Chen v. US Sports Academy, Inc.

United States Court of Appeals
For the First Circuit

No. 19-1382

KUAN CHEN,

Plaintiff, Appellant,

v.

UNITED STATES SPORTS ACADEMY, INC.,

Defendant, Appellee.

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

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.

Stanley D. Helinski, with whom Helinski Law Offices was on
brief, for appellant.
Bethany P. Minich, with whom Litchfield Cavo LLP was on brief,
for appellee.

April 15, 2020


Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation
 SELYA, Circuit Judge. The appeal in this case requires

us to explore the frontiers of personal jurisdiction in the

internet age. This expedition leads us to conclude — as did the

district court — that personal jurisdiction cannot

constitutionally be exercised over the defendant in Massachusetts.

Accordingly, we affirm the dismissal of the complaint for want of

jurisdiction.

I. BACKGROUND

When "[f]aced with a motion to dismiss for lack of

personal jurisdiction, a district court may choose from among

several methods for determining whether the plaintiff has met [his]

burden." Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc.,

825 F.3d 28, 34 (1st Cir. 2016) (internal quotation omitted)

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

This choice is informed chiefly by the state of the record, the

extent to which the merits of the underlying claim are intertwined

with the jurisdictional issue, and the district court's assessment

of whether it would be "unfair to force an out-of-state defendant

to incur the expense and burden of a trial" without first requiring

a substantial showing of the facts necessary to establish

jurisdiction. Foster-Miller, Inc. v. Babcock & Wilcox Can., 46

F.3d 138, 145-46 (1st Cir. 1995) (quoting Boit v. Gar-Tec Prods.,

Inc., 967 F.2d 671, 676 (1st Cir. 1992)).

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 Under the prima facie approach — typically used at the

early stages of a case — "the district court acts not as a

factfinder, but as a data collector," id. at 145, asking only

whether the plaintiff has proffered facts that, if credited, would

support all findings "essential to personal jurisdiction," id.

(quoting Boit, 967 F.2d at 675). If the court determines that it

would be unfair to the defendant to proceed with the litigation

without first requiring the plaintiff to make more than a prima

facie showing of jurisdiction, the preponderance-of-the-evidence

approach comes into play. See id. at 145-46. Under that approach,

the district court holds "a full-blown evidentiary hearing at which

the court will adjudicate the jurisdictional issue definitively

before the case reaches trial" using a preponderance-of-the-

evidence standard. Id. at 146.

If "the assertion of jurisdiction is bound up with the

claim on the merits, the possibility of preclusion [may] render[]

use of the preponderance standard troubling." Id. Where such

"special circumstance[s]" obtain, the district court's fallback

position typically involves an application of the "likelihood"

standard. Id. Under this approach, the district court holds an

evidentiary hearing and makes findings limited to "whether the

plaintiff has shown a likelihood of the existence of each fact

necessary to support personal jurisdiction," leaving for trial the

definitive resolution of factual controversies common to both the

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merits of the underlying claim and the jurisdictional dispute.

Id. (quoting Boit, 967 F.2d at 677). "[B]y engaging in some

differential factfinding, limited to probable outcomes as opposed

to definitive findings of fact," the district court can sidestep

thorny preclusionary quandaries. Id.

With this paradigm in place, we proceed to the relevant

facts and travel of the case. Here, the district court decided

the defendant's motion to dismiss for want of personal jurisdiction

at the inception of the case and without holding an evidentiary

hearing. See Cheng v. U.S. Sports Acad., Inc., No. 18-12533-FDS,

2019 WL 1207863, at *4 (D. Mass. Mar. 14, 2019).1 Thus, the

requirements of the prima facie approach control. See United

States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

Consistent with that approach, we draw the relevant facts "from

the pleadings and whatever supplemental filings (such as

affidavits) are contained in the record, giving credence to the

plaintiff's version of genuinely contested facts." Baskin-

Robbins, 825 F.3d at 34. Similarly, we "take into account

undisputed facts put forth by the defendant." Id.

1Due to a scrivener's error, the plaintiff's name appeared
as "Cheng" throughout most of the district court proceedings.
Shortly after the plaintiff filed his notice of appeal, the
district court granted a motion to correct the plaintiff's surname
on the district court docket to "Chen." We use the corrected
nomenclature throughout this opinion.

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 Defendant-appellee United States Sports Academy, Inc.

