LP Solutions LLC v. Duchossois

United States Court of Appeals
For the First Circuit

No. 18-1351

LP SOLUTIONS LLC,

Plaintiff, Appellant,

v.

CRAIG J. DUCHOSSOIS, individually and as Co-Executor of the
Estate of Richard Bruce Duchossois; RICHARD L. DUCHOSSOIS;
KIMBERLY T. DUCHOSSOIS; DAYLE P. DUCHOSSOIS-FORTINO; THOMAS A.
SMITH, as Co-Executor of the Estate of Richard Bruce Duchossois,

Defendants, Appellees.

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

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Stahl, and Thompson,
Circuit Judges.

Daniel J. Murphy, with whom Bernstein Shur Sawyer & Nelson
was on brief, for appellant.
Nolan L. Reichl, with whom Kyle M. Noonan and Pierce Atwood
LLP were on brief, for appellees.

October 24, 2018
 LYNCH, Circuit Judge. This contract case raises the

close question of whether the plaintiff has failed to carry its

burden of showing that there is personal jurisdiction over the

defendants in Maine, as the district court held in a thoughtful

opinion dismissing the action. LP Sols., LLC v. Duchossois, No.

2:18-CV-25-DBH, 2018 WL 1768037, at *1 (D. Me. Apr. 11, 2018).

The underlying dispute involves agreements about the

defendants' interests in an Illinois limited partnership, Elm

Street Plaza Venture, LLLP. LP Solutions LLC (LPS), a Maine

company, offered to buy limited partnership interests owned by

members of the Duchossois family, who are defendants here, and who

mostly reside in Illinois. LPS said that the transaction would

provide the family members with payments and tax benefits. The

family members accepted a second offer made to them in Illinois.

Under an agreement with LPS, the family made distribution payments

to LPS in Maine only three times, once per year for three years.

In March 2015, the Elm Street partnership's General

Partners sued LPS in Illinois. The thrust of the lawsuit was that

LPS could not legally obtain the limited partnership interests

from partnership interest holders like the Duchossois family

members. When the family members later refused to deliver

partnership distributions made in 2016 that LPS said were assigned

to it, LPS sued them in Maine, in a case removed to federal court.

- 2 -
 The federal district court, on the undisputed evidence,

found there was no personal jurisdiction because the Duchossois

family's contacts with Maine did not make the exercise of personal

jurisdiction foreseeable. LP Sols., 2018 WL 1768037, at *1.

Although it is a close call, the context of the family's Maine

contacts, including their nature, number, origin, and duration,

leads us to agree with the district court. We affirm.

I.

We take the facts from LPS's properly documented

evidentiary proffers and from the Duchossois family's undisputed

proffers. See Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1,

3 (1st Cir. 2016).

A. The Parties

The defendant Duchossois family had partnership

interests in Elm Street Plaza Venture, LLLP (a limited liability

limited partnership). The Elm Street LLLP built and owns a

residential apartment building in Chicago, Illinois. That

partnership is registered in Illinois, its partnership agreement

is governed by Illinois law, its assets are in Illinois, and it is

managed by a General Partner who resides in Illinois. The

Duchossois family members, Richard L. Duchossois and his children

Craig J. Duchossois, Kimberly T. Duchossois, and Dayle P.

Duchossois-Fortino, all live in Illinois, except for Richard Bruce

Duchossois who resided in Florida and spent time in South Carolina

- 3 -
before his death in 2014.1 Before interacting with LPS, the

Duchossois family members collectively owned a 4.54 percent

interest in the Elm Street partnership.

LPS is a Portland, Maine-based investor in the

affordable housing industry. It owns "thousands of limited

partnership interests and related interests in various limited

partnerships across the United States." Before its dealings with

the Duchossois family, LPS already owned a 13.66 percent stake in

the Elm Street partnership.

B. The Contracts

In September 2013, LPS sent letters to the Duchossois

family members offering to buy their interests in the Elm Street

partnership. William Gendron, an LPS agent, also called Jennifer

Hager, a Duchossois agent in Illinois, to follow up on those

letters. Hager rejected the offer without negotiation.

