business in New Hampshire and is owned by the Martignetti
Corporation, itself a Massachusetts corporation. New Hampshire
directly controls all sales of alcohol in the state through its
State Liquor Commission, and Jet Wine is licensed to sell to the
Commission. In 1996 and 1997, Jet Wine signed several contracts
with Schieffelin & Somerset Co. by which it became Schieffelin's
exclusive distributor in New Hampshire, Vermont, and Maine for
various alcoholic beverages, including the White Label and Ancestor
brands of Dewar's Scotch. The arrangements were to last until the
end of 1999, and after that could be terminated by either party on
thirty days' notice. Each contained a clause stating that "[t]he
parties hereby consent and submit to the personal jurisdiction of
the United States District Courts within the State of New York."
Jet Wine also alleges an agreement with Carillon Importers, by
which it became Carillon's representative in Maine for Bombay Gin
for an indefinite period.
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BACO is a Liechtenstein corporation with its primary
place of business in the Bahamas. It is wholly owned by Bacardi
International Limited (BIL). BIL is in turn almost wholly owned
(99.88%) by Bacardi Limited (BL), a Bermuda corporation with its
primary place of business in Bermuda. BL also wholly owns Bacardi
U.S.A. (BUSA),1 a Delaware corporation with its primary place of
business in Florida. BL serves as a holding company for the
various other Bacardi corporations. BACO owns various trademarks
and other intellectual property related to the sale of alcoholic
beverages. BUSA imports alcoholic beverages into, and distributes
them in, the United States. There is some overlap of officers and
directors among the corporations: BACO's President is among BL's
directors, the Chairman of BIL's Board of Directors is a Senior
Vice President of BL, one of BACO's Vice Presidents is also a Vice
President of BL, and the Chairman of BUSA's Board was among BL's
alternate directors when the complaint was filed.
BACO does no business directly in New Hampshire, except
possibly through its web site, as described below. The parties
dispute whether BACO does business there through an agent, as
discussed in Part III of this opinion. BACO owns an internet
domain name, bacardi.com, that corresponds to a site on the World
Wide Web at http://www.bacardi.com. It also owns clubbacardi.com,
for which no Web site presently exists. From November 1998 to
September 1999, http://www.bacardi.com sold some Bacardi
1
At the time of the district court's decision in this
case, BUSA was named Bacardi-Martini U.S.A. It has since changed
its name.
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promotional items (clothing and keychains, not alcohol), including
two sales to New Hampshire addresses for a total of $30.75. This
money went to National Corporate Services Unlimited, an unrelated
company that buys merchandise from BUSA and sells it over the Web
site. BACO also owns dewars.com, dewarsscotch.com, and
bombaysapphire.com, each of which corresponds to a Web site. Jet
Wine has shown no sales from those Web sites in New Hampshire.
BACO owns one trademark, "Havana Club," that is registered in New
Hampshire.
Schieffelin, Jet Wine's former source for Dewar's, was a
subsidiary of Guinness. Carrillon, Jet Wine's former source for
Bombay, was a subsidiary of Grand Metropolitan. In 1997, Guinness
and Grand Metropolitan began negotiating a merger that eventually
produced Diageo. The merger encountered opposition from the
Federal Trade Commission, which demanded that Diageo sell some of
its operations to preserve competition that the merger would
otherwise eliminate. Among those operations were Dewar's and
Bombay. On March 27, 1998, BL's CEO, acting for BACO and for
William Lawson Distillers (another subsidiary of BL), signed two
Asset Purchase Agreements with Diageo for assets related to the
Dewar's and Bombay brands. BACO agreed "[o]n the terms and subject
to the conditions set forth [in the Agreements] . . . to assume and
discharge or perform when due all Assumed Liabilities." "Assumed
Liabilities" as defined in the Dewar's Agreement include
all liabilities and obligations that arise out of or
relate to the Transferred Assets (including under any
Contract) [or] the Dewar's Business . . . to the extent
attributable to occurrences and circumstances arising on
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or following the Closing, including any obligations to
deliver finished case goods following the Closing under
purchase orders of, or commitments to, Persons other than
Affiliates of Seller.