(USSA) is an educational institution incorporated in Alabama,

which has its principal place of business there. USSA is involved

mainly in online education, and it is accredited to award

bachelor's, master's, and doctoral degrees. USSA's Distance

Learning Program allows students to complete their coursework

"without leaving their homes or jobs" through an online learning

platform accessible twenty-four hours a day in all fifty states.

In 2008, plaintiff-appellant Kuan Chen enrolled in

USSA's doctoral program in sports management. At the time of

Chen's matriculation, USSA required him to complete all degree

requirements within ten years and to pass a comprehensive

examination. Between 2008 and 2010, Chen finished forty-two

credits of coursework. Chen resided in Alabama during this period,

with the exception of one term in Missouri and time spent in an

experiential "mentorship" program in New York.

In 2009, USSA gave Chen the option of switching his

"degree requirement" from the passage of a comprehensive

examination to the completion of a portfolio. Chen accepted USSA's

offer. He was subsequently assigned a portfolio advisor and began

working on his portfolio in 2010. Chen alleges that he "nearly

complete[d]" his portfolio (except for the submission of a few

papers) and finished all other requirements for his doctoral degree

except his dissertation.

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 At some point in or after 2010, Chen moved to

Massachusetts and took a hiatus from his doctoral program to pursue

a master's degree in acupuncture.2 Chen does not claim that USSA

had any involvement with that degree.

Cognizant that he had only ten years in which to complete

his doctoral degree, Chen sought to resume work on his portfolio

in 2016 (while apparently still living in Massachusetts). But

upon attempting to access his coursework online, Chen discovered

that he was locked out and unable to log on to his account. When

he contacted USSA, he was informed that he had been "removed from

enrollment" and would need to reenroll in order to resume his

studies.

Chen submitted an application for reenrollment. In

February of 2016, he received an e-mail from USSA acknowledging

2 The origins of Chen's residence in Massachusetts are
tenebrous. Chen alleged in his complaint (filed in 2018) that he
was a resident of Massachusetts and that he had pursued a master's
degree in acupuncture there at some point in or after 2010. In
briefing, he asserts that he resided in Massachusetts and completed
coursework for his doctoral degree on USSA's online learning
platform "[a]t all relevant times" but leaves this phrase
undefined. Beyond these allegations, the record contains no
information about when he moved to Massachusetts. Because Chen
has failed to furnish any facts that contradict USSA's declaration
(in a sworn affidavit) that Chen resided in Alabama from 2008 to
2010, we deem that fact undisputed and assume that Chen moved to
Massachusetts at some subsequent time. See Baskin-Robbins, 825
F.3d at 34 (explaining that courts employing prima facie approach
may consider defendant's undisputed factual proffers); see also
Foster-Miller, 46 F.3d at 145 (confirming that plaintiff must
"adduce evidence of specific facts" showing personal jurisdiction
exists).

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receipt of his application and advising him that he would have to

take a comprehensive examination if his application was accepted.

Chen protested that he had switched to the portfolio degree

requirement, and the USSA employee with whom he was corresponding

told him that she would "look into the issue." Later that month,

USSA accepted Chen's reenrollment application, and an admissions

counselor confirmed that Chen would only need to complete the

portfolio degree requirement.

In May of 2017, Chen again found himself unable to access

his online account. After some investigation, he learned that his

portfolio had been deleted. The following month, USSA's dean of

academic affairs informed Chen that, notwithstanding USSA's

previous representations to the contrary, he would be required to

pass a comprehensive examination in order to complete his degree.

Chen alleges that USSA's actions deprived him of the opportunity

to earn his degree "without starting from scratch," resulting in

wasted tuition dollars and "the loss of income associated with a

degree."

Aggrieved by his treatment, Chen sued USSA in a

Massachusetts state court, alleging breach of contract, unfair and

deceptive business practices, unjust enrichment, and fraudulent

inducement. Citing the existence of diversity jurisdiction, USSA

removed the case to the federal district court. See 28 U.S.C.

§§ 1332(a), 1441(b). It then moved to dismiss the complaint for

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want of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). In

a thoughtful rescript, the district court concluded that USSA's

general business contacts with Massachusetts did not render USSA

"essentially at home" in the Commonwealth such that general

jurisdiction could be exercised over USSA there. Cheng, 2019 WL

1207863, at *5 (quoting Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 919 (2011)). The court likewise concluded

that Chen's "enrollment in the distance-learning program while in

Alabama, followed by a unilateral move to Massachusetts," did not

provide a sufficient basis for the exercise of specific

jurisdiction. Id. at *8. This timely appeal ensued.

