USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1006

RALPH M. NOWAK, ADMINISTRATOR OF THE

ESTATE OF SALLY ANN NOWAK, ET AL.,

Plaintiffs - Appellees,

v.

TAK HOW INVESTMENTS, LTD.,

d/b/a HOLIDAY INN CROWNE PLAZA HARBOUR VIEW,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Cummings,* Circuit Judge.

_____________

_____________________

Alan B. Rubenstein,
____________________

with

whom

Robert B.
Foster
___________________

Rackemann, Sawyer & Brewster were on brief for appellant.

____________________________
Edward Fegreus for appellees.
______________

and

____________________

August 22, 1996

____________________

____________________

Of the Seventh Circuit, sitting by designation.

CUMMINGS, Circuit Judge.1

CUMMINGS, Circuit Judge.
_____________

A Massachusetts resident who

accompanied her husband

in their hotel's

on a business trip to

swimming pool.

Hong Kong drowned

Plaintiffs later brought

this

wrongful death diversity action against the Hong Kong corporation

that

owns

the hotel

business outside of

arguing

--

Hong Kong.

that a Massachusetts

jurisdiction consistently

that the

case should be

conveniens.
__________

The

corporation that

has

no

Defendant moved for

court could not

with due

dismissal,

exercise personal

process and,

dismissed on the

place of

alternatively,

grounds of forum non

__________

district court denied both motions,

and we now

affirm.

I.

Tak How is a Hong

Kong corporation with its only place

of business in

Hong Kong.

Its

sole asset is

the Holiday

Inn

Crowne Plaza Harbour View in Hong Kong ("Holiday Inn"), where the

accident

in

this

shareholders, or

("Mrs. Nowak")

Ralph

Nowak

children

Nowaks

case took

place.

employees in

was at

and

has

was

the

no assets,

Sally Ann

times married

(collectively, the plaintiffs

lived in

How

Massachusetts.

all relevant

("Mr. Nowak")

Tak

Nowak

to plaintiff

mother of

their

are "the Nowaks").

Marblehead, Massachusetts,

and

two

The

Mr. Nowak

was

____________________

Section II.A. was authored by

circulated

to the

active

issuance.

This

informal

prejudice to

a petition for

Judge Coffin.

judges of

the

circulation,

This opinion was

First Circuit
is

without

rehearing or suggestion of

en banc

reconsideration on any issue in the

case.

however,

before

NLRB v. Hospital San

____
_____________

Rafael, Inc., 42 F.3d 45, 51 n.1 (1st Cir. 1994).

____________

-2-

employed

by

Kiddie

business

in Avon, Massachusetts.

business in Hong

Marketing

Products,

Kong.

Department,

As

Inc., which

its

place

of

Kiddie Products does extensive

a Preliminary Design Manager

Mr. Nowak

trips to Hong Kong each year,

has

customarily made

in the

two business

accompanied by his wife on one

of

those trips.

Kiddie Products employees

had made trips to

Hong Kong

since at least 1982, but

the company's relationship with Tak How

and the Holiday Inn began only in 1992.

president, was one

since 1982

Hong Kong

in

with the

Inn's

On

becoming

his first

to Hong Kong

at various other hotels.

Holiday Inn

radio in 1983 or 1984, but

1992 after

hotels.

such employee who had travelled

and had stayed

was acquainted

John Colantuone, a vice-

Colantuone

through advertisements

on

only decided to stay there

dissatisfied with

visit, Colantuone

the

rates at

met with

other

the Holiday

sales manager to negotiate a corporate discount for Kiddie

Products employees.

Holiday Inn agreed to the discount and wrote

a letter confirming the arrangement

room nights per

assistant,

made

year.

all

Marie Burke,

hotel

based on a minimum number of

Colantuone's administrative

reservations

for

the

company's

employees.

other

Holiday

Although Kiddie Products regularly compared rates at

hotels, Burke

Inn

until

was told

to book

all reservations

instructed otherwise.

Since

at the

1992, Kiddie

Products employees have stayed exclusively at the Holiday Inn.

In June 1993,

message announcing

new

the Holiday Inn telecopied

corporate rates

-3-

and

other

Colantuone a

promotional

materials.

