United States Court of Appeals
For the First Circuit
No. 17-1223
PREP TOURS, INC.,
Plaintiff-Appellant,
v.
AMERICAN YOUTH SOCCER ORGANIZATION; DOWNEY AYSO REGION 24;
ARMANDO RODRÍGUEZ, in his capacity as Director and/or Officer
and/or member of the Board of Directors of Downey AYSO Region
24; RAMÓN AGUILAR, in his capacity as Director and/or Officer
and/or member of the Board of Directors of Downey AYSO Region
24; CARL JACKSON, in his capacity as Director and/or Officer
and/or member of the Board of Directors of Downey AYSO Region
24; ALICIA RAMÍREZ, in her capacity as Director and/or Officer
and/or member of the Board of Directors of Downey AYSO Region
24; JOHN DOE; RICHARD DOE; BOB DOE;
INSURANCE COMPANY A; INSURANCE COMPANY B,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Steven J. Torres, with whom Brooks L. Glahn, Torres Scammon
Hincks & Day LLP, Darío Rivera-Carrasquillo, Giancarlo Font, and
Rivera-Carrasquillo, Martínez & Font were on brief, for appellant.
Alan P. Dagen, with whom The Law Offices of Seda & Alan P.
Dagen, P.A., Luis A. Oliver-Fraticelli, and Adsuar Muñiz Goyco
Pérez-Ochoa, P.S.C. were on brief, for appellees.
January 8, 2019
BARRON, Circuit Judge. This appeal raises a now familiar
issue: when do remote communications by email and telephone give
rise to the kind of connection to a forum state or territory that
justifies the exercise of personal jurisdiction in that forum over
an out-of-forum defendant? The issue comes to us in this case via
the diversity suit in the United States District of Puerto Rico
that a Puerto Rico tour company brought against a California youth
soccer organization and related defendants. The tour company
alleges in this suit that the defendants, by first requesting that
the tour company make an offer for a potential soccer trip to
Puerto Rico for some of the organization's teams and their families
but then declining after further communications to book the tour,
breached duties that the organization owed to it under Puerto Rico
contract and tort law. In response to the defendants' motion, the
District Court dismissed both the contract and tort claims for
lack of personal jurisdiction. We now affirm that order.
I.
American Youth Soccer Organization ("AYSO") is a
nonprofit entity incorporated and headquartered in California.1
1 "We derive our recitation of the case's facts from [the
plaintiff's] properly documented evidentiary proffers and from
those portions of the defendants' proffers that are undisputed."
Copia Commc'ns, LLC v. Amresorts, LP, 812 F.3d 1, 2 (1st Cir.
2016).
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The other defendants are Downey AYSO Region 24 ("Region 24") and
four volunteers for Region 24.
Region 24 is a regional chapter of AYSO from Downey,
California. Region 24 is not a separate legal entity from AYSO.
The four Region 24 volunteers served at all relevant
times as, respectively, Region 24's commissioner (Armando
Rodríguez), assistant commissioner (Ramón Aguilar), treasurer
(Carl Jackson), and volunteer coordinator (Alicia Ramírez). All
four individuals are residents of California.
PREP TOURS, Inc. ("PREP Tours") is the plaintiff.2 It
is a Puerto Rico corporation that, according to the complaint,
"specializes in student cultural immersion educational field
trips" and is "dedicated to servicing and organizing educational
soccer tours for student athletes and soccer clubs focusing on
friendly soccer games in Puerto Rico."
On Friday, November 2, 2012, Ramírez emailed PREP Tours
from California to ask for a price quote and for what the company
could "offer" regarding an all-inclusive trip to Puerto Rico for
"[a]pproximately 60 players and their families." Ramírez informed
the tour company in that email that Region 24 was also gathering
2
The covers of PREP Tours's briefs list additional
plaintiffs, but neither the complaint nor the District Court's
judgment identifies any additional plaintiff other than PREP
Tours. And the notice of appeal specifies only PREP Tours as the
party taking this appeal. See Rosario-Torres v. Hernandez-Colon,
889 F.2d 314, 316-17 (1st Cir. 1989).
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information about alternative destinations, like Hawaii and
Mexico.
PREP Tours responded that very same Friday by sending
via email a promotional brochure regarding the "unique soccer
program" in the Puerto Rico cities of San Juan and Rincón that it
offered visiting youth soccer teams. The tour company also emailed
Ramírez, after the weekend, a proposed itinerary based on the San
Juan and Rincón tour described in the brochure, which PREP Tours
described as "a tentative rough draft." There followed,
intermittently over the next four months, emails and telephone
calls, as well as at least one text message, between the parties
concerning the possible trip. During these ensuing
communications, Ramírez informed PREP Tours that Region 24 was
considering competing offers on a possible trip to Puerto Rico
from three alternative travel agencies, at least one of which was
not based in Puerto Rico.
Before Region 24 made a decision about the trip, a travel
agency in Florida, Hakuna Matata Group Tours, LLC, contacted
Ramírez by email concerning possible flights. The complaint says
that Hakuna Matata was "designated by PREP Tours" to handle the
soccer teams' flight arrangements.
Hakuna Matata later emailed Ramírez with information for
wiring it money as a deposit on the airline flights. Region 24's
treasurer, Jackson, thereafter emailed Hakuna Matata to say that
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he could wire transfer the money to Hakuna Matata's account the
next day, January 25.
Jackson did not wire the money. Ramírez did write PREP
Tours on January 25, however, to say that the commissioner,
assistant commissioner, and treasurer of Region 24 still had "to
go through everything with a fine tooth-comb."
The record references no further communications between
any of the parties until the ones that were made on February 25,
2013. On that day, PREP Tours emailed Region 24's commissioner,
assistant commissioner, and treasurer to follow up on the status
of its offer.
The commissioner, Rodríguez, responded that same day
with an email telling PREP Tours that the assistant commissioner,
Aguilar, was "still working on logistics." He then sent a later
email that instructed PREP Tours to disregard this first email.
Aguilar had responded in the interim by informing PREP Tours that
"[a]fter reviewing all proposals from the 3 compan[ies] we decided
to go with a local company."
Just short of two years later, PREP Tours sued AYSO,
Region 24, and the four volunteers in the United States District
Court for the District of Puerto Rico, seeking a minimum of
$640,000 in damages. The complaint alleged that the defendants
were liable under the Puerto Rico tort doctrine of culpa in
contrahendo, "which requires parties to negotiate in good faith."
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Ysiem Corp. v. Commercial Net Lease Realty, Inc., 328 F.3d 20, 23
(1st Cir. 2003) (citation omitted). The complaint also alleged a
breach-of-contract claim under Puerto Rico law. The complaint
asserted that the contract was created by: (1) the email from
Region 24's treasurer to Hakuna Matata in Florida, saying that he
could wire money to that third-party travel agency in order to
make a deposit on the airline flights; and (2) other
"representations" made by the defendants. The complaint did not
allege what the contract's terms were, but it did allege that the
defendants were in breach of the contract.
The defendants moved to dismiss PREP Tours's claims
under Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, and the defendants submitted affidavits with their
motion. An affidavit from AYSO's deputy executive director as
well as affidavits from the individual defendants each averred
that the "only contacts" that existed between the defendants and
PREP Tours consisted of "the preliminary communications between
some of [the Region 24] volunteers and the travel agency with whom
they communicated in an effort to obtain pricing and information
for a potential trip for some of [Region 24's] youth soccer teams."
PREP Tours's brief in opposition to the defendants'
motion to dismiss included a number of evidentiary submissions
attached as exhibits. The submissions included copies of the
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communications exchanged between the parties during the relevant
four-month period.
Neither party requested an evidentiary hearing following
the defendants' motion challenging personal jurisdiction, nor did
the District Court conduct one. The District Court instead used
what we have referred to as "the prima facie standard" to assess
whether PREP Tours had met its burden to justify the exercise of
personal jurisdiction in Puerto Rico over the defendants. Boit v.
Gar-Tec Prods., Inc., 967 F.2d 671, 675-76 (1st Cir. 1992)
(emphasis omitted); see also A Corp. v. All Am. Plumbing, Inc.,
812 F.3d 54, 58 (1st Cir. 2016) (explaining that the plaintiff
bears the burden to establish that personal jurisdiction exists
over the defendant).
Under this standard, a district court "consider[s] only
whether the plaintiff has proffered evidence that, if credited, is
enough to support findings of all facts essential to personal
jurisdiction." Boit, 967 F.2d at 675. "To make a prima facie
showing of this calib[er], the plaintiff ordinarily cannot rest
upon the pleadings, but is obliged to adduce evidence of specific
facts." Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d
138, 145 (1st Cir. 1995) (citing Boit, 967 F.2d at 675).
In July of 2016, the District Court granted the
defendants' motion to dismiss PREP Tours's claims without
prejudice for lack of personal jurisdiction. The District Court
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reasoned that, although the defendants reached out to PREP Tours
regarding the trip, they "repeatedly communicated to [PREP Tours]
that officials had not made a final decision in regards to the
trip" and that the "unilateral" actions undertaken by PREP Tours
in Puerto Rico in response were insufficient to establish personal
jurisdiction over the defendants as to any of PREP Tours's claims.
PREP Tours now appeals. Our review of the District
Court's judgment is de novo. See Boit, 967 F.2d at 675. "Reviewing
a decision made under the prima facie standard, we must accept
[the plaintiff's] properly documented evidentiary proffers as true
and construe them in the light most favorable to [the plaintiff's]
jurisdictional claim." A Corp., 812 F.3d at 58 (citing Phillips
v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008)). "But we
will also consider facts offered by [the defendants], to the extent
that they are not disputed." Id. (citing Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir.