"Contract" is defined by reference to a schedule attached to the
Agreement, which does not mention Jet Wine or New Hampshire, and in
addition to include "comparable agreements . . . with respect to
any markets other than the Major Markets . . . that are solely
related to Dewar's." The United States is among the "Major
Markets," and Jet Wine's agreement with Schieffelin was not solely
related to Dewar's. Another schedule, listing distributors for
Dewar's, does mention Jet Wine as the relevant New Hampshire
Distributor. The "Dewar's Business" is defined in the preamble to
the Dewar's Agreement, to which the body of the Agreement refers,
as "the marketing, sales and distribution of Scotch whisky under
trade names or trademarks that include one or more of the terms
'Dewar's,' 'Ancestor,' 'Ne Plus Ultra,' and 'White Label.'" The
Bombay Agreement contains identical language regarding assumption
of liabilities, except that it refers instead to the "Bombay
Business," which it defines as "the marketing, sales and
distribution of gin under trade names or trademarks that include
one or more of the terms 'Bombay' and 'Sapphire.'"2
On June 15, BACO gave BIL a worldwide exclusive license
to use the Dewar's and Bombay Brands. BIL then appointed BUSA as
2
Douglas Gibson, who helped to negotiate the two
Agreements and afterwards became Vice President and General Counsel
of BL, testified by affidavit that the parties to the agreement
never suggested in negotiations that BIL -- the initially planned
purchaser, later replaced by BACO -- would assume Diageo's
obligations to distributors.
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the United States distributor of those brands. On the same day,
BUSA sent letters to Jet Wine that terminated Jet Wine as the
broker for Dewar's in New Hampshire, Vermont and Maine. On June
16, it provided a letter for BUSA's legal department addressed "To
Whom It May Concern." The June 16 letter said that BUSA was the
"exclusive brand agent and distributor" and "Primary American
Source of supply" for the Dewar's and Bombay brands in the United
States. It also authorized BUSA "to take all legal steps necessary
to effectuate the sale of our products in the United States of
America, including but not limited to, making any and all filings
for the registration and sale of our products which may be required
under State or Federal laws and regulations." The letter was
signed by Linda Beidler-D'Aguilar, BACO's Assistant Vice President,
Legal and Trademark.3 No evidence in the record indicates directly
who, if anyone, received this letter other than BUSA.
II.
As a result of the June 15 terminations, Jet Wine filed
this lawsuit on December 4, 1998, in the District of New Hampshire,
naming BL, BACO, and BUSA as defendants. It alleged in its
complaint four claims: (1) breach of contract against BACO alone,
(2) intentional interference with contractual relations against all
three defendants, (3) intentional interference with advantageous
business relations against all three defendants, and (4) violation
3
Frederick J. Wilson, Vice President, General Counsel, and
Secretary of BUSA, testified by affidavit that this letter was
intended only for certain regulatory purposes, which we discuss in
Part III.
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of New Hampshire's consumer protection statute against all three
defendants. On March 4, 1999, BL and BACO moved to dismiss for
lack of personal jurisdiction; BUSA did not.
After limited jurisdictional discovery, the district
court granted the motions to dismiss in an unpublished order. The
court applied the prima facie standard discussed in this circuit's
case of Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675-76 (1st
Cir. 1992). Under that standard it concluded, first, that BACO's
"Havana Club" trademark, its national revenues from other
trademarks, and its web site did not amount to minimum contacts
necessary to support general personal jurisdiction by a New
Hampshire court; second, that the June 16 letter did not support an
inference that BUSA acted as BACO's agent so as to permit the court
to impute BUSA's contacts with New Hampshire to BACO; and, third,
that the two Agreements were unrelated to New Hampshire and so
indicated no direct contact with New Hampshire by BACO. The court
also rejected Jet Wine's arguments for personal jurisdiction over
BL. On September 1, 2000, it granted judgment on the pleadings for
BUSA on Jet Wine's state consumer protection claim, and on
September 13, 2001, summary judgment for BUSA on Jet Wine's
remaining claims.