Burke requested additional information, and the hotel

promptly responded.

telecopier,

In July 1993, after a series of exchanges by

Burke sent a reservation

request to the Holiday Inn

for several employees for September and October 1993.

reservations was

16.

for Mr. and

on September

On September 18, while the Nowaks were registered guests

the hotel, Mrs. Nowak

drowned in the hotel

specific facts surrounding

is

Mrs. Nowak to arrive

One of the

uncontested that

swimming pool.

her death are not relevant

in 1992

and

1993, prior

to Mrs.

here.

at

The

It

Nowak's

death, Tak How advertised the Holiday Inn in certain national and

international

Massachusetts.

publications,

In addition,

some

in

of

which

February 1993,

circulated

Tak

in

How sent

direct mail solicitations to approximately 15,000 of its previous

guests, including previous guests residing in Massachusetts.

The

Nowaks

filed

this

wrongful

Massachusetts state court in June 1994.

death

action

in

Tak How then removed the

case to federal district court and filed two motions to dismiss -

- one for

lack of

12(b)(2) and

personal jurisdiction under

the other for

court initially

denied

conveniens,
__________

and

discovery,

issued

12(b)(2) motion.

the

then, after

Fed. R. Civ.

forum non conveniens.

____________________

motion

to dismiss

allowing

memorandum

and

time for

order

P.

The district

for

forum non
__________

jurisdictional

denying

the

Rule

Nowak v. Tak How Inv. Ltd., 899 F. Supp. 25 (D.

_____
_________________

Mass. 1995).

The

certification

of the jurisdictional issue, but this Court denied

Tak How's

district court granted

request for

a stay of

Tak How's

the district

motion for

court proceeding

-4-

pending appeal.

Nonetheless, believing that a resulting judgment

would not be enforceable in Hong Kong, Tak How did not answer the

Nowaks' complaint.

default judgment

Accordingly,

against

Tak How

the district

court entered

for $3,128,168.33.

appeals the denial of its Rule 12(b)(2)

Tak

How

motion and its motion to

dismiss the case for forum non conveniens.

____________________

II.

We

first

review the

dismiss for

lack of personal

employed

prima

denial

jurisdiction.

facie standard

rather than adjudicating

of Tak

in

How's

The

making

motion to

district court

its determination

the jurisdictional facts.

See Foster_______

Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-147 (1st
____________
______________________

Cir. 1995).

Both the court's

standard and its conclusion

novo.
____

court's

Id.
___

at 147.

choice

of

To

the

evidentiary hearing was

decision to use

the prima

under that standard are

begin, we find no error

prima facie

standard.

not necessary in

facie

reviewed de
__

in the district

full-blown

this case because

the

facts

were, in

all

essential respects,

circumstances, the prima

preferred.

undisputed.

facie standard is both

Id. at 145; Boit

___
____

In

such

appropriate and

v. Gar-Tec Prods., Inc.,

____________________

967 F.2d

671, 675-676 (1st Cir. 1992).

The next question is whether the district court reached

the proper result.

court's

personal

governed

by the

In diversity cases such as this, the district

jurisdiction over

forum state's

a nonresident

long-arm statute.

-5-

defendant is

Sawtelle
________

v.

Farrell,
_______

70

F.3d

1381,

1387

(1st

Cir.

may

exercise

1995).

Under

the

Massachusetts statute,

[a]

court

jurisdiction

over

personal

person,

who

acts

directly or by an agent, as to a cause of

action in
person's .

law or equity arising from the

. . transacting

any business

in this Commonwealth.

Mass. Gen.

Laws Ann.

ch.

223A,

3(a)

(1985).

The

statute

imposes constraints on personal jurisdiction that go beyond those

imposed by the Constitution.

(1st Cir.

between the

1985).

We must

defendant and

Gray v. O'Brien, 777 F.2d

____
_______

therefore

find sufficient

the forum state

to satisfy

864, 866

contacts

both the

Massachusetts long-arm statute and

the Constitution.

