United States v. Swiss American Bank, Ltd.

United States Court of Appeals
For the First Circuit
No. 00-2502

UNITED STATES OF AMERICA,

Plaintiff, Appellant,

v.

SWISS AMERICAN BANK, LTD.,
SWISS AMERICAN NATIONAL BANK, and
INTER-MARITIME BANK, GENEVA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Tauro,* District Judge.

Mia Levine, Trial Attorney, United States Department of Justice,
with whom Gerald E. McDowell, Chief Trial Attorney, Karen Taylor, Trial
Attorney, Donald K. Stern, United States Attorney, and Richard L.
Hoffman, Assistant United States Attorney, were on brief, for
appellant.
Howard Wilson, with whom Alan H. Scheiner, Rosenman & Colin LLP,
Michael B. Keating, Sarah Cooleybeck, and Foley, Hoag & Eliot LLP were
on brief, for appellees Swiss American Bank, Ltd. and Swiss American
National Bank.
Wm. Shaw McDermott, with whom Irene C. Freidel, Aimee Bierman, and
Kirkpatrick & Lockhart LLP were on brief, for appellee Inter-Maritime
Bank, Geneva.

* Of the District of Massachusetts, sitting by designation.
December 27, 2001

-2-
 TORRUELLA, Circuit Judge. The United States government

attempted to recover $7 million in drug proceeds that a Massachusetts

resident deposited in an Antiguan bank and then forfeited to the United

States as part of a plea agreement. After the bank did not turn over

the funds, the United States filed a claim in the Massachusetts

District Court for conversion, unjust enrichment, and breach of

contract against Swiss American Bank and its alleged alter ego, Bank of

New York-Inter-Maritime Bank. For the second time, the government

appeals the court's dismissal of the case for lack of personal

jurisdiction and its refusal to allow jurisdictional discovery. After

completing a plenary review, we agree with the district court that the

government failed to make a prima facie showing of specific or general

jurisdiction, and conclude that the district court acted within its

discretion to deny the government jurisdictional discovery. We

therefore affirm the judgment.

I.

Between 1985 and 1987, John E. Fitzgerald, a resident of

Massachusetts, deposited about $7 million in Swiss American Bank and

Swiss American National Bank (collectively SAB), both organized under

the laws of Antigua and Barbuda and located there. Fitzgerald

deposited the money in accounts held in the name of shell corporations.1

1 According to the government, the accounts were held in the name of
Rosebud Investments, Ltd., White Rose Investments, Ltd., Handle
Investments, Ltd., J & B Investments, Ltd., and Guardian Bank, Ltd.

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When he made the deposits, SAB was the wholly owned subsidiary of Swiss

American Holding Company,2 a Panamanian corporation, which in turn was

wholly owned by Bank of New York-Inter-Maritime Bank (IMB), an

institution organized under Swiss law and based in Geneva.

In 1993, Fitzgerald pled guilty to several counts of

conspiracy for racketeering and attempted money laundering. He

admitted that the funds deposited at SAB were drug proceeds that he had

laundered through shell corporations organized with the help of Peter

F. Herrington, then SAB's general manager. During some of the time

that Fitzgerald deposited his money at SAB, his funds represented about

one-third of the bank's total deposits. As part of his plea agreement,

Fitzgerald agreed to forfeit the money in his SAB accounts to the

United States government.

In November 1993, the U.S. District Court for the District

of Massachusetts entered a preliminary order of forfeiture regarding

the deposited funds. Beginning in January 1994, the United States made

a series of requests to the Antiguan government seeking assistance in

recovering the money. Meanwhile, notice of the impending forfeiture was

published in the Antiguan Gazette and the Boston Globe. No competing

For clarity's sake, we refer to them collectively as "Fitzgerald's
accounts."
2 The government failed to serve Swiss American Holding Company. As
a result, it is not a party to this litigation.

-4-
claims were filed. However, on March 28, 1994, during the filing

period, SAB sent a letter to the district court that stated:

[I]n the event of your action for forfeiture
being successful, the banks have been instructed
by the Government of Antigua and Barbuda to
freeze all of the assets . . . in issue in your
Petition, until the ultimate beneficial owners
have been ascertained to the Government's
satisfaction. This is a directive that the banks
have to honor on pain of having their licences
revoked and is a problem that you may well have
to address on the successful conclusion of your
litigation.

On May 4, 1994, the district court entered a final order

decreeing the money in Fitzgerald's SAB account to be forfeited to the

United States. In a November 13, 1995 letter, the Solicitor General of

Antigua informed the United States that the bank records of

Fitzgerald's account had been destroyed in a September 1995 hurricane

and that the funds had been frozen by the Antiguan government. On

November 20, 1995, the United States learned from a lawyer for Antigua

that the SAB funds were "no longer available" because they had been

transferred to the Antiguan government and used to pay off debts. It

is undisputed that in either December 1994 or January 1995, after the

final order of forfeiture was entered, SAB transferred $5 million from

Fitzgerald's account to the Antiguan government and kept the remaining

$2 million, apparently to pay off loans taken out by Fitzgerald. SAB

and the Antiguan government agree that the funds were disbursed with

the Antiguan government's approval.

-5-
 On December 23, 1997, the United States filed a complaint in

federal district court in Massachusetts suing SAB and IMB for

conversion, unjust enrichment, and breach of contract. On September

30, 1998, the district court dismissed the government's case for lack

of personal jurisdiction. See United States v. Swiss Am. Bank, Ltd.,

23 F. Supp. 2d 130 (D. Mass. 1998) ( Swiss I ). The court ruled that the

government failed to show that the defendants were beyond the

jurisdictional reach of any state court of general jurisdiction, as

required by Federal Rule of Civil Procedure 4(k)(2). Id. at 136. The

court also denied the government's request for discovery because of its

failure to plead this element of personal jurisdiction. Id.

The government appealed, and we reversed the district court's

dismissal for lack of jurisdiction under Rule 4(k)(2). See United

States v. Swiss Am. Bank, Ltd., 191 F.3d 30 (1st Cir. 1999) ( Swiss II).

We said that three elements are required for the exercise of personal

jurisdiction under Rule 4(k)(2): (1) the plaintiff's claim must arise

under federal law; (2) the defendant must be beyond the jurisdictional

reach of any state court of general jurisdiction (the "negation

requirement"); and (3) the exercise of jurisdiction must not violate

the defendant's rights under the Constitution or federal law. See id.

at 38-39. We found that the government had satisfied the first element

of this test, and directed the district court to apply a new burden-

shifting framework to the negation requirement. See id. at 41. We

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also directed the court to reconsider the government's request for

discovery in light of the new negation requirement analysis that we set

forth. See id. at 46. Finally, we declined to rule on IMB's argument

that the case against it should be dismissed on the merits, saying that

this matter should await resolution of the jurisdictional issue. See

id. at 46-47.

On remand, SAB and IMB renewed their motions to dismiss, and

the government subsequently renewed its request for discovery. The

district court held a hearing on these motions on March 30, 2000. The

court's review included affidavits and related evidence submitted by

both parties, including a report from the government's investigator, as

well as the allegations contained in the pleadings. At the hearing,

the court granted IMB's motion to dismiss for failure to adequately

plead alter ego liability and for lack of personal jurisdiction. See

United States v. Swiss Am. Bank, Ltd., 116 F. Supp. 2d 217, (D. Mass.

2000) ( Swiss III). Following the hearing, the court issued a written

opinion dismissing the case against SAB for lack of personal

jurisdiction. See id. at 225. Applying the burden-shifting framework

set forth in Swiss II, the court found that the defendants had conceded

the negation requirement. Id. at 220. It then turned to the third

element under Rule 4(k)(2): whether jurisdiction would violate

constitutional due process because the defendants lacked adequate

contacts with the United States as a whole and because the exercise of

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jurisdiction would be unreasonable. Id. The court found that the

government failed to show sufficient contacts under either a general or

specific theory of personal jurisdiction. Id. at 222-25. Finding that

the government's jurisdictional showing was "bootless" and did not

amount to a colorable claim, the court also denied the request for

jurisdictional discovery. Id. at 225.

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 II.

It is basic law that a court must have personal jurisdiction

over the parties to hear a case, "that is, the power to require the

parties to obey its decrees." Swiss II, 191 F.3d at 35. At the same

time, "[d]etermining personal jurisdiction has always been more an art

than a science." Donatelli v. Nat'l Hockey League, 893 F.2d 459, 468

n.7 (1st Cir. 1990). As Justice Marshall said, the jurisdictional

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 Kulko v. Super. Ct., 436 U.S. 84, 92

(1978)) (internal quotation marks and citations omitted).

The personal jurisdiction inquiry in federal question cases

like this one differs from the inquiry in diversity cases. See 28

U.S.C. § 1332. Here, "the constitutional limits of the court's

personal jurisdiction are fixed . . . not by the Fourteenth Amendment

but by the Due Process Clause of the Fifth Amendment." United Elec.,

Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085

(1st Cir. 1992) ( Pleasant St. I ). This distinction matters because

under the Fifth Amendment, a plaintiff need only show that the

defendant has adequate contacts with the United States as a whole,

rather than with a particular state. See id. At the same time,

however, the plaintiff must still ground its service of process in a

federal statute or civil rule. See id. In this case, the government's

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asserted basis for jurisdiction is Federal Rule of Civil Procedure

4(k)(2).3 The Rule functions "as a species of federal long-arm statute"

by "clos[ing] [the] loophole" that existed when foreign defendants

"lacked single-state contacts sufficient to bring them within the reach

of a given state's long-arm statute," but "had enough contacts with the

United States as a whole to make personal jurisdiction over them in a

United States court constitutional." Swiss II, 191 F.3d at 40.

Whereas state long-arm statutes require a showing that the parties have

sufficient contacts with the forum state, Rule 4(k)(2) requires a

showing that the parties have sufficient contacts with the United

States as a whole.

"A district court may exercise authority over a defendant by

virtue of either general or specific jurisdiction." Mass. Sch. of Law

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

"Specific jurisdiction exists when there is a demonstrable nexus

between a plaintiff's claims and a defendant's forum-based activities."

3 Enacted in 1993, the Rule provides:

If the exercise of jurisdiction is consistent
with the Constitution and laws of the United
States, serving a summons or filing a waiver of
service is also effective, with respect to claims
arising under federal law, to establish personal
jurisdiction over the person of any defendant who
is not subject to the jurisdiction of the courts
of general jurisdiction of any state.

Fed. R. Civ. P. 4(k)(2).

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Id. "General jurisdiction exists when the litigation is not directly

founded on the defendant's forum-based contacts, but the defendant has

nevertheless engaged in continuous and systematic activity, unrelated

to the suit, in the forum state." Pleasant St. I , 960 F.2d at 1088.

Here the government argues that it has met the tests for both general

and specific jurisdiction. In the alternative, the government contends

that if its jurisdictional showing fell short, the district court

should have allowed it to take limited discovery of SAB's contacts with

the United States as a whole.

