C.W. Downer & Company v. Bioriginal Food & Science Corp , 771 F.3d 59 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 14-1327
C.W. DOWNER & COMPANY,
Plaintiff, Appellant,
v.
BIORIGINAL FOOD & SCIENCE CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.
Steven J. Torres, with whom Kate S. Swartz and Torres Scammon
& Day LLP were on brief, for appellant.
Alan D. Rose, Jr., with whom R. Victoria Fuller and Rose,
Chinitz & Rose were on brief, for appellee.
November 12, 2014
LYNCH, Chief Judge. The Due Process Clause of the
Fourteenth Amendment allows a state's courts to exercise
jurisdiction over a nonresident defendant only when doing so "does
not offend 'traditional notions of fair play and substantial
justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This
contract case presents these issues where the parties' contacts
were not first-hand and involved no physical presence in
Massachusetts, but were by phone, e-mail, and internet over an
international border. The district court concluded that it could
not exercise personal jurisdiction over the defendant consistently
with the Due Process Clause. C.W. Downer & Co. v. Bioriginal Food
& Sci. Corp., No. 13-11788-DJC, 2014 WL 815189 (D. Mass. Mar. 3,
2014). We conclude to the contrary that the Massachusetts courts
do have long-arm jurisdiction over the Canadian defendant.
In 2009, the defendant Bioriginal Food & Science
Corporation, a Canadian company, contracted with C.W. Downer & Co.,
a Massachusetts investment bank, to be its exclusive financial
advisor for the sale of its business. The parties negotiated and
executed the agreement remotely, and subsequently spent four years
collaborating from their respective home offices. Downer later
sued in state court in Massachusetts for breach of contract, and
Bioriginal removed the case to federal court. The district court
dismissed for lack of personal jurisdiction. In light of the
-2-
nature, the number of contacts over time, the origin, and the
duration of the parties' contacts, we hold that the exercise of
long-arm jurisdiction by Massachusetts is consistent with fair play
and substantial justice. We reverse and remand.
I.
Downer is a global investment bank founded and
headquartered in Boston, Massachusetts. Twenty-three of its
seventy-five employees work in Boston. Bioriginal is a Canadian
corporation that produces omega-based nutritional supplements, and
is headquartered in Saskatoon, Saskatchewan.
In September 2008, Christopher Johnson visited Boston.
Johnson was an employee of Bioriginal investor Crown Capital and
sat on Bioriginal's Board of Directors as its de facto chairman.
While in Boston, Johnson met with Downer in Downer's headquarters.
The purpose of the meeting is not in evidence. However, Johnson
"indicated" to Downer while meeting there that Bioriginal "would be
offered for sale in the next twelve months." The record does not
reveal whether Johnson explicitly approached Downer on behalf of
Bioriginal.
After the meeting, Downer contacted Bioriginal,
referencing Johnson's visit. Bioriginal (including Johnson and CEO
Joseph Vidal) and representatives from Downer's Boston office
remotely negotiated by calls, e-mails, and teleconferences a Letter
-3-
Agreement under which Bioriginal hired Downer to assist in the sale
of Bioriginal. On March 16, 2009, Vidal transmitted his signed
copy of the agreement, dated March 12, to Downer in Boston. There
was never a physical meeting of the contracting parties.
Under the terms of the Letter Agreement, Downer acted as
Bioriginal's exclusive financial adviser in connection with the
potential sale of Bioriginal. The agreement provided it could be
terminated by either party with thirty days written notice.
According to Downer, neither side ever provided such written
notice. The agreement also contained a choice-of-law provision in
favor of Saskatchewan law and consent by both parties to
jurisdiction in Saskatchewan courts, but it did not, by its terms,
preclude suit in Massachusetts.
Bioriginal agreed to pay Downer four "Milestone Payments"
of $20,000 when specified tasks were completed, three of which it
subsequently made to Downer in Massachusetts. Bioriginal also
agreed to pay Downer another contingent fee for each completed
transaction involving Bioriginal and another company "prior to the
termination of this program." The contingent transaction fee
stated is the greater of $420,000 or $200,000 plus one to five
percent of the transaction value (depending on the size of the
transaction). All paid Milestone Payments were to be deducted from
this contingent fee for the completion of a transaction, so long as
the resulting amount was not less than a specified value.