Sawtelle,
________

70 F.3d at 1387.

To satisfy

Section

3(a), the

the requirements

defendant must

of the

have

long-arm statute,

transacted business

in

Massachusetts and the plaintiffs' claim must have arisen from the

transaction of business

Inc.,
____

625

N.E.2d

Massachusetts

549,

plaintiff

sustained in California.

solicitation of

by the defendant.

551

sued

(Mass.

1994).

a California

The Court

hotel

v. Manor Care,
___________

In

Tatro,
_____

for injuries

concluded that the

business from Massachusetts

the "transacting any

Tatro
_____

hotel's

residents satisfied

business" requirement of Section

3(a), id.
___

at 551-552, and that the "arising from" requirement was satisfied

where,

but for

the

hotel's

solicitations

and

acceptance

of

reservations,

California.

case

the plaintiff

Id. at 554.
___

is analogous in

would

not

The factual

all essential

have

been

injured

scenario in the

respects, and

in

present

we therefore

-6-

have little

difficulty concluding that sufficient contacts exist

to satisfy Section 3(a)'s requirements.

Turning to

the constitutional

restraints, this

Court

follows

a tripartite analysis

for determining the

specific personal jurisdiction (plaintiffs do not

existence of

allege general

personal jurisdiction):

First,

the

claim

underlying

the

litigation must directly arise out of, or

relate

to,

the

activities.

defendant's forum-state

Second,

forum-state

the

contacts

must

purposeful availment of

defendant's
represent

the privilege of

conducting activities in the forum state,

thereby

invoking

protections
making
presence

of

the

that

benefits

state's

defendant's

before

foreseeable.
jurisdiction

the

the

Third,
must,

laws

in

and

involuntary

state's
the

and

court

exercise

light

of

of
the

Gestalt factors, be reasonable.

Pritzker
________

v. Yari,
____

42 F.3d

53, 60-61

(1st Cir.

1994) (quoting

United Elec. Workers v. 163 Pleasant St. Corp., 960

_____________________
_______________________

1089 (1st Cir. 1992)), cert. denied, 115 S. Ct. 1959.

F.2d 1080,

____________

A.

What this

aspect

of

Relatedness

Court calls

demonstrating

the "relatedness"

minimum

International Shoe Co. v. Washington,

_______________________
__________

aspect, discussed

defendant's

below, focuses

contacts,

principal

argument

proximate

cause

on

or

relationship

pursuant

to

availment.

that

between

The other

deliberateness of

Tak

relatedness

its

Massachusetts and the Nowaks' cause of action.

-7-

one

326 U.S. 310.

on the

purposeful

appeal is

contacts

test is

the

How's

requires a

contacts

with

In

How

arguing for a proximate cause relatedness test, Tak

relies on

a series

of First

Circuit cases

beginning with

Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir. 1986).

______
___________

See Crocker
_______

v. Hilton Int'l Barbados, Ltd., 976 F.2d

_____________________________

Cir. 1992);

Fournier
________

797 (1st

v. Best Western Treasure Island Resort, 962

_____________________________________

(1st Cir. 1992);

F.2d 1256 (1st

Pizarro v.
_______

Cir. 1990).

construed the language of a

F.2d 126

Hoteles Concorde Int'l, C.A.,

_____________________________

In

each of these cases,

907

this Court

state long-arm statute requiring, as

does the Massachusetts

action "arise" from

statutes,

statute quoted above,

that the cause

the forum-state contacts.

we rejected plaintiffs'

of

Construing those

arguments that the

injury at

issue would not have occurred "but for" the forum-state contacts.

Instead, we held

that the defendant's conduct must

or proximate cause of the injury.

At least for purposes

long-arm

dealt

our

supra.
_____

consistent

explicitly

statute, the

The

the

that

language

rejected our

Marino line of cases.

______

of construing the

625

the

of

Massachusetts

Court of

interpretation a

Court decided

with

Pizarro, 907 F.2d at 1260.

_______

Supreme Judicial

restrictive

be the legal

fatal

Massachusetts

blow

"but for"

the

interpretation of

N.E.2d at 553.

test

long-arm

the

in Tatro,
_____

is more

statute

and

statute in

the

Personal jurisdiction

was

proper in Tatro
_____

because the California

hotel had solicited

business in Massachusetts and had agreed to provide the plaintiff

with accommodations; but for those acts,

have been injured.