When a district court rules on a motion to dismiss for lack

of personal jurisdiction without holding an evidentiary hearing, as in

this case, the "prima facie" standard governs its determination. See

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

987 F.2d 39, 43 (1st Cir. 1993) ( Pleasant St. II); Boit v. Gar-Tec

Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992). "Under this standard,

it is plaintiff's burden to demonstrate the existence of every fact

required to satisfy both the forum's long-arm statute and the Due

Process Clause of the Constitution." Pleasant St. II, 987 F.2d at 44

(internal quotation marks omitted). "The prima facie showing must be

based upon evidence of specific facts set forth in the record." Id.

To meet this requirement, the plaintiff must "go beyond the pleadings

and make affirmative proof." Id. (internal quotation marks omitted).

However, in evaluating whether the prima facie standard has been

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satisfied, "the district court is not acting as a factfinder; rather,

it accepts properly supported proffers of evidence by a plaintiff as

true and makes its ruling as a matter of law." Id. When "the district

court employs the prima facie standard . . . appellate review is de

novo." Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 147

(1st Cir. 1995).

A. General Jurisdiction

The government argues that it has demonstrated sufficient

contacts to make a prima facie showing of general jurisdiction. In

evaluating whether the exercise of personal jurisdiction is warranted,

courts concentrate on the "quality and quantity of contacts between the

potential defendant and the forum." Phillips Exeter Acad. v. Howard

Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999). The assertion

of general jurisdiction comports with due process when two criteria are

met. First, there must be "continuous and systematic general business

contacts" between the foreign defendant and the forum. Helicópteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).

Second, the plaintiff must show that the exercise of jurisdiction would

be reasonable. See Donatelli, 893 F.2d at 465 (discussing the five

"gestalt factors" used to determine fundamental fairness of exercising

jurisdiction). As a threshold matter, "[t]he standard for evaluating

whether these contacts satisfy the constitutional general jurisdiction

test is considerably more stringent than that applied to specific

-12-
jurisdiction questions." Noonan v. Winston Co., 135 F.3d 85, 93 (1st

Cir. 1998) (internal quotation marks omitted).

We start with the defendant's contacts with the forum because

"[i]f the same do not exist in sufficient abundance . . . the inquiry

ends." Donatelli, 893 F.2d at 465. The district court found that the

contacts discovered by the government's investigator, and taken as true

for purposes of the motion to dismiss, were as follows: (1) in 1992 and

1993 SAB placed twelve advertisements in American Way magazine, a

publication of American Airlines; (2) during an unspecified period, SAB

subscribed to Visa International, a California credit card company, and

entered into a licensing agreement with MasterCard International, a New

York company; (3) in 1990, SAB was an appellant in a lawsuit in a

Florida court; (4) in 1998, information about SAB was posted on three

internet sites;4 (5) in 1996, SAB entered into a contract with Arkansas

Systems, Inc., an Arkansas company, for the provision of ATM support

services; (6) sometime before 1985, SAB entered into a joint venture

with Home State Savings Bank of Ohio; (7) in 1996, SAB loaned $350,000

to a Colorado company that runs an internet service called Sportspiks;

(8) in 1996, SAB "may have" had business relations with Nhancement

Technologies, Inc., a California company; (9) SAB "had correspondent

4 Because we consider only contacts established before the government
filed its complaint in December 1997, see Noonan, 135 F.3d at 93 n.8,
the appearance of information about SAB on the internet in 1998 is not
relevant to our analysis.

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banking relationships and accounts" with four New York banks; and (10)

SAB had a business relationship with Fitzgerald. See Swiss III, 116 F.

Supp. 2d at 221-22.

The government concedes that SAB has no office, personnel,

or telephone number in the United States, but nevertheless argues that

the contacts described above are continuous and systematic when

considered "in the aggregate." Ticketmaster-N.Y., Inc. v. Alioto, 26

F.3d 201, 204 (1st Cir. 1994). The government contends that the

contacts show that "SAB conducts business in the United States without

the need for a physical presence," and that "[a]s the banking universe

expands to include Internet banking and correspondent bank

relationships as routine, so too must the bases under which

internationally active banks are held accountable by the jurisdictions

in which they have customers and conduct business."

Compelling as this argument may be in some respects, it fails

the legal test for "continuous and systematic" contacts. In

determining what constitutes "continuous and systematic" contacts, our

analysis is "a fact-specific evaluation" of the defendant's contacts

with the forum. Noonan, 135 F.3d at 93. For guidance in this factual

inquiry, we look to "the types of contacts deemed sufficiently

continuous and systematic in other cases." Id.

As the district court correctly pointed out, SAB's contacts

with the United States are less continuous and systematic than contacts

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found to be insufficient for general jurisdiction in previous cases.

See Swiss III, 116 F. Supp. 2d at 224-25. In Helicópteros, the Supreme

Court found that a Texas district court could not exercise jurisdiction

over a Colombian corporation that sent its chief executive officer to

Houston for contract negotiations; accepted into its New York bank

accounts checks drawn on a Houston bank; bought equipment and training

services from a Texas corporation; and sent personnel to that

corporation's Texas facilities for training. 466 U.S. at 416.

Similarly, in Noonan, we found that the Massachusetts

district court could not exercise jurisdiction over a British company

that sent an employee to Massachusetts to photograph the plaintiff,

directly solicited business from a Massachusetts company, and received

$585,000 in orders from that same company. 135 F.3d at 93. In

Donatelli, we said that no jurisdiction attached in Rhode Island over

the National Hockey League, which for ten years provided league

officials at exhibition games, telecast games into Rhode Island, and

sold products with the National Hockey League logo. 893 F.2d at 470-

71. In Glater, the defendant Indiana corporation employed eight sales

representatives in New Hampshire, conducted business in the state, and

advertised in trade journals that circulated there. 744 F.2d at 215.

We said that "these vestigial contacts" did not suffice for the

exercise of jurisdiction. Id. at 217.

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 In short, the government has not shown that SAB's limited and

intermittent contacts with the United States rise to the level of what

we have previously understood as "continuous and systematic." As a

result, the government has not made the prima facie showing needed for

the exercise of general personal jurisdiction.

B. Specific Jurisdiction

The government asserts that even if it has not shown contacts

sufficient to satisfy the "continuous and systematic" threshold for

general jurisdiction, it has nevertheless proved individual contacts

with the forum sufficient for the exercise of specific jurisdiction.

Determining whether the plaintiff has alleged sufficient facts for a

finding of specific jurisdiction requires a three-part analysis.

Phillips Exeter, 196 F.3d at 288.

First, an inquiring court must ask whether the
claim that undergirds the litigation directly
relates to or arises out of the defendant's
contacts with the forum. Second, the court must
ask whether those contacts constitute purposeful
availment of the benefits and protections
afforded by the forum's laws. Third, if the
proponent's case clears the first two hurdles,
the court then must analyze the overall
reasonableness of an exercise of jurisdiction in
light of a variety of pertinent factors that
touch upon the fundamental fairness of an
exercise of jurisdiction.

Id. We begin with the question of whether the government made a prima

facie showing that its claims were directly related to or arose out of

SAB's contacts with the United States.

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 "The requirement that a suit arise out of, or be related to,

the defendant's in-forum activities comprises the least developed prong

of the due process inquiry." Ticketmaster-N.Y., 26 F.3d at 206. "We

know to a certainty only that the requirement focuses on the nexus

between defendant's contacts and the plaintiff's cause of action."

Id.; accord Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995).

We begin by identifying the alleged contacts, since there can be no

requisite nexus between the contacts and the cause of action if no

contacts exist. Cf. Sawtelle, 70 F.3d at 1389 (stating that the

defendant's contacts are central to each prong of the tripartite

analysis).

In this case, the government essentially alleges two

relatedness contacts between SAB and the United States. First, the

government asserts that the contractual relationship between SAB and

Fitzgerald (or the United States, as Fitzgerald's successor in

interest) constitutes a contact, one which was overlooked by the

district court. Second, the government claims that the injurious

effects of the alleged conversion were felt in the United States, and

thus constitute a contact with the forum. The government does not

allege any other related contacts with the forum, such as telephone

calls, mail, or physical presence.

We turn first to the alleged contact based on the

relationship between Fitzgerald and SAB. The flaw in the government's

-17-
argument is that SAB's business relationship and/or contract with

Fitzgerald, however, is not itself a contact with the United States as

a forum. See Sawtelle, 70 F.3d at 1389 (stating that the relatedness

requirement is not met by a cause of action that arises out of a

general relationship between the parties, but rather, that the action

must arise out of specific contacts between the defendant and the

forum). A contract is "but an intermediate step serving to tie up

prior business negotiations with future consequences which themselves

are the real object of the business transaction." Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 479 (1985) (internal quotations omitted). A

contract, by itself, cannot automatically establish minimum contacts.

Id. at 478. Rather, Burger King developed what we have described as a

"'contract-plus' analysis." Ganis Corp. v. Jackson, 822 F.2d 194, 197-

98 (1st Cir. 1987). Thus, "prior negotiations and contemplated future

consequences, along with . . . the parties' actual course of dealing .

. . must be evaluated in determining whether the defendant" has minimum

contacts with the forum. Burger King, 471 U.S. at 479 (finding that

franchise contract, which envisioned a twenty-year relationship and

continuing contacts with the forum, constituted a contact for purposes

of due process analysis).

The government concedes that there is no evidence that

Herrington or any other SAB representative went to the United States in

connection with Fitzgerald's accounts. SAB's lack of a physical

-18-
presence in the United States, however, is not fatal to the case for

jurisdiction. See Burger King, 471 U.S. at 476 ("Jurisdiction in these

circumstances may not be avoided merely because the defendant did not

physically enter the forum State."); Pritzker v. Yari, 42 F.3d 53, 62

(1st Cir. 1994) ("a non-resident defendant may not always be able to

elude the net by such simple expedients as remaining physically outside

the forum"). When physical presence is lacking, we look for some other

indication that the defendant reached into the forum, such as mail or

telephone contacts. See Burger King, 471 U.S. at 476; Mass. Sch. of

Law, 142 F.3d at 36. The government has no such evidence here. For

example, the record does not show that the bank called or wrote to

Fitzgerald to solicit him as a customer or to manage his account.5 Cf.

Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 716-17 (1st Cir. 1996)

(defendant's correspondence soliciting business from plaintiff

satisfied minimal contacts requirement). Instead, the evidence shows

that Fitzgerald opened the SAB accounts in Antigua and that most of the

$7 million came not directly from the United States, but from "other

foreign locations." Swiss II, 191 F.2d at 38.

Although the government does not specifically argue the

point, SAB's March 28, 1994 letter to the Massachusetts district court

5 There is record evidence (in a report from the government's
investigator) that Herrington made phone calls to Boston in 1986 during
the period in which Fitzgerald was setting up his SAB accounts.
However, the report does not specify that Fitzgerald was the recipient
of those calls.

