Adelson v. Hananel

United States Court of Appeals
For the First Circuit

No. 09-2231

SHELDON G. ADELSON,

Plaintiff, Appellee,

v.

MOSHE HANANEL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin and Howard, Circuit Judges
and Barbadoro,* District Judge.

Lawrence G. Green, with whom Lynn C. Norton and Burns &
Levinson LLP were on brief, for appellant.
Andrew H. Schapiro, with whom Christopher J. Houpt and Mayer
Brown LLP were on brief, for appellee.

July 13, 2011

*
Of the District of New Hampshire, sitting by designation.
 HOWARD, Circuit Judge. Appellee Sheldon Adelson brought

this declaratory action to determine rights under an oral contract

that he had negotiated with appellant Moshe Hananel. In the

district court Hananel argued that the agreement, pursuant to which

he was employed by a company owned by Adelson, entitled him to

obtain a twelve percent investment in Adelson's casino venture in

Macau. Adelson claimed that their agreement was not so broad as to

contemplate the Macau investment option. Rather, the contract

limited Hananel to reaping twelve percent of net profits from high-

tech sector investments in Israel that had been discovered,

recommended and supervised by Hananel, and that were realized while

he was employed by Adelson's company.

In a prior appeal of this matter, Adelson v. Hananel, 510

F.3d 43 (1st Cir. 2007) ("Adelson I"), we reversed the district

court's forum non conveniens dismissal, but we did uphold the

court's determination that, under the prima facie standard, Hananel

was subject to specific personal jurisdiction. After a three-week

bench trial on remand, the district court ruled in favor of

Adelson, declaring that Hananel did not hold an option to obtain a

twelve percent interest in Adelson's Macau casino. Adelson v.

Hananel, 641 F.Supp.2d 65 (D. Mass. 2009) ("Adelson II"). Hananel

appeals from this judgment, arguing that the district court lacked

personal jurisdiction, erroneously assigned to him the burden of

proof, abused its discretion regarding a missing witness, and made

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factual errors regarding the formation and performance of the

contract. We affirm.

I. Background

Hananel is a native, citizen, and resident of Israel.

Adelson is a U.S. citizen and a permanent resident and domiciliary

of Nevada, where he votes, owns property, and holds a driver's

license. Adelson is also a native of Massachusetts and a current

Massachusetts homeowner. He has worldwide business connections and

investments, and he owns a warren of businesses known as the

"Interface Group."

On the basis of the disputed oral contract negotiated

with Adelson, Hananel worked for one of Adelson's companies,

Interface Partners International, Ltd. ("IPI"), from approximately

1996 to 2000. IPI is a Delaware corporation that Adelson founded

in 1994 for the purpose of investing in Israel, with a particular

focus on Israel's high-tech sector.

During the time period relevant to this case, IPI had

offices in Needham, Massachusetts, and Ramat Gan, Israel. Hananel

was based in Israel and was responsible for seeking investment

opportunities there. Although IPI did not have regular employees

working in Needham, it received ongoing legal and financial advice

through frequent communications with one of the Interface Group

companies co-located there, Interface Group Massachusetts ("IGM").

IGM personnel in the Needham office who provided such advice

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included IGM's general counsel Paul Roberts, who also described

himself as "counsel to IGI", and IGM's CFO Stephen O'Connor. There

was testimony at trial that IPI's funding customarily came from

Adelson's personal account in Las Vegas, Nevada, but not before

passing through the IPI Massachusetts "office" as a capital

contribution to IPI Massachusetts that was then "lent" to IPI

Israel. Hananel made periodic calls to the Needham office and sent

fax transmissions there at least monthly, including budget

proposals for approval. He made one brief visit to the Needham

office in late 1995, just before commencing his duties for IPI, and

he later attended a meeting in Massachusetts to seek business

opportunities in his role as chairman of a company in which IPI had

invested.