Id. at 554.
___

-8-

the plaintiff would not

Tak How contends that Tatro was not fatal to Marino and
_____
______

its progeny.

It concedes, as

insofar as it

deals with the

long-arm

Marino had
______

not

construction of the

Massachusetts

statute, but insists that the relatedness discussion in

constitutional significance as well.

without support.

Massachusetts

constitutional

constitutional

In

Pleasant Street,
_______________

statute's relatedness

requirement

jurisdiction."

960

F.2d

relatedness,

principles derived

1089.

it must, that Tatro is controlling

_____

for

at

1087.

from the Marino

______

we stated

that the

requirement "mirrors

the

we

Its position is

set

exercise

Then,

forth

of

in

specific

explaining

proximate

line of cases.

a key

See

cause

id. at
___

The Nowaks, on the other

have no

hand, argue that these

constitutional significance.

They find support

footnote in Ticketmaster-New York, Inc. v. Alioto, 26

____________________________
______

cases

from a

F.3d 201,

207 n.8 (1st Cir. 1994):

In our view, [the Marino line of cases] ______

- which interpret the term "arising from"
as

that

statutes

term is

used

in

of Massachusetts

state-law

issues

and

the long-arm
-- deal

have

implication

for

the

requirement

specifically

no

with
real

relatedness
or

for

constitutional analysis generally.

(citations omitted).

Despite the apparent conflict, these cases are arguably

reconcilable.

Pleasant Street
_______________

After all,

Ticketmaster did not

____________

or the proximate

cause test, but

directly reject

merely stated

the

evident fact

interpretations of

that

the

state law.

Marino line
______

of

cases centered

It might follow, then,

on

that our

-9-

discussion

in Pleasant Street should

________________

govern

our course

here.

Pleasant Street, however, as well as Ticketmaster, described the

________________
____________

relatedness concept in

specifically defined the

only the most general way.

precise inquiry

under the

Neither case

relatedness

test

in this

circuit.

Fortunately, however, these

cases, and

others, articulated certain principles that guide our inquiry.

As

an

[relatedness]

defendant's

initial matter,

requirement

contacts

Ticketmaster,
____________

26

F.3d

and

at

"[w]e

focuses

the

. .

that

the

the

the

nexus

between

plaintiff's

cause

of

206.

on

know

The

requirement

action."

serves

two

purposes.

First,

relatedness is

that

separates

cases

from

Second, it

the divining

specific

general

rod

jurisdiction

jurisdiction cases.

ensures that

the element

of

causation remains in the forefront of the

due process investigation.

Id.
___

Most courts

share this emphasis

over

the proper

causative threshold.

gravitated toward one of two

on causation,

but differ

Generally, courts

have

familiar tort concepts -- "but for"

or "proximate cause."

The Ninth Circuit is the most

"but for" test.

In Shute v.
_____

forceful defender of the

Carnival Cruise Lines,2

_____________________

the court

stated that "but for" serves the basic function of relatedness by

____________________

Shute was
_____

grounds.

reversed

499 U.S. 585.

by

the

Supreme Court

on

As reflected by subsequent

Ninth Circuit still adheres to

the "but for" test.

alternative

cases, the
See
___

Ballard
_______

v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995); Terracom v. Valley

______
________
______
Nat'l Bank,
__________

49 F.3d 555, 561 (9th Cir. 1995).

But see Omeluk v.

___ ___ ______

Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir. 1995)
_______________________________
(questioning Shute's authority).
_____

-10-

"preserv[ing]

the

essential

specific jurisdiction."

more

distinction

897 F.2d 377,

between

general

385 (9th Cir. 1990).

and

stringent standard, the court asserted, "would represent an

unwarranted

departure from the

core concepts of

substantial justice,'" because it would preclude

cases where it would

be reasonable.

Id. at 386.
___

'fair play and

jurisdiction in

In turn,

in

those cases where "but for" might lead to an unreasonable result,

the court

predicted that the

third prong --

the reasonableness

inquiry -- would guard against unfairness.

Shute
_____

adoption of

and

its

progeny represent

the "but for"

circuits suggest a

test.

the

only

Nonetheless, cases

similar approach.