-4-
Three members of Downer's Boston office handled Downer's
performance under the contract. (Downer has no other North
American offices.) They communicated regularly but remotely with
Vidal, Johnson, and other members of Bioriginal's management team
and board. From April to July 2009, Downer prepared a detailed
Information Memorandum which the parties exchanged with comments
eleven times. Downer regularly received input from Vidal by
teleconferences and e-mail, including an e-mail from Vidal to
Downer collecting comments from Bioriginal board members. By
September 2009, Downer had contacted 206 potential buyers and
received four bids, keeping Vidal "abreast of its efforts" all the
while. Downer then worked with Bioriginal's management and a
subcommittee of the Board to prepare a joint management
presentation for select bidders. Bioriginal gave input even at the
level of preparing individual slides of the presentation.
Though no sale of Bioriginal was made in 2009 or 2010,
Downer continued to work on getting Bioriginal a deal. From
February 2011, Downer contacted potential suitors and exchanged
information with Bioriginal before delivering an "M&A Update"
document on May 2, 2011, at Bioriginal's request. Downer persisted
in its efforts to secure a buyer. Downer says in September 2011 it
identified a private equity group as a potential buyer and informed
Bioriginal. Downer then hosted a conference call the next month,
October 2011, for Bioriginal and the private equity group to
-5-
explore an acquisition of Bioriginal. The potential sale never
took place. Downer claims that its personnel remained in contact
with Bioriginal through 2013. Downer's managing director asserted
in his affidavit that there were periodic phone calls and e-mails
with Vidal.
Sometime in the spring of 2013, Downer learned that
Bioriginal had been sold to Westbridge Capital, Ltd.1 Downer asked
Biorignial to pay its transaction fee and the fourth Milestone
Payment, but Bioriginal refused. Downer states that Bioriginal has
asserted that it had terminated the agreement earlier, perhaps in
2009. Here, Bioriginal seems to ground its merits defense on the
argument that Downer was not involved in the sale of Bioriginal to
Westbridge.
On July 1, 2013, Downer sued Bioriginal in Massachusetts
Superior Court claiming breach of contract, breach of the implied
covenant of good faith and fair dealing, unjust enrichment, and
violation of the Massachusetts unfair trade practices statute,
Mass. Gen. Laws ch. 93A. Bioriginal removed the case to federal
district court in Massachusetts on July 26. On August 16,
Bioriginal moved to dismiss, arguing that the court lacked personal
jurisdiction over Bioriginal, that a forum non conveniens dismissal
1
Westbridge is a private equity firm that partnered with
Bioriginal's management team for a management buy-out.
-6-
was appropriate in favor of Saskatchewan court, and that Downer's
93A claim should be dismissed for failure to state a claim.
The district court allowed the motion to dismiss for lack
of jurisdiction under Rule 12(b)(2), did not reach the forum non
conveniens issue, and denied as moot the 12(b)(6) motion to dismiss
the 93A claim. This appeal followed.
II.
Where, as here, a district court dismisses a case for
lack of personal jurisdiction based on the prima facie record,
rather than after an evidentiary hearing or factual findings, our
review is de novo. E.g., Phillips v. Prairie Eye Ctr., 530 F.3d
22, 26 (1st Cir. 2008). In reviewing the facts, we take the
plaintiff's evidentiary proffers as true and construe them in the
light most favorable to the plaintiff's claim, and we also consider
uncontradicted facts proffered by the defendant. Daynard v. Ness,
Motley, Loadholt, Richardson, & Poole, P.A., 290 F.3d 42, 51 (1st
Cir. 2002).
To establish personal jurisdiction in a diversity case,
a plaintiff must satisfy both the forum state's long-arm statute
and the Due Process Clause of the Fourteenth Amendment.
Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.
1994). The district court and the parties each proceed directly to
the constitutional analysis, and we will do so as well.
-7-
Downer asserts only that Massachusetts has specific in
personam jurisdiction over Bioriginal, not general jurisdiction.
That is, the jurisdictional basis for Downer's suit arises from and
is limited to Bioriginal's suit-related conduct. See Walden v.
Fiore, 134 S. Ct. 1115, 1121 (2014). To evaluate whether
Bioriginal's suit-related conduct creates the necessary minimum
contacts with Massachusetts, courts consider (1) whether the claim
"directly arise[s] out of, or relate[s] to, the defendant's forum
state activities;" (2) whether the defendant's in-state contacts
"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;" and
(3) whether the exercise of jurisdiction is reasonable. Daynard,
290 F.3d at 60-61 (quoting Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 144 (1st Cir. 1995)) (internal quotation marks
omitted).