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informing it that the Antiguan government had frozen Fitzgerald's

accounts is also a jurisdictional contact. See Sawtelle, 70 F.3d at

1389-90 (letter and call made to forum by defendant in malpractice case

were "unquestionably a contact for purposes of our analysis"). The

letter was not a related contact for purposes of the government's

claim, however, because the letter was not essential to either the

formation or breach of the alleged contract between SAB and the

government. See Phillips Exeter, 196 F.3d at 289 (stating that a

contact is related for purposes of a contract claim when the contact is

"instrumental either in the formation of the contract or in its

breach"). Rather, the letter simply gave notice that payment might not

occur, so, at most, it can be considered only marginally instrumental

to the alleged breach.

In sum, having examined the business relationship between SAB

and Fitzgerald and/or the United States, which involves no in-forum

activities, we find that the government has not satisfied Burger King's

"contract-plus" requirement, see 471 U.S. at 478-79, to demonstrate

that this relationship is in fact a contact with the forum for the

purposes of the relatedness inquiry.

We now turn to the government's argument that the effects of

the injuries caused by SAB's activities qualify as related contacts.

The relatedness inquiry for tort claims focuses on whether the

defendant's in-forum conduct caused the injury or gave rise to the

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cause of action. Mass. Sch. of Law, 142 F.3d at 35. The government

asserts that SAB's role in advising Fitzgerald on laundering $7 million

in drug proceeds through an account in Antigua and the bank's

subsequent disbursement of those funds caused wrongful effects -- the

loss of the money to the United States government -- which were felt in

the United States. Because SAB refused to tender the allegedly

converted funds, and the effects of this injury were felt in the United

States, the government opines that these in-forum effects are contacts

that satisfy the relatedness element.

Because the government can point to no in-forum activities

by SAB that relate to its claim, the government attempts to bolster its

case for specific jurisdiction by relying on the in-forum "effects"

theory inaugurated in Calder v. Jones, 465 U.S. 783 (1984). In that

case, two newspapermen from Florida who were working for the National

Enquirer wrote an allegedly libelous article about a California

entertainer. Id. at 784-85. The article was primarily based on phone

calls to California sources. Id. at 785. However, Calder did not turn

on the presence of physical, mail, or telephone contacts between the

defendants and the forum. Id. at 787 n.6. Instead, the Supreme Court

held that California could assert personal jurisdiction over the

newspapermen "based on the 'effects' of [defendants'] Florida conduct

in California." Id. at 789.

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 Unfortunately for the government, though, in this case,

Calder cannot carry the day. Calder "cannot stand for the broad

proposition that a foreign act with foreseeable effects in the forum

state always gives rise to specific jurisdiction." Bancroft & Masters,

Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).

Calder is inapposite to this case for a number of reasons.

First, we have previously recognized that Calder's "effects"

test was adopted "for determining purposeful availment in the context

of defamation cases." Noonan, 135 F.3d at 90 (emphasis added). Thus,

the "effects" test is a gauge for purposeful availment and is to be

applied only after the relatedness prong has already been satisfied.

Although "there is a natural blurring of the relatedness and purposeful

availment inquiries in cases (like this one) in which the alleged

contacts are less tangible than physical presence[,] . . . the

inquiries are different. . . ." Phillips Exeter, 196 F.3d at 289. The

purposes behind each prong bring this difference into focus.

The relatedness inquiry separates general jurisdiction from

specific jurisdiction cases. Ticketmaster-N.Y., 26 F.3d at 206. When

alleged contacts fall short of being "continuous and systematic" so

that the exercise of general jurisdiction would be unfair, those

contacts may still support the exercise of specific jurisdiction if

they are related to the cause of action. Phillips Exeter, 196 F.3d at

288. The relatedness prong ensures fundamental fairness by protecting

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a defendant from being hauled into an out-of-state forum based on a

single contact with that forum that is wholly unrelated to the suit at

issue. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-

92 (1980) (noting that due process protects a defendant from

inconvenient forums and prevents states from overreaching the

boundaries of their sovereignty); Phillips Exeter, 196 F.3d at 287-88

(stating that due process protects those whose extra-forum activities

do not make personal jurisdiction in the forum foreseeable). When the

nexus between the forum contacts and the cause of action is too

attenuated, it violates fundamental fairness to force a defendant with

non-continuous or non-systematic contacts to defend himself in that

forum. Mass. Sch. of Law, 142 F.3d at 36 (arguing that a letter from

A to B, reporting on C's actions, cannot confer personal jurisdiction

over C in B's home state because the connection between B's state and

C's extra-forum activities is too attenuated).

The purposeful availment inquiry, though, focuses on the

defendant's intentionality. See Noonan, 135 F.3d at 90-91 (discussing

Calder's intent requirement for purposeful availment). This prong is

only satisfied when the defendant purposefully and voluntarily directs

his activities toward the forum so that he should expect, by virtue of

the benefit he receives, to be subject to the court's jurisdiction

based on these contacts. See Phillips Exeter, 196 F.3d at 292;

Ticketmaster-N.Y., 26 F.3d at 207-208.

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 Calder addressed purposeful availment, rather than

relatedness. See Noonan, 135 F.3d at 90 (discussing the intent of the

defendants in Calder by aiming their article at the forum state).

Calder focused on the defendants' intent to cause injury in the forum

by aiming their article at a forum resident and then publishing the

article there, knowing that the injury would be felt in the forum. 465

U.S. at 789-90. The only contacts between one of the Calder defendants6

and the forum were that his article was published within the forum and

the legal injury occurred within the forum. Calder, 465 U.S. at 786,

790; see also Keeton, 465 U.S. at 777 (noting that the legal injury of

libel occurs "wherever the offending material is circulated"). Both

the in-forum publication and the in-forum injury were clearly related

to the plaintiff's defamation suit, so the Supreme Court did not need

to address the relatedness prong before proceeding to the purposeful

availment inquiry. Thus, since Calder's "effects" test is relevant

only to the purposeful availment prong, it cannot be used to strengthen

the government's relatedness showing.

Second, courts "have struggled somewhat with Calder's

import." Bancroft & Masters, 223 F.3d at 1087.7 As we have previously

6 The second Calder defendant had other contacts with the forum, such
as the telephone calls he made to sources located in California.
Calder, 465 U.S. at 785-86.
7 Without conducting an exhaustive review of the case law, we note that
several circuits do not appear to agree as to how to read Calder.
Compare Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 943 (8th

-24-
noted, Calder's "effects" test was specifically designed for use in a

defamation case. Noonan, 135 F.3d at 90 (citing Calder as having

"adopted an effects test for determining purposeful availment in the

context of defamation cases"). Thus, whether Calder was ever intended

to apply to numerous other torts, such as conversion or breach of

contract, is unclear. See Imo Indus., Inc. v. Kiekert AG, 155 F.3d

254, 261 (3d Cir. 1998) (noting that courts, in applying Calder to non-

defamation cases, have adopted "a mixture of broad and narrow

interpretations"); McGlinchy v. Shell Chemical Co., 845 F.2d 802, 817

(9th Cir. 1988) (refusing to apply "effects" test to contract claim).

Third, the facts of Calder diverge widely from the facts in

this case. Although Calder's significance is based on its "effects"

theory, in that case, the actual tort or injury, not just its

consequences, occurred within the forum. Compare Keeton v. Hustler

Magazine, 465 U.S. 770, 776-77 (1984) (tort of libel is generally held

to occur wherever the libelous material is circulated), with Swiss II,

191 F.3d at 37 (legal injury of conversion occurs where conversion

Cir. 2001) (emphasizing numerous faxes and telephone calls into the
forum in finding jurisdiction under Calder), and Wien Air Alaska, Inc.
v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999) (same), with Imo Ind.,
Inc. v. Kiekert AG, 155 F.3d 254, 260 (3d Cir. 1998) ("Generally
speaking, under Calder an intentional tort directed at the plaintiff
and having sufficient impact upon it in the forum may suffice to
enhance otherwise insufficient contacts with the forum such that the
'minimum contacts' prong of the Due Process test is satisfied."), and
Lake, 817 F.2d at 1423 (finding jurisdiction under Calder where
nonresident attorney obtained ex parte order from out-of-forum court
knowing it would be used to cause injury in the forum).

-25-
takes place). Moreover, the in-forum publication of the article in

Calder provided an important contact for jurisdictional purposes; a

contact that is absent in this case, since any tortious conversion or

breach of contract occurred in Antigua.

Fourth, our Calder-based precedent dictates that the

government's "effects" argument is insufficient here to show

relatedness. "We have wrestled before with this issue of whether the

in-forum effects of extra-forum activities suffice to constitute

minimum contacts and have found in the negative." Mass. Sch. of Law,

142 F.3d at 36; accord Sawtelle, 70 F.3d at 1390-91 (relatedness

showing was "tenuous at best" when based on "effects" of defendants'

malpractice, committed outside of forum, and on ancillary legal advice

mailed into the forum); Kowalski v. Doherty, Wallace, Pillsbury &

Murphy, 787 F.2d 7, 11 (1st Cir. 1986) (finding that "effects" in the

forum are not equivalent to an actual injury caused in the forum by in-

forum activities).

The district court, based on the government's mere showing

of in-forum effects, rather than actual contacts or injury within the

forum, found the government's relatedness showing so "scant" that it

did not consider the purposeful availment or reasonableness elements of

the tripartite jurisdictional analysis. Swiss III, 116 F. Supp. 2d at

222. We are likewise underwhelmed by the government's relatedness

showing. Thus, our jurisdictional analysis need proceed no further.

-26-
Since the government has failed to satisfy the first prong of the

jurisdictional test, its argument for specific jurisdiction must fail.

C. Jurisdictional Discovery

In the alternative, the government requests discovery to

develop additional facts. The government asked for discovery in the

initial proceedings before the district court, but the court denied the

motion. In Swiss II, we vacated the denial and directed the district

court to reevaluate the government's request because the burden-

shifting framework for the negation requirement that we laid out

"undermine[d] the rationale for the district court's decision." 191

F.3d at 46. We noted that under our precedents, "[a] timely and

properly supported request for jurisdictional discovery merits

solicitous attention." Id. at 45.

On remand, the district court heard argument about the

government's request for jurisdictional discovery. In Swiss III, the

court denied the government's request. Considering only the

relatedness element of the test for specific jurisdiction, the court

said that "the government, while asserting that it has stated a

'colorable case' in satisfaction of the minimum contacts requirement

for specific personal jurisdiction, offers scant evidence in support of

that conclusion." 116 F. Supp. 2d at 222. The court concluded:

"Indeed, so bootless . . . is the government's showing here in light of

the applicable authority, that it has made no colorable claim

-27-
sufficient to entitle it to any further discovery." Id. at 225

(citation and internal quotation marks omitted).

We have long held that "a diligent plaintiff who sues an out-

of-state corporation and who makes out 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." Sunview Condominium Ass'n v. Flexel Int'l,

Ltd., 116 F.3d 962, 964 (1st Cir. 1997) (emphasis added); accord

Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966).

