Copia Communications, LLC v. Amresorts, L.P.

United States Court of Appeals
For the First Circuit

No. 15-1330

COPIA COMMUNICATIONS, LLC,

Plaintiff, Appellant,

v.

AMRESORTS, L.P.; SEAWIND KEY INVESTMENTS, LIMITED,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Lynch, Selya, and Kayatta,
Circuit Judges.

Philip M. Giordano, with whom Siobhan M. Tolan, Giordano &
Company, P.C., and Reed & Giordano, P.A., were on brief, for
appellant.
Jack W. Pirozzolo, with whom Michelle Hartmann and Sidley
Austin LLP, were on brief, for appellee AMResorts, L.P.
Brett D. Carroll, with whom Ari Zivyon and Holland & Knight
LLP, were on brief, for appellee Seawind Key Investments, Limited.

January 13, 2016
 KAYATTA, Circuit Judge. In this action, Massachusetts

company Copia Communications, LLC ("Copia"), sues Jamaican resort

operator Seawind Key Investments, Limited ("Seawind"), and

Seawind's alleged alter-ego, the Pennsylvania limited partnership

AMResorts, L.P. ("AMResorts"), for the alleged breach of a contract

between Copia and Seawind. The contract at issue was proposed and

executed in Jamaica, performance on the contract occurred (as was

intended) almost exclusively in Jamaica, and the contract is

governed by the laws of Jamaica. The district court dismissed

Copia's complaint for lack of personal jurisdiction over the

defendants, neither of which operates any business or has any

corporate presence in Massachusetts. We easily affirm.

I. Background

We derive our recitation of the case's facts from Copia's

properly documented evidentiary proffers and from those portions

of the defendants' proffers that are undisputed. See Adelson v.

Hananel, 510 F.3d 43, 48 (1st Cir. 2007).

Copia is a Massachusetts limited liability company that

provides internet services to hotels in Jamaica, where Copia has

offices. In October 2006, a Copia employee sent Seawind an offer

to provide internet services at two Jamaican resorts that Seawind

was then planning. Through 2009, Copia's Chief Executive Officer,

Darryl Wehmeyer ("Wehmeyer"), negotiated with Seawind, a process

that involved several meetings in Jamaica and during which no
- 2 -
Seawind employees traveled to Massachusetts. During negotiations,

Wehmeyer communicated by email with several Seawind employees and

alleged AMResorts employees,1 and he may have sent or received some

of these emails while in Massachusetts. Neither Seawind nor

AMResorts does business; pays taxes; has an office, bank account,

or employee; or holds property in Massachusetts.

On June 29, 2009, the negotiations culminated in a

contract, which Wehmeyer signed in Jamaica on behalf of Copia.

The contract identifies Copia as a Massachusetts corporation and

lists Copia's Massachusetts address. It provides that any notice

or service of legal process arising out of the contract must be

made at the "registered office" of the recipient. Under the

contract, Copia agreed to install internet services at two Seawind

resorts and to provide ongoing on-site support and maintenance.

Seawind agreed to make payment in U.S. dollars and to comply with

all relevant U.S. export regulations for any equipment it was to

receive under the contract. The contract provides that it is

governed by Jamaican law.

During the performance of the contract, Copia shipped

equipment to Jamaica from Massachusetts, Seawind addressed payment

to Copia's Massachusetts address, and Wehmeyer sometimes received

1 AMResorts is a Pennsylvania limited partnership. Copia
alleges that AMResorts manages the Seawind-owned resorts for which
Copia provided internet services under the contract here at issue.
- 3 -
contract-related phone and email communications in Massachusetts.

Installation and maintenance of the internet services occurred

entirely in Jamaica, with Jamaica-based Copia employees working

on-site at Seawind's resorts on a daily basis. No Seawind employee

traveled to Massachusetts during the contract term.

On April 28, 2014, Wehmeyer received a letter via email

attachment from the general manager of the two resorts receiving

Copia's services under the contract. Addressed to Copia's

Massachusetts office, the letter stated that Seawind was not

renewing the contract. Copia contested the timeliness of the

notice of nonrenewal and brought this action against Seawind and

AMResorts in federal district court in Massachusetts, asserting

various claims in contract, tort, and equity, and under

Massachusetts's consumer protection statute. Both defendants

moved to dismiss, arguing lack of personal jurisdiction and forum

non conveniens. The district court found that it lacked personal

jurisdiction over the defendants and so dismissed the case without

prejudice. This appeal timely followed.