2002)).
II.
PREP Tours conceded below, as it must, that the District
Court lacks general jurisdiction over the defendants because the
defendants do not have "continuous and systematic" contacts with
Puerto Rico. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011). PREP Tours nevertheless contends that the
District Court erred in dismissing its claims because the District
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Court does have "specific or case-linked" jurisdiction over the
defendants as to both of its claims. Id. Jurisdiction on this
basis "depends on an affiliatio[n] between the forum and the . .
. controversy" underlying the plaintiff's claims. Id. (alteration
in original) (internal quotation marks omitted).
"When . . . the lens of judicial inquiry narrows to focus
on specific jurisdiction . . . . the applicable constitutional
limits assume critical importance." Foster-Miller, 46 F.3d at
144. Those limits, arising from the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, permit a
court to exercise jurisdiction over an out-of-forum defendant only
if, with respect to the claims at issue, the defendant has "certain
minimum contacts with [the forum] 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)).3
3
"The requirements of International Shoe . . . must be met
as to each defendant over whom a state court exercises
jurisdiction." Rush v. Savchuk, 444 U.S. 320, 332 (1980). The
parties dispute whether, under the facts of this case, we may
attribute the various defendants' combined forum contacts to each
individual defendant for the purposes of the personal jurisdiction
analysis. Because even the combined forum contacts are
constitutionally insufficient, however, we need not decide who is
right.
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To determine whether the exercise of specific
jurisdiction in the forum over an out-of-forum defendant conforms
to that federal constitutional test, three requirements must be
met:
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.
United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).
This inquiry is highly "fact-specific." Id. As the
Supreme Court has explained, the constitutional test is "not
susceptible of mechanical application; rather, the facts of each
case must be weighed to determine whether the requisite
'affiliating circumstances' are present." Kulko v. Superior Court
of Cal., 436 U.S. 84, 92 (1978) (quoting Hanson v. Denckla, 357
U.S. 235, 246 (1958)). Moreover, "this determination is one in
which few answers will be written 'in black and white. The greys
are dominant and even among them the shades are innumerable.'"
Id. (quoting Estin v. Estin, 334 U.S. 541, 545 (1948)).
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III.
We begin with the requirement that PREP Tours's claims
must relate to the defendants' contacts with Puerto Rico. This
"flexible, relaxed standard" for assessing relatedness requires
that there be only a "demonstrable nexus" between the complaint's
claims and the activities in the forum that properly may be
attributed to the defendants, such that "the litigation itself is
founded directly on those activities." Adelson v. Hananel, 652
F.3d 75, 81 (1st Cir. 2011) (quoting N. Laminate Sales, Inc. v.
Davis, 403 F.3d 14, 25 (1st Cir. 2005); Hannon v. Beard, 524 F.3d
275, 279-80 (1st Cir. 2008)).
PREP Tours contends that, as to each of its claims, the
defendants' "related" forum contacts are the defendants' remote
communications with the Puerto Rico-based tour company during the
four-month period beginning with Ramírez's initial inquiry email
and the activities that PREP Tours undertook from Puerto Rico
during those four months in response to those communications.4
PREP Tours contends that its tort claim alleging that the
defendants negotiated in bad faith arises from the defendants'
4
PREP Tours does point out that the AYSO teams eventually
traveled to Puerto Rico in July of 2013. But, this trip occurred
several months after the communications between the parties from
which PREP Tours asserts that their claims arise, and PREP Tours
makes no argument that their claims also arise from this trip.
See Carreras v. PMG Collins, LLC, 660 F.3d 549, 554 (1st Cir.
2011).
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contacts with Puerto Rico because it was through the defendants'
remote communications with the tour company that the defendants
acted in bad faith, resulting in harm to the tour company in Puerto
Rico in consequence of, at least in part, the activities that PREP
Tours undertook in Puerto Rico in response to those communications.
PREP Tours contends that its breach-of-contract claim arises from
these same set of contacts, as the remote communications between
the parties and the actions that the tour company undertook in
response to them provide the basis for the claim that the
defendants reached into Puerto Rico to enter into the alleged
contract and then breached it. See Daynard, 290 F.3d at 52
(explaining that, with respect to a breach-of-contract claim, we
focus on "the parties' 'prior negotiations and contemplated future
consequences, along with the terms of the contract and the parties'
actual course of dealing'" (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 479 (1985))).
The defendants counter that PREP Tours's claims do not
in fact arise from their remote communications with the tour
company or the activities in Puerto Rico that PREP Tours claims to
have taken in response to those communications. The defendants
contend that their conduct that allegedly breached both their duty
to negotiate in good faith and their alleged contract with PREP
Tours was their decision to book the trip through a different
company, which was a decision that they made outside of Puerto
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Rico. Moreover, as far as the breach-of-contract claim is
concerned, the defendants point out that the complaint's only non-
conclusory allegation that a contract existed between the parties
is based on an email that was sent by Region 24's treasurer in
California to a travel agency, Hakuna Matata, that is located in
Florida and that has no connection to Puerto Rico.
The District Court agreed with PREP Tours that the
relatedness requirement for case-linked jurisdiction is met as to
both the tort and contract claims, but we need not decide whether
the District Court was right. Even if the defendants' remote
communications with PREP Tours and PREP Tours's activities in
Puerto Rico in response relate to PREP Tours's claims, PREP Tours
must also show that the defendants purposefully availed themselves
of the privilege of conducting activities in Puerto Rico through
these contacts. See United Elec., 960 F.2d at 1089. And, as we
next explain, the District Court rightly concluded that PREP Tours
failed to do so. Accordingly, we turn to the purposeful availment
inquiry, assuming that the contacts that PREP Tours identifies as
being related to its claims are in fact related to them.5
5 Given this conclusion, we also do not need to reach the
reasonableness requirement of the due process analysis. Nor do we
need to reach the issue of whether personal jurisdiction is
permitted under Puerto Rico's long-arm statute. See Ticketmaster-
N.Y., Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994) (explaining
that, in order to assert specific jurisdiction over an out-of-
forum defendant, a federal court sitting in diversity "must find
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IV.
To explain why we agree with the District Court that
PREP Tours has not satisfied the purposeful availment requirement
as to any of its claims, we first need to describe that requirement
in more detail. With that legal background in place, we then can
explain why we conclude that PREP Tours, on this record, fails to
make the requisite showing.
A.
To show that the defendants purposefully availed
themselves of the privilege of conducting activities in the forum,
PREP Tours must demonstrate that the defendants established a
"substantial connection" with Puerto Rico. Burger King, 471 U.S.
at 475 (quoting McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223
(1957)). Put otherwise, PREP Tours must point to "some act by
which the defendant[s] purposefully avail[ed] [them]sel[ves] of
the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws." Id.
(quoting Hanson, 357 U.S. at 253).
By requiring the plaintiff to establish such a
substantial connection between the out-of-forum defendant and the
forum, we ensure that it is "fair to require defense of the action
in the forum." Kulko, 436 U.S. at 91 (citing Milliken, 311 U.S.
contacts that, in the aggregate, satisfy the requirements of both
the forum state's long-arm statute and the Fourteenth Amendment").
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at 463-64). The purposeful availment requirement in this way
"represents a rough quid pro quo: when a defendant deliberately
targets its behavior toward the society or economy of a particular
forum, the forum should have the power to subject the defendant to
judgment regarding that behavior." Carreras, 660 F.3d at 555
(citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879
(2011) (plurality op.)).
The flip side of this deal, however, is that when the
out-of-forum defendant has not "manifestly . . . availed himself
of the privilege of conducting business there," it would be
"unreasonable to require [the defendant] to submit to the burdens
of litigation in that forum[.]" Burger King, 471 U.S. at 476.
And, in accord with this understanding of the purposeful availment
requirement, we have explained that "the two cornerstones of
purposeful availment" are "voluntariness" and "foreseeability."
Ticketmaster-N.Y., 26 F.3d at 207.
"Voluntariness requires that the defendant's contacts
with the forum state 'proximately result from actions by the
defendant himself.'" Phillips, 530 F.3d at 28 (quoting Burger
King, 471 U.S. at 475). Accordingly, the Supreme Court has
explained that any contacts that cannot be attributed
"proximately" to the defendant's own activities constitute
"unilateral" activity that cannot establish purposeful availment.
See Burger King, 471 U.S. at 475.
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In addition, the Supreme Court has described the
"benchmark" for purposeful availment in terms of a particular "kind
of foreseeability." Id. at 474 (quoting World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 295 (1980)); see also Donatelli v.
Nat'l Hockey League, 893 F.2d 459, 464 (1st Cir. 1990) (discussing
the Court's introduction of this "explicit 'foreseeability'
element into the liturgy of minimum contacts"). Specifically, the
Supreme Court has explained that "the foreseeability that is
critical to due process analysis . . . is that the defendant's
conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there." Burger King,
471 U.S. at 474 (quoting World-Wide Volkswagen, 444 U.S. at 297).
For this reason, too, a plaintiff's "unilateral activity" cannot
establish the requisite connection between the defendants and the
forum jurisdiction. Id. at 474-75 (quoting Hanson, 357 U.S. at
253).
There is good reason to focus on whether out-of-forum
defendants could foresee being haled into a court in the forum
from the connection that they are said to have with the forum.