However, "that entitlement is not absolute." Sunview, 116 F.3d at 964.

A plaintiff must be diligent in preserving his or her rights. Id.

Moreover, even when the plaintiff has been diligent and has made a

colorable claim for personal jurisdiction, the district court still has

"broad discretion to decide whether discovery is required." Crocker v.

Hilton Int'l Barb., Ltd., 976 F.2d 797, 801 (1st Cir. 1992).

The standard for reversing a district court's decision to

disallow jurisdictional discovery is high. Given the trial court's

broad discretion in determining whether to grant jurisdictional

discovery, "[a] ruling will be overturned only upon a clear showing of

manifest injustice, that is, where the lower court's discovery order

was plainly wrong and resulted in substantial prejudice to the

aggrieved party." Crocker, 976 F.2d at 801 (internal quotation marks

omitted) (emphasis added); see also Noonan, 135 F.3d at 94.

-28-
 In this case, the government has been unable to show that the

district court's denial of discovery was "plainly wrong" and an abuse

of discretion. Even if this Court disagreed with the district court's

assessment that the government's jurisdictional showing was "bootless,"

Swiss III, 116 F. Supp. 2d at 225, such disagreement is an insufficient

basis for overturning the district court's decision. In order to

reverse the district court, we would have to find that its analysis was

"plainly wrong and resulted in substantial prejudice." Crocker, 976

F.2d at 801. We can make no such finding here.

After our analysis of the government's argument, it is

unclear that the government has presented what amounts to a "colorable"

claim for personal jurisdiction. As discussed above, the government's

relatedness showing was unconvincing. And, in order to find specific

personal jurisdiction, all three prongs of the tripartite test must be

satisfied. Phillips Exeter, 196 F.3d at 39. Moreover, if the

plaintiff fails to make a strong showing with respect to the first two

prongs, then the exercise of personal jurisdiction is more likely to be

found unreasonable under the third prong. Id. at 39 n.1. Thus, even

if this Court were ruling afresh (rather than under a restricted

standard of review) on the jurisdictional discovery issue, it is not

clear that discovery would be warranted. As a result, we can hardly

state that the district court was "plainly wrong" in denying discovery

for lack of a colorable claim.

-29-
 We have also held that, in addition to presenting a colorable

claim, a plaintiff must be diligent in preserving his rights to be

entitled to jurisdictional discovery. Sunview, 116 F.3d at 964. This

includes the obligation to present facts to the court which show why

jurisdiction would be found if discovery were permitted. See Barrett

v. Lombardi, 239 F.3d 23, 26 (1st Cir. 2001). The government, here,

has been less than diligent. As SAB points out, only on appeal did the

government flesh out its description of the types of contacts it hopes

to discover: (1) "the origins and nature of SAB's relations and

contacts with Fitzgerald;" (2) "business meetings that took place in

the United States, or were conducted by telephone, with persons in the

United States, relating to the subject accounts;" (3) "information that

might have been sent by mail or other means" by SAB to the United

States; and (4) the "origin and nature of any other business relations"

between SAB and American account holders or business partners. The

government should have given the district court this more detailed

description of the "additional pertinent avenues of inquiry" that it

hoped to pursue. Whittaker Corp. v. United Aircraft Corp., 482 F.2d

1079, 1086 (1st Cir. 1973). Because the government did not present

these specifics below, they do not enter into our analysis of whether

the court abused its discretion in denying the request for discovery.

Failure to allege specific contacts, relevant to establishing personal

jurisdiction, in a jurisdictional discovery request can be fatal to

-30-
that request. See Crocker, 976 F.2d at 801 (denying discovery where

appellants sought information, irrelevant to forum contacts, on

solicitation of business and the provision of goods or services outside

of the forum); Noonan, 135 F.3d at 94 (denying discovery where

plaintiffs sought information about the interrelationships among the

defendants; information irrelevant to purposeful availment).

Given the overall unpersuasive case for personal

jurisdiction, the government's failure to allege specific contacts it

was seeking to discover, and the wide discretion given to the district

court, we cannot conclude, in light of our precedent, that the district

court was "plainly wrong" in denying discovery.

III.

In its complaint, the government alleged that IMB is SAB's

alter ego. At the March 30, 2000 hearing on SAB's and IMB's motions to

dismiss, the district court dismissed the government's case against IMB

"for failure adequately to plead allegations of alter ego liability and

for lack of personal jurisdiction." Swiss III, 116 F. Supp. 2d at 219.

On appeal, the government challenges this ruling. In the alternative,

it contends that it should have been allowed to take discovery about

IMB's relationship with SAB, arguing, as it did below, that discovery

is needed because "the defendants exclusively hold the critical

information that would explain the events surrounding the disappearance

of the funds."

-31-
 In Swiss II, IMB argued that it could not be held liable for

SAB's alleged misconduct because it was not SAB's alter ego. We said

that this argument was "premature" because it involved "reaching the

merits of a case," which, according to Supreme Court precedent, "should

await a determination of the district court's jurisdiction over IMB."

191 F.3d at 46. We noted "[t]he lack of a developed record and the

fact that the district court has not yet expressed its views on this

motion" as added reason to decline to address IMB's argument on the

merits. Id. The jurisdictional question over IMB can now be resolved,

in light of this Court's decision affirming the lack of personal

jurisdiction over SAB.

The government concedes that personal jurisdiction extends

to IMB only if (1) the government makes a prima facie case for

jurisdiction over SAB and if (2) the government can establish alter ego

liability. See Pleasant St. I , 960 F.2d at 1091 ("if [subsidiary]

PSC's contacts can be attributed to [parent company] ITD, then the

jurisdictional hurdle can be vaulted"); Donatelli, 893 F.2d at 466

("Since the essence of personal jurisdiction is to bring responsible

parties before the court, a corporation which is actually responsible

for its subsidiary's decision to undertake instate activities should,

in all fairness, be within the state court's jurisdictional reach.").

Since the government was unable to make the case for jurisdiction over

SAB, the first "if" has not been satisfied. Therefore, personal

-32-
jurisdiction cannot extend to IMB. We thus affirm the district court's

dismissal of the case against IMB.

IV.

For the foregoing reasons, we agree with the district court's

dismissal of the case against SAB and IMB for lack of personal

jurisdiction.

Affirmed.

(Dissenting follows)

-33-
 LIPEZ, Circuit Judge, dissenting. The majority concludes

that the district court did not abuse its discretion in denying

jurisdictional discovery. I respectfully disagree with that

conclusion, and therefore dissent. My disagreement with the majority

stems in large part from the majority's treatment of Calder v. Jones,

465 U.S. 783 (1984). In assessing whether the government's tort claims

arise out of or relate to SAB's contacts with the forum, the majority

states that, "since Calder's 'effects' test is relevant only to the

purposeful availment prong, it cannot be used to strengthen the

government's relatedness showing." That reasoning cannot be squared

with Calder's holding that jurisdiction can be "based on" the in-forum

effects of the defendant's out-of-forum activity. 465 U.S. at 787.

Under Calder, those effects are jurisdictional contacts in their own

right, relevant to the relatedness requirement.

Although I agree with the majority that the government has

not yet made out a prima facie case for specific jurisdiction, I

believe that the government's effects argument creates a "colorable"

case for specific jurisdiction with respect to its tort claims against

SAB. Accordingly, I conclude that the district court abused its

discretion in summarily denying the government's request for

jurisdictional discovery on the ground that the government's case for

personal jurisdiction is "bootless."

I.

-34-
 My disagreement with the majority over the import of Calder

leads me to a different view on the question of jurisdictional

discovery. Thus, before turning to the discovery question, I first

must address Calder itself, and its implications for the government's

case for specific jurisdiction.

A. The Jurisdictional Relevance of Effects

The dispute in Calder arose out of an allegedly libelous

article published in the National Enquirer about Shirley Jones, a well-

known California entertainer. Jones sued the Enquirer, Ian Calder, its

president and editor, and John South, the reporter who wrote the

offending article. Calder and South were both Florida residents, and

it was undisputed that the article had been written, researched, and

edited in Florida. Indeed, Calder never even called California in

connection with the article: "all of his acts with reference to [the

Jones] article apparently were performed in Florida." Jones v. Calder,

187 Cal. Rptr. 825, 829 (Cal. Ct. App. 1982).

The California Court of Appeal concluded that "[t]he fact

that the actions causing the effects in California were performed

outside the State did not prevent the State from asserting jurisdiction

over a cause of action arising out of those effects." Calder, 465 U.S.

at 787. The Supreme Court agreed, noting its "approval of the

'effects' test employed by the California court." Id. at 787 n.6.

-35-
That test was drawn from § 37 of the Restatement (Second) of Conflicts

of Laws, which provides:

A state has power to exercise judicial
jurisdiction over an individual who causes
effects in the state by an act done elsewhere
with respect to any cause of action arising from
these effects unless the nature of the effects
and of the individual's relationship to the state
make the exercise of jurisdiction unreasonable.

As the language of the Restatement test suggests, its

elements mirror those of our traditional specific jurisdiction inquiry.

The first clause, authorizing jurisdiction over "one who causes effects

in the state by an act done elsewhere," establishes that in-forum

effects are relevant contacts for the jurisdictional analysis. The

second clause then limits the exercise of jurisdiction to cases in

which there is a sufficient nexus between the defendant's forum

contacts (here, the in-forum effects) and the plaintiff's cause of

action. That clause correlates to the relatedness requirement for

specific jurisdiction, which is satisfied when the plaintiff's cause of

action either "aris[es] out of or relate[s] to the defendant's contacts

with the forum." Helicópteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414 n.8 (1984) (emphasis added). We have said that "we

think it significant that the constitutional catchphrase is disjunctive

in nature, referring to suits arising out of or relating to in-forum

activities. We believe that this added language portends added

flexibility and signals a relaxation of the applicable standard."

-36-
Ticketmaster-NY, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir. 1994)

(citations and internal quotation marks omitted). There is no reason

to depart from our usual understanding of the relatedness inquiry in

this case. Therefore, although the Restatement uses “arising out of”

language to describe its relatedness requirement, the requirement also

can be satisfied by a showing that the plaintiff's cause of action

"relates to" the in-forum effects of the defendant's activity.

The final clause of the effects test adds a proviso,

forbidding effects-based jurisdiction in cases where "the nature of the

effects and of the individual's relationship to the [forum] make the

exercise of jurisdiction unreasonable." Restatement (Second) of

Conflict of Laws, § 37. Prior to Calder, the Supreme Court had

explained that the general "reasonableness" inquiry mandated by the

effects test overlaps in large part with the purposeful availment

inquiry. See Kulko v. Superior Court, 436 U.S. 84 (1978). Thus,

effects-based jurisdiction is "unreasonable" under the Restatement test

where the defendant has not intentionally reached out to the forum

state in some way, so that he or she reasonably could anticipate being

haled into court there. See id. at 96-98.