II. ANALYSIS

We divide our analysis into four parts. First, we sketch

the contours of the personal jurisdiction inquiry under the prima

facie approach. Second, we address Chen's contention that the

district court should not have considered an affidavit attached to

USSA's motion to dismiss. We then examine, in sequence, whether

USSA's contacts with Massachusetts permit the exercise of either

general or specific jurisdiction.

A. The Contours of the Inquiry.

The burden of proving that personal jurisdiction may be

exercised in the forum state lies squarely with the plaintiff.

See Baskin-Robbins, 825 F.3d at 34. "Where, as here, a district

court dismisses a case for lack of personal jurisdiction based on

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the prima facie record, rather than after an evidentiary hearing

or factual findings, our review is de novo." Id. (quoting C.W.

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

Cir. 2014)). In undertaking this tamisage, we are not married to

the district court's reasoning but, rather, may uphold the judgment

on any ground made manifest by the record. See id.

Under the prima facie approach, an inquiring court must

ask whether the plaintiff has "proffer[ed] evidence which, taken

at face value, suffices to show all facts essential to personal

jurisdiction." Id. To make such a showing, the plaintiff cannot

rely solely on conclusory averments but must "adduce evidence of

specific facts." Foster-Miller, 46 F.3d at 145. When deciding a

motion to dismiss using the prima facie approach, the court must

accept the plaintiff's properly documented evidentiary proffers as

true and give "credence to the plaintiff's version of genuinely

contested facts." Baskin-Robbins, 825 F.3d at 34. At the same

time, the court must consider undisputed facts proffered by the

defendant that bear on jurisdiction. See id.

This case comes to the federal courts through the medium

of diversity jurisdiction. See 28 U.S.C. § 1332(a). When

assessing whether personal jurisdiction exists with respect to a

non-resident defendant, a federal court exercising diversity

jurisdiction acts as the "functional equivalent of a state court

sitting in the forum state." Baskin-Robbins, 825 F.3d at 34

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(quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995)).

Therefore, Chen must show that the exercise of personal

jurisdiction over USSA in Massachusetts would satisfy not only the

strictures of the Due Process Clause but also the strictures of

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

§ 3. Although the reach of the Massachusetts long-arm statute may

not be entirely congruent with the reach of the Due Process Clause,

see Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st

Cir. 2016), we need not parse any such distinctions here. Neither

party has advanced any argument specific to the Massachusetts long-

arm statute and, thus, any claim that the long-arm statute is less

elastic than the Due Process Clause has been waived. See id. As

a result, we train the lens of our inquiry exclusively on the

federal constitutional analysis.

The Due Process Clause dictates that, as a prerequisite

to the exercise of personal jurisdiction, an out-of-state

defendant must "have 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)). This benchmark "is flexible

and fact-specific, 'written more in shades of grey than in black

and white.'" Baskin-Robbins, 825 F.3d at 35 (quoting Phillips

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Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st

Cir. 1999)).

As long as due process concerns are satisfied, a federal

court "may exercise either general or specific jurisdiction over

a defendant." Id. We outline here only the basic distinction

between these two forms of personal jurisdiction, reserving a

fuller elaboration for later discussion. See infra Parts II(C)-

(D). When a defendant corporation's general business contacts

with the forum, even if unrelated to the litigation at hand, are

"'so "continuous and systematic" as to render [the defendant]

essentially at home in the forum State,' that state holds general

jurisdiction over the defendant as to all claims." Copia, 812

F.3d at 4 (quoting Goodyear, 564 U.S. at 919). In contrast,

"[s]pecific jurisdiction allows a court to hear a particular case

as long as 'that case relates sufficiently to, or arises from, a

significant subset of contacts between the defendant and the

forum.'" Baskin-Robbins, 825 F.3d at 35 (quoting Phillips Exeter,

196 F.3d at 288).3

3
Chen frequently alludes to the "sliding scale" analysis that
some courts use to evaluate whether a defendant's online contacts
with the forum state permit the exercise of personal jurisdiction.
See Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 36 n.5 (1st Cir. 2010)
(describing "sliding scale" analysis as articulated in Zippo
Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124
(W.D. Pa. 1997)). This court has never embraced that sliding scale
analysis, and we have no occasion to consider the matter today.
We note, though, that we previously have indicated that the sliding
scale analysis — which was developed in a case involving specific

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 B. The Rosandich Affidavit.