In this appeal, Jet Wine has challenged only the district
court's decision to dismiss for lack of personal jurisdiction its
claims against BACO. It argues that BACO's contacts with New
Hampshire support both specific jurisdiction (as to both the tort
and contract claims) and general jurisdiction over BACO. In
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response, BACO defends the district court's judgment on the grounds
given, and also argues that even if the contacts might suffice for
jurisdiction, the exercise of jurisdiction would be unreasonable
because of that set of considerations this circuit has called the
"gestalt factors." See Foster-Miller, Inc. v. Babcock & Wilcox
Canada, 46 F.3d 138, 150 (1st Cir. 1995).
III.
A. Applicable law
We review de novo a district court's decision to dismiss
for lack of personal jurisdiction when the court held no
evidentiary hearing but instead conducted only a prima facie review
of the jurisdictional facts. Boit, 967 F.2d at 675. No party
objected then or now to the prima facie standard, and so we inquire
only whether the magistrate judge reached the correct decision
under the standard he chose. Id.
In determining personal jurisdiction, we first ask
whether that jurisdiction was authorized by statute. This circuit
has held that under the applicable New Hampshire long-arm statute,
the courts of New Hampshire (and therefore the federal district
court in New Hampshire) may exercise personal jurisdiction over any
unregistered foreign corporation if the Constitution permits.
Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995). The
question presented by this appeal is therefore whether the
Constitution, specifically the Due Process Clause of the Fourteenth
Amendment, permits the courts of New Hampshire to exercise personal
jurisdiction over BACO. Jet Wine presents a number of theories on
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which it argues due process does permit that exercise. We address
only one of those theories: that the two Agreements and the June 16
letter, viewed under the generous prima facie standard and in light
of the other facts of the case, demonstrate sufficient contacts
with New Hampshire, out of which Jet Wine's claims arose, that
specific jurisdiction is consistent with due process.4 We agree,
and agree moreover that the considerations of fairness and policy
embodied by the gestalt factors do not require a different result
in this case.
This circuit recently decided Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42 (1st Cir. 2002),
which discusses the relevant law. Indeed, the legal issues of that
case are somewhat analogous to those before us today. We will
restate the law only briefly. As the plaintiff, Jet Wine bears the
burden of establishing personal jurisdiction. To do that, it must
show that BACO has had "certain minimum contacts" with New
Hampshire "such that maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'" Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)). For its contract claim, the
type of claim discussed in Daynard, Jet Wine may ask the court to
draw inferences from "the parties' 'prior negotiations and
contemplated future consequences, along with the terms of the
contract and the parties' actual course of dealing.'" Daynard, 290
4
We express no opinion on the strength of Jet Wine's
arguments for general jurisdiction.
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F.3d at 52 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
479 (1985)). It could show, for example, that "the defendant's
contacts with the forum were instrumental either in the formation
of the contract or in its breach." Phillips Exeter Acad. v. Howard
Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999). For its tort
claims, Jet Wine must show a sufficient "causal nexus" between
BACO's contacts with New Hampshire and Jet Wine's causes of action.
Id.
The contacts need not be actions directly taken by BACO.
Instead, Jet Wine may rely in whole or in part on actions imputed
to BACO through its agents -- as indeed it must, because any action
legally attributed to a corporation is that of one agent or
another. The exact type of agency relationship used to impute
contacts is not crucial to our inquiry regarding traditional
notions of fair play and substantial justice, nor are the technical
differences between the states' different rules of agency vital.