Such a focus for the inquiry "gives a degree of predictability to
the legal system" because it "allows potential defendants to
structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit."
World-Wide Volkswagen, 444 U.S. at 297.
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Notably, the fact that a defendant directly contacted
the plaintiff in the forum only remotely by Internet or telephone,
as allegedly happened here, does not preclude the defendant from
having the substantial connection to the forum that is necessary
to satisfy the purposeful availment requirement. See Burger King,
471 U.S. at 476. Such remote communications are often the primary
means by which business relationships are forged and conducted.
See id.
But, as the Supreme Court has noted, the application of
the rule prohibiting a plaintiff's unilateral activity from
establishing the requisite foreseeable substantial connection
between the defendant and the forum "will vary with the quality
and nature of the defendant's activity." Id. at 474-75 (quoting
Hanson, 357 U.S. at 253). Thus, the fact that the communications
occurred remotely may well be relevant to the inquiry. And, to
that very point, we have recently observed that three factors have
been the "hing[e]" in our past assessment of purposeful availment
in cases in which remote communications supplied the predicate for
the contacts that ground specific or case-linked personal
jurisdiction over an out-of-forum defendant: "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."
Copia, 812 F.3d at 6 (emphasis added) (describing the factors from
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C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59
(1st Cir. 2014), and Cossart v. United Excel Corp., 804 F.3d 13
(1st Cir. 2015)).
B.
Against this background, we now must assess whether the
showing that PREP Tours has made regarding both the nature and
quality of the defendants' activities and the activities that PREP
Tours engaged in that relate to the contract and tort claims at
issue satisfies the purposeful availment requirement. PREP Tours
relies on the three factors identified in Copia in asserting that
its showing as to these activities does suffice. And so we need
to address what PREP Tours has to say about how these activities
relate to each of these factors.6
6 The dissent suggests that it is focusing only on the
plaintiff's tort claim because it "reveals so clearly the error in
the majority's purposeful availment analysis and unfairness of the
outcome." See Diss. Op. 44 n.27. But, we do not see how the
distinction between the tort claim and the contract claim matters
to the purposeful availment inquiry, or how the focus on the tort
claim reveals any unfairness with respect to the lack of personal
jurisdiction over the defendant in Puerto Rico that would not be
equally evident if we focused on the contract claim. After all,
while the dissent cites to much precedent explicating Puerto Rico
tort law, the purposeful availment test does not derive its content
from local law. It derives its content from the requirements of
a federal constitutional protection. And Copia holds that this
protection requires a showing that the out-of-forum defendant,
through voluntary contacts making the forum's assertion of
jurisdiction over him foreseeable, has established a greater tie
to that forum than was determined to be present there. See 812
F.3d at 6. Nothing in the way that Puerto Rico has chosen to
define the elements of this tort claim, therefore, can permit us
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PREP Tours does point to aspects of the record that bear
on each one of these three factors. As to solicitation, we agree
with PREP Tours that the record shows that one of the Region 24
volunteers, Ramírez, voluntarily reached out (remotely) from
to conclude that a lesser tie than was present in Copia may suffice
to satisfy the federal constitutional minimum that we discerned in
that case. And the dissent cites no case indicating to the
contrary.
Of course, in some cases, the defendant's contacts with the
forum jurisdiction that are related to a plaintiff's tort claim
might differ from those related to its contract claim, such that
the purposeful availment inquiry with respect to each claim might
require an assessment of distinct contacts. See Phillips Exeter
Acad. v. Howard Phillips Fund, 196 F.3d 284, 288-89 (1st Cir. 1999)
(explaining that the relatedness inquiry is done "on a claim-by-
claim basis" because it depends on the nexus between the alleged
in-forum contacts and the "elements of the cause of action"). In
Copia, for example, because the plaintiffs pressed a contract
claim, we only considered the defendants' "relevant, i.e.,
contract-related, dealings with" the plaintiff for the purposeful
availment analysis. 812 F.3d at 5. But, as we have explained,
see supra p.14, and as the dissent acknowledges, see Diss. Op. 44
n.27, we are proceeding on the assumption in this case that the
contract and tort claims arise from the same alleged "activity or
. . . occurrence[] . . . in the forum State," Goodyear, 564 U.S.
at 919, and thus we consider precisely the same set of contacts as
to both claims. Accordingly, our purposeful availment analysis is
precisely the same as to both claims, nor does the plaintiff ask
us to proceed otherwise.
Thus, we must decide whether those contacts suffice to
establish a more substantial connection between the defendants and
the forum here than Copia found to be present there. In doing so,
however, we do not thereby purport to address the merits of either
the contract or the tort claim, as our inquiry concerns only the
legal propriety of making Puerto Rico the forum jurisdiction for
the claims. And, with respect to that inquiry, the "fairness"
concern that matters relates not to how Puerto Rico defines its
tort law, but to how the relevant precedents construe the Due
Process Clause to define purposeful availment.
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California to PREP Tours in Puerto Rico in order to ask for a price
quote and for what the company could "offer" as a proposed trip
for roughly sixty soccer players and their families. We can also
agree that the defendants should have reasonably anticipated that
some action would be undertaken by PREP Tours in Puerto Rico in
response to that inquiry -- such as replying with a proposed
itinerary -- given that the defendants knew that PREP Tours was
located there. And, finally, we can see no reason to doubt that
some foreseeable action was then actually undertaken by PREP Tours
in Puerto Rico.
But, even granting all that, as we will next explain,
the factors that we identified in Copia are not present here "to
remotely the same degree" as they were in our other cases on which
PREP Tours relies in arguing that the purposeful availment
requirement is met. Copia, 812 F.3d at 6. And, in light of that
fact and our review of the relevant contacts as a whole, we
conclude, as we did in Copia itself, that the in-forum plaintiff
did not meet its burden to satisfy the purposeful availment
requirement as to any of its claims.7
7
In arguing that the purposeful availment requirement is
satisfied, PREP Tours asserts on appeal that the parties had forged
a contract because the defendants ultimately "agreed on a final
itinerary and cost . . . and agreed to proceed with the trip that
PREP Tours had planned at the Defendants' request." But, in making
that conclusory assertion on appeal, PREP Tours does not develop
any challenge to the District Court's ruling below in which the
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1.
We start by considering the showing that PREP Tours made
regarding the nature and quality of the defendants' activities in
the forum as they relate to the Copia factors. Those in-forum
defendant activities consist exclusively of the defendants' remote
communications with PREP Tours concerning the trip.
District Court rejected PREP Tours's contention that the Region 24
treasurer's email with a third party -- Hakuna Matata -- could
show that a contract existed between PREP Tours and the defendants.
Nor does PREP Tours point on appeal to any non-conclusory
allegation in the complaint (or the record) showing that a contract
did exist between the parties. See Soto-Torres v. Fraticelli, 654
F.3d 153, 156 (1st Cir. 2011).
Moreover, PREP Tours also does not develop any argument about
how the alleged contract bears on the purposeful availment inquiry
as to the assertion of personal jurisdiction with respect to either
the contract or tort claims. For example, PREP Tours does not
argue to us -- and did not argue below -- that purposeful availment
exists due to services that the tour company would foreseeably
provide in the forum under the contract, or due to any other
"contemplated future consequences" under the contract. Daynard,
290 F.3d at 52 (quoting Burger King, 471 U.S. at 479). In fact,
PREP Tours nowhere alleges -- either below or on appeal -- what
the terms of the purported contract even were. We have repeatedly
made clear, however, that an out-of-forum party's contract with an
in-forum party is not in and of itself sufficient to establish
personal jurisdiction over the out-of-forum party, even where the
plaintiff's claims include non-contract claims. See United States
v. Swiss Am. Bank, Ltd., 274 F.3d 610, 621 (1st Cir. 2001) (quoting
Ganis Corp. of Cal. v. Jackson, 822 F.2d 194, 197-98 (1st Cir.
1987)). Thus, PREP Tours's failure to develop any such argument
on appeal is problematic, insofar as PREP Tours means to contend
that the alleged contract alone enables PREP Tours to satisfy the
purposeful availment requirement for its claims even if the other
contacts with Puerto Rico that it attributes to the defendants
(and which the analysis that follows addresses) otherwise would
not suffice.
- 22 -
The communications began, the evidentiary submissions
show, when one of the Region 24 volunteers, Ramírez, asked PREP
Tours via email from California for a price quote and for what the
company could "offer" regarding a potential trip by some of Region
24's teams to Puerto Rico. The evidentiary submissions also show
that this same volunteer later asked via electronic means from
California that PREP Tours modify the offer that she had earlier
requested in light of new specifications that she gave regarding
that potential trip.
We cannot reasonably infer, however, from these
communications alone that the defendants (a number of whom had no
contact directly with PREP Tours at all),8 or even Ramírez in
particular, believed themselves to be asking for the type of
information that would require a self-described "speciali[st]" in
such trips to engage in extensive trip-planning activities in the
forum prior to an agreement being reached with the "speciali[st]."
Nor can we reasonably infer from these communications alone that
the purposeful availment requirement is met on the ground that
they show that the defendants were contemplating the kind of
8 As far as the evidentiary submissions indicate, over the
course of the relevant four-month period, the two entity
defendants, AYSO and Region 24, had no direct communications with
PREP Tours. Nor did Region 24's treasurer, Jackson. Region 24's
commissioner (Rodríguez) and assistant commissioner (Aguilar),
moreover, together sent only three emails to PREP Tours, all on
the same day, solely to apprise PREP Tours of the status of its
offer in response to PREP Tours's own query.