The parties' evidence about the terms of Hananel's

compensation was irreconcilable. As the district court accurately

described the testimony:

In the discussions regarding Hananel's employment, it is
undisputed that Adelson and Hananel agreed he would have
a salary of $100,000 a year. They also agreed that
Hananel would somehow receive 12% of the investments with
which he was involved while at IPI . . . . Adelson and
Hananel have different memories of the details of the
twelve percent. Adelson testified that they agreed that
Hananel would receive 12% of the net profits only of high
tech investments in Israel that Hananel found,
recommended, and supervised and which came to fruition
while he was employed by IPI, but only so long as he
remained employed there. Hananel testified that they
agreed that he would receive "options" of up to 12
percent on any investment he or the Israeli office
"initiated" outside the United States without any other

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 geographic or time limitations so long as Hananel put up
the proportionate costs of the investment at any point.
Adelson II, 641 F.Supp.2d at 72.

In this appeal, Hananel argues, as to jurisdiction, that

differences between the prima facie facts determined before the

first appeal and the facts as later found by the district court at

the merits trial undermine our previous decision on personal

jurisdiction. He draws attention to prior references, by both the

district court and by us, to Adelson being a resident of

Massachusetts when in fact he was a resident of Nevada, and he

emphasizes that at trial the district court concluded that the

contract was formed in Israel rather than in Massachusetts. As

noted, Hananel also presses claims that the district court erred in

assigning the burden of proof to him rather than to Adelson; that

it should have ordered an adverse inference based on the "missing

witness" rule; and that the court misapprehended the facts

surrounding both the formation of and his performance under the

contract.

II. Jurisdiction

General jurisdiction over Hananel was not alleged, and he

argues that the district court also lacked specific jurisdiction

over him. We review the jurisdictional issue de novo. Barret v.

Lombardi, 239 F.3d 23, 27 (1st Cir. 2001). We concluded in Adelson

I that the district court had personal jurisdiction over Hananel

under the prima facie standard, and that Massachusetts was not an

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inconvenient forum. Adelson I, 510 F.3d 43. We are not persuaded

that the facts as found at trial undermine our previous decision,

and we conclude that Hananel's Massachusetts contacts support the

district court's exercise of personal jurisdiction.

To establish specific personal jurisdiction over Hananel,

Adelson "must demonstrate that the Massachusetts long-arm statute

grants jurisdiction over Hananel and that the exercise of that

jurisdiction comports with the Due Process Clause of the Fifth

Amendment." Adelson I, 510 F.3d at 48 (internal citation omitted).

We have construed the Massachusetts long-arm statute1 as being

coextensive with the limits permitted by the Constitution. We thus

turn directly to the constitutional test for determining specific

jurisdiction, see Daynard v. Ness, Motley, Loadholt, Richardson &

Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002), which has "three

distinct components, namely, relatedness, purposeful availment

(sometimes called 'minimum contacts'), and reasonableness," Hannon

v. Beard, 524 F.3d 275, 282 (1st Cir. 2008) (internal citation

omitted). See also Astro-Med, Inc., v. Nihon Kohden America, Inc.,

591 F.3d 1, 9 (1st Cir. 2009).

1
The statute provides that "[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
transacting any business in this commonwealth." Mass. Gen. Laws
ch. 223A, § 3(a).

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 A. Relatedness

To demonstrate "relatedness," Adelson must show "'a

demonstrable nexus between [his] claims and [Hananel's] forum-based

activities, such . . . [that] the litigation itself is founded

directly on those activities.'" Hannon, 524 F.3d at 280 (quoting

Mass. Sch. of Law at Andover v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st

Cir. 1998)). "[T]he relatedness test is a 'flexible, relaxed

standard,'" N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 25 (1st

Cir. 2005) (quoting Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir.

1994)), and the analysis focuses on the relationship between the

defendant and the forum. Hannon, 524 F.3d at 283 (citing Sawtelle

v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995)); see also Goodyear

Dunlop Tires Operations S.A. v. Brown, No. 10-76, slip op. at 2,

2011 WL 2518815, at *3 (U.S. June 27, 2011) ("Specific jurisdiction

. . . depends on an 'affiliatio[n] between the forum and the

underlying controversy'"); J. McIntyre Machinery, Ltd. v. Nicastro,

No. 09-1343, slip op. at 6, 2011 WL 2518811, at *6 (U.S. June 27,

2011) (Kennedy, J.) (quoting Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 414, n.8 (1984)) ("submission through

contact with and activity directed at a sovereign may justify

specific jurisdiction 'in a suit arising out of or related to the

defendant's contacts with the forum'"). Because this is a contract

dispute, in examining the defendant's relationship to the forum "we

look to whether 'the defendant's activity in the forum state was

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instrumental either in the formation of the contract or its

breach.'" Adams v. Adams, 601 F.3d 1, 6 (1st Cir. 2010) (quoting

Adelson I, 510 F.3d at 49). We may also consider whether the

defendant was "subject to substantial control and ongoing

connection to [Massachusetts] in the performance of the contract."