Against this backdrop, we turn to the particulars of the

case at hand. In moving to dismiss the complaint, USSA attached

to its motion an affidavit executed by its president, Thomas J.

Rosandich. The affidavit contained a plethora of facts bearing on

the jurisdictional inquiry.

To begin, Rosandich made clear that USSA is both

incorporated and headquartered in Alabama; that it does not have

any physical presence (say, an office, a registered agent, or even

a telephone number) in Massachusetts; and that it does not pay

taxes there. According to the school's records, "between 2008 and

2010, [Chen] completed his courses in residence in Alabama," except

for the term he spent in Missouri and his "mentorship" stint in

New York. Moreover, as of the date of the affidavit (January 10,

2019), USSA had only two enrolled students who were physically

present in Massachusetts.4

Chen did not dispute the contents of Rosandich's

affidavit either with a dueling affidavit or with any other

evidentiary proffer. Not surprisingly, then, the district court

jurisdiction — is ill-suited for the general jurisdiction inquiry.
See id. And where, as here, purposeful availment is plainly
lacking, see infra Part II(D), the sliding scale adds nothing of
consequence to the specific jurisdiction analysis.
4 Neither of these students was enrolled in a program leading
to a degree. Instead, each of them was taking only a single online
course.

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relied on the affidavit in adjudicating the motion to dismiss.

See Cheng, 2019 WL 1207863, at *2-3. Chen strives to convince us

that this reliance was misplaced. We are not persuaded.

Chen's fundamental premise is that the affidavit is a

document extraneous to the complaint and, thus, "should not have

been relied upon" in evaluating the motion to dismiss. This

premise is flawed. USSA moved to dismiss the complaint for lack

of personal jurisdiction under Rule 12(b)(2). It is clear beyond

hope of contradiction that a district court confronted with a

motion to dismiss under that rule must, when employing the prima

facie approach, look beyond the pleadings to examine not only the

plaintiff's properly documented evidentiary proffers but also the

defendant's undisputed jurisdictional facts. See PREP Tours, Inc.

v. Am. Youth Soccer Org., 913 F.3d 11, 16-17 (1st Cir. 2019);

Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290

F.3d 42, 51 (1st Cir. 2002). Such jurisdictional facts may be

adduced by means of an affidavit made by a person who — like

Rosandich — has adequate knowledge of the situation. See Baskin-

Robbins, 825 F.3d at 34; Sawtelle, 70 F.3d at 1385.

Next, Chen argues that the district court should not

have taken the affidavit into account because its contents were

disputed. But for this purpose, facts are not deemed disputed

merely because defense counsel, in an unsworn brief or in argument

before a court, challenges them. See Mass. Sch. of Law at Andover,

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Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) (observing

that "despite the liberality" of prima facie approach, courts are

not required "struthiously to 'credit conclusory allegations'"

(quoting Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st

Cir. 1994))); cf. Corrada Betances v. Sea-Land Serv., Inc., 248

F.3d 40, 43 (1st Cir. 2001) (observing that "statements contained

in a memorandum or lawyer's brief" are "manifestly insufficient to

create genuine issues of material fact"). Here, the record reveals

that Chen failed to offer any evidence to counter the contents of

the Rosandich affidavit. Indeed, his memorandum in opposition to

USSA's motion to dismiss did not even mention the affidavit. Under

these circumstances, the district court had every right to treat

the factual assertions embedded in the affidavit as undisputed and

to rely on those facts when resolving the motion to dismiss.

Chen has another arrow in his quiver. He argues that

the affidavit's validity was "unchecked" inasmuch as the parties

"had not yet commenced discovery." This arrow, too, flies wide of

the mark. Chen had ample opportunity to move for jurisdictional

discovery but failed to do so. A party who chooses not to avail

himself of an opportunity for discovery can scarcely be heard to

complain when the lack of such discovery thereafter redounds to

his detriment. See Mass. Sch. of Law, 142 F.3d at 37 (rejecting

claim based on lack of jurisdictional discovery because plaintiff

never requested discovery); cf. Jones v. Secord, 684 F.3d 1, 6

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(1st Cir. 2012) ("[C]ourts, like the deity, tend to help those who

help themselves . . . .").