- 23 -
ongoing and close-working relationship with PREP Tours that could
establish the requisite substantial connection between the
defendants and the forum. See Cossart, 804 F.3d at 21; C.W.
Downer, 771 F.3d at 67.
Ramírez made clear in her initial inquiry email to PREP
Tours that no decision had even been made for the soccer teams to
go to Puerto Rico, as the email expressly stated that Region 24
was also gathering information about alternative destinations,
like Hawaii and Mexico. And, in her email replying to PREP Tours's
response to that initial inquiry, Ramírez noted that "[a]s soon as
[Region 24's] decision is made, I will let you know," thereby
reinforcing the preliminary nature of her inquiry and diminishing
the foreseeability of PREP Tours undertaking extensive in-forum
activities in response or the parties having an ongoing and close-
working relationship.
PREP Tours's complaint does assert that PREP Tours
"continuously receiv[ed] requests by e-mail and telephone calls"
from Ramírez "to amend different areas of the proposal in order to
accommodate the needs of the group" and that these requests
resulted in "multiple requirements" with which PREP Tours's offer
had to comply.9 But, while communications of that type certainly
9 The complaint alleges that requests were also received
"later on" from the Region 24 treasurer, Jackson. However, the
only communication by Jackson that PREP Tours's papers reference
was his email to the third-party travel agency located in Florida.
- 24 -
do bear on the Copia factors of solicitation and anticipation, the
properly documented communications call into question PREP Tours's
characterization of the nature of these communications. Instead,
the record shows only the following.
Ramírez asked by email for PREP Tours to "tweak" -- her
wording in the email -- the "tentative rough draft" itinerary that
PREP Tours had initially sent, which resulted in what PREP Tours
described in an email to Ramírez as a "new itinerary almost
identical to the original itinerary that we first sent you."10
Ramírez did so, moreover, while also informing PREP Tours that
Region 24 was contacting three alternative travel agencies for
competing offers on the possible trip to Puerto Rico.
The evidentiary submissions also show that Ramírez later
sent an email asking whether PREP Tours could accommodate specific
dates for a possible trip that incorporated the prior "tweak" along
10 The requested "tweak" was to include all-inclusive hotels,
two to three matches per team, two to three excursions, free time
for families, and a cost of about $2,000 per person. PREP Tours
rejected the request for all-inclusive hotels, explaining that it
would not be cost-effective. Thus, PREP Tours stuck with hotels
that it had already identified when it sent the original itinerary
to Ramírez. The revised itinerary also did not list any additional
local teams that would participate in the friendly soccer matches.
Finally, the revised itinerary removed some activities that PREP
Tours had originally proposed while adding some additional
activities that Ramírez's email had not requested (such as a tour
of a Bacardi rum plant). These changes reduced the estimated price
range from $1,495-$1,595 to $1,275-$1,375 per person without
airfare.
- 25 -
with arguably some minimal changes to it.11 But, Ramírez stated
in that email once again that Region 24 had not yet decided on a
travel agency, though she did at that point state (for the first
time) that the trip would be to Puerto Rico.
Finally, the record shows that, following this email
from Ramírez, PREP Tours sent her a revised itinerary reflecting
minimal changes and pushed Ramírez for more details about the
number of persons who might be on the trip. And, as the record
shows, Ramírez thereafter sent PREP Tours a one-line email
attaching a document listing a "breakdown of our team going to
Puerto Rico," which consisted of some seventy names of players and
coaches.12
But, in sending along that partial list of potential
travelers, Ramírez was responding to a request for information
from PREP Tours. That is, Ramírez provided the partial list in
response to a unilateral act by PREP Tours. Furthermore, in
providing that response, Ramírez did not state that Region 24 had
11 Ramírez inquired about specific dates for a ten-day trip
that -- roughly consistent with the earlier "tweak" she had already
requested that had resulted in the "almost identical" revised
itinerary -- would consist of only three matches per team, include
free time, and cost no more than $2,000. The itinerary she
received back from PREP Tours a week later removed or rendered
"optional" some of the activities. The estimated price was $1,995
per adult and $1,695 per child with airfare.
12Although the attached "breakdown" listed the names of only
some seventy players and coaches, it indicated that 252 people
would be on the trip.
- 26 -
made a decision to book the trip through PREP Tours, nor did she
make any request of PREP Tours to take any actions in light of the
list that she had sent. In fact, in her last email to PREP Tours
in the record, Ramírez communicated that Region 24's officers still
had "to go through everything with a fine tooth-comb."
Thus, as the District Court emphasized, PREP Tours's own
evidentiary submissions show that, in the few substantive inquiry
emails from Ramírez to PREP Tours -- out of what the defendants
say, without any challenge by PREP Tours, is "a sum total of nine"
emails from her -- she consistently communicated the preliminary
and limited nature of her inquiry.13 And, given that the nature
and quality of the defendants' solicitation of in-forum activity
was preliminary and limited, the defendants' own forum-related
activity is a far cry from that of the defendants in C.W. Downer
and Cossart, which are among the chief precedents of ours on which
PREP Tours relies.14
13 Several, if not most, of the nine emails were sent in
response to emails from PREP Tours itself simply in order to
acknowledge the receipt of PREP Tours's messages. And, in the
substantive emails among these nine, Ramírez referred to her
"delays" in responding to PREP Tours's "quote," further indicating
the intermittent nature of her communications.
14 We agree with the dissent that negotiations "preliminary"
to a formal agreement are the foundation of a bad-faith tort claim.
See Diss. Op. 53. But, we highlight the preliminary nature of the
parties' negotiations with respect to our analysis of purposeful
availment as to both the tort and contract claims. And we do so
not to cast doubt on the merits of either of those claims but
instead because the preliminary nature of those contacts is
- 27 -
In C.W. Downer, for example, the out-of-forum defendant
was a Canadian corporation that had engaged an investment bank
located in Massachusetts to sell the corporation, which the
investment bank then spent four years trying to do before the deal
fell apart and the investment bank sued the corporation in
Massachusetts. 771 F.3d at 67. And, in Cossart, the out-of-forum
defendant was a firm based in Kansas that had hired an employee
located in Massachusetts to work for the firm, which the employee
did for a "period of years" before suing the employer in
Massachusetts for wage law violations. 804 F.3d at 18.
Of course, neither C.W. Downer nor Cossart purported to
establish the minimum connection to the forum that must be shown
to establish personal jurisdiction. But, none of our other cases
on which PREP Tours relies supports the proposition that an out-
of-forum defendant would foresee being haled into court in that
forum on the basis of having made the preliminary and limited type
directly relevant to the component of the purposeful availment
inquiry that requires us to assess whether the in-forum actions
that PREP Tours took in response to the defendants' contacts were
"foreseeable" to the defendants or were instead "unilaterally"
undertaken by the plaintiff itself. Moreover, the preliminary
nature of contacts is also directly relevant to PREP Tours's
contention that the contacts show that the defendants contemplated
an ongoing relationship with PREP Tours and that there was in fact
such a relationship. In this regard, our concern is not with
whether the conduct alleged is tortious, but with whether that
conduct is of a type that permits the forum to be the jurisdiction
in which that determination is made.
- 28 -
of information requests to a forum-based service provider that
were made here.15 Nor are we aware of any such supporting
authority.
In fact, this case in some respects provides even less
basis for finding the requisite "substantial connection" to the
forum than did Copia, in which we found no purposeful availment.
812 F.3d at 5-6. There, we rejected the contention that a Jamaica-
based resort operator purposefully availed itself of the privilege
of conducting activities in Massachusetts as a result of the
negotiation and performance of a contract between the resort
operator and a Massachusetts-based internet services provider.
See id. We did so even though the resort operator had voluntarily
negotiated with the provider remotely, including via emails that
the chief executive officer of the Massachusetts-based internet
services provider "may have sent or received . . . while in
15
See, e.g., Baskin-Robbins Franchising LLC v. Alpenrose
Dairy, Inc., 825 F.3d 28, 36-40 (1st Cir. 2016) (finding purposeful
availment where an out-of-forum franchisee twice renewed its
contract with an in-forum franchisor, with which it had a multi-
year business relationship and to which it mailed 180 royalty
checks and delivered quarterly samples of its product); Adelson,
652 F.3d at 79, 82-83 (finding purposeful availment where an out-
of-forum employee "directed regular administrative and financial
conduct" toward his employer's offices in the forum during multiple
years of employment, after he had sought out the employment
contract); Daynard, 290 F.3d at 46, 61-62 (finding purposeful
availment in part because of an out-of-forum law firm's "properly
attributed" "ongoing relationship" with an in-forum lawyer who was
allegedly "central" to the firm's "titanic recoveries" in a complex
litigation).
- 29 -
Massachusetts" and via meetings in Jamaica. Id. at 2-3.16 And,
we did so even though, under the contract that the parties
eventually concluded, in addition to providing certain services in
Jamaica, the provider shipped equipment from Massachusetts to the
resort operator in Jamaica. Id. at 3.
We explained that the resort operator's anticipation of
the "provi[sion of] equipment and services" by a party known to be
in Massachusetts did not "represent[] the type of purposeful
availment of the privilege of conducting business in Massachusetts
that would have made it reasonably foreseeable that [the out-of-
forum company] could be 'haled into court' in Massachusetts[.]"