Id. (internal quotation marks and citations omitted); cf. Hahn v.

Vermont Law School, 698 F.2d 48, 49 (1st Cir. 1983) ("less [than

substantial contacts are] required to support jurisdiction when the

cause of action arises from the defendant's contacts with the forum

. . . than when it does not.").2

Here, Hananel's contacts to the forum are directly

related to his fulfillment of the terms of his employment contract

as he claims them to be. As the district court recognized:

[R]egardless of the contract's core terms, the parties'
actual course of dealing connects the contract to
Massachusetts: Hananel was in regular contact with
Interface employees in Massachusetts, the money that
funded Hananel's work came through Massachusetts, and
Hananel's budgets were routinely faxed to the office in
Massachusetts. . . . This is enough to satisfy the
relatedness prong.

Adelson II, 641 F.Supp.2d at 78.

2
Although, as Hananel points out, the district court concluded
that the agreement was governed by Israeli law, this conclusion
does not affect the outcome of our jurisdictional analysis because
the issue before us is one of personal jurisdiction, not choice of
law. J. McIntyre Machinery, Ltd. v. Nicastro, No. 09-1343, slip
op. at 10, 2011 WL 2518811, at *9 (U.S. June 27, 2011) (Kennedy,
J.) (citing Hanson v. Denckla, 357 U.S. 235, 254 (1958)); see also
Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik
G.m.b.H, 295 F.3d 59, 64 (1st Cir. 2002) (contrasting personal
jurisdiction analysis with choice of law analysis).

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 In addition, the record shows that Hananel visited the

Massachusetts Interface office prior to beginning formal, full time

employment with IPI in January 2006. Later, while employed by IPI,

Hananel attended a board meeting in Massachusetts as a direct

result of an IPI investment.3

Although Hananel does not deny that as manager of the IPI

Israel office he had regular contact with the Needham office, he

argues that his Massachusetts "activities were minor administrative

tasks insufficient to warrant jurisdiction." This argument

understates his managerial role in IPI and the importance of the

Massachusetts funding connection to the finances of IPI Israel. As

discussed in greater detail below, we disagree with Hananel's

characterization of his Massachusetts activities as "purely

incidental contacts" and agree with the district court that they

evince the relationship between Hananel's actions under the oral

contract and the forum of Massachusetts.

B. Purposeful Availment

For there to be personal jurisdiction over Hananel, his

contacts must "represent a purposeful availment of the privilege of

conducting activities in [Massachusetts], thereby invoking the

benefits and protections of [Massachusetts's] laws and making [his]

3
During his tenure with IPI, Hananel recommended that it
invest in the tech company, IMDSoft. After the investment Hananel
was named chairman of the board of IMDSoft and traveled to Andover,
Massachusetts, in that capacity with the goal of advancing business
partnership opportunities for IMDSoft.

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presence before [Massachusetts'] courts foreseeable." Daynard, 290

F.3d at 60; see also J. McIntyre Machinery, slip op. at 11, 2011 WL

2518811, at *9 (specific jurisdiction calls for plaintiff to

establish that defendant "engaged in conduct purposefully directed

at the forum"); id. ("The question is whether a defendant has

followed a course of conduct directed at the society or economy

existing within the jurisdiction of a given sovereign, so that the

sovereign has the power to subject the defendant to judgment

concerning that conduct.").