To cinch the matter, Chen never moved to strike the

Rosandich affidavit. Nor did he object to the district court's

consideration of the affidavit in his opposition to USSA's motion

to dismiss. These omissions are fatal to his belated attempt to

challenge the affidavit on appeal. "If any principle is settled

in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal." Teamsters

Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st

Cir. 1992). There is nothing out of the ordinary about the

circumstances here.

To say more about the Rosandich affidavit would be to

paint the lily. We hold, without serious question, that the

Rosandich affidavit formed an appropriate part of the district

court's decisional calculus.

C. General Jurisdiction.

This brings us to the question of whether USSA's contacts

with Massachusetts are sufficient to warrant the exercise of

general jurisdiction over it. We have sometimes framed the general

jurisdiction inquiry as comprising three distinct requirements:

first, that the defendant's general business contacts with the

forum state, unrelated to the suit at hand, be continuous and

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systematic; second, that those contacts represent the defendant's

purposeful availment of the privilege of conducting business in

the forum; and third, that the exercise of general jurisdiction

over the defendant be reasonable. See, e.g., Cossaboon v. Me.

Med. Ctr., 600 F.3d 25, 32-33 (1st Cir. 2010).

In recent years, the Supreme Court has refined this

inquiry, emphasizing that the focus of the general jurisdiction

analysis is not merely whether an out-of-forum corporation's "in-

forum contacts can be said to be in some sense 'continuous and

systematic.'" Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)

(quoting Goodyear, 564 U.S. at 919). Instead, the lodestar of the

inquiry is whether the corporation's general business contacts

with the forum are sufficiently continuous and systematic "as to

render [it] essentially at home in the forum State." Id.

(alteration in original) (quoting Goodyear, 564 U.S. at 919).

The paradigmatic examples of locales in which a

defendant corporation is considered at home are its state of

incorporation and the state that houses its principal place of

business. See BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558

(2017). In "exceptional case[s]," though, a defendant

corporation's general business operations in a state in which it

is neither incorporated nor headquartered "may be so substantial

and of such a nature as to render the corporation at home in that

State." Daimler, 134 S. Ct. at 761 n.19. The Court has singled

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out Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437

(1952), as an avatar of such an exceptional case. See BNSF Ry.,

137 S. Ct. at 1558; Daimler, 134 S. Ct. at 755-56, 761 n.19.

There, the Court concluded that general jurisdiction could be

exercised over a defendant corporation in the forum because "war

had forced the defendant corporation's owner to temporarily

relocate the enterprise from the Philippines to [the forum]," which

thereafter functioned as the nerve center of the corporation's

wartime operations. BNSF Ry., 137 S. Ct. at 1558.

In this case, it is evident that USSA is not, in the

paradigmatic sense, at home in Massachusetts. After all, it is

undisputed that USSA is incorporated in Alabama and has its

principal place of business there. By the same token, this is not

the exceptional case in which USSA's general business operations

in Massachusetts are so unusually substantial that USSA can fairly

be described as at home there.

We do not discount the possibility that a corporation's

pervasive virtual presence in a forum may be the linchpin for a

finding that its business contacts are so continuous and systematic

as to render it at home in the forum — especially since a

corporation, like an individual, may have a number of homes. But

the mere whiff of a virtual presence will not suffice. Here, it

is true that USSA maintains an informational website, accessible

in Massachusetts, that advertises USSA's educational offerings to

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prospective students.5 It is equally true that USSA has an

interactive online learning platform that is accessible in

Massachusetts and that two Massachusetts-based students were

enrolled in a single USSA online course as of January 2019.6 But

nothing in the record would support a finding that these contacts

with Massachusetts, whether viewed singly or in the aggregate,

constitute a pattern of general business operations so unusually

substantial as to render USSA "essentially at home" in the

Commonwealth. Id. (quoting Daimler, 134 S. Ct. at 754).