In Prejean v.
_______

explicit

from other

Sonatrach,
__________

Inc., the Fifth Circuit noted:

____

Logically,

there is no reason why a tort

cannot grow out of a contractual contact.

In

case

contact is

like

this,

a "but for"

contractual

causative factor

for the tort since it brought the parties

within
one

tortious

another.

"striking
While

the

relationship

suit

and a

contractual

between

a tort

contact

is certainly

when

a tort

contact,

suit

that only

contact is by

distance" of

more tenuous

arises

from

goes to

than
tort

whether the

itself sufficient for

due

process, not whether the suit arises from

the contact.

652

F.2d 1260,

1270 n.21

(5th Cir.

1981).

Subsequent cases,

however, have

not always

followed this teaching.

Compa a Paname a de Aviaci n, S.A.,

___________________________________

See

851 F. Supp. 826, 832 (S.D.

Tex. 1994) (employing a proximate cause standard); Kervin

______

River Ski Area, Inc.,

____________________

711 F. Supp. 1383, 1389-1390

Tex. 1989) (same).

-11-

Luna v.
____

v. Red
___

& n.11 (E.D.

The

standard.

Sixth Circuit

applies a

See Third Nat'l Bank v.

_________________

"substantial connection"

WEDGE Group Inc.,

________________

882 F.2d

1087, 1091 (6th Cir. 1989), cert. denied, 493 U.S. 1058; Southern
____________
________

Mach. Co.
_________

v. Mohasco Indus., Inc. 401

_____________________

Cir. 1968).

F.2d 374, 384

The court's discussion in Lanier

______

of Endodontics, 843 F.2d

______________

suggests that a

901, 908-911 (6th Cir.

n.27 (6th

v. American Board
______________

1988), however,

"but for" relationship survives the

due process

inquiry.

Finally, the

under the

Seventh Circuit

has upheld

jurisdiction

Illinois long-arm statute, and the Due Process Clause,

for claims that "lie in the wake of the

commercial activities by

which the defendant submitted to the jurisdiction of the Illinois

courts."

See Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d
____________________
_________________

1209, 1215-1216 (7th

Cir. 1984) (breach of warranty);

Spill by Amoco Cadiz, 699

______________________

(indemnity action),

indeterminate

F.2d

909, 915-916

cert. denied,
____________

standard

committed outside the

would

(7th Cir.

464 U.S. 864.

encompass

forum is unknown.

1983)

Whether

tortious

Cf.

In re Oil
_________

this

negligence

Simpson v. Quality
_______
_______

Oil Co., 723 F. Supp. 382, 388 & n.4 (S.D. Ind. 1989) (suggesting
_______

that

relatedness

is

limited

to

those

contacts substantively

related to the cause of action).

On the other hand, the

well as this

Second and Eighth Circuits,

one, appear to approve a

as

proximate cause standard.

See Pleasant Street, 960 F.2d at 1089; Pearrow v. National Life &
_______________
_______
_______________

Accident Ins. Co.,

_________________

v.

703 F.2d 1067, 1069 (8th

Tanner Motor Tours, Ltd.,

_________________________

339

Cir. 1983); Gelfand

_______

F.2d 317,

321-322 (2d

Cir.

-12-

1964).

The

courts

purposes of the

claims did not

in

Pearrow and
_______

Gelfland
________

long-arm statute at issue,

found that,

for

non-forum negligence

arise from in-forum solicitation or ticket sales.

District

courts from the

similar results.

F. Supp. 264,

Third and Tenth

circuits have reached

See Wims v. Beach Terrace Motor Inn, Inc., 759

____
______________________________

267-268 (E.D. Pa. 1991); Dirks

_____

v. Carnival Cruise
_______________

Lines, 642 F. Supp. 971, 975 (D. Kan. 1986).

_____

This

circuit, whether

accurately

or

not,

has

been

recognized as the main proponent of the proximate cause standard.

We think the

proximate

foreseeable

attraction of proximate cause is

or

legal

cause

and unforeseeable

two-fold.

clearly

distinguishes

risks of

harm.

