United States Court of Appeals
For the First Circuit
No. 07-2469
CHRISTOPHER PHILLIPS,
Plaintiff, Appellant,
v.
PRAIRIE EYE CENTER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Circuit Judge,
Merritt,* Senior Circuit Judge,
and Howard, Circuit Judge.
Pamela A. Smith with whom Law Office of Pamela A. Smith was on
brief for appellant.
Marissa I. Delinks with whom CharCretia V. Di Bartolo, William
P. Hardy, and Hinshaw & Culbertson LLP were on brief for appellee.
June 12, 2008
*
Of the Sixth Circuit, sitting by designation.
LYNCH, Circuit Judge. This dispute arises from an
employment negotiation gone awry. Christopher Phillips, an
ophthalmologist who lived at the time in Massachusetts, interviewed
in Illinois for a job with Prairie Eye Center, a full service
ophthalmology practice. After both parties signed an employment
contract for Phillips to go work for Prairie Eye in Illinois, the
relationship between the two deteriorated. Phillips never went to
work for Prairie Eye.
He filed suit against Prairie Eye in Massachusetts state
court asserting personal jurisdiction over the defendant pursuant
to the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A,
§ 3. After Prairie Eye removed the case to federal court, the
district court found that Prairie Eye lacked the requisite minimum
contacts with Massachusetts and dismissed the case. We agree and
affirm the dismissal.
I.
We accept the allegations in the complaint as true and
construe the facts in the light most favorable to the plaintiff, as
we are reviewing a dismissal for lack of personal jurisdiction.
Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290
F.3d 42, 51 (1st Cir. 2002). The facts relevant to determining
personal jurisdiction are not in dispute.
Phillips resided in Massachusetts until 2007. In June
2006, Phillips, who was seeking a new job, posted his résumé on the
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job placement section of the American Academy of Ophthalmology
website. Soon thereafter, he received an e-mail invitation for an
interview from Sandra Yeh, the owner and president of Prairie Eye
Center, located in Springfield, Illinois.
On August 11, 2006, Phillips flew to Springfield to
interview with Yeh and other doctors at Prairie Eye. Afterwards,
Prairie Eye sent an unsigned employment contract via first class
mail to Phillips in Massachusetts. The contract specifically
detailed the terms of employment, including duration, compensation,
and duties. The parties dispute how much negotiation of the
contract occurred while Phillips was in Illinois, but plaintiff
does not contest that the unsigned contract he received contained
enough material terms that it could be accepted.
On August 20, Yeh sent Phillips an e-mail, which Phillips
received in Massachusetts, asking whether Phillips had received the
employment contract and asking him if there was anything she could
do to help his decisionmaking process. This is the first of Yeh's
three e-mail contacts with Massachusetts that Phillips put in the
record.1 A few hours later, Phillips sent Yeh an e-mail, which Yeh
1
We describe the case in terms of the plaintiff's
submissions because the plaintiff bears the burden of establishing
jurisdiction. Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007).
In its Motion To Dismiss for Lack of Personal Jurisdiction, Prairie
Eye attached seven additional e-mails from Yeh to Phillips, most of
them dealing with the scheduling of Phillips's August 11 interview.
Even if we were to consider the defendant's submissions, they do
not create sufficient contacts to satisfy jurisdictional due
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received in Illinois, noting that "[n]early everything [in the
contract] looks great, but I [have] just a couple of minor requests
to ask of you." Yeh, via an e-mail later that day (and the second
of the proffered e-mail contacts), agreed in principle to
Phillips's proposed changes and asked him to modify the contract
with his changes and mail the contract back to Yeh. Phillips then
typed his changes into an addendum, signed the contract and
addendum, and the following day, mailed the signed contract and
addendum to Yeh in Illinois.
A couple of weeks later, on September 10, Yeh e-mailed
Phillips again, in the third and last of the proffered e-mail
contacts. Yeh noted that she had made a change to the addendum
(specifically with regards to the timing of the partnership offer),
and needed Phillips to initial the change and send it back to her.
Two days later, Phillips e-mailed Yeh saying, "I will initial the
contract and get the original right out to you." He then e-mailed
a scanned copy of the initialed contract back to Yeh.
A copy of the contract, executed by both parties, is in
the record. The contract, however, was never performed. Soon
after the Phillips e-mailed the contract back to Yeh, the
relationship between the two fell apart, and Phillips never went to
work for Yeh at Prairie Eye Center. How and why the relationship
process requirements.
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soured is not relevant to the jurisdictional question presented to
us.