Hananel directed regular administrative and financial

conduct toward Massachusetts, and his contacts with the state were

voluntary and the result of more than just a single event or

transaction. We see no reason to deviate from our previous

conclusion that "given that it was Hananel who sought this

employment contract with a company whose key officers were all

located in Massachusetts and whose financial accounts were all

administered out of Massachusetts, the court properly concluded

that Hananel had purposefully availed himself of Massachusetts

law." Adelson I, 510 F.3d at 50; cf. J. McIntyre Machinery, slip

op. at 11, 2011 WL 2518811, at *9 (no specific jurisdiction where

defendant had no office in the forum, never "sent any employees

to[] the [forum]" and "does not have a single contact with [the

forum] short of the" sole piece of equipment at issue in the suit).

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 That Hananel's December 1995 trip to Massachusetts was

brief and its purpose was not found to be substantially related to

negotiation of the agreement does not detract from the conclusion

that the exercise of jurisdiction is appropriate. Hananel "need

not have been physically present in [Massachusetts] in order to

have 'transacted business' there" for purposes of establishing

minimum contacts. Hannon, 524 F.3d at 281 (citing Fairview Mach.

& Tool Co., Inc. v. Oakbrook Intern., Inc., 56 F.Supp.2d 134, 138

(D. Mass. 1999)) (holding that even though defendant had not been

physically present in Massachusetts, "contacts that [he] would have

had to make to arrange for [prisoner's] transfer . . . to

Massachusetts are sufficient to constitute 'transacting business'

under the broadly-construed long-arm statute").4

Here, as in Hannon, there was purposeful availment where

Hananel's business activities for IPI involved, inter alia,

"communication and interaction between [him] in [Israel] and

[staff] in Massachusetts." See Hannon, 524 F.3d at 281. Affirming

the district court's relevant factual findings, we conclude that

Hananel's faxes, money transfers, and meetings demonstrate

sufficient communications and interactions with Massachusetts to

4
We have construed the Massachusetts statute broadly and
"'do[] not require that the defendant have engaged in commercial
activity. [The] language is general and applies to any purposeful
acts by an individual, whether person, private, or commercial.'"
Hannon, 524 F.3d at 280 (quoting Ealing Corp. v. Harrods Ltd., 790
F.2d 978, 982 (1st Cir. 1986)).

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satisfy us that Hananel had at least minimum contacts with the

forum and that these contacts were not "random, isolated or

fortuitous." See Adelson I, 510 F.3d at 50.

C. Reasonableness

To examine reasonableness, we consider the gestalt

factors: "(1) [Hananel's] burden of appearing, (2)

[Massachusetts's] interest in adjudicating the dispute, (3)

[Adelson'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." Adelson I,

510 F.3d at 51; see also N. Laminate Sales, 403 F.3d at 26 (citing

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).

First, because Hananel has not demonstrated a "special or

unusual burden" in staging a defense in Massachusetts over and

above that of doing so in any foreign jurisdiction, we conclude

that this factor does not weigh against jurisdiction. See

Pritzker, 42 F.3d at 64 ("[I]nsofar as staging a defense in a

foreign jurisdiction is almost always inconvenient and/or costly,

we think this factor is only meaningful where a party can

demonstrate some kind of special or unusual burden.").5

5
As we have recognized, Hananel has certain health issues that
affect his lifestyle, such as his diabetes and legal blindness.
Adelson I, 510 F.3d at 51. But, these issues would affect him no
matter where this dispute were tried. Based on the evidence
presented at trial, we do not see reason to deviate from our prior

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 Second, Hananel emphasizes the fact that both the

district court and this court in the previous appeal were mistaken

when they concluded that Adelson was a Massachusetts resident and

domiciliary, when in fact he was a resident and domiciliary of

Nevada. In presenting this argument, Hananel stakes too much on

the importance of Adelson's state of residence to the personal

jurisdiction analysis. Although this factual conclusion may have

contributed to our original weighing of Massachusetts' interest in

hearing the matter, Adelson's residency and domicile are not alone

dispositive of personal jurisdiction and there are other facts that

support Massachusetts' interests in the matter.