See

First,

between

Peckham v.
_______

Continental Casualty Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990).
_____________________________

Foreseeability

is

inquiry, particularly

think

it

also informs

critical

component

in

the

due

process

in evaluating purposeful availment, and we

the

relatedness

prong.

See

Pleasant

________

Street, 960 F.2d

______

at 1089.

As

the Supreme Court said

in Burger
______

King Corp. v. Rudzewicz,

__________
_________

[the Due process

individuals

have

Clause] requir[es] that

"fair warning

that

particular activity may subject [them] to

the jurisdiction
. . . ."

of a

[T]his

foreign sovereign
"fair

warning"

requirement is satisfied if the defendant

has

"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,

likely

472.

Adherence

to enable defendants

to a proximate cause

better to anticipate

-13-

standard is

which conduct

might subject them to a

link in the chain of

premised

on

underlying

or [at

state's jurisdiction than a more tenuous

causation.

a contact

that

Certainly, jurisdiction that is

is a

legal

cause

of the

injury

the controversy -- i.e., that "form[s] an 'important,

____

least] material,

element of

proof'

in the

plaintiff's

case," Pleasant Street, 960 F.2d at 1089 (citation omitted) -- is

_______________

presumably reasonable, assuming, of course, purposeful availment.

As

our discussion

suggests,

and notwithstanding

any

contrary

implication from the footnote in Ticketmaster, we think

____________

the proximate cause standard better comports with the relatedness

inquiry

because it

so easily

correlates

to foreseeability,

significant component of the jurisdictional inquiry.

requirement,

on

the

other

principle; it literally

logically identify

Circuit has

has

in itself

embraces every event that

in the causative

noted, courts

keep Pandora's jar

hand,

chain.

can use the

A "but for"

no

limiting

hindsight can

True, as

the Ninth

reasonableness prong

from opening too wide.

But to say

to

that the

harm that might be done by one factor can be prevented by another

is not, after all, an affirmative justification for the former.

That being said, we are persuaded that strict adherence

to

proximate

cause

standard

in

all

circumstances

is

unnecessarily restrictive.

The

critically important in the

tort context because it defines

scope of a

defendant's liability.

of the jurisdictional

"relatively

concept of

In contrast,

tripartite test is

speaking, .

. .

proximate cause

is

the

the first prong

not as rigid:

'flexible, relaxed

it is,

standard.'"

-14-

Sawtelle, 70 F.3d at 1389

________

(citation omitted).

We see

no reason

why, in

the context of

business

a relationship between a

association and

proximate cause

per

subsequent

se should

always

tort,

contractual or

the

render the

absence

of

exercise

of

specific jurisdiction unconstitutional.

When a foreign

in

an ongoing

effort to

achieves its purpose,

to

increases

favorably.

tortious

further

a business

it may not necessarily

subject that corporation

lead

corporation directly targets

relationship, and

be unreasonable to

to forum jurisdiction when

result.

the likelihood that

The

residents

corporation's

a specific resident

the efforts

own

conduct

will respond

If the resident is harmed while engaged in activities

integral to the relationship the corporation sought to establish,

we think

the nexus between the contacts

and the cause of action

is

sufficiently

strong to

survive the

due process

inquiry at

least at the relatedness stage.

This concept represents a small overlay of "but for" on

"proximate cause."

identification

of

In a sense it is a narrower and more specific

the

jurisdiction-worthiness

commercial activities in

of

fact patterns

foreseeability, but

will

Seventh

of

Circuit's

claims

the forum.

be found

we have no

to

lying

formulation

"in

It may be

meet the

the

wake"

for

of

that other kinds

basic factor

occasion here to

of

pronounce more

broadly.

This

its ongoing

case is illustrative

correspondence with

of our reasoning.

Kiddie Products,

-15-

Through

Tak How

knew

that Kiddie Products employees would stay at its hotel, and could

easily anticipate

amenity of the

that

hotel.

s
The

they

The

c
Hotel's

might

use the

pool,

district court thoroughly

solicitation

c
of

Kiddie's

business and the extensive back-and-forth

resulting in
rooms
spouses

for

Burke's reserving a
Kiddie

set

reasonably

in

the

motion

foreseeable events

in Mrs. Nowak's
that

employees

death.

solicitation

The

set of

and
chain

their
of

resulting
possibility

would

prove

featured

described

successful

and that one

guests staying

or more

at the Hotel as

of the
a result

would use the pool was in no sense remote

or

unpredictable;

in

fact,

the

Hotel

included the pool as an attraction in its

promotional materials.