The circumstances of Calder easily satisfied the first two

clauses of the Restatement test. The article, written by defendants

Calder and South in Florida, had caused harmful effects in the forum

state; as the Court observed, "the brunt of the harm [to Jones], in

-37-
terms both of [her] emotional distress and the injury to her

professional reputation, was suffered in California." Calder, 465 U.S.

at 789. Jones's cause of action arose out of those effects. See id.

at 787. Thus, as the majority explains, since the in-forum effects of

the Calder defendants' actions "were clearly related to the plaintiff's

defamation suit, . . . the Supreme Court did not need to address the

relatedness prong before proceeding to the purposeful availment

inquiry."

The Court began that inquiry by distinguishing the

defendants' situation from that of a hypothetical welder who works on

a boiler in Florida that later explodes in California. See id. at 789.

The welder obviously can "foresee" that the boiler might make its way

to California and cause harmful effects there. Id. Yet, the Court

observed, it may well be unfair to subject the welder to jurisdiction

in California when he "has no control over and derives no benefit from

his employer's sales in that distant State." Id.

Unlike the unfortunate welder, Calder and South were "not

charged with mere untargeted negligence." Id. Rather, the Court

emphasized, “their intentional, and allegedly tortious, actions were

expressly aimed at the forum state.” Id. The allegedly libelous story

“concerned the California activities of a California resident” whose

“career was centered in California.” Id. at 788-89. Moreover, the

defendants knew the article “would have a potentially devastating

-38-
impact” on Jones, and that she would suffer “the brunt of the injury”

in California, where she lived and worked. Id. at 789-90. In short,

California was “the focal point both of the story and of the harm

suffered.” Id. at 789. Thus, the defendants “must 'reasonably

anticipate being haled into court there,'” id. at 790 (quoting World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 287, 297 (1980)), and

jurisdiction reasonably could be “based on the 'effects' of

[defendants'] Florida conduct in California,” id. at 789.

B. The Majority's Reading: Calder and Related Contacts

Given Calder's focus on the reasonableness of exercising

jurisdiction on the basis of effects, it is easy to understand the

majority's assertion that Calder “is a gauge for purposeful availment.”

When a plaintiff seeks to base jurisdiction on the in-forum effects of

the defendant's activity elsewhere, the case likely will turn on such

questions as whether the defendant's allegedly tortious conduct was

intentionally and “expressly aimed” at the forum state, and whether the

“brunt of the harm” was felt there. Calder, 465 U.S. at 789. Those

inquiries properly fall under the purposeful availment prong because

they are designed to determine whether the defendant intentionally

reached out to cause harm in the forum state.8

8 Calder clarified that the purposeful availment requirement is met
whenever the defendant intentionally reaches out to the forum in some
way, whether it is seeking benefits or causing harm. The Court
reaffirmed that point in Burger King Corp. v. Rudzewicz, explaining

-39-
 Contrary to the conclusion of the majority, however, it does

not follow that Calder “is relevant only to the purposeful availment

prong [and so] cannot be used to strengthen the government's

relatedness showing.” As I have explained, the Restatement “effects”

test approved in Calder includes a relatedness element. Itpermits a

state to exercise effects-based jurisdiction only when the plaintiff's

claims arise out of or relate to the in-forum effects of the

defendant's acts. See Restatement (Second) of Conflicts of Laws, § 37;

Calder, 465 U.S. at 787 (noting that effects-based jurisdiction was

proper where Jones's claims arose out of the California effects of the

defendants' actions).

The majority does not suggest that the government's claims

against SAB are not related to the in-forum effects of SAB's allegedly

tortious activity. Accordingly, when it says that the effects test

“cannot be used to strengthen the government's relatedness showing,”

the majority must mean that, under Calder, the in-forum effects are not

jurisdictional contacts themselves, but merely additional evidence that

the defendants acted purposefully. Based on that interpretation of

that due process requires that individuals have “fair warning” that
their activities might subject them to jurisdiction in the forum, and
that the fair warning requirement is satisfied if the defendant
“'purposefully directed' his activities at residents of the forum and
the litigation results from alleged injuries that 'arise out of or
relate to' those activities.'” 471 U.S. 462, 472 (1985) (quoting
Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984); Helicópteros,
466 U.S. at 414 n.8).

-40-
Calder, the majority states that the relatedness inquiry can be

satisfied only when “the defendant's in-forum conduct caused the injury

or gave rise to the cause of action.”

However, the effects test adopted in Calder explicitly

authorizes jurisdiction based on the in-forum effects of “an act done

elsewhere.” Restatement (Second) of Conflict of Laws, § 37. Those

effects are relevant jurisdictional contacts, apart from any link

between the plaintiff's tort claims and the defendant's “in-forum

conduct.” Thus, in Calder, the Court did not rely on the presence of

physical, mail, or telephone contacts between the defendants and the

forum. Instead, it held that jurisdiction was proper “based on

'effects' of [defendants'] Florida conduct in California.” Calder, 465

U.S. at 789; see also Hugel v. McNell, 886 F.2d 1, 4 (1st Cir. 1989)

(explaining that, under Calder, “[t]he knowledge that the major impact

of the injury would be felt in the forum State constitutes a purposeful

contact or substantial connection whereby the intentional tortfeasor

could reasonably expect to be haled into the forum State's courts to

defend his actions”); Haisten v. Grass Valley Med. Reimbursement Fund,

Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986) (noting that in Calder “the

Court . . . allowed the exercise of jurisdiction over a defendant whose

only 'contact' with the forum state [was] the 'purposeful direction' of

a foreign act having effect in the forum state” (first emphasis

added)). It is difficult to understand how jurisdiction could have

-41-
been permissible in those circumstances were the in-forum effects of

acts done elsewhere not themselves contacts.

Indeed, the majority's methodology would seem to compel a

result contrary to that reached in Calder. On the majority's

understanding, “the effects test . . . is to be applied only after the

relatedness prong has been satisfied.” That creates a quandary for the

plaintiff whose cause of action arises out of or relates to the in-

forum effects of out-of-forum activity. If those effects are off-

limits during the relatedness inquiry, and if that inquiry must be

completed before the effects can be taken into account under the

purposeful availment analysis, then the plaintiff never will be able to

establish jurisdiction “based on” those effects. Calder, therefore, is

a dead letter. The only cases in which in-forum effects could be

considered are those in which jurisdiction might just as easily be

based on some other forum contacts.

The majority offers two bases for its reading of Calder.

First, it emphasizes that in Noonan v. Winston Co., 135 F.3d 85, 90

(1st Cir. 1998), we said that Calder “adopted an effects test for

determining purposeful availment in the context of defamation cases.”

It is important to see that statement in context:

The decisive due process issue in this
[defamation] case is whether the defendants'
activities satisfy the purposeful availment
requirement. Plaintiffs correctly draw our
attention to Calder v. Jones, in which the

-42-
 Supreme Court adopted an effects test for
determining purposeful availment in the context
of defamation cases.

Id. (internal citation omitted). Noonan cannot bear the weight the

majority gives it. Calder did establish a test for determining

purposeful availment in defamation cases. The majority's reading

depends on the entirely different point that Calder did not also

establish that jurisdiction can be based on the in-forum effects of

out-of-forum activity when such effects relate or give rise to the

cause of action. Noonan did not discuss relatedness at all, and so

provides no support for the majority's restrictive interpretation of

Calder.

Second, the majority points out that “we have wrestled before

with [the] issue of whether the in-forum effects of extra-forum

activities suffice to constitute minimum contacts and have found in the

negative.” Mass. Sch. of Law v. Amer. Bar Ass'n, 142 F.3d 26, 35-36

(1st Cir. 1998). In further support of that point, the majority cites

Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 (1st Cir.

1986), and Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995), in which

we held that New Hampshire could not exercise jurisdiction over foreign

law firms based on allegedly negligent acts committed outside the

state.9 We discussed those cases in Massachusetts School of Law, and

9 We reasoned in Kowalski and Sawtelle that the effects of an injury
are not the same thing as the injury itself. See Kowalski, 787 F.2d at
11; Sawtelle, 70 F.3d at 1390. I address the distinction between

-43-
concluded that, “[j]ust as the New Hampshire effects of [out-of-state]

negligence, without more, could not sustain an action in New Hampshire

against the negligent actor, see Kowalski, 787 F.2d at 11, so too the

Massachusetts effects of the [defendants'] [out-of-state] actions,

without more, fail to sustain an action in a Massachusetts court.” 142

F.3d at 36 (also citing Sawtelle, 70 F.3d at 1394).

We did not mention Calder – much less rely on it – in

Massachusetts School of Law, Kowalski, or Sawtelle. Nevertheless, our

holdings in those cases are consistent with the effects test that I

have described. Under Calder, in order for jurisdiction to be based

solely on the in-forum effects of the defendant's activity, the

plaintiff must show that the defendant acted “for the very purpose” of

causing harmful effects in the forum. Lake v. Lake, 817 F.2d 1416,

1422 (9th Cir. 1987); Restatement (Second) of Conflict of Laws, § 37

cmt. e (“When the act was done with the intention of causing the

particular effects in the state, the state is likely to have judicial

jurisdiction though the defendant had no other contact with the

state.”). No such showing was made (or even attempted) in

Massachusetts School of Law, Sawtelle, and Kowalski. In those cases,

therefore, effects-based jurisdiction would have been “unreasonable”

under the Restatement test, not because the in-forum effects were not

contacts, but because the “nature of the effects” was such that

injury and effects below, as part of the purposeful availment analysis.

-44-
jurisdiction could not rest on them alone. Restatement (Second) of

Conflict of Laws, § 37; see also Calder, 465 U.S. at 789-89; Kulko, 436

U.S. at 96-97.

To be sure, in-forum effects that lack the requisite

intentionality are still jurisdictional contacts that must be taken

into account in the overall analysis. Calder compels that conclusion,

and our cases do not suggest otherwise. But other contacts between the

defendant, the forum, and the litigation are necessary in order to

render the exercise of jurisdiction reasonable. See Restatement

(Second) of Conflict of Laws, § 37 cmt. e (“The fact that the effect in

the [forum] was . . . foreseeable will not itself suffice to give the

[forum] judicial jurisdiction over the defendant.”); Panda Brandywine

Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001)

(explaining that “the effects of an alleged intentional tort are to be

assessed as part of the analysis of the defendant's relevant contacts

with the forum” (internal quotation marks omitted)).

Here, the majority does not dispute that SAB's actions caused

harmful effects – the loss of money – in the United States. Nor does it

dispute that those harmful effects are related to the government's

claims of wrongful conversion and unjust enrichment. The crucial

question, therefore, is whether SAB's actions satisfy the purposeful

availment inquiry; that is, whether SAB “expressly aimed” its allegedly

-45-
tortious activity at the United States with the knowledge that “the

brunt of the harm” would be felt there. Calder, 465 U.S. at 789.