About a month later, on October 20, 2006, Phillips filed
suit against Prairie Eye Center in state court in Massachusetts
asserting breach of fiduciary duty and breach of the implied
covenant of good faith and fair dealing and seeking a declaratory
judgment that the contract was null and void. The defendant
removed the action to federal court and filed a motion to dismiss
for lack of personal jurisdiction. After allowing extensive
briefing and holding a motion hearing, the district court dismissed
the case for lack of personal jurisdiction by a docket notation.
While this case was on appeal, the defendant, Prairie Eye
Center, filed a breach of contract action against Phillips in U.S.
District Court for the Central District of Illinois seeking damages
and declaratory relief. Phillips, who has since moved to the state
of Washington, moved for a stay of that proceeding because of the
pending appeal in this case. The federal district court in
Illinois denied the stay, and Phillips has asserted the claims he
makes here as counterclaims in that case.
II.
A. Standard of Review and Burden of Proof
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We review de novo a district court's decision to dismiss
for lack of personal jurisdiction. Adelson v. Hananel, 510 F.3d
43, 48 (1st Cir. 2007).
The district court "may choose from among several methods
for determining whether the plaintiff has met [its] burden." Id.
(quoting Daynard, 290 F.3d at 50-51) (internal quotation marks
omitted). Because the district court did not hold an evidentiary
hearing but credited the plaintiff's evidentiary submissions, we
construe the court's ruling as employing the prima facie method.2
This is "the least taxing of these standards from a plaintiff's
standpoint." Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83-
84 (1st Cir. 1997).
Under the prima facie standard, the inquiry is whether
the plaintiff has proffered evidence which, if credited, is
sufficient to support findings of all facts essential to personal
jurisdiction. Daynard, 290 F.3d at 51. In order to make a prima
facie showing of jurisdiction, "the plaintiff ordinarily cannot
rest upon the pleadings but is obliged to adduce evidence of
specific facts." Foster-Miller, Inc. v. Babcock & Wilcox Canada,
46 F.3d 138, 145 (1st Cir. 1995). The court "must accept the
plaintiff's (properly documented) evidentiary proffers as true for
2
The other two methods, the preponderance method and the
likelihood method, usually require an evidentiary hearing. See
Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 146
(1st Cir. 1995).
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the purpose of determining the adequacy of the prima facie
jurisdictional showing," Daynard, 290 F.3d at 51 (quoting
Foster-Miller, 46 F.3d at 145) (internal quotation marks omitted),
and "construe them in the light most congenial to the plaintiff's
jurisdictional claim," id. (quoting Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998)) (internal
quotation mark omitted).
B. Jurisdictional Analysis
There is no claim here of general jurisdiction. See
Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st Cir. 2005)
(describing the difference between general jurisdiction, which
requires that the defendant have continuous and systematic contacts
with the state, and specific jurisdiction, where the claim must be
related to the defendant's contacts). Phillips bases his claim of
specific personal jurisdiction over Prairie Eye on the
Massachusetts long-arm statute. We proceed directly to the
constitutional analysis, "because the Supreme Judicial Court of
Massachusetts has interpreted the state's long-arm statute 'as an
assertion of jurisdiction over the person to the limits allowed by
the Constitution of the United States.'" Daynard, 290 F.3d at 52
(quoting 'Automatic' Sprinkler Corp. of Am. v. Seneca Foods Corp.,
280 N.E.2d 423, 424 (Mass. 1972)).
The Due Process Clause requires that "in order to subject
a defendant to a judgment in personam, if he be not present within
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the territory of the forum, he have certain minimum contacts with
it such that maintenance of the suit does not offend 'traditional
notions of fair play and substantial justice.'" Int'l Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)). For specific jurisdiction, the
constitutional analysis is divided into three categories:
relatedness, purposeful availment, and reasonableness.
First, the claim underlying the litigation
must directly arise out of, or relate to, the
defendant's forum-state activities. Second,
the defendant's in-state contacts must
represent a purposeful availment of the
privilege of conducting activities in the
forum state, thereby invoking the benefits and
protections of that state's laws and making
the defendant's involuntary presence before
the state's courts foreseeable. Third, the
exercise of jurisdiction must, in light of the
Gestalt factors, be reasonable.
Adelson, 510 F.3d at 49 (quoting Daynard, 290 F.3d at 60). The
plaintiff must demonstrate that each of these three requirements is
satisfied.
1. Relatedness
"The evidence produced to support specific jurisdiction
must show that the cause of action either arises directly out of,
or is related to, the defendant's forum-based contacts." Harlow,
432 F.3d at 60-61 (1st Cir. 2005); see also Adelson, 510 F.3d at
49. There must be more than just an attenuated connection between
the contacts and the claim; "the defendant's in-state conduct must
form an 'important, or [at least] material, element of proof' in
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the plaintiff's case." Harlow, 432 F.3d at 61 (quoting United
Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1089 (1st Cir. 1992)) (internal quotation marks omitted).