Id. at 6 (quoting Burger King, 471 U.S. at 486).17 And, in so
concluding, we emphasized that there was "no evidence that the
[resort operator] cared about the geographic origin of the
16
The district court's opinion in Copia, which reviewed the
evidentiary record in detail, noted that the Chief Executive
Officer of the Massachusetts-based internet services provider
"received emails in the course of the negotiations (and later the
relationship) some of which he may have read at Copia's principal
place of business in Massachusetts." Copia Commc'ns, LLC v.
Amresorts, LP, No. 14-13056, 2015 WL 7621480, at *1 (D. Mass. Feb.
5, 2015). And, as the District Court noted, the Chief Executive
Officer represented that, "[o]n occasion, communications via
telephone or e-mail were sent and received while [the Chief
Executive Officer] was in Massachusetts." Id. at *3.
17The resort operator knew that the internet services
provider was based in Massachusetts because it "addressed payment
to [the internet services provider's] Massachusetts address."
Copia, 812 F.3d at 3.
- 30 -
shipments" of the equipment for which the resort operator had
contracted. Id. at 5.
PREP Tours does assert on appeal that Ramírez reached
out to PREP Tours specifically because it could undertake "local
efforts" in Puerto Rico (as opposed to, say, the fact that it
specialized in soccer trips to that locale). But, the tour company
neither alleges such in its complaint nor points to any evidence
in the record to support this assertion. In fact, the record shows
that Region 24 contacted multiple travel agencies, not all of which
were located in Puerto Rico, and that Region 24 ultimately procured
a California-based travel agency to book its trip to Puerto Rico.18
To be sure, as PREP Tours points out, one of the
defendants, Ramírez, initiated the contact with the in-forum
party, PREP Tours. And that was not the case in Copia. There,
the in-forum plaintiff initiated the negotiations that we found
insufficient to demonstrate purposeful availment there. See id.
at 6. But, negotiations involving numerous contacts between the
parties -- some made in the forum -- to secure an ongoing services
relationship there did then ensue. In that respect, we do not
18 PREP Tours does suggest on appeal that the defendants
procured this California-based company's services only after
"misstat[ing] their intentions to PREP Tours to enable them to get
the benefit of PREP Tours' local efforts." But, that assertion
does little to show purposeful availment on the defendants' part,
as that inquiry still turns on whether the defendants anticipated
that PREP Tours would undertake "local efforts."
- 31 -
think that the out-of-forum party in Copia had less substantial
contacts over the course of the relationship with the in-forum
party than the defendants did in this case.
Moreover, the Supreme Court made clear in Kulko that
even where it is the out-of-forum defendant who voluntarily and
knowingly establishes some contacts with the forum, specific
jurisdiction over the defendant may still be lacking if the
prospect of in-forum litigation was not foreseeable in light of
the nature and quality of that contact with the forum. See 436
U.S. at 94, 97-98. And, given the preliminary and limited nature
and quality of that initial inquiry to PREP Tours from Ramírez and
of the defendants' other ensuing communications with the tour
company, we conclude that this one feature of the case does not
suffice to support the conclusion that the defendants' activities
established a "substantial connection" between the defendants and
the forum. Burger King, 471 U.S. at 475; cf. Sandstrom v. ChemLawn
Corp., 904 F.2d 83, 89 (1st Cir. 1990) (holding that general
jurisdiction was lacking over an out-of-forum defendant that was
licensed to do business in the forum and had engaged in non-
substantial advertising in the forum, and explaining that
"preparations to do business at an indeterminate future date,
without more, cannot be confused with actually doing business").
- 32 -
2.
PREP Tours contends, however, that, to assess purposeful
availment, we must consider not only the defendants' own
activities, as reflected in the defendants' remote communications
with PREP Tours, but also the "extensive" activities that the tour
company undertook in response. And we agree, consistent with
Copia's recognition of the import of the factors of anticipation
and performance.
But, we conclude, consideration of PREP Tours's own
activities, even in combination with those undertaken by the
defendants, does not require a different conclusion from the one
that the District Court reached as to purposeful availment. And
that is both because of what the record shows about the actual
activities PREP Tours undertook and because those activities must
be considered in light of the nature of the communications that
the defendants made prior to PREP Tours having undertaken those
activities. See Burger King, 471 U.S. at 474 ("The unilateral
activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum
State." (quoting Hanson, 357 U.S. at 253)).
In its brief on appeal, PREP Tours asserts that, in
responding to the defendants' inquiries regarding the possible
trip, it foreseeably undertook "dozens of contacts" in the forum
on the defendants' behalf that should be attributed to the
- 33 -
defendants for jurisdictional purposes. According to PREP Tours's
brief, those contacts include "contacting Puerto Rico-based
hotels, restaurants, soccer teams, business owners, and travel
agents."
PREP Tours's complaint, however, does not allege that
PREP Tours contacted a single other business, soccer team, or any
person who did not work for PREP Tours in response to the
defendants' inquiry.19 See Doyle v. Hasbro, Inc., 103 F.3d 186,
190 (1st Cir. 1996) ("In conducting our review of the case, we are
limited to those allegations contained in the amended
complaint."). Nor did PREP Tours expressly rely below on any such
contacts by the tour company in its argument to the District Court
that there was personal jurisdiction over the defendants. Cf.
McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st
Cir. 1991) ("It is hornbook law that theories not raised squarely
19 The dissent concludes that we may infer that "each new
itinerary involved re-engaging with service providers to discuss
new costs and timing (including booking hotels and flights)[.]"
Diss. Op. 51. But, we do not see how we may make such an inference
when the plaintiff's own complaint does not make any allegation
that it engaged with any service providers in response to the
defendants' requests, let alone any allegation that they re-
engaged with them every time the defendants made a new request.
The absence of such allegations from the complaint is especially
conspicuous given that they concern the plaintiff's own conduct.
See Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 639-40 (1st
Cir. 2013) (upholding dismissal of claims where there was "no
suggestion" that the "missing facts should be beyond [plaintiff's]
reach" or that the plaintiff "lack[ed] the information needed to"
allege such facts).
- 34 -
in the district court cannot be surfaced for the first time on
appeal.").
PREP Tours's evidentiary submissions do show, as its
complaint alleges, that it sent Ramírez a "tentative rough draft"
itinerary from Puerto Rico a few days after she made her initial
inquiry about the trip and that PREP Tours then modified the
itinerary in some respects while in Puerto Rico. In that regard,
the properly documented actions that PREP Tours undertook in the
forum in response to the defendants' inquiry were not entirely
"unilateral," as the District Court suggested.
But, even accepting that point, we do not see how we may
reasonably infer from the showing that PREP Tours makes regarding
the itinerary that it foreseeably undertook the kind of "extensive"
activities in response to Ramírez's remote communications that the
tour company asserts on appeal that it undertook in order to put
together and modify this proposal. After all, the promotional
brochure that PREP Tours sent to Ramírez on the very day that she
first inquired for an offer described a pre-existing "unique soccer
program" based in San Juan and Rincón that PREP Tours offered to
visiting youth soccer teams.
The record does also show that PREP Tours then sent
Ramírez a "tentative rough draft" itinerary a few days later. But,
the record does not show (nor does the complaint allege) what work
in Puerto Rico was done by PREP Tours in order to put together
- 35 -
that itinerary or that there is a basis for inferring that the
defendants anticipated that PREP Tours would on the basis of their
initial request for information engage in extensive in-forum
activity.
Nor, as far as the record reveals, did PREP Tours add
any newly identified hotels, restaurants, or local soccer teams to
that "tentative rough draft" of the itinerary over the course of
the ensuing months.20 In fact, in an email to Ramírez after the
largest, albeit still quite modest, round of documented changes to
the "tentative rough draft" itinerary, PREP Tours itself called
"the new itinerary almost identical to the original itinerary that
we first sent you."
We also cannot reasonably infer that the defendants
could have foreseen the type of "extensive" activities that PREP
Tours asserts to us on appeal that it undertook beyond the sending
of a pre-existing tentative itinerary. PREP Tours's evidentiary
submissions do show in this regard that the tour company sent an
email to Ramírez that mentions that it had contacted hotels in
Puerto Rico after Ramírez had reached out to the tour company and
that these hotels then placed courtesy holds on certain rooms. In
addition, we can reasonably infer from the email that Hakuna
20 The dissent states that PREP Tours "proceeded to make
concrete arrangements with other businesses, including flight and
hotel reservations." Diss. Op. 52. But, the complaint itself
makes no such allegation.
- 36 -
Matata, the third-party travel agency in Florida, sent to the
defendants regarding possibly arranging flights for them that PREP
Tours had at some point contacted Hakuna Matata from within Puerto
Rico to ask Hakuna Matata to do so.21 But, the record does not
show that the defendants had actually requested that PREP Tours
arrange for the courtesy holds on the hotel rooms. Rather, the
record reveals that the defendants asked only in general and
tentative terms about what PREP Tours, which represents itself as
a "speciali[st]" in such soccer tours, could "offer."
In fact, the record does not show that the defendants
ever asked PREP Tours to contact any entity or person in Puerto
Rico on their behalf. Nor does the record show that they ever
requested any particular hotel, restaurant, soccer team, or
business to be included in the proposed itinerary.22 And we see
no basis for concluding -- nor does PREP Tours appear to even argue
-- that the defendants should "reasonably have anticipated being
'haled before a [Puerto Rico] court'" simply in consequence of
21PREP Tours had at one point also emailed Ramírez a menu of
possible flights, but PREP Tours acknowledged in a later email
that it did not book any flights on AYSO's behalf because it did
not yet have a sufficient indication from AYSO that the
organization wished to proceed with the flights.