II. Analysis

A. Standard of Review

The district court based its jurisdictional ruling on

the prima facie record instead of holding an evidentiary hearing

or making factual findings, so our review is de novo. C.W. Downer

& Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir.
- 4 -
2014). In conducting this review, we ask whether Copia has

"proffered evidence that, if credited, is enough to support

findings of all facts essential to personal jurisdiction" when

considered together with the undisputed proffers put forward by

the defendants. Adelson, 510 F.3d at 48 (quoting Foster-Miller,

Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995)).

B. The Governing Law

To carry its burden of proving that personal

jurisdiction exists in this action, Copia must "demonstrate that

the Massachusetts long-arm statute," Mass. Gen. Laws ch. 223A,

§ 3, "grants jurisdiction over [the defendants] and that the

exercise of that jurisdiction comports with the Due Process Clause

of the Fifth Amendment." Adelson, 510 F.3d at 48. This court has

sometimes treated the limits of Massachusetts's long-arm statute

as coextensive with those of the Due Process Clause. See Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,

52 (1st Cir. 2002) (citing "Automatic" Sprinkler Corp. of Am. v.

Seneca Foods Corp., 280 N.E.2d 423, 424 (Mass. 1972)). Recently,

however, we have suggested that Massachusetts's long-arm statute

might impose more restrictive limits on the exercise of personal

jurisdiction than does the Constitution. See Cossart v. United

Excel Corp., 804 F.3d 13, 18–19 (1st Cir. 2015) (citing Good Hope

Indus., Inc. v. Ryder Scott Co., 389 N.E.2d 76, 80 (Mass. 1979)).

We need not address this possible tension in our precedent here,
- 5 -
however, because both defendants treat the statutory and

constitutional standards as identical and so have waived any

argument that the long-arm statute does not reach as far as the

Fifth Amendment allows. Accordingly, we proceed directly to the

constitutional inquiry.

Under the Fifth Amendment, a court may exercise general

or specific jurisdiction over an out-of-state defendant only if

that defendant has "certain minimum contacts with [the forum state]

such that the 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)). When such contacts are "so 'continuous

and systematic' as to render [a defendant] essentially at home in

the forum State," that state holds general jurisdiction over the

defendant as to all claims. Goodyear Dunlop Tires Operations,

S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (quoting Int'l Shoe,

326 U.S. at 317). Because Copia waives any argument that

Massachusetts may exercise general jurisdiction over the

defendants, Copia must demonstrate that the defendants' contacts

with Massachusetts are sufficient to establish Massachusetts's

specific jurisdiction over this contract action.2

2Because all of Copia's claims are entwined in its contract
claims, none demand separate analysis. See Phillips v. Prairie
Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008).
- 6 -
 Under our precedent, a plaintiff seeking to establish

specific jurisdiction must show that each of three conditions is

satisfied:

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 . . . be reasonable.

Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008)

(quoting Adelson, 510 F.3d at 49). While we doubt that Copia has

come close to satisfying any of these three conditions, we can

comfortably rest the disposition of this appeal on an analysis of

how Copia fails to demonstrate that the defendants' few contacts

with Massachusetts represent a purposeful availment of the

protections of Massachusetts's laws.3

3
There is a factual dispute over the precise relationship
between Seawind and AMResorts. But because Seawind, as the
ostensible contract participant, lacks sufficient Massachusetts
contacts to fall subject to the state's jurisdiction, we lack
jurisdiction over AMResorts a fortiori even if we assume, favorably
to Copia, that Seawind and AMResorts are alter-egos of one another.
Of course, Copia argues that AMResorts--and not necessarily
Seawind--has a regional director for group sales for customers "in
the Northeast, which presumably includes the Commonwealth of
Massachusetts." But even if this sort of presumptive contact were
meaningful, Copia has not explained how it relates to the contract
dispute here at issue--and such a relationship is necessary for
specific jurisdiction. See Harlow v. Children's Hosp., 432 F.3d
50, 60–61 (1st Cir. 2005). Accordingly, finding no other alleged
Massachusetts contacts that are unique to AMResorts, we proceed to
- 7 -
C. Purposeful Availment

In determining whether the purposeful availment

condition is satisfied, our "key focal points" are the

voluntariness of the defendants' relevant Massachusetts contacts

and the foreseeability of the defendants falling subject to

Massachusetts's jurisdiction. See Adelson, 510 F.3d at 50. As an

operator of luxury resorts in the Caribbean, Seawind does advertise

in Massachusetts, has Massachusetts residents among its customers,

and has some arrangements with travel agents in Massachusetts. No

claim in this lawsuit, though, arises out of or relates directly

to any of these contacts, so they are not relevant to our specific

jurisdiction analysis. See Harlow v. Children's Hosp., 432 F.3d

50, 60–61 (1st Cir. 2005) (contacts relevant for specific

jurisdiction are those to which the cause of action is related).