After that initial rejection, Gendron sent a new offer

to Janet Czosek, another Duchossois agent also in Illinois.

Gendron represented that the offer -- LPS's "Option

Program" -- would have tax benefits for the Duchossois family

members. It would let them "lock [in]" the value of their

partnership interests "at today's market value, receive a

1 Richard Bruce Duchossois's estate has participated in
this suit through its co-executors: Craig J. Duchossois and Thomas
A. Smith.

- 4 -
significant portion of the purchase price on a tax-deferred basis

and avoid tax recapture." LPS marketed its program to individuals

whose limited partnership interests had "significant tax

recapture." As we understand it, individuals in that circumstance

had the choice to either sell their interests in their lifetime,

with attendant negative tax consequences, or to "wait until their

estate receives the interest" at death. LPS's program gave limited

partnership holders a third option: LPS would make an "Option Fee

payment[]," which is not taxable "until the final transfer of the

limited partnership interest," in return for "partnership cash

flow." Simply put, LPS gave the limited partnership holder money

up front on a tax-deferred basis in return for a portion of the

partnership's distributions.

In September 2013, LPS sent agreements embodying the

advertised proposal to each member of the Duchossois family. Those

agreements had two main parts: an Option agreement and an

Assignment. Both parts were fully drafted and signed by LPS and

had the sales price filled in. They both defined LPS as "a Maine

limited liability company with a principal place of business" in

Portland, Maine.

The Option agreement gave LPS a twenty-year option to

purchase the Duchossois family member's partnership interest for

a specified amount (the purchase price). There was, apart from

the twenty years over which LPS could exercise the option, no term

- 5 -
of years to the agreement. LPS said it would spread payment of

the purchase price over a series of payments: First, LPS would pay

half the purchase price to the family in Illinois on execution of

the agreement. Next, LPS would make payments in two installments,

each of about ten percent of the purchase price, in November 2014

and November 2015, respectively. LPS would not, however, pay the

balance of the purchase price unless it exercised the option, a

choice left to its discretion. If LPS exercised the option before

the death of a family member, it would pay to that family member,

"as additional sales proceeds, the cost of the tax recapture of

the limited partner's negative capital account."

In return, under the Option agreement, if the

partnership made a "cash flow distribution," the Duchossois family

members would then give LPS part of that distribution, equal to

the proportion LPS had paid to that date of the agreement's

purchase price. Put more simply, if LPS had paid fifty percent of

the purchase price to a particular family member, LPS would be

entitled to fifty percent of the partnership's cash flow

distributions to that family member. The record contains no

evidence that any Duchossois family member had authority to cause

the Elm Street LLLP or its General Partners to make or not to make

distributions on behalf of the partnership.

The Duchossois family members also agreed not to

alienate or encumber their Elm Street partnership interests and to

- 6 -
vote their interests as directed by LPS. They would send "[a]ll

notices, demands, and other communications" to LPS in Maine. The

agreements do not say where distribution payments to LPS were to

be made.

The Assignment required the Duchossois family members to

"irrevocably and unconditionally sell[], assign[] and transfer[]"

their partnership interests to LPS if LPS exercised its option, as

LPS later sought to do. LPS, importantly, "assume[d] all risk"

for "any transfer restrictions contained in the Partnership's

partnership agreement." The family members assumed no such

obligations. (Later, in the lead-up to litigation Elm Street

brought against LPS in Illinois, the Elm Street General Partners

did object to any such transfer to LPS by any limited partners,

including the Duchossois family members.)

The Option agreement states that it is "governed

exclusively by the laws of the State of Maine" under a choice-of-

law provision. The Assignment, however, is governed by "the laws

of the state where the Partnership is domiciled," that is,

Illinois. Neither agreement contains a forum-selection clause.

We return to the chronology of events. In September

2013, having received and reviewed LPS's proposal, Hager and Czosek

emailed LPS to say that the proposed agreements were acceptable to

the family. They did not negotiate price or any other terms with

LPS. The two agents collected signatures from the Duchossois

- 7 -
family members in Illinois and South Carolina. In early October

2013, Hager and Czosek sent the executed agreements to LPS in

Maine. An LPS employee responded that the agreements lacked

witness signatures, so Hager and Czosek sent new, witnessed

signature pages to LPS in Maine.