When previously we connected Adelson's assumed

Massachusetts residency with Massachusetts' interests in the case,

we also noted that "[Massachusetts'] interest . . . is further

heightened by the involvement of IPI's executive officers who are

employed in Massachusetts and of funds which are held and managed

in Massachusetts." Adelson I, 510 F.3d at 51. Besides, given the

relatedness and purposeful availment demonstrated here, the weight

of this one factor within "reasonablenss" is slight. Sawtelle, 70

F.3d at 1394 (internal quotation marks omitted) ("[T]he weaker the

plaintiff's showings on the first two prongs (relatedness and

purposeful availment), the less a defendant need show in terms of

conclusion that these issues would not make defense in
Massachusetts a "special or unusual" burden compared to other
foreign jurisdictions. Id.

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unreasonableness to defeat jurisdiction. The reverse is equally

true: an especially strong showing of reasonableness may serve to

fortify a borderline showing of relatedness and purposefulness.").

Third, Adelson demonstrated his interest in obtaining

convenient and effective relief through the federal courts in

Massachusetts by bringing his suit there, and "nothing about this

case suggests that those courts will have any difficulty rendering

effective relief" if Adelson's declaratory action is affirmed. See

Jet Wine & Spirits, Inc. v. Bacardi & Co., Ltd., 298 F.3d 1, 12

(1st Cir. 2002).

Fourth, although the district court noted that "the

existence of prior lawsuits in Israel . . . make this case an

inefficient burden on the judicial system," it concluded that "this

is 'insufficient to tip the constitutional balance on the facts of

this case.'" Adelson II, 641 F.Supp.2d at 79 (quoting Adelson I,

510 F.3d at 52).6 We agree.

As to the fifth and final factor, we do not see how a

finding of jurisdiction here would speak one way or another to the

common interests of all sovereigns in advancing a particular social

policy.

6
Subsequent to briefing and argument in this case, Adelson
informed us of a decision by the Tel Aviv District Labor Court
addressing claims that mirror some of those presented here. We
have no occasion to consider that decision. We review this appeal
based on the record before us.

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 Even if the last two factors weighed against

jurisdiction, this alone would be "insufficient to tip the

constitutional balance" on the facts presented here. Adelson I,

510 F.3d at 51; see also Ticketmaster-New York, Inc. v. Alioto, 26

F.3d 201, 210 (1st Cir. 1994) ("the reasonableness prong of the due

process inquiry evokes a sliding scale"). We conclude that the sum

of the gestalt factors weigh in favor of jurisdiction.

Given the reasonableness of exercising jurisdiction, the

relatedness of the dispute to the forum, and Hananel's contacts

with the forum, we affirm the district court's assertion of

personal jurisdiction over Hananel.

III. Burden of Proof

We review de novo the placement of the burden of proof.

Estate of Abraham v. C.I.R., 408 F.3d 26, 35 (2005).7

Massachusetts law governs this issue, Palmer v. Hoffman, 318 U.S.

109, 117 (1943), and it does not call for the burden of proof to

automatically be borne by the filing party in a declaratory action

(here, Adelson). Foley v. McGonigle, 326 N.E.2d 723, 724 (Mass.

App. Ct. 1975) (internal quotation marks omitted) (stating the

"fact that the plaintiff initiated this proceeding for declaratory

relief does not shift th[e] burden to him"); accord Cardarelli

Constr. Co. v. Froton-Dunstable Reg'l Sch. Dist., 349 N.E.2d 383,

7
Hananel asserts that Adelson waived any right to argue that
the burden of proof was Hananel's. In light of our disposition of
the issue, we need not address this argument.

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384 (Mass. App. Ct. 1976) (citing Stop & Shop, Inc. v. Ganem, 200

N.E.2d 248, 252 (Mass. 1964)) ("It is well settled that a party

asserting the illegality of a contract has the burden of proving

the facts necessary to establish such illegality."). Instead,

Massachusetts looks to which party would be seeking damages had the

matter been filed as a standard suit rather than as a declaratory

action. Stop & Shop, 200 N.E.2d at 252 (in a lease dispute, "[h]ad

the lessors brought an action for damages for breach of an implied

covenant to continue operations they would, of course, have had the

burden of showing the covenant. That the lessee initiated the

proceeding for declaratory relief does not shift that burden to the

lessee.").

Here, Hananel seeks an interpretation of the agreement

that would permit him to assert a contractual right of recovery.