899

F.

Supp.

solicitation

does

not

at

31.

a proximate

represent a meaningful

imprudent

the

nexus

between

Tak

How's

of Kiddie Products' business and Mrs. Nowak's death

constitute

harm suffered.

While

cause

link between

relationship,

Tak How's

contact and

Given these circumstances, we think

to reject

jurisdiction

at this

it does

early

the

it would be

stage of

the

inquiry.

By this approach, we intend to emphasize the importance

of proximate causation,

but to allow a slight

standard when circumstances

dictate.

We think

loosening of that

such flexibility

is necessary in

merely be

reduced to

Though we are

cause

test, we

rights:

the jurisdictional inquiry:

one tort

recognizing a

note an

concept

for all

narrow exception

additional

relatedness cannot

circumstances.

to the

protection for

"the relatedness requirement

proximate

defendants'

. . . authorizes the court

-16-

to

take

into

account

the

strength

(or

weakness)

of

the

plaintiff's relatedness

showing in passing upon

fairness of allowing the suit to proceed."

the fundamental

Ticketmaster, 26 F.3d
____________

at 207.

We recognize it

flexible

approach to

function of

the

jurisdictional

particular circumstances,

complexity

inquiry

analysis in which

the shades are

will not always be easy

is

of

this

often

area of

but

the

difficult

"[t]he greys are dominant and

innumerable."

to apply this

law.

fact

The

specific

even among them

Pleasant Street, 960

_______________

(citing Estin v. Estin, 334 U.S. 541, 545).

_____
_____

that is

F.2d at 1088

-17-

B.

The

next

Purposeful Availment

issue

Massachusetts constitute

is whether

"random, isolated,

state,

Sawtelle,
________

How's

purposeful availment.

availment requirement ensures

on

Tak

Magazine, Inc., 465 U.S.

_______________

at

The

that jurisdiction is not

or fortuitous"

70 F.3d

contacts with

contacts

1391 (quoting

770, 774), but

purposeful

premised

with the

Keeton
______

forum

v. Hustler
_______

rather guarantees that

the exercise of jurisdiction is "fair, just, or reasonable."

(quoting

Rush v.
____

points are

Savchuk, 444
_______

voluntariness and

F.3d at 207.

U.S. 320, 329).

foreseeability.

The defendant's contacts with the

be voluntary -- that is,

another party

Our

two focal

Ticketmaster, 26
____________

forum state must

not based on the unilateral

or a third person.

Id.
___

actions of

Burger King, 471 U.S. at 475;

____________

Vencedor Mfg. Co. v. Gougler Indus., Inc., 557 F.2d 886, 891 (1st
_________________
____________________

Cir. 1977).

state must

In addition, the defendant's contacts with the forum

be such

that he should

haled into court there.

reasonably anticipate

being

World-Wide Volkswagen Corp. v. Woodson,

___________________________
_______

444 U.S. 286, 297; Escude Cruz v. Ortho Pharmaceutical Corp., 619
___________
__________________________

F.2d 902, 905 (1st Cir. 1980).

We

correspondence

ill-fated

Hong

think

that

Tak

How's

with Kiddie Products,

Kong

minimally sufficient

trip

in

June

which led directly

September

1993,

to satisfy this requirement.

correspondence contained promotional

Inn

unprompted

was

at

1993

to the

least

The June 1993

materials from the

Holiday

designed to further entice Kiddie Products employees to stay

at the

hotel.

Even

if it may be

-18-

said that the

materials were

sent

as

part

companies

of

an

on-going

state

the kind

June 1993

order

Tak

continuing business

correspondence is

to

defendant need

be

How to

the

Massachusetts does

of unilateral action

solicitation designed

In

by Tak

contacts involuntary.

interest in

between

two

that was originally instigated by Kiddie Products, the

continued correspondence

amount to

relationship

only have

long as that contact is

How had an

with Kiddie

to

meaningful.

obvious financial

of an

the

unprompted

business relationship.