C. Performance, Exercise of Options, and Breach

In October 2013, after the agreements were signed, LPS

paid the first installment to the Duchossois family members. LPS

sent each payment to Illinois.

The Elm Street partnership made a distribution to the

limited partners in June 2014. By then, LPS had paid half of the

purchase price to each Duchossois family member, so the family

members each sent half of their distribution proceeds to LPS in

Maine.

Richard Bruce Duchossois died in July 2014. A Duchossois

family agent notified LPS of his death. Hager wrote to "confirm"

that Richard Bruce Duchossois's death "[wa]s a triggering event

under the agreement" and to inquire about "the next steps." LPS

responded requesting information and paperwork necessary to

exercise the option. LPS exercised its option on Richard Bruce

Duchossois's partnership interest and, in late August, sent the

balance of the option price to his estate. The estate executed

the Assignment and sent it to LPS in Maine that same month. LPS

- 8 -
did not then exercise its options on the interests of the remaining

family members.

In October 2014, LPS made the second round of installment

payments to the remaining Duchossois family members.2 These

payments were the second check or wire transfer to each family

member that LPS had sent from Maine to Illinois.

The next month, Hager, for the family, emailed Gendron

of LPS to say that "[w]e are anxious to speak to you about the tax

consequences" of the Option agreements. After the two spoke by

phone, Hager followed up to ask whether Gendron "ha[d] an update

on the potential to exercise the option agreements for the

Duchossois family members before the end of 2014." Gendron

testified that he understood this to mean that the family members

wanted LPS to exercise its options on each of their interests.

There is no evidence as to what the family members understood.

LPS chose to exercise its options on the family members'

interests effective in December 2014. LPS's choice required the

Duchossois family members to sign the Assignments, so Hager and

Gendron spoke by phone in mid-November, and they along with other

2 The record does not show this second payment being made
to Richard L. Duchossois. There is no allegation, however, that
LPS did not make this second payment. Later, the record includes
uncontradicted testimony that Richard L. Duchossois received all
required payments under the Option agreements. Based on this
testimony, we assume that LPS made the second payment by wire to
Richard L. Duchossois in Illinois.

- 9 -
party agents corresponded back and forth into January 2015. LPS

received Richard L. Duchossois's signed Assignment in December and

scans of the remaining family members' signed Assignments in

January 2015. LPS paid the balance on Richard L. Duchossois's

interest by wire transfer in December 2014, and on the remaining

family members' interests by checks in February 2015. These were

the third round of payments made by LPS to the family members in

Illinois.

In January 2015, after the Assignments were executed,

LPS communicated by email with the Duchossois family members in

Illinois, asking them to each sign and send a letter to the Elm

Street partnership's General Partners requesting the General

Partners' consent to the Assignments. The family members agreed

and sent the letters to the General Partners in Illinois. Two

months later, the General Partners responded by letter to Richard

L. Duchossois stating that the partnership did not recognize the

transfer of his interests to LPS. Craig J. Duchossois received

the same letter in his capacity as co-executor of Richard Bruce

Duchossois's estate. The General Partners took the same position

as to all the remaining family members: the General Partners have

not recognized as valid any of the transfers to LPS involving the

Duchossois family's ownership interests in the Elm Street

partnership.

- 10 -
 In March 2015, the Elm Street partnership's manager and

General Partners brought suit against LPS in Illinois state court

over LPS's efforts to acquire interests in the partnership and

other similar partnerships. The Duchossois family made no

appearance in and is not a party to that litigation. LPS sought

to join the family members as necessary parties, the Elm Street

partners opposed, and the Illinois court denied that motion. LPS

has made no effort to sue the family in Illinois on the subject

matter of this action.