In an attempt to change the trajectory of the debate,

Chen contends that USSA "affects the Massachusetts economy by

drawing students away from Massachusetts educational

5 Our description of USSA's website as "informational" tracks
the focus of Chen's evidentiary proffer, which consists of images
of webpages recounting USSA's history, mission, and Distance
Learning Program. It seems highly probable that this website has
at least some interactive features. For instance, one of the
webpages Chen provides references USSA's "[o]nline writing
tutorials" and "extensive online reference database system." And
it appears that individuals viewing the website can send messages
to USSA through it. The website also appears to include links to
a "Central Login" and to "Free Courses." Be that as it may, Chen
presents no argument about the significance of these features,
stating only that his evidentiary proffer shows that USSA
"advertises that a student is able to conduct all of his or her
studying, online, from his or her home state."
6 It is possible (and perhaps likely) that students may be
able to access the online learning platform by way of USSA's
website. The record, though, sheds no light on the degree of
interconnection between these two components of USSA's online
presence. Preferring to err (if at all) on the side of caution,
we assess each component as a separate data point.

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institutions." Relatedly, he asserts that Massachusetts licensing

authorities recognize USSA degrees. But Chen offers nothing in

the way of proof, apart from his own bare statements, to support

these charges.7 See Sawtelle, 70 F.3d at 1386 (observing that

courts undertaking prima facie approach "do not credit conclusory

allegations" (quoting Ticketmaster-N.Y., 26 F.3d at 203)). And

even if substantiated, Chen's averments would still be inadequate

to show that USSA's general business operations are so anchored in

the Massachusetts economy that USSA can be "fairly regarded as at

home" there. Goodyear, 564 U.S. at 924.

Finally — even though evidence of such contacts would

not, on this record, alter our decisional calculus — it bears

mentioning that USSA lacks certain basic links with Massachusetts.

For instance, USSA maintains no physical presence in the

Commonwealth and pays no taxes there. Nor is there any evidence

in the record that USSA recruits Massachusetts-based students

through participation in career fairs, television media,

pinpointed print advertising, or the like. To echo the district

court's words, USSA's generalized contacts with Massachusetts

appear "sporadic, at best." Cheng, 2019 WL 1207863, at *5.

7The record contains no facts, for instance, identifying
Massachusetts schools that allegedly compete with USSA, let alone
any facts relating to the diversion of educational dollars from
such schools to USSA's coffers.

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 That ends this aspect of the matter. Massachusetts is

neither USSA's state of incorporation nor its principal place of

business. And it is nose-on-the-face plain that USSA's general

business operations are not sufficiently entrenched in

Massachusetts as to render USSA at home there. Consequently, the

district court appropriately determined that general jurisdiction

may not constitutionally be exercised over USSA in Massachusetts.

D. Specific Jurisdiction.

The last leg of our journey traverses the question of

whether, for purposes of Chen's case, specific jurisdiction over

USSA lies in Massachusetts. The Due Process Clause imposes three

requirements for exercising specific jurisdiction over out-of-

forum defendants. First, the plaintiff's claim must directly arise

from or relate to the defendant's activities in the forum. See

Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17,

20 (1st Cir. 2018). Second, the defendant's forum-state contacts

must "represent a purposeful availment of the privilege of

conducting activities in that state." Id. Third, the exercise of

specific jurisdiction in the forum must be reasonable under the

circumstances. See id. "Failure to make any one of these showings

dooms any effort to establish specific personal jurisdiction."

Id.

The basis on which Chen contends that USSA is subject to

jurisdiction in Massachusetts with respect to his claims is by now

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familiar: USSA solicits Massachusetts-based students online

through its informational website and maintains an interactive

online learning platform, accessible in Massachusetts, for the

purpose of facilitating students' coursework (including, he

alleges, his own). He also gestures to two other hooks on which

a finding of specific jurisdiction might potentially be hung.

These involve USSA's receipt of tuition that Chen allegedly paid

from Massachusetts and the "continuous email communications" that

purportedly occurred between the parties while Chen was in

Massachusetts. Our analysis of these contacts centers on the

purposeful availment prong of the specific jurisdiction inquiry,

and so we start with a brief primer on that element.

"[W]e have explained that 'the two cornerstones of

purposeful availment' are 'voluntariness' and 'foreseeability.'"

PREP Tours, 913 F.3d at 19-20 (quoting Ticketmaster-N.Y. 26 F.3d

at 207). Achieving voluntariness demands that the defendant's

contacts with the forum result proximately from its own actions.