Daynard, 290 F.3d at 56-57 ("[T]he question before us is whether a
sufficient relationship exists under the Due Process Clause to
permit the exercise of jurisdiction, not whether a partnership,
joint venture, or other particular agency relationship between the
two defendants exists.").
B. Application to the facts
1. Direct and imputed contacts
The most important contact that Jet Wine alleges between
BACO and New Hampshire is BACO's alleged assumption of
Schieffelin's obligations under the Dewar's contract when BACO and
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Diageo signed the Dewar's Agreement.5 As in Daynard, the question
we face is not primarily whether BACO's assumption of the
obligations constitutes a contact with the state of New Hampshire,
or whether Jet Wine's claims arise out of that contact, but whether
Jet Wine has made a prima facie showing that BACO did assume those
obligations.
Although the burden of proof is light, Jet Wine may not
rely on the mere allegations of its complaint, but must point to
specific facts in the record that support those allegations.
Daynard, 290 F.3d at 51. The primary fact produced is the
provision in the Dewar's Agreement by which BACO assumed "all
liabilities and obligations that arise out of or relate to the
Transferred Assets (including under any Contract) [or] the Dewar's
Business." Jet Wine argues that its contract with Schieffelin
creates an obligation that arises out of, and relates to, the
Dewar's Business, defined as "the marketing, sales and distribution
of Scotch whisky" under the trade names here at issue.6 We agree
that is a quite plausible interpretation, sufficient for a prima
facie showing of jurisdiction. The merits of the interpretation
may be resolved later.
5
The additional alleged assumption of the Bombay contract
has little to do with New Hampshire, as that contract made Jet Wine
Carillon's representative for Bombay only in Maine.
6
BACO's objection that the definition of the Dewar's
Business comes in the preamble rather than the text of the
Agreement has no merit. The text of the Agreement states expressly
that the definition given in the Preamble applies.
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BACO objects that this language does not include
Schieffelin's obligations to Jet Wine because the Agreement
enumerates the assumed Contracts in the Major Markets, and Jet
Wine, although in a Major Market, is not on the list. BACO also
points out that the language limits assumed obligations to those
"arising on or following the Closing" of the transaction. Further,
it relies on the testimony of several representatives of BL, some
of whom were present at the negotiation, that BACO did not intend
to assume Schieffelin's obligations to distributors such as Jet
Wine. As to BACO's first argument about the definition of
Contracts, first, the reference to Contracts uses the word
"including," indicating that BACO may have assumed obligations
other than Contracts as defined; second, the reference to Contracts
can be read to qualify only BACO's assumption of liabilities and
obligations that arise out of or relate to the Transferred Assets,
and not those that arise out of or relate to the Dewar's Business.
If it can be read otherwise, BACO can attempt to prove that other
reading as part of its defense on the merits.
As to BACO's second argument about the timing of the
obligation, we find sufficient for a jurisdictional showing Jet
Wine's answer that, because the disputed passage refers to
"obligations to deliver finished case goods following the Closing
under purchase orders of, or commitments to, Persons other than
Affiliates of Seller," it must encompass at least some contracts
formed before the closing took place. Similarly, the testimony of
those present at BACO's negotiations with Diageo may perhaps be
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helpful to BACO's defense on the merits but is insufficient in a
prima facie inquiry to undermine Jet Wine's argument based on the
language of the Agreement.
The second significant contact that Jet Wine alleges
between BACO and New Hampshire is BUSA's termination of Jet Wine as
the distributor of Dewar's in New Hampshire and BUSA's subsequent
use of another distributor for Dewar's in New Hampshire. Jet Wine
claims that the district court should have imputed these actions to
BACO for jurisdictional purposes because BUSA acted as BACO's
agent. A letter sent to a New Hampshire corporation, located in
New Hampshire, terminating an agreement to distribute goods in New
Hampshire, is a contact with the state of New Hampshire, and BACO
does not dispute this.