As part of the agreements, LPS had agreed to take on

certain tax liability resulting from the sale of the Duchossois

family members' partnership interests. The agreements, however,

do not say how this was to be accomplished. LPS began this process;

it sent a letter to Richard L. Duchossois in Illinois on March 26,

2015, requesting a copy of his 2014 Schedule K-1.3 The Schedule

K-1 is a tax form used to report the filer's share of partnership

income. LPS needed copies of that form for each family member so

that it could fill out for each a Form 8082, another tax form used

to adjust and shift tax liability to the assignee of an economic

interest (that is, LPS). LPS included with the letter a FedEx

envelope already addressed to return the Schedule K-1 to LPS.

3 Similar requests apparently went to other family
members, but the record contains only the letter LPS sent to
Richard L. Duchossois.

- 11 -
 Two weeks later, Kimberly Spencer, an LPS agent, emailed

Hager that she had received 2014 Schedule K-1s from Kimberly and

Craig Duchossois and Dayle Duchossois-Fortino. Hager replied that

she had sent the forms because "[w]e received a letter from LP

Solutions requesting they be sent." Hager then asked when she

could expect the "Forms 8082" from LPS in return.

In June 2015 and May and June 2016, the Duchossois family

members each sent Elm Street partnership distributions by check to

LPS in Maine. The parties engaged in routine correspondence about

these payments. These payments when added to the earlier June

2014 payments totaled $86,363.65.

In October 2016, after the Elm Street partnership had

sued LPS in Illinois, the partnership experienced what the

complaint calls a "capital event." That event was a refinancing

of certain of the Elm Street partnership's financial obligations.

This resulted in distributions to the limited partners. Again,

there is no assertion that the family members controlled or caused

this event. LPS has alleged that the distributions collectively

totaled over $1,000,000 to the Duchossois family -- about $500,000

to Richard L. Duchossois and $130,000 each to the remaining family

members and Richard Bruce Duchossois's estate. LPS's complaint

alleges that the family has "refused to remit" these distributions

to LPS despite LPS's demands. LPS adds that the family has also

retained the nearly $600,000 that LPS paid as consideration for

- 12 -
its option on their interests. At oral argument in Illinois,

counsel for LPS suggested that the Duchossois family had "refus[ed]

to move forward" with LPS "because of the confusion that the [Elm

Street General Partners] have sewed [sic] as to the validity of

the agreement."

D. Procedural History

LPS sued the Duchossois family in Maine state court on

November 15, 2017. It brought claims for breach of contract, or,

in the alternative, for unjust enrichment. The Duchossois family

removed the case to federal court and moved to dismiss for lack of

personal jurisdiction.

The district court granted the motion to dismiss,

concluding on the prima facie record that exercising specific

personal jurisdiction over the Duchossois family would not comport

with due process. LP Sols., 2018 WL 1768037, at *1. The district

court found that the Duchossois family members "did not

purposefully avail themselves of the privilege of conducting

activities in Maine in a way that would make jurisdiction over

them here foreseeable." Id. at *11.4

LPS timely appealed.

4 The district court also denied LPS's request for
jurisdictional discovery. LPS has not appealed that denial.

- 13 -
 II.

A. Standard of Review

Given the district court's use of prima facie review, we

take the plaintiff's evidentiary proffers as true and we consider

uncontradicted facts proffered by the defendant. C.W. Downer &

Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir.

2014). It is LPS's burden to proffer evidence "sufficient to

support findings of all facts essential to personal jurisdiction,"

and to do so without relying on unsupported allegations. A Corp.

v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). Our

review is de novo. See Foster-Miller, Inc. v. Babcock & Wilcox

Can., 46 F.3d 138, 147 (1st Cir. 1995).

B. Personal Jurisdiction

In diversity jurisdiction cases like this one, the

exercise of personal jurisdiction must be both authorized by state

statute and permitted by the Constitution. Harlow v. Children's

Hosp., 432 F.3d 50, 57 (1st Cir. 2005). The state statute here,

Maine's long-arm statute, reaches "to the fullest extent permitted

by the due process clause of the United States Constitution." Me.

Rev. Stat. Ann. tit. 14, § 704-A(1) (2016). The parties agree

that our inquiry resolves into only whether the exercise of

jurisdiction complies with due process.

For the exercise of jurisdiction to be constitutional,

a defendant must have "certain minimum contacts with [the forum

- 14 -
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)).5 LPS has asserted specific

personal jurisdiction over the Duchossois family, so the

constitutional analysis here has three components: relatedness,

purposeful availment, and reasonableness. Plixer Int'l, Inc. v.