As the natural plaintiff who would have had the burden of proving

his affirmative claim to the twelve percent option in a damages

action, we see no impropriety in assigning the burden of proof to

him. See Markley v. Semle, 713 A.2d 945, 947 (Me. 1998) (internal

citation omitted) ("In a declaratory judgment action, . . . [t]he

party who asserts the affirmative of the controlling issues in the

case, whether or not he is the nominal plaintiff in the action,

bears the risk of non-persuasion."); Am. Eagle Ins. Co. v.

Thompson, 85 F.3d 327, 331 (8th Cir. 1996) (internal quotation

marks omitted) ("It is a fundamental rule that the burden of proof

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in its primary sense rests upon the party who, as determined by the

pleadings, asserts the affirmative of an issue and it remains there

until the termination of the action. It is generally upon the

party who will be defeated if no evidence relating to the issue is

given on either side.").

Regardless, any error in assigning the burden of proof is

harmless unless "the court's . . . decision at the end of the trial

turned on 'burden of proof' rules rather than on the weight of the

evidence in the record." Applewood Landscape & Nursery Co., Inc.

v. Hollingsworth, 884 F.2d 1502, 1506 (1st Cir. 1989). The

district court's ruling indicates that it did not consider the

burden of proof issue to be dispositive: after weighing evidence

in the record, the district court concluded that "it is clear" that

the parties did not reach "a meeting of the minds." In any event,

no matter who bore the burden of proof, as discussed below the

finding that Hananel failed to "initiate the investment" prohibits

a holding in favor of Hananel's exercise of the option.

IV. The Contract's Terms

We review the district court's findings of fact for clear

error. Williams v. Poulos, 11 F.3d 271, 278 (1st Cir. 1993). The

district court concluded that there was no "meeting of the minds"

about the meaning of the "option" in the contract, and even "[i]n

Hananel's best case" his work "[was] insufficient to constitute

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initiating the investment, under any reasonable understanding of

the term." Adelson II, 641 F.Supp.2d at 84.

It is not disputed that Hananel and Adelson spoke several

times between August 1995 and December 1995 regarding Hananel's

employment with IPI. As noted, however, what they agreed to is

disputed. Hananel testified that the intention was for him to have

an option covering any investment proposed by him, except for

investments in the United States. Adelson's position has been that

they agreed that Hananel would receive a portion of net profits

from a much narrower category of investments.

It is also not disputed that Hananel, Adelson, and

Roberts (IGM's general counsel) were present in the Needham,

Massachusetts, office on December 5, 1995. But, the parties

greatly dispute the exact contents and nature of that office visit.

Adelson testified that the employment contract's final details were

hammered out in that December meeting, including the meaning of

alleged contract terms such as the share of "net profits minus

losses." In stark contrast, Hananel testified that the contract

was finalized in Israel, the employment contract was not discussed

during the December office visit, and, in any event, that visit did

nothing to change the substance of the contract.

The district court found that "while a meeting [in

Massachusetts] may have taken place, it was at most a rehash of the

terms of Hananel's contract, which had already been finalized with

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Adelson in Israel." Adelson II, 641 F.Supp.2d at 73. It then

concluded: "As to the extent and meaning of the term at the center

of the dispute, the option in projects initiated by Hananel, it is

clear that there was simply no meeting of the minds." Id. at 83

(emphasis added). We have scoured the record and have discovered

no basis on which to upset that determination. As we have noted:

In actions that are tried to the court, the judge's
findings of fact are to be honored unless clearly
erroneous, paying due respect to the judge's right to
draw reasonable inferences and to gauge the credibility
of witnesses. A corollary of this proposition is that,
when there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly
erroneous. . . . [W]hen a case has been decided on the
facts by a judge . . . an appellate court must refrain
from any temptation to retry the factual issues anew.

Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995).

In sum, the district court's finding that there was no

"meeting of the minds," was grounded in the record and not clearly

erroneous. See United States v. Lara, 181 F.3d 183, 195 (1st Cir.

1995) ("After all, when the evidence gives rise to competing

interpretations, each plausible, the factfinder's choice between

them cannot be clearly erroneous.").

