USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 96-2173
SUNVIEW CONDOMINIUM ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
FLEXEL INTERNATIONAL, LTD.,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge] ___________________
[Hon. James R. Muirhead, U.S. Magistrate Judge] _____________________
_________________________
Before
Selya, Circuit Judge, _____________
Cyr, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_________________________
Christopher J. Sorenson, with whom Gary J. Gordon, Katherine _______________________ ______________ _________
A. Killen Hall, Fetterly & Gordon, P.A., John L. Putnam, and _______________ ________________________ _______________
Stebbins, Bradley, Wood & Harvey were on brief, for appellants. ________________________________
Mark G. DeGiacomo, with whom M. Carolina Avellaneda and __________________ _______________________
Roche, Carens & DeGiacomo, P.C. were on brief, for appellee. _______________________________
_________________________
June 27, 1997
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SELYA, Circuit Judge. In this appeal, the plaintiffs SELYA, Circuit Judge. ______________
make two related arguments. First, they contend that they were
improperly precluded from undertaking jurisdictional discovery.
Second, they assert that this initial error was compounded when
the district court subsequently dismissed their action for want
of jurisdiction over the corporate person of defendant-appellee
Flexel International, Ltd. (Flexel).1 Discerning no reversible
error, we affirm.
I. BACKGROUND I. BACKGROUND
The Sunview Condominium Complex is located amidst the
serene pastoral beauty of Derry, New Hampshire. On December 17,
1993, that tranquility went up in smoke, literally and
figuratively, when a conflagration erupted at the complex. Those
flames, in turn, ignited the controversy which underlies this
appeal. Alleging that radiant heating panels manufactured by
Flexel's predecessor in interest, Thermaflex International, Ltd.
(Thermaflex), had caused the blaze, the Sunview Condominium
Association and its management company, Evergreen Management,
Inc. (collectively, Sunview), brought this product liability
class action to recover damages.2
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1The plaintiffs originally sued both Flexel and Aztech
International, Ltd. (Aztech). Aztech is now in bankruptcy, and
the district court certified its order dismissing the action
against Flexel as a final judgment under Fed. R. Civ. P. 54(b).
Thus, we treat the appeal as if Flexel were the sole defendant.
2Sunview alleges that Thermaflex (the actual manufacturer of
the heating panels) transferred its assets to Flexel in mid-1993.
For the purpose of resolving the jurisdictional issue, the lower
court assumed arguendo that Flexel, a Scottish corporation, is ________
the successor in interest to Thermaflex, an English firm. We,
2
The relevant chronology is as follows. Sunview
commenced its suit in August 1995. In February 1996, Flexel
moved to dismiss for want of personal jurisdiction. Without
having undertaken any other discovery, Sunview sought to take
depositions of Flexel officials in Scotland. When Flexel turned
a cold shoulder, Sunview moved to compel it to cooperate in the
taking of the desired depositions. Magistrate Judge Muirhead
denied Sunview's motion. See Sunview Condo. Ass'n v. Aztech ___ _____________________ ______
Int'l, Ltd., Civ. No. 95-418-B, slip op. at 2-6 (D.N.H. May 1, ___________
1996).
Sunview did not lodge an objection to the magistrate's
ruling. On May 28, 1996, it filed an opposition to the dismissal
motion. On September 3, the district court, finding an absence
of minimum contacts, granted the motion to dismiss. This appeal
ensued.
II. ANALYSIS II. ANALYSIS
Although Sunview's two claims of error are
interconnected, a separate set of legal principles applies in
each instance. Consequently, we treat the two claims
sequentially.
A. Denial of Jurisdictional Discovery. A. Denial of Jurisdictional Discovery. __________________________________
Sunview argues heatedly that it should have been
permitted to engage in jurisdictional discovery. This
asseveration has some superficial appeal. After all, a diligent
plaintiff who sues an out-of-state corporation and who makes out
____________________
too, proceed on that assumption.
3
a colorable case for the existence of in personam jurisdiction __ ________
may well be entitled to a modicum of jurisdictional discovery if
the corporation interposes a jurisdictional defense.3 See ___
Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1086 _______________ ______________________
(1st Cir. 1973); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, _________ ___________________
255-56 (1st Cir. 1966) (per curiam). But that entitlement is not
absolute; in all events, it presupposes that the plaintiff is
reasonably attentive to the preservation of its rights. That is
not the situation here.
When Sunview could not convince Magistrate Judge
Muirhead to approve the depositions that it wished to take, it
dropped the matter. Specifically, it eschewed the filing of a
timely objection to the magistrate's order denying its motion to
compel discovery. This omission is fatal to Sunview's first
assignment of error. We explain briefly.