Scrutinizer GmbH, No. 18-1195, 2018 WL 4357137, at *3 (1st Cir.

Sept. 13, 2018). That is, LPS must show that (1) its claim

directly arises out of or relates to the defendant's forum

activities; (2) the defendant's forum contacts represent a

purposeful availment of the privilege of conducting activities in

that forum, thus invoking the benefits and protections of the

forum's laws and rendering the defendant's involuntary presence in

the forum's courts foreseeable; and (3) the exercise of

jurisdiction is reasonable. Id.

LPS must make all three showings to establish specific

personal jurisdiction. See C.W. Downer, 771 F.3d at 65. We hold

that LPS has not made the second showing because, on the evidence

5 The Duchossois family's Maine contacts mostly came from
their agents, but "[f]or purposes of personal jurisdiction, the
actions of an agent may be attributed to the principal." Daynard
v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
55 (1st Cir. 2002). In our analysis, we treat each of the
Duchossois family members "as identically situated for ease of
exposition." Copia Commc'ns, 812 F.3d at 5 n.3.

- 15 -
LPS has presented, we find, in agreement with the district court,

that the Duchossois family has not purposefully availed itself of

the privilege of conducting activities in Maine, thus invoking the

Maine forum's laws and rendering the family's presence in the

forum's courts foreseeable.

1. Relatedness

The district court found that LPS had made a sufficient

showing under the relatedness prong, save that the contacts

involving LPS's preparation of tax forms for the Duchossois family

were not related. LP Sols., 2018 WL 1768037, at *7. To show

relatedness, LPS must produce evidence that shows its "cause of

action either arises directly out of, or is related to, the

defendant's forum-based contacts." Harlow, 432 F.3d at 61 (citing

United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St.

Corp., 960 F.2d 1080, 1088-89 (1st Cir. 1992).6 Even if LPS has

6 Both of LPS's claims -- for breach of contract and unjust
enrichment -- would be reviewed under the same contract-based
relatedness test. See C.W. Downer, 771 F.3d at 64, 66 (applying
the same jurisdictional analysis to related breach of contract and
unjust enrichment claims). The parties dispute the content of
that contract-based test. The Duchossois family says that the
only contacts that count are those that are "instrumental either
in the formation of the contract or its breach." Adelson v.
Hananel, 510 F.3d 43, 49 (1st Cir. 2007) (quoting Phillips Exeter
Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir.
1999)). LPS responds that relatedness is a "flexible, relaxed
standard" that requires us to "focus on the parties' prior
negotiations and contemplated future consequences, along with the
terms of the contract and the parties' actual course of dealing."
C.W. Downer, 771 F.3d at 66 (quotation marks omitted). The dispute
is beside the point here as we agree with the district court that

- 16 -
satisfied the relatedness prong to the extent found by the district

court, it has not satisfied the purposeful availment prong, so we

turn to the purposeful availment analysis. See, e.g., Adams v.

Adams, 601 F.3d 1, 6 (1st Cir. 2010) (assuming, arguendo, that the

plaintiff had satisfied the relatedness prong before concluding

that the plaintiff had not made a showing of purposeful availment).

2. Purposeful Availment

LPS must show that the Duchossois family has

purposefully availed "itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and

protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253

(1958) (citation omitted). The test for purposeful availment "is

only satisfied when the defendant purposefully and voluntarily

directs his activities toward the forum so that he should expect,

by virtue of the benefit he receives, to be subject to the court's

jurisdiction based on these contacts." United States v. Swiss Am.

Bank, 274 F.3d 610, 624 (1st Cir. 2001). This standard ensures

that the exercise of jurisdiction is essentially voluntary and

foreseeable, C.W. Downer, 771 F.3d at 66, not based on a

defendant's "random, fortuitous, or attenuated [forum] contacts,"

Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011)

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

LPS has not carried its burden of proving that the Duchossois
family purposefully availed itself of Maine.

