Sunview Condominium Ass'n v. Flexel International, Ltd.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-2173

SUNVIEW CONDOMINIUM ASSOCIATION, ET AL.,

Plaintiffs, Appellants,

v.

FLEXEL INTERNATIONAL, LTD.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

Christopher J. Sorenson, with whom Gary J. Gordon, Katherine

A. Killen Hall, Fetterly & Gordon, P.A., John L. Putnam, and

Stebbins, Bradley, Wood & Harvey were on brief, for appellants.

Mark G. DeGiacomo, with whom M. Carolina Avellaneda and

Roche, Carens & DeGiacomo, P.C. were on brief, for appellee.

June 27, 1997

SELYA, Circuit Judge. In this appeal, the plaintiffs
SELYA, Circuit Judge.

make two related arguments. First, they contend that they were

improperly precluded from undertaking jurisdictional discovery.

Second, they assert that this initial error was compounded when

the district court subsequently dismissed their action for want

of jurisdiction over the corporate person of defendant-appellee

Flexel International, Ltd. (Flexel).1 Discerning no reversible

error, we affirm.

I. BACKGROUND
I. BACKGROUND

The Sunview Condominium Complex is located amidst the

serene pastoral beauty of Derry, New Hampshire. On December 17,

1993, that tranquility went up in smoke, literally and

figuratively, when a conflagration erupted at the complex. Those

flames, in turn, ignited the controversy which underlies this

appeal. Alleging that radiant heating panels manufactured by

Flexel's predecessor in interest, Thermaflex International, Ltd.

(Thermaflex), had caused the blaze, the Sunview Condominium

Association and its management company, Evergreen Management,

Inc. (collectively, Sunview), brought this product liability

class action to recover damages.2

1The plaintiffs originally sued both Flexel and Aztech
International, Ltd. (Aztech). Aztech is now in bankruptcy, and
the district court certified its order dismissing the action
against Flexel as a final judgment under Fed. R. Civ. P. 54(b).
Thus, we treat the appeal as if Flexel were the sole defendant.

2Sunview alleges that Thermaflex (the actual manufacturer of
the heating panels) transferred its assets to Flexel in mid-1993.
For the purpose of resolving the jurisdictional issue, the lower
court assumed arguendo that Flexel, a Scottish corporation, is

the successor in interest to Thermaflex, an English firm. We,

2

The relevant chronology is as follows. Sunview

commenced its suit in August 1995. In February 1996, Flexel

moved to dismiss for want of personal jurisdiction. Without

having undertaken any other discovery, Sunview sought to take

depositions of Flexel officials in Scotland. When Flexel turned

a cold shoulder, Sunview moved to compel it to cooperate in the

taking of the desired depositions. Magistrate Judge Muirhead

denied Sunview's motion. See Sunview Condo. Ass'n v. Aztech

Int'l, Ltd., Civ. No. 95-418-B, slip op. at 2-6 (D.N.H. May 1,

1996).

Sunview did not lodge an objection to the magistrate's

ruling. On May 28, 1996, it filed an opposition to the dismissal

motion. On September 3, the district court, finding an absence

of minimum contacts, granted the motion to dismiss. This appeal

ensued.

II. ANALYSIS
II. ANALYSIS

Although Sunview's two claims of error are

interconnected, a separate set of legal principles applies in

each instance. Consequently, we treat the two claims

sequentially.

A. Denial of Jurisdictional Discovery.
A. Denial of Jurisdictional Discovery.

Sunview argues heatedly that it should have been

permitted to engage in jurisdictional discovery. This

asseveration has some superficial appeal. After all, a diligent

plaintiff who sues an out-of-state corporation and who makes out

too, proceed on that assumption.

3

a colorable case for the existence of in personam jurisdiction

may well be entitled to a modicum of jurisdictional discovery if

the corporation interposes a jurisdictional defense.3 See

Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1086

(1st Cir. 1973); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254,

255-56 (1st Cir. 1966) (per curiam). But that entitlement is not

absolute; in all events, it presupposes that the plaintiff is

reasonably attentive to the preservation of its rights. That is

not the situation here.

When Sunview could not convince Magistrate Judge

Muirhead to approve the depositions that it wished to take, it

dropped the matter. Specifically, it eschewed the filing of a

timely objection to the magistrate's order denying its motion to

compel discovery. This omission is fatal to Sunview's first

assignment of error. We explain briefly.