22 The record does show that in her email requesting a "tweak"
to the "tentative rough draft" itinerary, Ramírez asked if it would
be possible to include "all-inclusive hotels." PREP Tours
expressly rejected that request, however, explaining that it would
not be cost-effective to stay in all-inclusive hotels.
- 37 -
PREP Tours's efforts to obtain preliminary information about the
cost and availability of hotels in Puerto Rico for the trip's
possible dates, or its efforts to contact a travel agency located
outside the forum regarding possible flights. Kulko, 436 U.S. at
97-98 (quoting Shaffer v. Heitner, 433 U.S. 186, 216 (1977)).
PREP Tours does assert in its appellate brief that AYSO
had taken similar cultural immersion trips in the past. PREP Tours
thus reasons that the defendants should have reasonably foreseen
the extent of activities in Puerto Rico that would have been
necessary to produce a proposed itinerary for such a trip.23 But,
we cannot see how it would be reasonable to infer from the mere
fact of this past experience that the organization would foresee
that a tour company that "specializes" in such trips would
undertake "extensive" activities in Puerto Rico simply to prepare
a price quote and proposed itinerary for its regularly offered
service in response to a preliminary request for that information
from a group that consistently made clear that it was considering
using other travel agencies.
For all of these reasons, this case is not at all like
the imputed-contacts cases on which PREP Tours relies, namely C.W.
Downer and Cossart. In C.W. Downer, the out-of-forum defendant
23
Although the complaint does not allege that AYSO took
similar trips in the past, one of Ramírez's emails in the record
indicates that AYSO's teams had traveled to Costa Rica and Hawaii
in prior years.
- 38 -
corporation had specifically engaged the in-forum investment bank
to sell the company, thus making foreseeable the fact that the
bank "contacted hundreds of potential buyers on [the
corporation's] behalf." 771 F.3d at 67. Likewise, in Cossart,
the out-of-forum firm had hired the employee to do the kind of
work that would make it foreseeable that he would have "made
hundreds of telephone calls and sent hundreds of e-mails on behalf
of [the employer]" from the forum. 804 F.3d at 17.
Again, neither of those cases purports to set the minimum
threshold for establishing personal jurisdiction on the basis of
the activities of an in-forum plaintiff that may be imputed to an
out-of-forum defendant. But, PREP Tours identifies no other
precedents that would support the conclusion that, given the
context in which the inquiry about the trip was made, the tour
company's properly documented activities that reasonably may be
attributed to the defendants are of a nature and quality to show
that they should have reasonably anticipated being haled into court
in Puerto Rico as a result. Nor, we note, does the dissent.
V.
Questions of purposeful availment are often, like those
presented here, necessarily fact-dependent. In this area, as the
Supreme Court has cautioned, there are no mathematical formulas
upon which to rely. And the hues are more "grey[]" than "black
and white." See Kulko, 436 U.S. at 92 (quoting Estin, 334 U.S. at
- 39 -
545). But, in light of Copia, and the other precedents bearing on
these questions, we conclude that on this record -- especially
given that what is missing consists of information fully known to
the in-forum party asserting jurisdiction -- there is no basis for
finding the purposeful availment requirement met for either of the
plaintiff's claims.
The judgment of the District Court is affirmed.
- Dissenting Opinion Follows -
- 40 -
LIPEZ, Circuit Judge, dissenting. In concluding that
the federal court in Puerto Rico lacks personal jurisdiction over
the defendants in this case, the majority downplays the
significance of the bad-faith negotiations claim and fails to view
the facts alleged in the light most favorable to the plaintiff.
Properly evaluated, however, those facts establish the elements of
personal jurisdiction for PREP Tours' lawsuit against three of the
defendants.24 Given these circumstances, I cannot join my
colleagues in affirming dismissal of PREP Tours' complaint.
I.
A. Overview
My disagreement with the majority stems primarily from
their depiction of the facts proffered by PREP Tours in support of
jurisdiction.25 In brief summary, defendants asked PREP Tours to
24I agree that dismissal is proper for Armando Rodríguez,
Ramón Aguilar, and Carl Jackson, but conclude that the case should
proceed against the American Youth Soccer Organization ("AYSO"),
its regional affiliate ("Region 24"), and a Region 24 volunteer,
Alicia Ramírez (collectively, "defendants"). For simplicity, I
assume that Ramírez was an agent of AYSO and Region 24 and, thus,
that these three defendants are in the same position vis-à-vis
PREP Tours.
25
The district court chose the "prima facie" method -- "the
least taxing" standard for a plaintiff -- to determine whether
PREP Tours had met its personal jurisdiction burden. Phillips v.
Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008) (quoting
Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.
1997)). In line with that method, the facts on which I rely are
drawn from PREP Tours' complaint and the supplemental materials
contained in the record. See Baskin–Robbins Franchising LLC v.
Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016) (noting
- 41 -
plan a soccer tour in Puerto Rico for more than 250 people. Then,
on the brink of formalizing an agreement based on PREP Tours'
considerable efforts, defendants made a last-minute switch to a
different tour company. Contrary to my colleagues' depiction of
the parties' relationship as undeveloped and "preliminary," the
record demonstrates an increasingly solid commitment by defendants
to do business with PREP Tours. Defendants' sudden abandonment of
PREP Tours after the company invested substantial resources to
create defendants' desired itinerary permits a plausible inference
of bad faith, a key component of PREP Tours' contention that it
was harmed by defendants' actions.
B. Culpa in Contrahendo
Under Puerto Rico law, the obligation to negotiate
contracts in good faith is known as the culpa in contrahendo
doctrine. See Advanced Flexible Circuits, Inc. v. GE Sensing &
Inspection Techs. GmbH, 781 F.3d 510, 516 (1st Cir. 2015). The
doctrine varies from the common law requirement of good-faith
negotiation not only because it sounds in tort rather than
contract, but also because it encompasses a broader range of
that when conducting a personal jurisdiction analysis under the
prima facie standard, a court must "take the facts from the
pleadings and whatever supplemental filings (such as affidavits)
are contained in the record"); see also Sawtelle v. Farrell, 70
F.3d 1381, 1385-86 (1st Cir. 1995) (explaining that in assessing
a motion to dismiss based on lack of personal jurisdiction, the
court may consider supplemental materials such as affidavits).
- 42 -
conduct. See Ysiem Corp. v. Commercial Net Lease Realty, Inc.,
328 F.3d 20, 24 (1st Cir. 2003). In general, the culpa in
contrahendo doctrine is "used to compensate a party for the
expenses it incurred in reliance on the other party's offer to
form a contract when the contract negotiations break down."
Velázquez Casillas v. Forest Labs., Inc., 90 F. Supp. 2d 161, 166
(D.P.R. 2000). We have explained that "[a] party's withdrawal
from contractual negotiations may be considered a violation of the
duty of good faith if: (1) the withdrawal was arbitrary or without
justification; and (2) the other party had a reasonable expectation
that a contractual agreement would be consummated." Advanced
Flexible Circuits, 781 F.3d at 516-17.26
PREP Tours' complaint alleges a classic instance of
frustrated expectations, with defendants taking the parties'
negotiations to the brink of a formal agreement before pulling
26
Some jurisdictions have similarly found a duty to negotiate
in good faith after the parties have negotiated important terms in
a potential contract but other terms remain open. See, e.g.,
Flight Sys., Inc. v. Elec. Data Sys. Corp., 112 F.3d 124, 130 (3d
Cir. 1997) (Pennsylvania); Sunnyside Cogeneration Assocs. v. Cent.
Vt. Pub. Serv. Corp., 915 F. Supp. 675, 680 (D. Vt. 1996); Teachers
Ins. & Annuity Ass'n of Am. v. Tribune Co., 670 F. Supp. 491, 498
(S.D.N.Y. 1987); Markov v. ABC Transfer & Storage Co., 457 P.2d
535, 539-40 (Wash. 1969). Moreover, other jurisdictions have
acknowledged some pre-contractual liability when the parties
started negotiations toward a contract but for some reason an
agreement could not be reached. See, e.g., Chrysler Corp. v.
Quimby, 144 A.2d 123, 128-29 (Del. 1958); Hoffman v. Red Owl
Stores, Inc., 133 N.W.2d 267, 274-75 (Wis. 1965).
- 43 -
out. The culpa in contrahendo tort claim must thus be at the fore
of the evaluation of personal jurisdiction.27 Cf. Copia Commc'ns,
LLC v. AMResorts, L.P., 812 F.3d 1, 4 n.2 (1st Cir. 2016) (noting
that "[b]ecause all of [plaintiff]'s claims are entwined in its
contract claims, none demands separate analysis").
II.
As the majority opinion sets out, the constitutional
inquiry for specific personal jurisdiction consists of three
prongs: relatedness, purposeful availment, and reasonableness.
See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A.,
290 F.3d 42, 60 (1st Cir. 2002); Phillips Exeter Acad. v. Howard
Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999).28 The majority
considers only the purposeful availment prong and, concluding that
27
By focusing on the tort claim, I am not suggesting that the
purposeful availment analysis varies from cause of action to cause
of action when the same contacts are asserted as the basis for
personal jurisdiction. Nonetheless, "[q]uestions of specific
jurisdiction are always tied to the particular claims asserted,"
Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289
(1st Cir. 1999), and "the quality and nature of the defendant's
activity" is part of the calculus, Harlow v. Children's Hosp., 432
F.3d 50, 58 (1st Cir. 2005) (quoting Hanson v. Denckla, 357 U.S.