There is one fact about this case which has not been
recognized in the briefing. It is that a state's long-arm
jurisdiction is being asserted against a defendant who is in a
foreign country, and not in a sister state. In Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Court
applied the usual three part analysis in a foreign-defendant case.
Id. at 109-16. As to the reasonableness prong, in Part II.B of its
-8-
opinion, the Court noted that the reasonableness of the exercise of
jurisdiction depends on different factors, including the "burden on
the defendant, the interests of the forum State, and the
plaintiff's interest in obtaining relief." Id. at 113. A court
"must also weigh in its determination 'the interstate judicial
system's interest in obtaining the most efficient resolution of
controversies[] and the shared interests of the several States in
furthering fundamental substantive social policies.'" Id. (quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).
The Court applied those considerations with special emphasis in
light of that case's factual context, including the defendant's
international home forum. We return to Asahi when we discuss
reasonableness.
Downer must succeed on all three prongs in order to
establish personal jurisdiction. We hold that it has.
A. Relatedness
Bioriginal did not contest relatedness in the district
court and spends less than three pages of its brief here on the
issue. We discuss it because the district court found no
relatedness, as it found no purposeful availment. Downer, 2014 WL
815189, at *3.
The relatedness prong requires the plaintiff to show "a
demonstrable nexus between [its] claims and [the defendant's]
forum-based activities, such . . . [that] the litigation itself is
-9-
founded directly on those activities." Adelson v. Hananel, 652
F.3d 75, 81 (1st Cir. 2011) (third and fourth alterations in
original) (internal quotation marks and citation omitted). This
test is a "flexible, relaxed standard." Id. (internal quotation
marks and citation omitted). In a contract case, we focus on "the
parties' 'prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties' actual course
of dealing.'" Daynard, 290 F.3d at 52 (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 479 (1985)). We conduct this analysis
with reference to the contacts the defendant creates with the forum
state, though those contacts may be "intertwined" with the
activities of the plaintiff. Walden, 134 S. Ct. at 1122-23; see
Adams v. Adams, 601 F.3d 1, 6 (1st Cir. 2010) (discussing "whether
the defendant's activity in the forum state was instrumental either
in the formation of the contract or its breach" or whether the
defendant was "subject to substantial control and ongoing
connection to [the forum state] in the performance of th[e]
contract" (first alteration in original) (internal quotation marks
and citations omitted)).
In this case, the evidence of contacts during the course
of dealing is powerful. Bioriginal had an ongoing connection with
Massachusetts in the performance under the contract. Downer's
claims arise from the alleged breach of that contract. That is
enough to establish relatedness. See Adelson, 652 F.3d at 81-82.
-10-
B. Purposeful Availment
We now turn to the "purposeful availment" prong. The
purposeful availment prong "represents a rough quid pro quo: when
a defendant deliberately targets its behavior toward the society or
economy of a particular forum, the forum should have the power to
subject the defendant to judgment regarding that behavior."
Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011).
The cornerstones of this inquiry are voluntariness and
foreseeability. Daynard, 290 F.3d at 61. This places the emphasis
on the defendant's intentions and prohibits jurisdiction based on
"random, fortuitous, or attenuated contacts." Carreras, 660 F.3d
at 555 (quoting Burger King, 471 U.S. at 475) (internal quotation
marks omitted). Purposeful availment is an equally important
factor when foreign defendants are involved. See J. McIntyre
Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2790-91 (2011) (plurality
opinion).
The contacts here clearly were not random, fortuitous, or
attenuated. First, the genesis of the Downer engagement strongly
supports the case for purposeful availment. After all, Downer
first learned of Bioriginal's sale from Johnson, Bioriginal's de
facto chairman, in Downer's Boston office. Cf., e.g., Adelson, 652
F.3d at 82-83 (relying in part on solicitation); Phillips, 530 F.3d
at 29 (emphasizing the absence of solicitation when finding no
-11-
purposeful availment). Johnson's statement was certainly
voluntary, and there is nothing to indicate Bioriginal lacked
foreseeability as to it. Downer, in response, then contacted
Bioriginal's headquarters to negotiate the agreement. Downer's
call to Bioriginal was not a cold call: it was with reference from
Johnson.