Since the motion to compel discovery involved a

nondispositive matter, the magistrate's order was effective when

made, and it was therefore immediately appealable to the district

court. See 28 U.S.C. 636(b)(1)(A). To receive such review, a

3This rule has its limitations. See, e.g., Compagnie De

Bauxites De Guinee v. L'Union Atlantique S.A., 723 F.2d 357, 362

(3d Cir. 1983) (indicating that discovery may be disallowed if
the assertion of jurisdiction appears frivolous). Moreover, even
when the rule applies, the plaintiff is not necessarily entitled
to take depositions. Here, Sunview never attempted to learn
jurisdictional facts through interrogatories or demands for
document production, see Fed. R. Civ. P. 33, 34, and we have no

way to tell either how effective these less intrusive devices may
have been or to what extent Flexel would have sought protection
from them (and if so, whether the magistrate would have permitted
their use).

4

party must file objections within ten days from service of a copy

of the order. See Fed. R. Civ. P. 72(a). Unless an objection is

filed within this window of opportunity, a magistrate's order on

a nondispositive matter, such as a self-operating order granting,

denying, or limiting pretrial discovery, is not thereafter

reviewable on appeal. See Pagano v. Frank, 983 F.2d 343, 346

(1st Cir. 1993); see also Keating v. Secretary of HHS, 848 F.2d

271, 275 (1st Cir. 1988) (per curiam) (explicating same rule in

respect to a party's failure to file timeous objections to a

magistrate's recommended disposition of a dispositive motion).

The Civil Rules are quite explicit on this point:

Within 10 days after being served with a copy
of the magistrate judge's order, a party may
serve and file objections to the order; a
party may not thereafter assign as error a
defect in the magistrate judge's order to
which objection was not timely made.

Fed. R. Civ. P. 72(a); see also 28 U.S.C. 636(b)(1)(A)

(empowering the district court to reconsider and set aside a

magistrate's order on a nondispositive matter when the order is

clearly erroneous or contrary to law).

This court has applied the plain directive of Rule

72(a) straightforwardly and in accordance with its tenor. See

Pagano, 983 F.2d at 346; Unauthorized Practice of Law Comm. v.

Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992) (per curiam); see also

United States v. Ecker, 923 F.2d 7, 9 (1st Cir. 1991) (per

curiam) (citing 28 U.S.C. 636(b)(1)(A)). These cases stand

unambiguously for the proposition that, in order to receive

review of a magistrate's order on a nondispositive matter in a

5

court of appeals, the aggrieved party first must have sought

district court review by timely filing an objection to the order.

The instant case presents no occasion for a departure

from this salutary proposition. Because Sunview never sought to

have the district court review the magistrate's ruling, the issue

of jurisdictional discovery is by the boards and Sunview cannot

resurrect it in this venue.

B. Dismissal for Want of Jurisdiction.
B. Dismissal for Want of Jurisdiction.

Sunview argued below, as it does here, that Thermaflex,

Flexel's predecessor in interest, see supra note 2, purposefully

availed itself of the privilege of doing business in New

Hampshire, and therefore subjected itself (and Flexel, as its

successor) to suits in New Hampshire arising out of its New

Hampshire-directed activities. Judge Barbadoro rejected this

thesis, holding, after an exhaustive review of the record, that

Sunview had pointed to "insufficient contact[s] to establish

Thermaflex's purposeful availment of New Hampshire as a place to

do business." Sunview Condo. Ass'n v. Aztech Int'l, Ltd., Civ.

No. 95-418-B, slip op. at 10 (D.N.H. Sept. 3, 1996). Sunview

assigns error to this order.4 We see none.

To wax longiloquent would serve no useful purpose. We

have stated before, and today reaffirm, that "when a lower court

produces a comprehensive, well-reasoned decision, an appellate

4Because Sunview never raised the discovery issue before
Judge Barbadoro, see supra Part II(A), we pay no heed to its vain

attempt to attack the judge's order on the basis of curtailed
discovery.

6

court should refrain from writing at length to no other end than

to hear its own words resonate." Lawton v. State Mut. Life

Assur. Co. of Am., 101 F.3d 218, 220 (1st Cir. 1996); accord In

re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st

Cir. 1993). That principle is dispositive here. Judge

Barbadoro's rescript cites the relevant case law, see, e.g.,

Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Foster-Miller,

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

Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201 (1st Cir. 1994);

Boit v. Gar-Tech Prods., Inc., 967 F.2d 671 (1st Cir. 1992),

applies the legal principles derived therefrom to the documented

facts in an impeccable manner, and reaches an unarguably correct

conclusion. Hence, we dispense with this aspect of Sunview's

appeal for substantially the reasons elucidated in the lower

court's opinion.

We need go no further. Given Sunview's procedural

default on the discovery front and the paucity of its proffer on

the merits of the jurisdictional issue, the judgment below must

be

Affirmed.
Affirmed.

7