A more complicated and genuinely disputed question is
whether a court can fairly attribute the termination letter to BACO
in assessing BACO's contacts with New Hampshire. Jet Wine argues
at length that BACO's relationship with the other Bacardi companies
is so intertwined as to justify treating the corporations as alter
egos and their officers interchangeably. We do not adopt that
premise today. Jet Wine's argument would fail even were we to
assume that the standard for treating two corporations as one for
jurisdictional purposes might be less burdensome to plaintiffs than
the standard for piercing the corporate veil in order to impose
liability. Cf. Donatelli v. Nat'l Hockey League, 893 F.2d 459,
465-66 (1st Cir. 1990) (discussing the presumption of corporate
separateness and the evidence needed to overcome it). The argument
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would fail because Jet Wine has produced little record evidence to
support it besides BACO's admission that the Bacardi companies
share a few common officers and directors. Jet Wine has also,
however, argued that even if BACO and BUSA are generally
independent, the June 16 letter supports an inference that BUSA was
BACO's agent for the purpose of distributing Dewar's in New
Hampshire, because the letter identifies BUSA as BACO's "exclusive
brand agent and distributor" and authorizes BUSA "to take all legal
steps necessary to effectuate the sale of our products in the
United States of America." This second, narrower argument supports
the exercise of personal jurisdiction.
BACO responds that the June 16 letter serves a specific
purpose relevant only to the regulation of the liquor industry and
not to broader concepts of agency. The letter, it explains, was
intended only to identify BUSA as the primary source of supply for
Dewar's and Bombay. That identification is useful to BUSA because
it satisfies the requirements of state statutes or regulations that
require wholesalers and distributors to purchase liquor products
from their primary source. New Hampshire, as a control state, has
an analogous statute, which requires the State Liquor Commission to
purchase from primary sources and to explain any exceptions it
makes. N.H. Rev. Stat. Ann. § 176:17 (Supp. 2001). Presumably to
comply with this directive, the Liquor Commission has issued a
regulation that requires any supplier seeking to sell to the
Commission to state the primary source for its products, and to
provide a copy of an "exclusive agent agreement" if the supplier is
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not itself the primary source. N.H. Code Admin. R. Ann. Liq
301.02(p) (defining "primary source"); id. 302.01(h)(2)(i)-(j)
(stating requirements). None of this, says BACO, required it to
make BUSA its agent as that term is generally used in the law, and
neither BACO nor BUSA understood the June 16 letter to give BUSA
general authority to bind BACO.7 BACO supports this assertion with
an affidavit from BUSA's general counsel.
In our view, the language of the letter, which authorizes
BUSA "to take all legal steps necessary to effectuate the sale of
our products in the United States of America, including but not
limited to, making any and all [regulatory] filings," is broader
than BACO suggests. We would not expect the terms of an
authorization limited to regulatory purposes to define its scope as
"including but not limited to" those purposes. Moreover, for BACO
to characterize the words used in the letter as terms of art
specific to the industry (as opposed to terms of art general to the
legal profession) it must produce more evidence of their
specialized meaning than a conclusory affidavit by the general
counsel of a related company and codefendant. Accordingly, we do
not need to say that the letter must necessarily have been
7
This argument on its own terms proves too much. Although
BACO says there is no evidence that the letter was submitted
specifically to New Hampshire, the letter appears to be of the sort
that would satisfy New Hampshire's requirement. If the letter was
submitted to the New Hampshire liquor authorities -- among the
authorities of other states -- and would satisfy a necessary
precondition for the sale of BACO's products in New Hampshire, that
would be a type of agency relevant to the specific jurisdiction
asserted here. We need not, though, decide if that was the purpose
of the letter.
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submitted to New Hampshire's State Liquor Commission, as Jet Wine
argues. It is enough that the existence of the letter satisfies
Jet Wine's burden to support with specific facts in the record its
allegation that BUSA acted as BACO's agent in terminating Jet Wine
as the Dewar's distributor for New Hampshire.