C. Purposeful Availment

We have said that Calder imposes a two-part test for

purposeful availment, requiring a plaintiff to show (1) that it felt

the injurious effects of a defendant's tortious act in the forum, and

(2) that the defendant's act was “calculated to cause injury” to the

plaintiff there. Noonan, 135 F.3d at 90 (citing Calder, 465 U.S. at

791). The government easily satisfies the first prong. The loss of

the forfeit $7 million to the United States government as a result of

SAB's alleged conversion and unjust enrichment necessarily had

injurious effects that were felt in the United States. In Swiss II, we

concluded that the “legal injur[ies] occasioned by” the torts of

conversion and unjust enrichment occurred in Antigua, where the

conversion and enrichment took place. United States v. Swiss Am. Bank,

Ltd., 191 F.3d 30, 37 (1st Cir. 1999). Nevertheless, we acknowledged

that, “upon the occurrence of the alleged conversion and the consequent

unjust enrichment, the United States felt the effects of a tortious

injury in the [United States].” Id. at 38.

The majority suggests that the fact that the government's

injury occurred in Antigua distinguishes this case from Calder. Cf

Kowalski, 787 F.2d at 11 (distinguishing between injury and effects for

purposes of the New Hampshire long-arm statute, which requires that the

-46-
plaintiff's injury occur in the forum); Sawtelle, 70 F.3d at 1390

(explaining that, in Kowalski, “we rejected the plaintiff's contention

that, because the 'effects' of the [defendant law] firm's negligence

were felt in New Hampshire, the law firm had caused an injury there by

conduct directed at that forum. . . . The injury, if any, occurred in

Massachusetts”). Yet here, as in Calder, the plaintiff suffered “the

brunt of the harm” in the forum. Calder, 465 U.S. at 789. That

similarity suggests that the outcome of our jurisdictional analysis

should not be different in this case simply because the injury caused

by libel is deemed to occur wherever the libelous material is

circulated, while the injury of conversion is deemed to occur where the

conversion took place. Such formalistic distinctions can be helpful in

cases like Swiss II, where the applicable state long-arm statute

requires an in-forum injury as a prerequisite to jurisdiction. See

Swiss II, 191 F.3d at 38 (applying § 3(d) of the Massachusetts long arm

statute, which authorizes jurisdiction over one who, inter alia, causes

“tortious injury in this commonwealth”); see also Kowalski, 787 F.2d at

11 (applying similar New Hampshire statute). Our inquiry here is not

so rigidly confined, where strict rules give way to “traditional

notions of fair play and substantial justice.” Int'l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (internal quotation marks

omitted). Given the flexible nature of our due process analysis, we

should hesitate before adopting a bright-line rule that in-forum

-47-
effects do not constitute jurisdictional contacts unless they also can

be deemed an “injury.”

That is not to say that the situs of the plaintiff's injury

is irrelevant to the jurisdictional analysis. In cases where the

injury occurred outside the forum, the plaintiff may find it difficult

to satisfy the second prong of the Calder test, which requires a

showing that the defendant's act was “calculated” to cause the harmful

effects in the forum. That inquiry is designed to determine whether

the nature of the effects is such that jurisdiction reasonably can be

based on them alone, and it is here that the government's prima facie

case for jurisdiction falters. The government argues that “SAB knew

that its intentional conduct in Antigua would cause injury to the

United States government.” That is not enough. The government must

show that SAB's actions were “expressly aimed” at the United States as

a forum. Calder, 465 U.S. at 789 (distinguishing the case of the

negligent welder); Wein Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212

(5th Cir. 1999) (“Foreseeable injury alone is not sufficient to confer

specific jurisdiction, absent the direction of specific acts toward the

forum.”); cf. Burger King, 471 U.S. at 474 (“Although it has been

argued that foreseeability of causing injury in another State should be

sufficient to establish [minimum] contacts there . . . , the Court has

consistently held that this kind of foreseeability is not a 'sufficient

-48-
benchmark' for exercising personal jurisdiction.” (footnote omitted)

(quoting World-Wide Volkswagen, 444 U.S. at 295)).

The government argues that SAB's intentional defiance of the

preliminary forfeiture order issued by the district court constitutes

such express aiming. The forfeiture order identified the forfeited

property as “funds which were deposited into the Swiss American Bank,

Ltd., and the Swiss American National Bank in St. Johns, Antigua during

the time period September 1985 through June 23, 1987.” It is

undisputed that SAB was aware of the order, and responded by writing to

the district court to inform it that the Antiguan government had frozen

Fitzgerald's accounts. However, the fact that SAB had notice that the

money it took for itself belonged to the United States government does

not, in itself, make the United States as a forum the focal point of

SAB's allegedly tortious activity. As the Third Circuit has observed,

Calder did not “carve out a special intentional torts exception to the

traditional specific jurisdictional analysis, so that a plaintiff could

always sue in his or her home state.” IMO Indus., Inc. v. Kiekert AG,

155 F.3d 254, 265 (3d Cir. 1998). Therefore, it cannot be enough that

the defendant knew when it acted that its victim lived in the forum

state. See id. (“Simply asserting that the defendant knew that the

plaintiff's principal place of business was located in the forum would

be insufficient in itself to meet [the 'expressly aimed']

requirement.”); accord Southmark Corp. v. Life Investors, Inc., 851

-49-
F.2d 763, 773 (5th Cir. 1988) (concluding that the location of the

plaintiff's principal place of business in the forum was a “mere

fortuity,” insufficient to show that the defendant expressly aimed its

actions at the forum); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d

617, 625 (4th Cir. 1997) (finding no jurisdiction where the defendant

knew that its acquisition of the plaintiff's trade secrets would result

in lower sales for the plaintiff, but did not “manifest behavior

intentionally targeted at and focused on” the forum state). Something

more is needed to show that SAB's actions were “purposefully directed”

or “expressly aimed” at the United States.

Because the government has not demonstrated that SAB's

actions were “intentionally targeted at and focused on the forum,” IMO

Indus., 155 F.3d at 263, the in-forum effects of those actions do not

provide a sufficient basis for the exercise of jurisdiction. Although

those effects qualify as a relevant (and, as I have explained, related)

contact between SAB and the United States as a forum, that contact is

too “attenuated” to satisfy the requirement of purposeful availment.

Burger King, 471 U.S. at 475 (internal quotation marks omitted). In

the words of the Restatement, “the nature of the effects and of the

[defendant's] relationship to the [forum] make the exercise of

[effects-based] jurisdiction unreasonable.” Restatement (Second) of

Conflict of Laws, § 37. Thus, the government must demonstrate that SAB

had other contacts with the forum “such that the maintenance of the

-50-
suit does not offend 'traditional notions of fair play and substantial

justice.'” Int'l Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311

U.S. 457, 463 (1940)).

D. The Gestalt Factors

Although I have concluded that the in-forum effects of SAB's

activity lack the requisite purposefulness to support jurisdiction on

their own, my inquiry does not end there. The Supreme Court has laid

out five criteria for assessing the overall reasonableness of an

exercise of personal jurisdiction. See Burger King, 471 U.S. at 476-

77. In close cases, those criteria – which we have termed the “gestalt

factors,” see Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d

138, 150 (1st Cir. 1995) – “may tip the constitutional balance.” Nowak

v. Tak How Inv., Inc., 94 F.3d 708, 717 (1st Cir. 1996); accord Burger

King, 471 U.S. at 477 (explaining that gestalt factors “sometimes serve

to establish the reasonableness of jurisdiction upon a lesser showing

of minimum contacts than would otherwise be required”). Even if they

do not alter the constitutional balance, the gestalt factors can be

important in determining whether the plaintiff's jurisdictional showing

is “colorable” enough to support a request for jurisdictional

discovery. Therefore, the jurisdictional inquiry is incomplete in this

case without consideration of the gestalt factors.

Those factors are “the plaintiff's interest in obtaining

convenient and effective relief; the burden imposed upon the defendant

-51-
by requiring it to appear; the forum's adjudicatory interest; the

[forum] judicial system's interest in the place of adjudication; and

the common interest of all affected sovereigns . . . in promoting

substantive social policies.” Donatelli v. Nat'l Hockey League, 893

F.2d 459, 465 (1st Cir. 1990). We refer to them as the “gestalt”

factors “because, in any given case, they may neither be amenable to

mechanical application nor be capable of producing an open-and-shut

result. Their primary function is simply to . . . put[] into sharper

perspective the reasonableness and fundamental fairness of exercising

jurisdiction.” Foster-Miller, Inc., 46 F.3d at 150.

In assessing the burden of appearance on the defendant, we

have considered whether the defendant does business with the forum,

Nowak, 94 F.3d at 718, and the distance between the defendant's place

of business and the forum, Ticketmaster-NY, Inc., 26 F.3d at 210. As

the majority has explained, the record does not show that SAB does

business in the United States. In addition, the distance from Antigua

to the United States is “appreciable.” Id. For these reasons, the

burden on SAB of litigating in a United States district court in

Massachusetts is a relatively heavy one. See Asahi Metal Indus. Co.,

Ltd. v. Superior Court, 480 U.S. 102 (1987). “This Court has

recognized, however, that it is almost always inconvenient and costly

for a party to litigate in a foreign jurisdiction.” Nowak, 94 F.3d at

718. Thus, for this factor to be significant, “the defendant must

-52-
demonstrate that exercise of jurisdiction in the present circumstances

is onerous in a special, unusual, or other constitutionally significant

way.” Id.; see also Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994).

There is nothing to suggest an especially onerous burden here.

Moreover, as the Supreme Court said in Asahi, “often the

interests of the plaintiff and the forum in the exercise of

jurisdiction will justify even the serious burdens placed on [an] alien

defendant.” 480 U.S. at 114. In Pleasant St. II, we found that the

burden of requiring a Scottish corporate defendant to appear in

Massachusetts was “substantially outweighed by Massachusetts' interest

in adjudicating this dispute and plaintiffs' interest in obtaining

convenient and effective relief.” United Elec., Radio & Mach. Workers

v. 163 Pleasant St. Corp., 987 F.2d 39, 46 (1st Cir. 1993) ( Pleasant

St. II). This case is similar.

Our cases recognize that courts “must accord deference to the

plaintiff's choice of forum.” Nowak, 94 F.3d at 718. As in Nowak, a

suit involving a Hong Kong defendant, “it is obvious that a

Massachusetts forum is more convenient” than a forum in Antigua. Id.

Moreover, the United States clearly has a strong interest in the

enforcement of its forfeiture laws. The judicial system's interest in

obtaining the most effective resolution of the controversy “also favors

the retention of jurisdiction over this dispute.” Pleasant St. II, 987

F.2d at 46. The district court has an interest in ensuring that its

-53-
own forfeiture order is satisfied and in litigating all claims arising

out of Fitzgerald's criminal proceeding in Massachusetts. See Keeton,

465 U.S. at 777 (explaining that the forum has an interest in

litigating all claims arising out of the underlying libel case).