In its relevant, i.e., contract-related, dealings with Copia,

Seawind sought no privilege to conduct any activities in

Massachusetts and did nothing to invoke the benefits and

protections of Massachusetts's laws beyond implicitly relying on

the state's laws in the way that any party to a contract relies on

the laws of the jurisdiction in which his counter-party happens to

reside. Cf. Prairie Eye Ctr., 530 F.3d at 28–29 (in a contract

suit, defendant's awareness of plaintiff's location in forum

treat the defendants as identically situated for ease of
exposition.
- 8 -
state, combined with defendant's occasional transmission of

contract-related communications into forum state, was insufficient

to establish defendant's purposeful availment of forum state).

Copia's efforts to draw support from its portrayal of

Seawind's performance (or "nonperformance") of the contract serve

only to highlight the absence of any meaningful attempt by Seawind

to secure the protections of Massachusetts's laws. Copia points

to Seawind's receipt of equipment shipped by Copia from

Massachusetts as a voluntary contact between the defendants and

the forum state. We view the origins of such shipments, instead,

as resulting from Copia's own "unilateral activity." Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Helicopteros

Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 417 (1984)).

The contract does not require shipment from any particular state,

and there is no evidence that the defendants cared about the

geographic origin of the shipments. Similarly, the contract's

requirements that Seawind make payment in U.S. dollars and comply

with U.S. export law when applicable create no explicit expectation

of contact between Seawind and Massachusetts in particular. And

the contract's requirement that Seawind give legal notice to Copia

at Copia's "registered office," as we can assume Seawind did when

sending notice of nonrenewal,4 represented a convenience for Copia

4 Copia points to its receipt of the nonrenewal notice in
Massachusetts to suggest that Massachusetts was the site of Copia's
- 9 -
rather than the type of availment by Seawind that would justify

Copia haling Seawind into Massachusetts court on a contract that

otherwise created no link between Seawind and Massachusetts.

Finally, Copia argues that our decision in C.W. Downer

& Co., 771 F.3d 59, somehow compels us to find purposeful availment

here. It does not. In Downer, an employee of a Canadian business

traveled to the Boston headquarters of a Massachusetts investment

bank to discuss the Canadian business's imminent sale. Id. at 63.

During the ensuing "four-year working relationship" between the

parties, id. at 67, the Massachusetts bank performed "extensive

services" in Massachusetts, id. at 69, requiring "intensive[]"

collaboration between the out-of-state business and the bank's

Boston-based team, id. at 67. We have recently described Downer's

determination that the Canadian business had "purposefully availed

itself of the privilege of doing business in Massachusetts" as

hinging on three factors: the defendant's in-forum solicitation of

the plaintiff's services, the defendant's anticipation of the

plaintiff's in-forum services, and the plaintiff's actual

performance of extensive in-forum services. Cossart, 804 F.3d at

alleged breach. See Phillips Exeter Acad. v. Howard Phillips Fund,
Inc., 196 F.3d 284, 291 (1st Cir. 1999) (breach of contract
arguably takes place "where a promisor fails to perform"). But
regardless of any significance this argument may have for specific
jurisdiction's relatedness inquiry, it does not suggest that
Seawind purposefully availed itself of Massachusetts's laws. In
any event, as we have discussed, Seawind had no contractual duty
to perform in or send payment into Massachusetts specifically.
- 10 -
21. None of those factors are present to remotely the same degree

here.

In sum, Seawind did no more than welcome in Jamaica

Copia's offer to provide equipment and services to Seawind in

Jamaica, and Seawind had no relevant contact with Massachusetts

beyond the insubstantial contacts that anyone would have when

buying goods and services from a company that itself happens to be

in Massachusetts. None of this by itself represents the type of

purposeful availment of the privilege of conducting business in

Massachusetts that would have made it reasonably foreseeable that

Seawind could be "haled into court" in Massachusetts on its

contract with Copia. Burger King, 471 U.S. at 486 (quoting World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). The

district court therefore correctly dismissed this lawsuit for lack

of personal jurisdiction.5

III. Conclusion

Finding the unconsented exercise of personal

jurisdiction over the defendants barred by the Due Process Clause

of the Fifth Amendment, we affirm the district court's dismissal

for lack of jurisdiction.

5
Because we find that Copia has not shown purposeful
availment, we need not proceed to consider whether it would be
reasonable for Massachusetts to exercise jurisdiction. Likewise,
we need not consider the defendants' alternate argument for
dismissal on forum non conveniens grounds.
- 11 -