Since the motion to compel discovery involved a
nondispositive matter, the magistrate's order was effective when
made, and it was therefore immediately appealable to the district
court. See 28 U.S.C. 636(b)(1)(A). To receive such review, a ___
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3This rule has its limitations. See, e.g., Compagnie De ___ ____ _____________
Bauxites De Guinee v. L'Union Atlantique S.A., 723 F.2d 357, 362 ___________________ _______________________
(3d Cir. 1983) (indicating that discovery may be disallowed if
the assertion of jurisdiction appears frivolous). Moreover, even
when the rule applies, the plaintiff is not necessarily entitled
to take depositions. Here, Sunview never attempted to learn
jurisdictional facts through interrogatories or demands for
document production, see Fed. R. Civ. P. 33, 34, and we have no ___
way to tell either how effective these less intrusive devices may
have been or to what extent Flexel would have sought protection
from them (and if so, whether the magistrate would have permitted
their use).
4
party must file objections within ten days from service of a copy
of the order. See Fed. R. Civ. P. 72(a). Unless an objection is ___
filed within this window of opportunity, a magistrate's order on
a nondispositive matter, such as a self-operating order granting,
denying, or limiting pretrial discovery, is not thereafter
reviewable on appeal. See Pagano v. Frank, 983 F.2d 343, 346 ___ ______ _____
(1st Cir. 1993); see also Keating v. Secretary of HHS, 848 F.2d ___ ____ _______ ________________
271, 275 (1st Cir. 1988) (per curiam) (explicating same rule in
respect to a party's failure to file timeous objections to a
magistrate's recommended disposition of a dispositive motion).
The Civil Rules are quite explicit on this point:
Within 10 days after being served with a copy
of the magistrate judge's order, a party may
serve and file objections to the order; a
party may not thereafter assign as error a
defect in the magistrate judge's order to
which objection was not timely made.
Fed. R. Civ. P. 72(a); see also 28 U.S.C. 636(b)(1)(A) ___ ____
(empowering the district court to reconsider and set aside a
magistrate's order on a nondispositive matter when the order is
clearly erroneous or contrary to law).
This court has applied the plain directive of Rule
72(a) straightforwardly and in accordance with its tenor. See ___
Pagano, 983 F.2d at 346; Unauthorized Practice of Law Comm. v. ______ ___________________________________
Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992) (per curiam); see also ______ ___ ____
United States v. Ecker, 923 F.2d 7, 9 (1st Cir. 1991) (per _____________ _____
curiam) (citing 28 U.S.C. 636(b)(1)(A)). These cases stand
unambiguously for the proposition that, in order to receive
review of a magistrate's order on a nondispositive matter in a
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court of appeals, the aggrieved party first must have sought
district court review by timely filing an objection to the order.
The instant case presents no occasion for a departure
from this salutary proposition. Because Sunview never sought to
have the district court review the magistrate's ruling, the issue
of jurisdictional discovery is by the boards and Sunview cannot
resurrect it in this venue.
B. Dismissal for Want of Jurisdiction. B. Dismissal for Want of Jurisdiction. __________________________________
Sunview argued below, as it does here, that Thermaflex,
Flexel's predecessor in interest, see supra note 2, purposefully ___ _____
availed itself of the privilege of doing business in New
Hampshire, and therefore subjected itself (and Flexel, as its
successor) to suits in New Hampshire arising out of its New
Hampshire-directed activities. Judge Barbadoro rejected this
thesis, holding, after an exhaustive review of the record, that
Sunview had pointed to "insufficient contact[s] to establish
Thermaflex's purposeful availment of New Hampshire as a place to
do business." Sunview Condo. Ass'n v. Aztech Int'l, Ltd., Civ. _____________________ ___________________
No. 95-418-B, slip op. at 10 (D.N.H. Sept. 3, 1996). Sunview
assigns error to this order.4 We see none.
To wax longiloquent would serve no useful purpose. We
have stated before, and today reaffirm, that "when a lower court
produces a comprehensive, well-reasoned decision, an appellate
____________________
4Because Sunview never raised the discovery issue before
Judge Barbadoro, see supra Part II(A), we pay no heed to its vain ___ _____
attempt to attack the judge's order on the basis of curtailed
discovery.
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court should refrain from writing at length to no other end than
to hear its own words resonate." Lawton v. State Mut. Life ______ ________________
Assur. Co. of Am., 101 F.3d 218, 220 (1st Cir. 1996); accord In __________________ ______ __
re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st __________________________________________
Cir. 1993). That principle is dispositive here. Judge
Barbadoro's rescript cites the relevant case law, see, e.g., ___ ____
Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Foster-Miller, ________ _______ ______________
Inc. v. Babcock & Wilcox Canada, 46 F.3d 138 (1st Cir. 1995); ____ ________________________
Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201 (1st Cir. 1994); _______________________ ______
Boit v. Gar-Tech Prods., Inc., 967 F.2d 671 (1st Cir. 1992), ____ ______________________
applies the legal principles derived therefrom to the documented
facts in an impeccable manner, and reaches an unarguably correct
conclusion. Hence, we dispense with this aspect of Sunview's
appeal for substantially the reasons elucidated in the lower
court's opinion.
We need go no further. Given Sunview's procedural
default on the discovery front and the paucity of its proffer on
the merits of the jurisdictional issue, the judgment below must
be
Affirmed. Affirmed. ________
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