- 17 -
 The parties agree that there is no issue as to

voluntariness here. The question is thus whether the Duchossois

family's Maine contacts are "of a nature that the [family] could

'reasonably anticipate being haled into court [in Maine].'"

Phillips v. Prairie Eye Ctr., 530 F.3d 22, 28 (1st Cir. 2008)

(quoting Adelson v. Hananel, 510 F.3d 43, 50 (1st Cir. 2007)). We

agree with the district court that, on the evidence LPS has

presented, the Duchossois family's Maine contacts did not make the

exercise of jurisdiction reasonably foreseeable. LP Sols., 2018

WL 1768037, at *8.

In contract cases, we have found that the exercise of

jurisdiction is reasonably foreseeable when "the defendant

deliberately direct[ed] its efforts toward the forum state," C.W.

Downer, 771 F.3d at 68 (citing Burger King, 471 U.S. at 476), or

when the defendant "enter[ed] a contractual relationship that

envisioned continuing and wide-reaching contacts in the forum

State," id. (quoting Walden v. Fiore, 571 U.S. 277, 285 (2014)).

The Duchossois family has neither directed its efforts toward Maine

nor entered into such an extensive contractual relationship.

First, the origin of the parties' contractual

relationship factors against a finding of purposeful availment.

The Duchossois family did not reach out to Maine looking to sell

its interests in the Elm Street partnership; instead, LPS reached

out to the family in Illinois to solicit the sale. Of course, a

- 18 -
lack of solicitation alone is not necessarily determinative, see

Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d

28, 38 (1st Cir. 2016), but the lack of an effort by the Duchossois

family to reach out to Maine distinguishes this case from several

in which we have found the test for purposeful availment met.

Compare Cossart v. United Excel Corp., 804 F.3d 13, 21 (1st Cir.

2015) (noting, in support of purposeful availment, that the

defendant "recruited" for employment the plaintiff at his home in

the forum), and Adelson v. Hananel, 652 F.3d 75, 82–83 (1st Cir.

2011) (concluding that the defendant had purposefully availed

himself of the forum in part because he "sought" the employment

contract at issue "with a company whose key officers were all

located in [the forum]"), with Prairie Eye Ctr., 530 F.3d at 29

(emphasizing the lack of solicitation when finding no purposeful

availment).

And second, the parties' contractual relationship does

not render the exercise of jurisdiction foreseeable. The

Duchossois family did knowingly enter into a contractual

relationship with a Maine entity, but, as the district court

properly noted, see LP Sols., 2018 WL 1768037, at *8, "the

defendant's awareness of the location of the plaintiff is not, on

its own, enough to create personal jurisdiction over a defendant."

Prairie Eye Ctr., 530 F.3d at 28. Something more is needed: the

contractual relationship must either envision or include

- 19 -
sufficient continuous and wide-ranging contacts with Maine to meet

the foreseeability test.

LPS argues that its agreements with the Duchossois

family envisioned continuous and wide-ranging contacts with Maine.

That argument is misleading. The family had no independent

obligations under the agreements with LPS; each of the family's

obligations depended first on the action of someone outside the

family. If the General Partners brought up some matter needing a

vote of the limited partnership interest, the family had to consult

with LPS before voting. If the General Partners made a

distribution, the family had to forward part of it to LPS. And if

LPS elected to exercise its option, the family members had to

execute their respective Assignments. But the agreements nowhere

required the General Partners to make a distribution or to bring

a matter to a vote. Nor did the agreements require LPS to exercise

its options. And, again, there is no allegation in the record

that the Duchossois family exercised control over either the

General Partners or the distributions made by the partnership.

The Duchossois family's contractual obligations are

different from those that courts have found justify the exercise

of jurisdiction. The contingent nature of the family's contractual

obligations separate this from a franchise contract case like

Burger King, in which the defendant voluntarily accepted "the long-

term and exacting regulation of his business from" the plaintiff

- 20 -
in the forum. 471 U.S. at 480. And these contingent obligations

separate this case from a services contract case like C.W. Downer,

which involved an agreement under which the plaintiff "acted as

[the defendant's] exclusive financial adviser in connection with"

the defendant's potential sale, and which thus required

"interactive communications between the two [parties] for an

extended period of time." 771 F.3d at 63, 68. The family's

contingent contractual obligations here mean that their Maine

contacts were also contingent, which undercuts the case for

foreseeability. Cf. Scottsdale Capital Advisors Corp. v. The Deal,

LLC, 887 F.3d 17, 21 (1st Cir. 2018) (noting, in a defamation case,

that the plaintiffs' argument was based on assumptions untethered

to evidence, which left "a hole in [their] prima facie case for

maintaining jurisdiction").