2. Further constitutional analysis
a. Relatedness
Because we are addressing Jet Wine's theory of specific,
rather than general, personal jurisdiction, we must consider
whether Jet Wine's claims against BACO arise out of or are related
to BACO's contacts with New Hampshire. See Daynard, 290 F.3d at
60. For the contract claim, the answer is a straightforward yes.
Jet Wine's action against BACO for breach of contract arises out of
BACO's alleged assumption of Jet Wine's contract with Schieffelin.
That assumption, if it occurred, was a contact with the state of
New Hampshire that relates intimately to Jet Wine's claim. See
McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957) ("It is
sufficient for purposes of due process that [a] suit [is] based on
a contract which had substantial connection with that State.").
Our conclusion that BUSA's actions, which included the letter
terminating Jet Wine, can fairly be attributed to BACO increases
further our confidence in this point.
Ordinarily, the personal jurisdiction analysis for tort
claims differs from that for contract claims. See Phillips Exeter
Acad., 196 F.3d at 289 (describing the distinction). When,
however, the tort is intentional interference with a contractual or
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business relationship, the two inquiries begin to resemble each
other. Intentional interference with a contractual or business
relationship concerning the sale of goods in New Hampshire is a
contact with New Hampshire for much the same reasons that the
assumption of the contract is such a contact. Cf. Far W. Capital,
Inc. v. Towne, 46 F.3d 1071, 1079-80 (10th Cir. 1995) (observing
that the Supreme Court's decision in Burger King, "although
specifically addressed to a breach of contract claim, provide[s] a
useful framework" for a case involving intentional interference
with contractual relations).
b. Purposeful availment
Jet Wine must also demonstrate that BACO purposefully
availed itself of the privilege of doing business in New Hampshire.
Ultimately, of course, BACO as the brand owner must surely benefit
from the sale of Dewar's in New Hampshire through BUSA.8 That
ultimate benefit is not sufficient, however, to establish the
personal jurisdiction of the New Hampshire courts over BACO.
Instead, there must be some voluntary action that BACO has taken
that should have put it fairly on notice that it might one day be
called to defend itself in a New Hampshire court. See Daynard, 290
F.3d at 61 ("The cornerstones upon which the concept of purposeful
availment rest[s] are voluntariness and foreseeability.") (quoting
8
If the Bacardi companies were structured so that BACO,
although technically brand owner of Dewar's, obtained no economic
advantage whatsoever from the sale of Dewar's, that might lead us
to consider Jet Wine's broader argument, which characterizes the
Bacardi companies as alter egos.
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Sawtelle, 70 F.3d at 1391) (alteration in original) (internal
quotation marks omitted).
If BACO assumed the various obligations of Diageo to its
distributors in the Dewar's Agreement, including Schieffelin's to
Jet Wine, that was a voluntary act from which BACO should have
known that it was rendering itself liable to suit in many places
throughout the world. From the schedules attached to the
Agreement, it knew that one of those places was New Hampshire.
BACO maintains, of course, that it never did any such thing -- but,
as we have discussed earlier, its argument does not carry the day
under the burden of proof and standard of review applicable to this
case. Similarly, if BACO urged Diageo to violate its legal
obligations to those distributors, that was a voluntary act for
which it should have known that the distributors might well sue.
When combined, those voluntary acts, which led to the ability of
the Bacardi companies, including BACO, to sell Dewar's in New
Hampshire and generate revenue from that sale, constitute
sufficiently purposeful availment to satisfy the requirements of
due process.
c. Gestalt factors
A court weighing the exercise of personal jurisdiction
must also consider the applicability of numerous other concerns,
which this circuit has named the "gestalt factors." They are:
(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
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controversy, and (5) the common interests of all
sovereigns in promoting substantive social policies.