Phillips brings both a contract claim, breach of the
implied covenant of good faith and fair dealing, and a tort claim,
breach of fiduciary duty. Although the standard for relatedness
for a tort claim is typically different from that of a contract
claim, Jet Wine & Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 10
(1st Cir. 2002), here the two claims are sufficiently connected
that the difference is of no concern. Phillips's claim for breach
of fiduciary duty concerns the formation of his employment
contract. See, e.g., id. (noting that when "the tort is
intentional interference with a contractual . . . relationship, the
two inquiries begin to resemble each other"). Thus, here, we look
to whether "the defendant's activity in the forum state was
'instrumental either in the formation of the contract or its
breach.'" Adelson, 510 F.3d at 49 (quoting Phillips Exeter Acad.
v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999)).
Phillips's case does not contain the typical factors
which have led us to conclude there is sufficient relatedness.
This is unlike cases where the specific terms of an employment
contract were "formalized and entered into" in the forum state, and
where the employee was subject to "substantial control and ongoing
connection to [the forum state] in the performance of this
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contract." Id. Here, Phillips provided no evidence that any
negotiations took place in Massachusetts. In fact, the unsigned
employment contract sent to Phillips shortly after his interview in
Illinois is both definite and detailed, and it precedes the three
e-mails from Yeh to Phillips. Still, Phillips's claim does arise
out of his contractual relationship with Prairie Eye Center and,
accepting his allegations as true, Yeh's communications to
Phillips, which he received in Massachusetts, were in bad faith.
See Daynard, 290 F.3d at 61. That said, we will assume arguendo
that the plaintiff established sufficient relatedness.
2. Purposeful Availment
Phillips must also show that Prairie Eye purposefully
availed itself of "the privilege of conducting activities in the
forum state, thereby invoking the benefits and protections of that
state's laws and making the defendant's involuntary presence before
the state's courts foreseeable." Id. (quoting Foster-Miller, 46
F.3d at 144) (internal quotation mark omitted). As the formulation
suggests, purposeful availment involves both voluntariness and
foreseeability. Id.; see also Adelson, 510 F.3d at 50.
Voluntariness requires that the defendant's contacts with the forum
state "proximately result from actions by the defendant himself."
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The
contacts must be deliberate, and "not based on the unilateral
actions of another party." Adelson, 510 F.3d at 50 (citing Burger
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King, 471 U.S. at 475). Foreseeability requires that the contacts
also must be of a nature that the defendant could "reasonably
anticipate being haled into court there." Id. (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)) (internal
quotation marks omitted).
Prairie Eye's contacts with Massachusetts are plainly
voluntary.3 Prairie Eye knew that Phillips said he was a resident
of Massachusetts and mailed the unsigned employment contract to
Phillips in Massachusetts. Prairie Eye does not contest that it
knew Phillips was in Massachusetts when Yeh wrote the e-mails.
Phillips relies on these facts to argue that because he
accepted the contract in Massachusetts, Prairie Eye should have
foreseen that it could be haled into court in Massachusetts. We
have held, however, in a variety of contexts, that the defendant's
awareness of the location of the plaintiff is not, on its own,
3
At oral argument, we raised the question as to whether
the voluntariness inquiry should be different for an e-mail contact
than for a landline telephone, postal, or face-to-face contact.
For the latter types of contacts, voluntariness is clear as the
originator of the communication must know its destination before
initiating the communication. For example, someone mailing a
letter must write a physical address, which exists in some
jurisdiction, on the envelope. With an e-mail, however, the
originator sends a message to an e-mail address, which does not
signal the physical location of the recipient. Generally, the
recipient can open the e-mail anywhere in the world. In this case,
voluntariness may be ambiguous because the originator of the
communication may not know in which jurisdiction the communication
will be received. This case does not turn on these issues, though.
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enough to create personal jurisdiction over a defendant. When a
patient argued that jurisdiction in Maine over a Massachusetts
hospital was proper because the defendant knew plaintiff resided in
Maine, we noted: "Jurisdiction cannot be created by and does not
travel with the plaintiff patient wherever she goes." Harlow, 432
F.3d at 63; see also Sawtelle v. Farrell, 70 F.3d 1381, 1392 (1st
Cir. 1995) (finding no purposeful availment when "the [defendants']
only connection with [the forum state] was the [plaintiffs']
residence there"). When a plaintiff tire manufacturer argued that
a defendant rim manufacturer was subject to personal jurisdiction
in Puerto Rico, we noted that even if the defendant had specific
knowledge that the stream of commerce would move its tire rims into
Puerto Rico, "awareness alone would not be enough to constitute the
purposeful availment which is necessary for a showing of minimum
contacts." Rodriguez, 115 F.3d at 85 (citing Asahi Metal Indus.