Next, LPS emphasizes its own obligations under the

agreement and the twenty-year term over which it could exercise

its option, provided that the Option agreement was not terminated

earlier. This was not, however, a contract requiring performance

of continuing obligations over a twenty-year period. Far from it.

Even if LPS kept the option for the full twenty years, the

agreement only required LPS to make three payments: one at signing,

one a year later, and one a year after that. And LPS had to

prepare tax forms only once: on exercise of the option. These tax

forms were meant to assign the "income (loss) attributable to the

- 21 -
economic interest from [the family] to [LPS]." The tax forms were

necessary for LPS to get the full benefit of its deal with the

family, so their preparation does little to show that the

Duchossois family purposefully availed itself of Maine. Cf. Copia

Commc'ns, 812 F.3d at 5-6 (noting that forum contacts that

"represent[] a convenience for [the plaintiff]" do not show "the

type of availment by [the defendant]" that would justify the

exercise of jurisdiction).

Given the few contractual commitments tying the

Duchossois family members to Maine, the family members' actual

contact with Maine strikes us as more relevant to the purposeful

availment inquiry. And that actual contact was limited. The

Duchossois family merely sent the amount of three partnership

distributions into Maine, sent the executed Assignments into

Maine, collaborated with LPS on tax issues, and corresponded about

these.

The Duchossois family's payments to Maine do not support

the exercise of jurisdiction. In Baskin-Robbins we concluded that

the exercise of jurisdiction was foreseeable in part because the

defendant had sent "a constant stream of payments" into the forum.

825 F.3d at 38-39. That stream comprised 180 payments made monthly

over about fourteen years. See id. at 39. In contrast, the

Duchossois family sent only three partnership distributions, one

per year over three years, to LPS in Maine. As the district court

- 22 -
correctly noted, see LP Sols., 2018 WL 1768037, at *9, the sending

of such "occasional payments into the forum state" here lacks

"'decretory significance'" in the jurisdictional calculus.

Baskin-Robbins, 825 F.3d at 38 (quoting Phillips Exeter Acad. v.

Howard Phillips Fund, Inc., 196 F.3d 284, 291 (1st Cir. 1999)).

Nor do the Maine activities and communications by the

family members support the exercise of jurisdiction. We upheld

the exercise of jurisdiction in Baskin-Robbins in part because the

defendant caused the plaintiff to undertake "a plethora of

activities on its behalf" in the forum. Id. at 39. Those

activities, like product testing and the processing of customer

complaints, better enabled the defendant to exploit the forum

market. See id. at 38. In contrast, LPS took on few activities

in Maine, like the preparation of tax forms and payments, for the

Duchossois family. These few activities are better evidence of

LPS's intent to exploit the Illinois market than the Duchossois

family's intent to exploit the Maine one. In the district court's

words, "[a]bsent are the substantial, ongoing, interdependent

controls and commitments that are typical of franchise and services

contract cases and often justify jurisdiction."7 LP Sols., 2018

WL 1768037, at *10.

7 That the Option agreements required the Duchossois
family members to vote their partnership interests at LPS's
direction does not change this analysis. We have typically
considered whether a contract subjects a defendant to "substantial

- 23 -
 Relatedly, communication between representatives of LPS

and the Duchossois family was sporadic. Months went by without a

single email or phone call. And when the parties did correspond,

most of the communications from the Duchossois family to LPS were

responsive, having been instigated by LPS. In contrast, the

Baskin-Robbins parties coordinated "on a wide variety of

operational issues," with "communications occurr[ing] regularly

(at a minimum, monthly)." 825 F.3d at 39.