See id. at 20; Phillips v. Prairie Eye Ctr., 530 F.3d 22, 28 (1st

Cir. 2008). And to clear the foreseeability hurdle, "the

defendant's conduct and connection with the forum State [must be]

such that he should reasonably anticipate being haled into court

there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)

(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297

(1980)). Given these criteria, a finding of purposeful availment

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necessarily requires more than the unilateral activities of third

parties. See Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1,

9 (1st Cir. 2018); see also PREP Tours, 913 F.3d at 20 ("[A]

plaintiff's 'unilateral activity' cannot establish the requisite

connection between the defendants and the forum jurisdiction."

(quoting Burger King, 471 U.S. at 474-75)).

Importantly, evidence of "specific targeting of a forum"

is not "the only means of showing that the purposeful availment

test has been met." Plixer, 905 F.3d at 9. Under appropriate

circumstances, a defendant corporation's "'regular course of

sale[s] in the [forum]' could make the exercise of jurisdiction

foreseeable to the defendant." Knox v. MetalForming, Inc., 914

F.3d 685, 691 (1st Cir. 2019) (second alteration in original)

(internal quotation marks omitted) (quoting Plixer, 905 F.3d at

10). And on the right factual record, jurisdiction might be

predicated on a showing of "plus" factors evincing a corporate

defendant's deliberate attempt to serve the forum state, that is,

factors indicating something over and above the defendant's mere

awareness that its products were entering a given market in the

stream of commerce. See Asahi Metal Indus. Co. v. Superior Court,

480 U.S. 102, 111-12 (1987) (plurality opinion); Knox, 914 F.3d at

691-92.

Having laid this foundation, we begin our journey with

an assessment of Chen's sweeping contention that USSA is "subject

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to jurisdiction in Massachusetts and everywhere else where it

solicits online students" through its informational website and

facilitates students' coursework through its interactive online

learning platform. With respect to USSA's informational website,

Chen's argument is plainly foreclosed by precedent. We have made

pellucid that "the mere availability" of a defendant's primarily

informational website in a forum is insufficient, without more, to

subject a defendant to jurisdiction there. A Corp. v. All Am.

Plumbing, Inc., 812 F.3d 54, 61 (1st Cir. 2016). Otherwise, the

universality of websites in the modern world would overwhelm

constitutional limitations on the exercise of personal

jurisdiction. See Cossaboon, 600 F.3d at 35.

There is, moreover, no evidence in the record that USSA

either aims its informational website specifically at prospective

students in Massachusetts or derives significant revenue from

Massachusetts-based individuals through its maintenance of this

website. Similarly, the record is barren of evidence that USSA

solicited either Chen's enrollment or his reenrollment through

this website while Chen was in Massachusetts. Accordingly, we

conclude, without serious difficulty, that USSA cannot

constitutionally be subjected to specific jurisdiction in

Massachusetts simply because it operates a primarily informational

website that happens to be available there.

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 USSA's maintenance of an interactive online learning

platform in Massachusetts — on which Chen allegedly completed

coursework and attempted to resume work on his portfolio — presents

a closer question. We have upheld the exercise of specific

jurisdiction over a foreign corporation in the United States when

the corporation used its interactive website to sell its services

to customers in the United States and the corporation was aware

that it had derived substantial revenue from those sales over the

course of several years. See Plixer, 905 F.3d at 9-10. This case,

however, presents the novel question of whether a finding of

purposeful availment sufficient to warrant the exercise of

specific jurisdiction can be sustained on the basis of a

defendant's maintenance of a highly interactive website available

in the forum and allegedly accessed by the plaintiff there, even

though no accompanying evidence shows that the website either

specifically targets the forum or has resulted in the defendant's

knowing receipt of substantial revenue from forum residents.

On this record, that question must be answered in the

negative: we conclude that USSA cannot be subjected to specific

jurisdiction in Massachusetts based on its maintenance of an online

learning platform accessible in (and allegedly accessed by Chen

from) the Commonwealth. As a general matter, USSA perhaps could

have anticipated that Massachusetts residents (like residents of

any other state) might enroll in its Distance Learning Program and

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access its online learning platform from the Commonwealth. But

this broad and generic degree of foreseeability is insufficient,

standing alone, to rise to the level of purposeful availment with

respect to Chen's claims. See Kloth v. S. Christian Univ., 320 F.