Co. v. Superior Ct., 480 U.S. 102, 112 (1987) (plurality opinion)).
There is little besides awareness here. It stretches too
far to say that Prairie Eye, by mailing a contract with full terms
to Massachusetts for signature and following up with three e-mails
concerning the logistics of signing the contract, should have known
that it was rendering itself liable to suit in Massachusetts. The
Massachusetts Supreme Judicial Court recently found personal
jurisdiction over nonresident plaintiffs did not comport with due
process where the only contacts consisted of a purchase of an
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insurance policy from a Massachusetts insurer and the mailing of
premium payments to Massachusetts. Moelis v. Berkshire Life Ins.
Co., ___ N.E.2d ___, 2008 WL 2122417, at *3 (Mass. May 22, 2008);
see also N.H. Ins. Guar. Ass'n v. Markem Corp., 676 N.E.2d 809, 812
(Mass. 1997) (no personal jurisdiction over policyholder defendants
where insurance contracts were drafted in New Hampshire, insured
activity did not occur in Massachusetts, and only relevant contacts
were plaintiff's mailing of policy from Massachusetts to defendant,
defendant's mailing of payment to insurer in Massachusetts, and
defendant's submission of claims to Massachusetts); 'Automatic'
Sprinkler Corp., 280 N.E.2d at 425 (no personal jurisdiction over
New York defendant that signed purchase order to buy goods from
Massachusetts seller, mailed purchase order to Massachusetts,
received invoice from Massachusetts, and sent check to
Massachusetts).
The contract was for Phillips to be employed in Illinois,
and never for him to be employed in Massachusetts. See, e.g.,
Harlow, 432 F.3d at 63 ("In the case of personal services focus
must be on the place where the services are rendered, since this is
the place of the receiver's . . . need." (quoting Wright v.
Yackley, 459 F.2d 287, 289 (9th Cir. 1972)) (block quotation)).
Defendant did not initiate the contact with plaintiff in
Massachusetts; rather, it was the other way around. Phillips
posted his résumé on a national website, and was actively seeking
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employment outside of Massachusetts. Yeh never entered
Massachusetts herself: it was the plaintiff who physically went to
Illinois to be interviewed and to discuss a job.
A purpose of the foreseeability requirement is that
"personal jurisdiction over nonresidents . . . is a quid for a quo
that consists of the state's extending protection or other services
to the nonresident." Sawtelle, 70 F.3d at 1392 (quoting Coté v.
Wadel, 796 F.2d 981, 984 (7th Cir. 1986)) (alteration omitted)
(internal quotation marks omitted); see also Moelis, 2008 WL
2122417, at *3 (noting that jurisdiction is more appropriate "where
nonresidents more intentionally take advantage of favorable State
policies"). There is no indication nor even an allegation that
Prairie Eye availed itself of any of the protections of
Massachusetts law or any other services provided by the state. See
Phillips Exeter Acad., 196 F.3d at 292. Hence, Prairie Eye's
contacts with Massachusetts do not constitute sufficiently
purposeful availment to allow for the exercise of jurisdiction.
3. Reasonableness
In addition, the Gestalt factors weigh strongly against
the exercise of jurisdiction here. The Gestalt factors measure
reasonableness: even "if such [requisite] contacts exist," the
court's exercise of jurisdiction "must comport with 'fair play and
substantial justice.'" U.S.S. Yachts, Inc. v. Ocean Yachts, Inc.,
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894 F.2d 9, 11 (1st Cir. 1990) (quoting Burger King, 471 U.S. at
476).
We think it would be unfair to subject Prairie Eye to
suit in Massachusetts. First, the burden on the defendant is
disproportionate. The defendant's principal place of business is
in Illinois, and it has no ongoing connection to Massachusetts. As
the defendant informed the district court, it plans to call
multiple Illinois witnesses in support of its case, all of whom are
outside of the jurisdiction of Massachusetts courts.
Second, while we normally give deference to the
plaintiff's choice of forum, see Adelson, 510 F.3d at 52, as the
plaintiff no longer lives in Massachusetts, it is hard to see why
it would be less burdensome for him to appear in Illinois than in
Massachusetts, save that he has retained a Massachusetts lawyer.
In addition, efficient administration of justice can easily be
accomplished in Illinois, where the plaintiff has already asserted
his claims as counterclaims in the civil action that is currently
proceeding against him. See Daynard, 290 F.3d at 62-63.
Accordingly, exercising personal jurisdiction over
Prairie Eye in Massachusetts would "offend traditional notions of
fair play and substantial justice." Int'l Shoe, 326 U.S. at 316
(quoting Milliken, 311 U.S. at 463) (internal quotation marks
omitted).
The judgment of the district court is affirmed.
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