Second, the contract was not of a short duration or
quickly accomplished. Bioriginal had a four-year working
relationship with Downer, including intense periods with many
exchanges.2 Bioriginal knew or should have expected Downer's
Boston office -- its only North American office, and the one with
which Bioriginal negotiated the Letter Agreement -- to be the site
of its partner team. This was no small project: according to the
Letter Agreement, Downer was Bioriginal's "exclusive financial
adviser" on the sale of the entire firm. To that end, Bioriginal
personnel (including its CEO and Board) and Downer's Boston office
collaborated intensively. The record includes statements from
Downer personnel detailing contacts, eleven emails and documents
traded between the two firms, and eleven iterations on one
document. Moreover, many of those e-mails refer to other e-mails
or to phone calls and teleconferences involving Bioriginal and
2
The record contains some conflict about whether Downer's
relationship with Bioriginal terminated in 2009. Downer alleges
that the relationship lasted the full four years, and we take that
as true under the prima facie approach. E.g., Daynard, 290 F.3d at
51.
-12-
Downer's Boston office. Bioriginal and Downer worked together on
significant documents, and Bioriginal provided its input on many
items, including individual slides. As part of that work, Downer
asserts it contacted hundreds of potential buyers on Bioriginal's
behalf. At least once, Downer arranged and hosted a conference
call with Bioriginal and a potential buyer. And Bioriginal sent
three payments to Downer in Boston.
To be sure, the purposeful availment inquiry is focused
on contacts between the defendant and the forum state, not between
the defendant and the plaintiff. Walden, 134 S. Ct. at 1122. The
contacts here, however, are hardly the "random," "fortuitous,"
"attenuated," or "isolated" contacts inadequate to give rise to
jurisdiction. Burger King, 471 U.S. at 475 & n.18. Rather,
Bioriginal "reach[ed] out beyond" Canada and into Massachusetts by
"entering a contractual relationship that 'envisioned continuing
and wide-reaching contacts' in the forum state." Walden, 134 S.
Ct. at 1122 (quoting Burger King, 471 U.S. at 479-80).
True, many of the e-mails, phone calls, and other
activities were originated by Downer in Massachusetts and directed
to Bioriginal and third parties elsewhere (although others were
directed by Bioriginal to Downer in Massachusetts). But it makes
little sense to focus too much on who initiated a particular
contact in exploring a lengthy course of dealing in a services
contract. By retaining Downer, Bioriginal actively caused Downer
-13-
to undertake extensive activities on Bioriginal's behalf within
Massachusetts. Part of what Bioriginal was paying for was for
Downer to take initiative on its behalf. And so, while a
plaintiff's "unilateral activity" cannot constitute a
jurisdictional contact, World-Wide Volkswagen, 444 U.S. at 298(internal quotation marks omitted), Downer's extensive
Massachusetts activities in this case, given the context, were not
"unilateral." They were undertaken at Bioriginal's request and are
attributable to Bioriginal.
The district court's rejection of jurisdiction was based
on reasoning that "interstate communications by phone and mail are
insufficient to demonstrate purposeful availment" absent other
contacts. Downer, 2014 WL 815189, at *4. The district court then
concluded that Bioriginal negotiated the agreement from Canada,
felt the benefit of the agreement in Canada, and was in breach of
the agreement by failing to act in Canada. Id. at *3-6.
Bioriginal urges the same on appeal.
That reasoning does not support rejection of
jurisdiction. "[I]t is an inescapable fact of modern commercial
life that a substantial amount of business is transacted solely by
mail and wire communications across state lines . . . ." Burger
King, 471 U.S. at 476. In light of this reality, the Supreme Court
has "consistently rejected" a physical contact test for personal
jurisdiction. Id. Before Burger King, in International Shoe, the
-14-
Court had already said that a nonresident's physical presence
within the territorial jurisdiction of the court is not required.
326 U.S. at 316.
It is not true that interstate remote communications are,
by their nature, per se insufficient to constitute contacts that
sustain personal jurisdiction. See Daynard, 290 F.3d at 61 n.11
("The transmission of facts or information into Massachusetts via
telephone or mail would of course constitute evidence of a
jurisdictional contact directed into the forum state." (quoting
Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26,
36 (1st Cir. 1998)) (internal quotation marks omitted)). A
nonresident defendant purposefully avails itself of the forum state
when the defendant's actions "create a 'substantial connection'
with the forum State." Burger King, 471 U.S. at 475 (quoting McGee
v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957)).3 A "substantial
connection" can arise whenever the defendant deliberately directs
its efforts toward the forum state. Id. at 476. Jurisdiction has
been upheld where the defendant purposefully reached out "beyond
their State and into another by, for example, entering a
contractual relationship that envisioned continuing and wide-
reaching contacts in the forum State." Walden, 134 S. Ct. at 1122
3
As the district court emphasized, convincing indicia of a
substantial connection include a nonresident's physical trips to
the forum state or a nonresident's solicitation of business in the
forum state. See, e.g., Adelson, 652 F.3d at 82-83.