We reject LPS's three remaining arguments. LPS first

argues that several times the Duchossois family reached out to

LPS, and that this shows that the family has purposefully availed

itself of Maine. The first instance was when Richard Bruce

Duchossois died. Hager, an agent for the family, sought only to

"confirm" that his death was a "triggering event under the

agreement." After LPS exercised its option on Richard Bruce

Duchossois's partnership interest, Hager inquired "about the tax

consequences for the Duchossois family members" and followed up to

ask for "an update on the potential to exercise the option

agreements" for the remaining family members. These

communications do not show that the family purposefully availed

itself of Maine. Instead, as the district court noted, these

control" under the rubric of relatedness. See, e.g., Prairie Eye
Ctr., 530 F.3d at 27. For present purposes, we merely note that
there is no record evidence of LPS exercising any control over the
Duchossois family under this contractual provision.

- 24 -
communications were "merely an extension of the parties'

preexisting relationship that had been initiated by [LPS]." LP

Sols., 2018 WL 1768037, at *9. The Duchossois family "did not

intentionally avail themselves of the benefits of doing business

in [Maine] merely by calling residents of [Maine] to request"

payments that LPS had already agreed to make. Carreras, 660 F.3d

at 556.

Second, LPS argues that there were negotiations between

the parties that support the exercise of jurisdiction. But the

record contains no evidence of any such negotiations. It shows

only that the Duchossois family rejected LPS's first offer, and

merely signed the draft agreements for the second offer that LPS

provided to them outside Maine. There was no give-and-take over

language, price, or any other contractual terms, much less

extensive back-and-forth discussions. While on prima facie review

we must "construe [the plaintiff's evidentiary proffers] in the

light most favorable to the plaintiff's claim," C.W. Downer, 771

F.3d at 65, LPS cannot rely on unsupported allegations to establish

jurisdiction, see A Corp., 812 F.3d at 58.

And third, LPS suggests that the fact that the Option

agreements are governed by Maine law is a relevant Maine contact.

The Option agreements have a Maine choice-of-law provision, but

the Assignments are governed by Illinois law. The district court

considered these competing provisions at best "a wash." LP Sols.,

- 25 -
2018 WL 1768037, at *9. We think the Assignments' provision is

more pertinent. That provision's selection of Illinois law

highlights the fact that the underlying interests here are in

Illinois, a factor that counts against jurisdiction. Cf. Pritzker

v. Yari, 42 F.3d 53, 62 (1st Cir. 1994) (upholding the exercise of

jurisdiction when the defendant "knowingly acquir[ed] an

economically beneficial interest in the outcome of a [forum-based]

lawsuit that involved control over property located in [the

forum]").

Finally, the Duchossois family emphasizes that neither

its members nor agents set foot in Maine on business with LPS.

That is hardly dispositive, C.W. Downer, 771 F.3d at 68, but is

relevant to the jurisdictional analysis, see Baskin-Robbins, 825

F.3d at 38. The lack of such contact here tends to confirm that

the family could not foresee the exercise of jurisdiction.

* * *

The Duchossois family's Maine contacts, on this record,

do not constitute the "continuing and wide-reaching contacts,"

Burger King, 471 U.S. at 480, that form the "substantial

connection," C.W. Downer, 771 F.3d at 68 (quotation marks omitted),

with the forum necessary to make the exercise of jurisdiction

foreseeable. As the district court noted, this case's "center of

gravity is in Illinois: it concerns in part the alienability of

Illinois limited partnership interests in Illinois real estate

- 26 -
governed by Illinois law, issues which have been raised in a

pending Illinois lawsuit." LP Sols., 2018 WL 1768037, at *12.

This Illinois focus makes Maine litigation less foreseeable to the

family, which dooms LPS's case for purposeful availment.

There is no argument that the district court used the

wrong legal framework, and, on this record, we find no error in

its conclusion that the exercise of jurisdiction over the

Duchossois family would not comport with due process.8

III.

The district court's judgment is affirmed.

8 Because LPS has not presented sufficient evidence of
minimum contacts, we need not address the Duchossois family's claim
that it should prevail under the reasonableness prong. See
Pleasant St., 960 F.2d at 1091 n.11.

- 27 -