Foster-Miller, 46 F.3d at 150. We will review these in order.
First, we acknowledge that there is some burden on BACO if it must
appear in New Hampshire's courts. New Hampshire is far removed
from Liechtenstein, where BACO is incorporated, and also far from
the Bahamas, BACO's primary place of business. BACO is, however,
an international corporation that -- on the facts as we take them
-- does business in the United States, including through its
purported agent, BUSA. It cannot wholly expect to escape the reach
of United States courts.
Second, New Hampshire does have an interest in
adjudicating this dispute. The source of the parties' dispute is
a contract to which one of the parties is a New Hampshire
corporation that does business in New Hampshire, and which governs
the sale of liquor in New Hampshire. New Hampshire has a
legitimate and constitutional interest in regulating commercial
transactions that are performed within its borders, as well as in
enforcing the contracts entered by its businesses and in protecting
those businesses from practices such as intentional infringement
with contractual relations.
Third, Jet Wine has an interest in obtaining relief
through the New Hampshire courts, the courts of its own state. Its
view of its interest is demonstrated by its choice to bring suit
there. Moreover, nothing about this case suggests that those
courts will have any difficulty rendering effective relief against
BACO if Jet Wine tries its case there and wins.
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Fourth, we do not see any particular interest of the
judicial system as such that pushes for one jurisdictional outcome
or another in this case.
Fifth, to the extent that this case touches on the common
interests of sovereigns, those interests weigh in favor of the
constitutionality of jurisdiction. BACO and the other Bacardi
companies have chosen to structure their business affairs so as to
take advantage of the privileges of the corporate form. Those
privileges are essential to modern economic life and this court
must scrupulously protect them, except in rare circumstances that
this case does not present. If, however, BACO has done business in
New Hampshire, directly or through an agent, or has directed its
actions at New Hampshire from outside the state, it might frustrate
the relevant state substantive social policies (those embodied in
its contract and tort law) to insulate BACO from the legal
consequences of its actions. Cf. Pritzker v. Yari, 42 F.3d 53, 64
(1st Cir. 1994) ("Here, the most salient such policy is . . . the
discouragement of speculation in litigation. All sovereigns share
both a general interest in preventing such speculation and a
specific interest in respecting Puerto Rico's decision to control
this activity through regulation."). On the facts as we must take
them for this appeal, BACO has done those things, and must defend
its actions in New Hampshire.
Of the five gestalt factors, three weigh in favor of
personal jurisdiction and one against. Accordingly, we hold that
personal jurisdiction is proper. We add a final note addressing an
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argument made by BACO before this court. BACO says that, because
the agreements between Schieffelin and Jet Wine contain clauses
consenting to the jurisdiction of the federal district courts
within New York as the fora for resolving disputes, it is
unreasonable to subject BACO to the jurisdiction of New Hampshire.
Contractual language consenting to the jurisdiction of one forum,
however, is not the same as language specifying one forum and
excluding all others. Cf. Autoridad de Energia Electrica v.
Ericsson Inc., 201 F.3d 15, 18-19 (1st Cir. 2000) (reading a
similar clause to be "an affirmative conferral of personal
jurisdiction by consent, and not a negative exclusion of
jurisdiction in other courts"). To whatever limited extent such
nonexclusive language is relevant to our inquiry under the gestalt
factors (and we do not mean to imply that even exclusive language
would necessarily require a different result) it is insufficient
to change the outcome in this case.
IV.
The constitutional analysis required by this circuit's
established precedent leads to the conclusion that the district
court has personal jurisdiction over BACO. Our decision is, of
course, limited to the legal issues presented and our mandate will
not necessarily require that this case go to trial in the District
of New Hampshire. We express no opinion on whether BACO may
successfully move to dismiss or for summary judgment. Those
questions are for the district court in the first instance.
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For the reasons we have given, the judgment of the
district court is reversed and the case is remanded for further
proceedings consistent with this opinion.
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