-15-
(quoting Burger King, 471 U.S. at 479-80) (internal quotation marks
omitted). The number and duration of the remote contacts are
significant to the analysis.
The district court's reasoning drew on two different
categories of cases. First, the district court analogized to
"passive purchaser" cases, in which the nonresident defendant merely
purchases and receives goods from the forum state. See R & B
Splicer Sys., Inc. v. Woodland Indus., Inc., No. 12-11081-GAO, 2013
WL 1222410 (D. Mass. Mar. 26, 2013); cf. Telford Aviation, Inc. v.
Raycom Nat'l, Inc., 122 F. Supp. 2d 44, 47 (D. Me. 2000) (finding
no purposeful availment where nonforum resident exchanged
communications with forum resident only to schedule delivery of
services). Bioriginal was not passive. It actively negotiated the
contract and the contract required interactive communications
between the two companies for an extended period of time. Nor is
this like cases where the defendant passively puts an item in the
stream of commerce. See, e.g., J. McIntyre Mach., 131 S. Ct. at
2788.
Second, the district court analogized to cases in which
clients sue their nonresident lawyers for legal malpractice. See,
e.g., Kowalski v. Doherty, Wallace, Pillsbury, & Murphy, 787 F.2d
7 (1st Cir. 1986). These cases are inapt for multiple reasons.
Most significant, they present the reverse scenario from this case:
in those cases, a client sought to sue a service provider at the
-16-
client's home. Unlike this case, they do not involve a defendant
who procured the performance of extensive services in the very forum
in which the defendant would be subject to jurisdiction.4
C. Reasonableness
Though Downer has satisfied the first two prongs of the
analysis, we must nonetheless assure ourselves that Massachusetts'
assertion of jurisdiction is fair and reasonable. We do so with
reference to five "gestalt" factors:
(1) the defendant's burden of appearing [in the
forum state], (2) the forum state's interest in
adjudicating the dispute, (3) the plaintiff's
interest in obtaining convenient and effective
relief, (4) the judicial system's interest in
obtaining the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
Ticketmaster-New York, 26 F.3d at 209 (citing Burger King, 471 U.S.
at 477). These factors typically "play a larger role in cases" --
unlike this one -- "where the minimum contacts question is very
close." Adelson v. Hananel, 510 F.3d 43, 51 (1st Cir. 2007); see
Ticketmaster-New York, 26 F.3d at 210 ("[T]he weaker the plaintiff's
showing on the first two prongs . . . the less a defendant need show
in terms of unreasonableness to defeat jurisdiction.") We do not
consider the minimum contacts issue to be very close.
4
Our conclusion is also entirely consistent with the Letter
Agreement's jurisdictional provision. The agreement includes a
choice of law provision in favor of the law of Saskatchewan and
consent by Downer to jurisdiction of Saskatchewan courts, but it
does not include a forum selection clause.
-17-
Nor is the fact that a foreign defendant is involved of
much moment here. Those concerns are of far less weight in this
case than in Asahi. Bioriginal identifies no special burden imposed
by requiring it to litigate across the Canada-United States border,
nor any international policy burdened by Massachusetts's exercise
of jurisdiction. Massachusetts, Saskatchewan, and all individuals
involved transact business in a common language, English. Indeed,
even in the Massachusetts forum, Saskatchewan will have its laws
govern the substantive issues in the case, and Bioriginal itself has
emphasized the similarities between Saskatchewan and Massachusetts
law. The international dimensions of the case do not create "unique
burdens" for Bioriginal. Asahi, 480 U.S. at 114. Indeed,
Bioriginal makes no claim to that effect. See United Elec. Radio
& Mach. Workers of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 46-47
(1st Cir. 1993).
We compare Asahi's facts to those of this case. The
dispute in Asahi was whether "a Japanese corporation should
indemnify a Taiwanese corporation on the basis of a sale made in
Taiwan and a shipment of goods from Japan to Taiwan." 480 U.S. at
115. Jurisdiction over the defendant would have required the
defendant, from a civil law country, to litigate in California.
See, e.g., Shishido, Japanese Corporate Governance, 25 Del. J. Corp.
L. 189, 195 (2000). The defendant also would have had to litigate
across the Pacific Ocean. And the burden of litigating at such a
-18-
distance was greater given that the transaction underlying the claim
took place entirely in Asia. Asahi, 480 U.S. at 114. None of these
burdens are present in this case.