235, 253 (1958)). I highlight the bad-faith claim because -- given
the nature of defendants' contacts with PREP Tours -- the tort
claim reveals so clearly the error in the majority's purposeful
availment analysis and the unfairness of the outcome.
28Where a state's long-arm statute extends to the
constitutional limit, as in Puerto Rico, we may address the
statute's requirements by conducting the constitutional due
process analysis. See Dalmau Rodriguez v. Hughes Aircraft Co.,
781 F.2d 9, 12 (1st Cir. 1986).
- 44 -
it does not support personal jurisdiction, does not address the
other two prongs. Accordingly, I, too, primarily focus on
purposeful availment.
The purposeful availment inquiry requires us to
determine whether the defendants have targeted their conduct
"toward the society or economy of a particular forum [such that]
the forum should have the power to subject the defendant to
judgment regarding that behavior." Baskin-Robbins Franchising LLC
v. Alpenrose Dairy, Inc., 825 F.3d 28, 36 (1st Cir. 2016) (quoting
Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011))
(alteration in original). This assessment ensures that personal
jurisdiction is not premised solely on defendants' "'random,
isolated or fortuitous contacts' with the forum state." Adelson
v. Hananel, 510 F.3d 43, 50 (1st Cir. 2007) (quoting Sawtelle v.
Farrell, 70 F.3d 1381, 1391 (1st Cir. 1995)).
The "cornerstones" of purposeful availment are
voluntariness and foreseeability. Daynard, 290 F.3d at 61 (quoting
Sawtelle, 70 F.3d at 1391). Voluntariness means that a defendant's
"contacts with the forum state 'proximately result from actions by
the defendant himself.'" Phillips v. Prairie Eye Ctr., 530 F.3d
22, 28 (1st Cir. 2008) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475 (1985)). Foreseeability means that "the
defendant's conduct and connection with the forum state are such
- 45 -
that he should reasonably anticipate being haled into court there."
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
The majority relies heavily on our decision in Copia,
812 F.3d at 5-6, in concluding that defendants' actions in dealing
with PREP Tours are insufficient to satisfy the purposeful
availment requirement. Given Copia's importance to the majority's
analysis, describing the case in some detail helps to explain why
our court's rejection of personal jurisdiction there does not
control the outcome here.
In Copia, the plaintiff was a Massachusetts company that
brought suit in Massachusetts against a Jamaican resort operator
and its Pennsylvania alter ego for an alleged breach of contract.
The Jamaican company had virtually no connection with
Massachusetts. The negotiations between the parties were
initiated by the plaintiff, not the defendant -- i.e., the parties'
relationship began with the Massachusetts plaintiff reaching out
to the defendant in Jamaica. The contract at issue was for
services to be performed in Jamaica, with Jamaican employees, and
under Jamaican law. The defendant's only Massachusetts contacts
consisted of sending a few emails to plaintiff's CEO in
Massachusetts and receiving equipment shipped from there.
Unsurprisingly, the Copia panel held that the Jamaican
resort could not be haled into court in Massachusetts to defend
the breach of contract claim. Copia, 812 F.3d at 6. Drawing on
- 46 -
earlier precedents of our court, we noted three factors as relevant
to purposeful availment: "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."29 Id. The panel
found that the plaintiff failed to satisfy any of the three
factors. First, the Jamaican resort had not solicited services
from the plaintiff; rather, the plaintiff had contacted the resort.
Second, the Jamaican resort would not have anticipated that
services under the contract would be performed in Massachusetts
given that the contract was for services to be performed in
Jamaica. Third, the services under the contract were actually
performed in Jamaica, excepting some "insubstantial contacts that
anyone would have when buying goods and services from a company
that itself happens to be in Massachusetts." Id.30
29 These factors were previously applied in two cases where
the out-of-forum defendants' contacts occurred primarily through
remote communications. See Cossart v. United Excel Corp., 804
F.3d 13, 21 (1st Cir. 2015); C.W. Downer & Co. v. Bioriginal Food
& Sci. Corp., 771 F.3d 59, 66-67 (1st Cir. 2014). Although the
focus on these factors may not be suited for all remote
communications cases -- particularly where the plaintiff's claims
sound primarily in tort -- focusing on them here is appropriate to
highlight the differences between my view of the facts and the
majority's view.
30Although some equipment was shipped from Massachusetts, the
contract did not require shipment from any particular location.
See Copia, 812 F.3d at 5.
- 47 -
Here, by contrast, there are far more substantial
connections between defendants and the forum. Indeed, applying
the Copia factors to the facts of this case reveals the error in
the majority's analysis.31
A. Solicitation of plaintiff's services
It is difficult to imagine a more clear-cut instance of
an out-of-forum defendant voluntarily and directly soliciting an
in-forum plaintiff's services. In November 2012, defendants
commenced a four-month period of communications with PREP Tours,
initially seeking information about options available in Puerto
Rico for their soccer group's possible tour. PREP Tours first
responded with a standard promotional brochure describing a youth
soccer program available in Puerto Rico. Defendants' initial
inquiry unquestionably was preliminary -- it did not even identify
Puerto Rico as the confirmed destination -- and PREP Tours'
response likewise involved no individualized effort on behalf of
defendants. However, even though defendants' initial contact
merely opened the door to a possible business relationship with
31 The majority also contrasts the facts here with the two
primary cases on which PREP Tours relies to argue that personal
jurisdiction is appropriate: Downer, 771 F.3d at 67, and Cossart,
804 F.3d at 21. As the majority acknowledges, however, Downer and
Cossart do not "purpor[t] to establish the minimum connection to
the forum that must be shown to establish personal jurisdiction."
Hence, I see no need to compare the facts here with those cases to
show that PREP Tours has shown the requisite connection.
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PREP Tours in Puerto Rico, that first step acquired greater
significance when the defendants subsequently started to solidify
their plans with PREP Tours for a trip to Puerto Rico. Without
question, Copia's solicitation prong is satisfied.
B. Defendants' anticipation of in-forum services and plaintiff's
actual performance of in-forum services32
The parties' relationship progressed rapidly after
defendants' initial inquiry. PREP Tours prepared a proposed
itinerary, and the parties thereafter engaged in an exchange of
emails in which defendants requested changes, PREP Tours responded
with revisions, and the agency reserved hotels and flights. In
their first round of requests, defendants asked PREP Tours to
schedule two or three soccer games, two or three excursions for
players and parents, and "free time for families to go on their
own," all while keeping the cost to $2,000 per person, including
airfare. PREP Tours complied and sent a revised itinerary to
defendants.
Unsatisfied with the revised itinerary, defendants
requested further modifications and specifications in late
December 2012, including: (1) extending the length of the trip and
scheduling it for July 8-18, with specific arrival and departure
dates for various components of the tour; (2) scheduling three
32The second and third Copia factors substantially overlap,
and I will therefore analyze them together.
- 49 -
local soccer games (i.e., specifying three, rather than possibly
two, games); (3) and, again, directing that the overall cost of
the trip remain at or below $2,000 per person. PREP Tours again
complied, producing a third itinerary. Meanwhile, as PREP Tours
worked to accommodate defendants' requests, defendants expressed
satisfaction with PREP Tours' efforts and an intention to move
forward with the trip arranged by PREP Tours. Defendants stated
in a December email that they "loved [PREP Tours'] itinerary as
opposed to [another] agency" and wanted to "seal the deal" so that
the parents could start "pay[ing] the agency."
Any remaining doubt about defendants' commitment to PREP
Tours was dispelled by the parties' communications in January 2013.
Defendants sent PREP Tours a list of trip participants with ages
and desired hotel accommodations. One of defendants' last emails
to PREP Tours stated that AYSO's Region 24 board members would be
contacting PREP Tours "for the financial part" and that, barring
any "red flags," everything was going to "run smoothly." In a
separate email thread, Hakuna Matata, the travel agency engaged by
PREP Tours, contacted defendants seeking payment for the reserved
flights.
Given these interactions, defendants had to understand
that PREP Tours was taking significant steps to create an itinerary
to satisfy their specific, changing requirements. Nevertheless,
my colleagues question PREP Tours' allegation that it expended
- 50 -
considerable effort to meet defendants' demands, maintaining that
defendants' communications sought only "tweak[s]" to the initial
itinerary.33 In addition, my colleagues state that a self-
proclaimed tour "specialist" would not need much effort to plan
such a tour. This speculative depiction of the record, suggesting
that the series of requested revisions required minimal, if any,
work by PREP Tours, fails to draw all reasonable inferences in
PREP Tours' favor. See Carreras, 660 F.3d at 552 (noting that, in
assessing specific jurisdiction, the court must view the evidence
"in the light most favorable to the plaintiff and draw all
reasonable inferences therefrom in the plaintiff's favor"). To
the contrary, it is reasonable to infer that drafting each new
itinerary involved re-engaging with service providers to discuss
new costs and timing (including booking hotels and flights), and
reconfiguring the tour to satisfy defendants' specific budget and
schedule demands.34
33
In one of their emails, defendants referred to PREP Tours'
modifications of the itinerary as "tweaks."
34In support of this inference, PREP Tours alleges in its
complaint that defendants "caused [PREP Tours] to invest an
enormous time and effort into preparing a package for [the tour]
. . . according to defendants' specifications." The parties'
supplemental filings support that PREP Tours reached out to other
Puerto Rico companies on defendants' behalf. In one email
reporting revisions to the itinerary, PREP Tours emphasized "the
due diligence, dedication, research, hotel, transportation and
schedule planning devoted to [defendants'] requests."