Moreover, even accepting Hananel's argument that there

was a "meeting of the minds" about the existence and scope of the

twelve percent option clause, the district court's finding that

Hananel failed to "initiate" whatever investment(s) Adelson

subsequently made in Macau was also not clearly erroneous.

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 As the district court noted, there were questions of

veracity in both parties' accounts of the employment contract, the

"option," and the discussions of Macau. But, even viewing

Hananel's account in the most favorable light, a reasonable

observer applying practical business sense and plain meaning could

conclude easily that satisfying the "initiate" requirement of the

option – on what would become a $7 billion project – would have

required Hananel to do more than what his evidence showed: discuss

Macau during a few 1999 meetings; prepare limited materials on

Macau for Adelson's review; "research[] Macau generally" and

potential investments in Macau; give Adelson some third-party maps

and brochures; and urge him to visit Macau. As the district court

described it, "Hananel may have gotten Adelson's wheels spinning,

but he never got anything in gear." Adelson II, 641 F.2d at 84.

V. The Missing Witness Rule

Hananel's final argument is that the district court

abused its discretion when it denied him a "missing witness"

inference, because Adelson did not call an Israeli witness, Danny

Raviv, as Hananel had expected. After a jury trial, a claim about

failure to give a missing witness instruction indeed would be

reviewed for abuse of discretion. Latin Am. Music Co. v. Am. Soc.

of Composers, Authors & Publishers, 593 F.3d 95, 101 (1st Cir.

2010) (instructing jury on "missing witness" rule reviewed for

abuse of discretion). As this was a bench trial, however, we

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review for clear error the decision not to draw the inference. See

Bogosian v. Woloohojian Reality Corp., 323 F.3d 55, 68 (1st Cir.

2003). We conclude that the district court, as factfinder, was

under no obligation to draw the adverse inference, for the

"'missing witness' rule permits, rather than compels, the

factfinder to draw [the] inference . . . , particularly where the

factfinder concludes that the party who requested the . . .

inference failed to subpoena a witness otherwise available to

testify." Id. at 67 (internal citations omitted) (emphasis added)

(no error in bench trial where district court did not draw adverse

inference from absence of witnesses).

Hananel has not shown the necessity for applying the

missing witness rule here. First, he offers no concrete evidence

that demonstrates that Raviv was peculiarly available or obviously

partial to Adelson. United States v. Spinosa, 982 F.2d 620, 631-32

(1st Cir. 1999) (missing witness rule permits adverse inference

only when witness is "peculiarly available to" to party not seeking

the instruction or "favorably disposed" to him); Steinhilber v.

McCarthy, 26 F.Supp.2d 265, 280 (D. Mass. 1998). Second, he has

not provided a satisfactory explanation for why, if Raviv's

testimony was so essential, he failed to take any action to compel

the witness's appearance in court. According to Hananel, other

witnesses in Israel for whom he had obtained letters rogatory were

not as important to the disposition of this action as Raviv. Yet,

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he failed to pursue similar action to depose Raviv, and he offers

no proof that obtaining a subpoena or letter rogatory would have

been impossible. See United States v. Anderson, 452 F.3d 66, 82

(1st Cir. 2006) (denying instruction, stating, "The fact that [the

party] was able to subpoena [the witness] yet failed to do so gives

us additional reason to believe that the district court was correct

in finding that [the witness] was not 'peculiarly available' to the

[opposing party]").

As the district court stated:

In this case, however, there is no reason to believe that
Raviv was not available to testify if called by the
Defendant. Defendant made no effort to call him to
testify or to depose him. In this case, where Raviv's
testimony would likely cut both ways, the Court is
unwilling to allow Defendant the dual benefit of avoiding
Raviv's potentially damaging testimony by purposely
failing to call him, while simultaneously giving him the
benefit of a negative inference for Plaintiff's failure
to call him.

Adelson II, 641 F.Supp.2d at 77 n.3 (internal citation omitted).

This finding was not erroneous. The appellant's argument

appears to be a manifestation of his regret at his decision not to

confront Raviv in court. Regret is not a ground for reversal.

VI. Conclusion

For the reasons set forth above, we affirm the judgment

of the district court.

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