Bioriginal does emphasize the inconvenience imposed on any
witnesses who will be required to travel from Saskatoon to Boston.
This is a far milder complaint than in Asahi, which concerned the
burden of conducting the entire course of litigation at substantial
distance from the defendant's normal forum. 480 U.S. at 114. This
inconvenience does not determine the outcome of our jurisdiction
analysis. "[M]ounting an out-of-state defense most always means
added trouble and cost," BlueTarp Fin., Inc. v. Matrix Constr. Co.,
709 F.3d 72, 83 (1st Cir. 2013), and modern travel "creates no
especially ponderous burden for business travelers," Pritzker v.
Yari, 42 F.3d 53, 64 (1st Cir. 1994). For this type of burden to
affect the analysis, the defendant must show that it is "special or
unusual." BlueTarp Fin., 709 F.3d at 83 (quoting Hannon v. Beard,
524 F.3d 275, 285 (1st Cir. 2008)) (internal quotation marks
omitted). Bioriginal has not done so. And we suspect that the
merits issues may come down to a question of contract interpretation
for the court. Most logistical challenges can be resolved through
the use of affidavits and video devices.5
5
Bioriginal stresses that Massachusetts courts lack
jurisdiction to subpoena Johnson, who now lives in Toronto and no
longer is affiliated with Bioriginal, if he were not to come
voluntarily. See 9A Wright & Miller, Fed. Prac. & Proc. Civ.
§ 2462 (3d ed.). Downer and Bioriginal dispute whether Johnson's
-19-
In this case, the gestalt factors do not overcome the
earlier showing. The parties have identified few burdens,
interests, or inefficiencies that cut strongly in favor of or
against jurisdiction. In our view, a particularly weighty factor
is Massachusetts's interest in adjudicating the dispute. Cf. Asahi,
480 U.S. at 115-16 (identifying California's "minimal" interest in
the validity of the indemnification claim, a loss allocation
question between two foreign corporations). Massachusetts has
"significant" interests in providing a convenient forum for disputes
involving its citizens and in ensuring that its companies have easy
access to a forum when their commercial contracts are said to be
breached by out-of-state defendants.6 Champion Exposition Servs.,
Inc. v. Hi-Tech Elec., LLC, 273 F. Supp. 2d 172, 179 (D. Mass.
2003); see BlueTarp Fin., 709 F.3d at 83 (recognizing Maine's "stake
in being able to provide a convenient forum for its slighted
residents" and in "redressing harms committed against its companies
by out-of-state companies"); Sawtelle v. Farrell, 70 F.3d 1381, 1395
(1st Cir. 1995) (noting that these interests have "added importance
in our age of advanced telecommunications" in which parties contract
testimony is even relevant to the merits arguments and whether
there is a Saskatchewan court with power to reach Johnson in a
different province, Ontario.
6
Although Saskatchewan law governs the contract, these
interests in providing a forum are independent of the substantive
law applied by the forum. See Nowak v. Tak How Invs., Ltd., 94
F.3d 708, 718 (1st Cir. 1996) (valuing Massachusetts's forum
interests in claims governed by Hong Kong law).
-20-
without meeting in person); C & M Mgmt., Inc. v. Cunningham-Warren
Props., LLC, No. 12-P-1944, 3 N.E.3d 1119, at *4 (Mass. App. Ct.
Feb. 27, 2014) (unpublished) (explaining that Massachusetts "has a
manifest interest in providing a convenient forum to residents
asserting good faith and objectively reasonable claims for relief").
In opposition to this interest, Bioriginal marshals the
choice-of-law provision in favor of Saskatchewan law, and it argues
that the contractual transaction fee provision is non-standard,
"presenting a matter of first impression under Saskatchewan law."
We see no injustice in having a Massachusetts court interpret the
contract. As the district court noted, "federal district courts are
in the regular practice of applying laws of other" fora. Downer,
2014 WL 815189, at *8.
We conclude where we began. Downer's showing on the first
two prongs of the inquiry is strong, so Bioriginal carries the
burden of defeating jurisdiction with a similarly strong showing of
unfairness. To the limited extent that the gestalt factors are
meaningful, they weigh in favor of jurisdiction even considering the
international context. Bioriginal has not met its burden.
III.
The dismissal is reversed and the case remanded for
further proceedings consistent with this opinion. Each party is to
bear its own costs of appeal.
-21-
So ordered.
-22-