App'x 113, 116 (3d Cir. 2008) (per curiam); see also Plixer, 905

F.3d at 10 (distinguishing "a situation where a defendant merely

[makes] a website accessible in the forum" from substantial and

"voluntary service" of forum market in purposeful availment

inquiry). When all is said and done, Chen has failed to show that

USSA deliberately used its online learning platform (or any other

component of its online presence) to target him while he was in

Massachusetts. Nor is there any evidence that USSA's maintenance

of an online learning platform resulted in its knowing receipt of

significant tuition dollars from Chen while he was billeted in

Massachusetts. Therefore, we cannot say that USSA purposefully

availed itself of the privilege of conducting business in

Massachusetts simply by virtue of maintaining an interactive

online learning platform accessible in Massachusetts and all other

states.

We are aware, of course, that two Massachusetts-based

students were enrolled in a single online course through USSA as

of January 2019. Although Chen's discrete claims do not concern

USSA's contacts with either or both of these students, such

contacts might nonetheless prove relevant to a holistic assessment

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of whether USSA has purposefully availed itself of the privilege

of doing business in Massachusetts. The record, though, is utterly

devoid of evidence sufficient to ground either a finding that USSA

used its online presence to target these two students while they

were in Massachusetts or a finding that USSA derived substantial

revenue from them. For instance, the record does not reveal how

these students' enrollments came about, the duration of their

studies, whether they ever conducted their studies from states

other than Massachusetts, or the amounts of tuition they paid.

The raw fact of USSA's awareness of two Massachusetts-based

students — neither of whom was seeking a degree — is insufficient

to show that USSA purposefully availed itself of the benefit of

doing business in Massachusetts such that it reasonably could have

expected to face suit there by Chen. See Kloth, 320 F. App'x at

116 (finding no purposeful availment absent any evidence that

"school engaged in business with any one in [the forum] other than

[the plaintiff] and one other student").

The sockdolager is that all of USSA's alleged case-

specific contacts with Massachusetts — apart from its general

maintenance of a website and online learning platform accessible

in all fifty states — stem from Chen's unilateral activity.

Although Chen indicates that he took various actions while he was

in Massachusetts (including coursework, tuition payments, and

e-mail correspondence with USSA), the record is bereft of any

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evidence that USSA knew of Chen's whereabouts at the relevant

times. There is simply no basis for a reasonable inference, let

alone a finding, that USSA knew, prior to Chen's filing of his

complaint, that he had accessed the online learning platform from

Massachusetts, unsuccessfully attempted to log in from

Massachusetts, or made tuition payments while in Massachusetts.

See id. at 117 (finding no specific jurisdiction when plaintiff

moved to forum years after enrolling in distance learning program,

without updating school "records to reflect her move"). So, too,

we are unable to discern any evidentiary predicate for a finding

that USSA corresponded with Chen about his reenrollment with

knowledge that he had moved to Massachusetts.8

A defendant cannot be said to have purposefully availed

itself of the benefits of a forum with respect to a given plaintiff

when it has neither initiated any in-forum activity involving that

plaintiff nor dealt with him knowing that he was located in the

forum. See PREP Tours, 913 F.3d at 19 (explaining that purposeful

availment requirement "represents a rough quid pro quo" triggered

only when "defendant deliberately targets its behavior toward"

forum (quoting Carreras v. PMG Collins, LLC, 660 F.3d 549, 555

(1st Cir. 2011))); Phillips, 530 F.3d at 28-29 (finding no

8
The e-mails between Chen and USSA are nowhere to be found
in the record. A party cannot plausibly request a court to draw
inferences from communications that the party has not seen fit to
make part of the record.

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purposeful availment even when defendant knew plaintiff resided in

forum, mailed contract there, and followed up by e-mail). Simply

put, jurisdiction cannot be carted from state to state, enabling

a plaintiff to sue in any state to which he chooses to roam. See

Harlow v. Children's Hosp., 432 F.3d 50, 63 (1st Cir. 2005) (noting

that in personam jurisdiction "does not travel with the plaintiff

. . . wherever [he] goes").

Given the absence of any facts indicating that USSA knew

of Chen's relocation to Massachusetts before he brought suit, the

case-specific contacts upon which Chen relies can only be seen as

rooted in his own unilateral activities. Consequently, there is

no principled way we can conclude that USSA purposefully availed

itself of the privilege of doing business in Massachusetts when

dealing with Chen. See PREP Tours, 913 F.3d at 20; Plixer, 905

F.3d at 9. The district court's declination of specific

jurisdiction was, therefore, unimpugnable.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the dismissal of Chen's complaint for want of jurisdiction is

Affirmed.

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