In discussing the final gestalt factor relating to

sovereignty, the Supreme Court has said that when the defendant is a

foreign entity, the sovereignty factor of the reasonableness analysis

“calls for a court to consider the procedural and substantive policies

of other nations whose interests are affected by the assertion of

jurisdiction” by the court. Asahi, 480 U.S. at 115. In this case,

there is a potentially significant sovereignty issue that the district

court did not reach, and which the parties do not discuss in their

briefs. In a January 29, 1998 letter, the Antiguan Cabinet Secretary

informed the United States that it froze Fitzgerald's funds in 1990

“because of evidence that the monies were the proceeds of illegal

conduct.” The letter also states: “In a judgement handed down from

our High Court dated December 20, 1990, it was found that Fitzgerald

was not the owner of these funds.” The letter then says that the

Antiguan government discussed the disposition of the funds with SAB

after the Massachusetts district court issued its forfeiture order, and

that “acting in the public interest of Antigua and Barbuda,” the

Antiguan government “released the freeze order on the funds and

-54-
approved the disposition of the funds in a manner agreed by the Banks

and approved by the Government.”

While SAB and IMB, not the government of Antigua, are the

defendants in this case, the fifth gestalt factor requires us to take

into account the sovereignty concerns raised by this letter. The

Antiguan government has claimed $5 million of the forfeited funds, and

cites in support of its decision to do so a 1990 order of the Antiguan

High Court. Although that claim does not affect the $2 million

allegedly converted by SAB, it is an important consideration for the

remaining $5 million. Therefore, at least without further briefing by

the parties on these sovereignty concerns, I cannot conclude that the

government's showing under the gestalt factors is strong enough to “tip

the constitutional balance” here. Nowak, 94 F.3d at 717. 10

Nevertheless, the consideration of these gestalt factors reinforces my

conclusion that the government's case for specific jurisdiction was

colorable enough to merit the jurisdictional discovery denied by the

district court. In my view, that denial was plainly wrong, and an

abuse of discretion.

II.

The district court briskly denied the government's request

for jurisdictional discovery, explaining that the government's showing

10It bears emphasis that the weighing analysis should be done in the
first instance by the district court, which should not have ended its
specific jurisdiction inquiry with the relatedness element.

-55-
was “so bootless . . . that it has made no colorable claim sufficient

to entitle it to any further discovery.” United States v. Swiss Am.

Bank, Ltd., 116 F. Supp. 2d 217, 225 (D. Mass. 2000). That

determination is based on a legal misunderstanding of the import of

Calder, and therefore constitutes an abuse of discretion. Koon v.

United States, 518 U.S. 81, 100 (1996) (“A district court by definition

abuses its discretion when it makes an error of law.”).

We have held consistently to the rule that a plaintiff may

take jurisdictional discovery if its claim is “colorable.” Sunview

Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964 (1st Cir. 1997).

The “colorable” or “not frivolous” standard for obtaining

jurisdictional discovery requires some showing that discovery is needed

or likely to be useful. However, that showing is significantly lower

than the prima facie showing of jurisdiction, which requires the

plaintiff “to demonstrate the existence of every fact required to

satisfy both the forum's long-arm statute and the Due Process Clause of

the Constitution.”11 Pleasant St. II, 987 F.2d at 44 (internal

quotation marks omitted). The jurisdictional discovery question, by

contrast, is whether the government's showing of minimum contacts falls

11 The government argues that our admonition in Swiss II, 191 F.3d at
45, that "[a] timely and properly supported request for jurisdictional
discovery merits solicitous attention," further softens the “colorable”
standard. That is not so. Rather, the "timely" and "properly
supported" language reflects our statements elsewhere that a plaintiff
must be "diligent" to merit discovery. See, e.g., Sunview Condo., 116
F.3d at 964.

-56-
so far short that discovery is “unnecessary (or, at least, is unlikely

to be useful) in regard to establishing the essential jurisdictional

facts.” Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38

(1st Cir. 2000).

Our approach to jurisdictional discovery originates with

Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966).

In that case, we held that the district court should have allowed

discovery before ruling on a motion to dismiss for lack of personal

jurisdiction where the plaintiff “had at least made good headway, and

shown his position not to be frivolous.” Id. at 255. While Surpitski

is an older case, we have cited and reaffirmed its discovery-friendly

holding numerous times. See Swiss II, 191 F.3d at 46; Sunview Condo.,

116 F.3d at 964; Pleasant St. II, 987 F.2d at 48 n.18; Boit v. Gar-Tec

Prods., Inc., 967 F.2d 671, 681 (1st Cir. 1992); Whitaker Corp. v.

United Aircraft Corp., 482 F.2d 1079, 1086 (1st Cir. 1973). In Sunview

Condo. we explained that "a diligent plaintiff who sues an out-of-state

corporation and who makes out 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." 116 F.3d at 964. Jurisdictional discovery is appropriate

“where the plaintiff had been diligent and was somewhat unfamiliar with

his adversary's business practices,” Boit, 967 F.2d at 681, and “where

-57-
complex factual matters are in question,” Whittaker Corp., 482 F.2d at

1086.

Other circuits similarly allow for discovery when a diligent

plaintiff with a colorable but undeveloped case requests it. See

Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 425

(D.C. Cir. 1991) ("As a general matter, discovery under the Federal

Rules of Civil Procedure should be freely permitted, and this is no

less true when discovery is directed to personal jurisdiction.");

Butcher's Union Local No. 498 v. SDS Inv., Inc., 788 F.2d 535, 540 (9th

Cir. 1986) ("Discovery should ordinarily be granted where pertinent

facts bearing on the question of jurisdiction are controverted or where

a more satisfactory showing of the facts is necessary." (internal

quotation marks omitted)); Compagnie des Bauxites de Guinee v. L'Union

Atlantique S.A. D'Assurances, 723 F.2d 357, 362 (3d Cir. 1983) ("Where

the plaintiff's claim is not clearly frivolous, the district court

should ordinarily allow discovery on jurisdiction in order to aid the

plaintiff in discharging that burden."); Wyatt v. Kaplan, 686 F.2d 276,

283 (5th Cir. 1982) ("In an appropriate case, we will not hesitate to

reverse a dismissal for lack of personal jurisdiction, on the ground

that the plaintiff was improperly denied discovery."); see also 5A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1351 at 256-59 (2d ed. 1990) ("In particularly complex cases, . . .

it may be desirable to hold in abeyance a decision on a motion to

-58-
dismiss for lack of personal jurisdiction. Doing so will enable the

parties to employ discovery on the jurisdictional issue, which might

lead to a more accurate judgment than one made solely on the basis of

affidavits."). In sum, "[n]umerous cases have sustained the right of

plaintiffs to conduct discovery before the district court dismisses for

lack of personal jurisdiction." Renner v. Lanard Toys Ltd., 33 F.3d

277, 283 (3d Cir. 1994).12

In light of this right, several appellate courts have found,

as we did in Surpitski, that district courts erred in denying discovery

in cases in which plaintiffs did not allege sufficient facts to make a

prima facie case for personal jurisdiction. In Renner, for example,

the Third Circuit concluded that discovery should have been granted

where the record was "ambiguous" and "incomplete." Id. at 283. In

Edmond, the lower court's decision to deny discovery was error because

the plaintiffs' allegations were "far from conclusory." 949 F.2d at

425. In Skidmore v. Syntex Labs., Inc., 529 F.2d 1244 (5th Cir. 1976),

the court said that discovery should have been allowed because the

plaintiff's attorney was not at fault for having failed to discover the

requisite jurisdictional facts earlier. Id. at 1248.

12But see Jazini v. Nissan Motor Co., 148 F.3d 181, 186 (2d Cir. 1998)
("Since the Jazinis did not establish a prima facie case that the
district court had jurisdiction over Nissan Japan, the district court
did not err in denying discovery on that issue.").

-59-
 Here, the district court based its discretionary denial of

discovery on an error of law – its failure to recognize the import of

Calder and the need to evaluate more fully the government's case for

jurisdiction. See Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling

Co., 161 F.3d 77, 86 (1st Cir. 1998) (mistaken application of law

constitutes abuse of discretion); United States v. Snyder, 136 F.3d 65,

67 (1st Cir. 1998) (per se abuse of discretion occurs when district

court commits error of law). Assessed properly, the government's case

is colorable. As I have explained, Calder held that the in-forum

effects of intentionally tortious conduct are a significant

jurisdictional contact in their own right. Therefore, when viewed

through the prism of the effects test that Calder endorsed, the

government's tort claims are related to SAB's contacts with the forum.

It is under the purposeful availment prong – which the district court

never even considered – that the government's showing falls short.

Because Antigua was the legal situs of the government's injury, it is

not immediately obvious that SAB expressly aimed its tortious activity

at the United States as a forum. Thus, in order to establish a prima

facie case, the government cannot rely solely on the in-forum effects

of SAB's actions; it must demonstrate the existence of other contacts

between SAB and the forum so that the exercise of jurisdiction over SAB

is fundamentally fair.

-60-
 The government points out that its ability to show more

contacts between SAB and the United States, under either a general or

specific theory of personal jurisdiction, has been hampered by the

bank's privately held status and by Antigua's banking secrecy laws.

Accordingly, the government's failure to establish the necessary

contacts does not necessarily indicate that those contacts do not

exist. Rather, it may mean simply that the government has not been

able to learn of them without the benefit of discovery. For example,

the business contacts between SAB and American companies suggest that

there may be more such contacts that the government might be able to

discover if it had access to the bank's records. Similarly, with the

benefit of discovery, the government might find out that SAB sent

letters or made phone calls to Fitzgerald in the United States, or even

sent representatives to meet with him here. Indeed, the government's

investigator has already found phone records indicating that Herrington

placed calls to Boston during the period in which Fitzgerald was

setting up his SAB accounts. If the government had access to the

bank's records, it might be able to show that Fitzgerald received those

calls, thereby strengthening both the relatedness and purposeful

availment elements of its case for specific jurisdiction.

Our precedent in Pleasant St. II is instructive here. The

proceedings that led to that decision began when the district court

entered an injunction and a contempt order against a Scottish

-61-
corporation. See 987 F.2d at 42. During the pendency of the

corporation's appeal, the plaintiff proceeded with discovery, but

because of the timing of the filings, the discovered material was not

part of the record on appeal. Id. We thus vacated the injunction and

contempt order for lack of personal jurisdiction in Pleasant St. I

unaware of the jurisdictional contacts that the plaintiff had

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

Corp., 960 F.2d 1080 (1st Cir. 1992). On remand, the district court

granted the defendant's motion to dismiss. The plaintiffs appealed for

a second time, and in Pleasant St. II we reversed the dismissal in

light of the new facts learned through discovery. We explained:

Under the facts of this case, the incomplete
nature of the record prevented any sort of
conclusive determination on the personal
jurisdiction issue at the time 163 Pleasant St.
I was handed down. The jurisdictional deficiency
which informed the holding in our previous
opinion did not stem from either a settled
factual predicate or legally insufficient
allegations, but from perceived voids in the
evidentiary landscape.