- 51 -
Moreover, the proposed trip was a major undertaking,
involving travel, accommodations, meals, and activities for a
group of 252 people, and represented an estimated half million
dollars in business for PREP Tours and additional revenue for other
Puerto Rico businesses. A trip of such magnitude inevitably would
take substantial effort to plan and execute. And, indeed, the
record confirms that PREP Tours did make considerable efforts on
defendants' behalf. In addition to the work designing and
reconfiguring the itineraries described above -- and with
defendants' acknowledgement that they were close to formally
engaging PREP Tours -- the company proceeded to make concrete
arrangements with other businesses, including flight and hotel
reservations.
The majority appears to contend that PREP Tours'
provision of in-forum services must be viewed as largely unilateral
-- and thus irrelevant to the question of whether defendants could
foresee being haled into court in Puerto Rico. The suggestion of
one-sided activity is unsupportable, however, given defendants'
The majority states that PREP Tours did not allege that it
"contacted a single other business, soccer team, or person who did
not work for PREP Tours in response to the defendants' inquiry."
(Emphasis added.) If the majority is suggesting that PREP Tours
did not contact anyone with whom they had no prior dealings, I
fail to see the relevance of that fact. Even if some of these
businesses had previously given a quote, it is a reasonable
inference that PREP Tours had to contact them again each time
defendants asked to modify the itinerary.
- 52 -
series of emails expressly asking PREP Tours to develop itineraries
with specified requests.35 It should have been obvious to
defendants that PREP Tours could not respond to their inquiries
without engaging with local companies -- repeatedly -- to ensure
availability at the requested times and to determine the tour's
cost.
Despite these extensive and extended interactions,
driven by defendants' repeated requests, my colleagues also
characterize the negotiations between the parties as "preliminary"
in an effort to minimize the scope and quality of PREP Tours'
efforts. Yet, negotiations prior to a formal agreement are always
preliminary in a sequential sense. Here, the pre-contractual
negotiations went well beyond the "just inquiring" phase to the
brink of an agreement. Thus, discounting the extent of PREP Tours'
in-forum activities because they were preliminary to a formal
agreement unfairly ignores the significance of those activities
for the purposeful availment inquiry. Put another way, defendants'
contacts with PREP Tours forged a business relationship that was
35
My colleagues, for example, state that PREP Tours was
"push[ing]" defendants for more details when the company asked for
the number of trip participants, which prompted Ramírez to send a
document listing the names of players and coaches and indicating
that a total of 252 people would be on the trip. Taken in the
light most favorable to PREP Tours, however, the inquiry about
participants was in fact a response to defendants' request to
provide a quote for the tour that did not go above $2,000 per
person.
- 53 -
sufficiently developed to "cross[] the purposeful availment
threshold." Baskin-Robbins, 825 F.3d at 39.
C. Summary
The circumstances here differ markedly from those in
Copia. The facts alleged by PREP Tours, together with the
reasonable inferences drawn therefrom, show that defendants
targeted their conduct toward Puerto Rico and Puerto Rico
businesses such that they should have foreseen the likelihood of
being haled into court in Puerto Rico if a business dispute arose.
See Burger King, 471 U.S. at 474. The primary products of a tour
company include its ability to design an attractive itinerary
suited to travelers' specified needs, and its capacity to reduce
that itinerary to a confirmed plan with service providers. PREP
Tours moved forward with that process, urged on by defendants'
expression of satisfaction and indications that defendants were
ready to "seal the deal." The flight and hotel reservations that
PREP Tours secured reflect the firmness of the arrangements.
The fact that no contract ultimately was signed, and
that the services performed therefore did not lead to additional
activity by PREP Tours, does not diminish the extent of the work
PREP Tours had performed when defendants abruptly pulled out of
the relationship. Indeed, the essence of PREP Tours' tort claim
is that the defendants unfairly ended the relationship, denying
PREP Tours the opportunity to perform additional, compensable work
- 54 -
that should have been the return on their pre-contractual
investment of time and resources.36
Moreover, the abrupt termination of the negotiations
permits a reasonable inference that defendants strung PREP Tours
along to extract, at no cost, the maximum advantage from its local
knowledge and contacts, with the intent to pass along that
information to the company that would ultimately be providing the
Puerto Rico tour. Contrary to the scenario in Copia, the
defendants' contacts with the forum were far from "random, isolated
or fortuitous," Adelson, 510 F.3d at 50 (quoting Sawtelle, 70 F.3d
at 1391), and the Puerto Rico district court "should have the power
to subject [] defendant[s] to judgment regarding th[eir]
behavior," Baskin-Robbins, 825 F.3d at 36 (quoting Carreras, 660
F.3d at 555).
III.
Having thus explained why PREP Tours has satisfied the
purposeful availment prong of the personal jurisdiction inquiry,
36
In maintaining that the defendants' contacts here were less
substantial than those found inadequate in Copia, the majority
points out that the Copia negotiations involved "numerous contacts
between the parties to secure an ongoing services relationship."
But the quantity of contacts was not the problem in Copia; rather,
the contacts were not sufficiently connected to the forum. Here,
by contrast, every communication between the parties was sent to
or from Puerto Rico, and each related to services to be performed
in Puerto Rico. Hence, the substance of the contacts here -- i.e.,
the direct link to Puerto Rico -- carries far more weight in
showing purposeful availment.
- 55 -
I turn to the remaining components: relatedness and
reasonableness.
A. Relatedness
The relatedness prong "focuses on the nexus between the
defendant's contacts and the plaintiff's cause of action."
Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.
1994). Specifically with reference to PREP Tours' tort claim, it
is apparent that the contacts described above -- i.e., the ongoing
interactions between defendants and PREP Tours to plan the soccer
tour to Puerto Rico -- are the core of the alleged bad-faith
negotiations cause of action. Furthermore, the injury to PREP
Tours from defendants' alleged freeloading was foreseeable to
defendants, who misused a "product" -- the development of a
specialized local itinerary -- that PREP Tours was selling.
Although defendants argue that the alleged injury
occurred elsewhere -- i.e., in California, where they ultimately
contracted with a local company -- the asserted tortious conduct
was directed at Puerto Rico and the alleged harm occurred there.
Where a defendant's contacts primarily consist of remote
communications, we necessarily focus on the target of the
communications and the effects in that forum. See Calder v. Jones,
465 U.S. 783, 789 (1984) (holding that jurisdiction in California
was proper when the effects of defendants' intentional conduct in
Florida were felt, and caused a tortious injury, in California).
- 56 -
Accordingly, defendants' substantial contacts with Puerto Rico
clearly relate to the culpa in contrahendo tort claim.
B. Reasonableness
After a plaintiff has satisfied the relatedness and
purposeful availment prongs of the personal jurisdiction analysis,
defendants may nonetheless show that it would be unreasonable for
the plaintiff's chosen forum to exercise jurisdiction over them.
Courts have identified five so-called "gestalt factors" that "put
into sharper perspective the reasonableness and fundamental
fairness of exercising jurisdiction in particular situations."
Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). Those factors
are:
(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
Adelson, 510 F.3d at 51 (quoting United Elec. Radio & Mach. Workers
of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir.
1992)).
Here, the factors inescapably weigh in favor of finding
jurisdiction in Puerto Rico. First, despite defendants' assertion
that it would be costly and burdensome for a non-profit
organization located in California to litigate in Puerto Rico,
- 57 -
litigants can electronically submit filings to a court and video-
conference from anywhere in the country, reducing the need to
travel. Absent a "special or unusual burden," Pritzker, 42 F.3d
at 64, defendants cannot assert distance as a barrier. Second, as
to the forum state's interest, Puerto Rico has a clear interest in
protecting its residents from conduct that targets and injures
them. See, e.g., McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223
(1957) (noting a state's "manifest interest in providing effective
means of redress for its residents when" they are injured by an
out-of-state party). Third, PREP Tours' interest in resolving the
dispute in Puerto Rico is obvious, and we have held that a
plaintiff's choice of forum must be afforded a degree of deference.
See Ticketmaster, 26 F.3d at 211. Fourth, we have observed that
all sovereigns share an interest in "ensuring that [the
sovereign's] companies have easy access to a forum when their
commercial contracts are said to be breached by out-of-state
defendants." Downer, 771 F.3d at 70. Puerto Rico's culpa in
contrahendo doctrine reflects this interest in ensuring that
injuries arising from pre-contractual relationships are
conveniently redressed.37
37
The fifth factor, the judicial system's interest, has no
particular significance here. Although this litigation is already
underway in Puerto Rico, and starting the suit anew in California
would involve another court system, that situation presumably
would exist in every case in which personal jurisdiction is
challenged.
- 58 -
In sum, the gestalt factors do not even remotely show
that it would be unfair for defendants to be "haled into court" in
Puerto Rico to respond to PREP Tours' allegations. World-Wide
Volkswagen, 444 U.S. at 297.
IV.
Fairly read, with inferences properly drawn in favor of
PREP Tours, the record reveals that personal jurisdiction over
defendants is proper in Puerto Rico, PREP Tours' chosen forum.
Accordingly, this case should not have been dismissed, and I
therefore respectfully dissent.
- 59 -
PREP Tours Inc. v. American Youth Soccer Org.
Court: Court of Appeals for the First Circuit
Date filed: 2019-01-08
Citations: 913 F.3d 11
Copy CitationsCombined Opinion