Id. at 47. Noting that before Pleasant St. I , "no discovery directed

at filling those voids took place," id., we continued:

if, on the record before it, the district court
had decided the personal jurisdiction issue
adversely to plaintiffs without at least
affording them the opportunity to . . . request
discovery, we almost certainly would have
declined to affirm the district court's judgment
and held the ruling to be an abuse of the court's
discretion.

-62-
Id. at 48 n.18. In this case, as in the Pleasant St. litigation, the

“incomplete nature of the record” rather than a “settled factual

predicate or legally insufficient allegations” is the reason that the

government cannot make out a prima facie case for jurisdiction. Id. at

47.

SAB launches two additional attacks on the government's

contention that it is entitled to discovery. First, it argues that the

care that a court must show in extending its authority over foreign

nationals weighs against allowing the government to take discovery.

Two circuits have taken this consideration into account in declining to

reverse lower court decisions to disallow discovery. See Cent. States,

S.E. and S.W. Areas Pension Fund v. Reimer Express World Corp., 230

F.3d, 934, 947 (7th Cir. 2000) ("[I]mposing such burdensome, wide-

ranging discovery against defendants from a foreign nation is not

appropriate at a stage where the district court is trying to determine

whether it has any power over the defendants."); Jazini v. Nissan

Motor Co., 148 F.3d 181, 185-86 (2d Cir. 1998) (declining to allow

plaintiff who made “conclusory non-fact-specific jurisdictional

allegations” to obtain discovery because to do so “would require the

federal courts to conduct substantial jurisdictional discovery over

foreign corporations – a practice in which they have not hitherto

engaged”).

-63-
 Weighing sovereignty concerns when the plaintiff has not yet

shown that the exercise of jurisdiction is proper is indeed a delicate

matter. We have urged courts to “exercise even greater care before

exercising personal jurisdiction over foreign nationals.” Noonan, 135

F.3d at 93. But our caution does not extend so far as to prevent

discovery in a case such as this, where discovery is the only means of

filling in the missing pieces of a jurisdictional showing that is more

than “colorable.”

The bank argues further that the government has not been a

“diligent” plaintiff, as Surpitski and later cases define the term,

because it failed to (1) adequately pursue the contacts that it was

authorized to investigate pursuant to an Asset Discovery Order issued

in the criminal case against Fitzgerald; (2) make adequate use of its

interviews with Fitzgerald and Herrington; and (3) present the district

court with a rationale for why discovery would further its case.

The Asset Discovery Order was issued under statutes that

authorize discovery “to facilitate the identification and location of

property declared forfeited.” 21 U.S.C. § 853(m). SAB argues that the

investigation undertaken pursuant to the Asset Discovery Order is the

equivalent of discovery.13 However, that Order only authorized

13 SAB makes much of the district court's statement that the government
was not entitled "to any further discovery." Swiss III, 116 F. Supp.
2d at 225. I assume that the court's use of the word "further" simply
refers to the government's investigation pursuant to the Asset
Discovery Order.

-64-
discovery on the location of forfeitable assets. It was not a broad

discovery tool. The Asset Discovery Order did not give the government

access to SAB's records, which would appear to be the most obvious and

promising source of information for the in-forum contacts the

government needs to uncover. The government's investigation to this

point has been hampered by its inability to explore these records, an

obstacle that court-ordered discovery may (or may not) be able to

remove.14

SAB also argues that the government had ample opportunity

during the course of its investigations in its earlier prosecution of

Fitzgerald and in the present case to obtain information relevant to

SAB's forum contacts. Herrington, SAB points out, was interviewed at

length by United States law enforcement officials in 1991 on the Isle

of Man, and again by a government investigator after the initiation of

proceedings against SAB. Fitzgerald, who had signed a plea and

cooperation agreement with the government, presumably was available to

provide information relevant to the jurisdictional issues. Given its

access to such information, SAB contends, the government already has

(or should have) discovered any contacts between SAB and the United

States.

14In its November 13, 1995 letter to the government, SAB said that the
relevant records were destroyed in a hurricane. The government
presumably would test this assertion if it were permitted to pursue
jurisdictional discovery.

-65-
 That argument is weakened significantly by the fact that

Fitzgerald died shortly after the forfeiture order was entered in 1994

– before the events leading to the present controversy with the bank –

and thus hardly could have aided the government in its attempts to

uncover SAB's forum contacts. Herrington's 1991 interview likewise

predated the forfeiture order and SAB's failure to comply.

Accordingly, the government had no reason to press him regarding his or

SAB's contacts with the United States.15 Rather, the interview focused

on facts relevant to the criminal charges of conspiracy and money

laundering that later were brought against Fitzgerald and several other

individuals. A government investigator did conduct a brief telephone

interview with Herrington in 1998, after the government filed its

complaint in the present action. But the apparent purpose of the

interview was to gather information demonstrating IMB's control of SAB,

not to determine the extent of the latter's forum contacts. In any

event, that interview does not alter the government's status as a

“stranger” to SAB within the meaning of Surpitski, 362 F.2d at 255, and

15 During that interview, Herrington was questioned about certain
conversations with Fitzgerald in which he explained how Fitzgerald's
anticipated deposits would be handled by SAB. Herrington indicated
that all those conversations took place in Antigua. When asked whether
“they all were face to face,” he answered, “I, in the best of my
knowledge, er, I never met Mr. Fitzgerald anywhere else but Antigua.”
The government interviewer did not ask Herrington whether he ever had
contacted Fitzgerald by other means (for example by mail or telephone).
There was no cause for the government to seek such details in the
context of its 1991 investigation.

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its progeny. See, e.g., Whittaker Corp., 482 F.2d at 1086 (noting that

jurisdictional discovery is appropriate where, inter alia, a party is

“somewhat unfamiliar with his adversary”); Am. Express Int'l, Inc. v.

Méndez-Capellán, 889 F.2d 1175, 1181 (1st Cir. 1989) (finding that

parties were not “total stranger[s]” under Surpitski where they had a

“long commercial relationship”). Indeed, the government's attempt to

investigate only underscores that its relationship with the bank is an

artifact of the forfeiture order. While Fitzgerald had business

dealings with SAB, and so was not a stranger to the bank, the

government had no such ongoing relationship.

Finally, SAB argues that the government did not meet its

burden of explaining to the district court the discovery sought and its

value. We have said that plaintiffs must “explain[] . . . how

discovery, if allowed, would bear on the narrow jurisdictional issue.”

Dynamic Image, 221 F.3d at 39. In opposing SAB's motion to dismiss,

the government articulated the theories of general and specific

jurisdiction that it was trying to prove and requested discovery of

“any information regarding the existence, nature and scope of SAB

contacts with the United States and United States persons.” As the

majority points out, only on appeal did the government fully explain

the types of contacts it hopes to discover. The majority is correct to

disregard specifics not presented below. In my view, however, the

government adequately explained to the district court the purpose of

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its request for discovery, and its description of the contacts it hoped

to find, while bare, meets the diligence standard.16 After all, it is

obvious that the government seeks evidence of physical, telephone, or

mail contacts that are lacking in the current record.

In short, the government was a diligent plaintiff with a

colorable claim. See Surpitski, 362 F.2d at 255; Sunview Condo., 116

F.3d at 965. If given the opportunity for appropriate discovery, it

may well be able to make out a prima facie showing of specific

jurisdiction. The district court did not recognize that possibility,

however, because it refused to treat the in-forum effects of SAB's

allegedly tortious activities as a jurisdictional contact. As a

result, the court ended its specific jurisdictional analysis with the

relatedness element, and summarily denied the government’s request for

discovery. Based as it was on a mistaken application of Calder, that

denial was “plainly wrong,” Crocker v. Hilton Int'l Barb., Ltd., 976

16 SAB also faults the government for not renewing its motion for
discovery before the bank filed its motion to dismiss following remand.
The timing of the government's motion was proper. The Federal Rules of
Civil Procedure do not provide an opposing party an explicit right to
discovery in the motion to dismiss context, and the government could
best explain to the court why it merited discovery in response to the
arguments in SAB's motion to dismiss. The government preserved its
request for discovery at each juncture of this case, in contrast to
plaintiffs in other cases in which we have affirmed denials of requests
for discovery. See Dynamic Image, 221 F.3d at 38; Sunview Condo., 116
F.3d at 964; Boit, 967 F.2d at 681.

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F.2d 797, 801 (1st Cir. 1992).17 See Ruiz-Troche, 161 F.3d at 86.

Moreover, the denial caused the government “substantial prejudice.”

Crocker, 976 F.2d at 801. Without discovery, the government's case

ends.

III.

Because I conclude that the district court erred in refusing

to allow jurisdictional discovery with respect to the government's

claims against SAB, I would also vacate the dismissal of the case

against IMB. The district court determined that the government had

failed adequately to plead alter ego liability against IMB, and that it

had not established a sufficient basis for personal jurisdiction. We

said in Swiss II that any ruling on alter ego liability was

17 Contrary to the majority's suggestion, Crocker does not stand for
the proposition that the district court retains “broad discretion to
decide whether discovery is required” even if the plaintiff has been
diligent and has made a colorable claim for personal jurisdiction.
Crocker, 976 F.2d at 801. In affirming the district court's denial of
discovery in Crocker, we did not so much as hint that the plaintiffs'
case was colorable, or that they had been diligent. Instead, we simply
observed that discovery would have been futile, as the information the
plaintiffs sought would not have established that the defendant did
business in Massachusetts, as required by that state's long arm
statute. See id. In so doing, we noted the district court's broad
discretion in considering such questions, and explained that its
decision would be overturned “'only upon a clear showing of manifest
injustice, that is, where the lower court's discovery order was plainly
wrong and resulted in substantial prejudice to the aggrieved party.'”
Id. (quoting Santiago v. Fenton, 891 F.2d 373, 379 (1st Cir.1989)
(discussing standard for pre-trial, non-jurisdictional, discovery)).
Under our precedents dating back to Surpitski, a district court's order
would be “plainly wrong” if, without any reason to the contrary, it
denied jurisdictional discovery to a diligent plaintiff with a
colorable claim.

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“premature,” because the jurisdictional question should be resolved

before reaching the merits of the case. 191 F.3d at 46 (citing Steel

Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 (1998); Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574 (1999)). The factors discussed in

Swiss II continue to weigh in favor of that approach here.

As the majority explains, personal jurisdiction over IMB is

contingent on the government's ability to make out a prima facie case

for jurisdiction over SAB. The district court ruled on the latter

question without having allowed discovery against SAB to proceed. I

would remand the case so that such discovery could take place. If the

government, with the benefit of jurisdictional discovery, were able to

establish a prima facie case of jurisdiction over SAB, the district

court would then have to reassess the jurisdictional status of IMB and

its alter ego ruling, as well as any discovery issues relating to IMB.

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