Massachusetts'

one contact with

the forum-

Products, and

the best example

to facilitate that

subject

that makes

not

jurisdiction,

the forum

state, so

McGee v. International Live

_____
__________________

Ins. Co., 355 U.S. 220, 223; Burger King, 471 U.S. at 475 n.18.
________
___________

Whether

prompted

or

unprompted, Tak

How's

on-going

correspondence and relationship with Kiddie Products, designed to

bring

Massachusetts

residents

foreseeable the possibility

court.

That

Tak

How

into

Hong

Kong,

of being haled into

might

have

to

rendered

a Massachusetts

defend

itself

in

Massachusetts

court is certainly foreseeable based on its direct

correspondence

with Kiddie Products, but its other contacts with

Massachusetts reveal an even more substantial attempt by

to

purposefully

avail

business activities in

in

national and

itself of

the state:

the

privilege

Tak How

international publications

Massachusetts; it solicited by

Tak How

of conducting

advertised its hotel

that circulated

direct mail some of

in

its previous

guests residing in Massachusetts; and Tak How listed its hotel in

various

hotel guides used

at travel agencies

in Massachusetts.

-19-

Exercising

jurisdiction

purposefully

activities.

U.S. at 476).

derives

is

appropriate

economic

benefits

Pritzker, 42 F.3d
________

where

from

the

its

defendant

forum-state

at 61-62 (citing Burger King, 471

___________

C.

The Gestalt Factors

Our conclusion that minimum contacts exist in this case

does

not end

exercised if

the inquiry.

Personal

jurisdiction may

it comports with traditional notions

of "fair play

and substantial justice."

International Shoe, 326

__________________

Out of

courts

this

requirement,

factors that bear on the

foreign tribunal.

Street,
______

960

F.2d at

have developed

U.S. at 320.

Burger King,
____________

1088.

(1) the defendant's

the

series

of

fairness of subjecting a nonresident to

These

471 U.S.

at 477;

"gestalt factors"

follows:

(2)

only be

forum

burden of appearing,
state's

adjudicating

the

plaintiff's

interest

interest

dispute,

convenient and effective

in

(3)

in
the

obtaining

relief, (4) the

Pleasant
________

are

as

judicial system's
the

most

interest in

effective

obtaining

resolution

of

the

controversy, and (5) the common interests

of

all

sovereigns

in

promoting

substantive social policies.

Id. (citing Burger King, 471 U.S. at

___
____________

gestalt factors

is to

aid

477).

the court

The purpose

in achieving

of the

substantial

justice, particularly where the minimum contacts question is very

close.

In

constitutional

Supreme

such

cases,

balance.

the

gestalt

Ticketmaster,
____________

Court's decision in

factors

26

may

F.3d at

tip

209.

the

The

Asahi Metal Indus. Co. v. Superior

_______________________
________

-20-

Court, 480
_____

U.S.

102, is

one

such example.

question of minimum contacts divided

Justices agreed

Asahi,
_____

would not

play and substantial justice.

adopted a sliding scale approach:

the plaintiff's showing on the first

the

the Court, but eight of the

that exercising personal jurisdiction

comport with notions of fair

Court has thus

In

This

"[T]he weaker

two prongs (relatedness and

purposeful availment), the less a defendant need show in terms of

unreasonableness to

at

210.

The

defeat jurisdiction."

reverse is

reasonableness may

equally

serve to fortify

true:

Ticketmaster, 26 F.3d
____________

a strong

showing of

a more marginal

showing of

relatedness and

purposefulness.

National Hockey League, 893 F.2

_______________________

See id.
___

(citing Donatelli
_________

459, 465 (1st Cir.

v.

1990)); see
___

also Sawtelle, 70 F.3d at 1396.

____ ________

1.

The Burden of

burdensome for

Tak How to

Appearance.

defend itself in Massachusetts:

How's only

place of business

recognized,

however, that it

costly

for

party

to have

is in Hong

Kong.

is almost always

to litigate

Pritzker, 42 F.3d at 64.

________

It would undoubtedly be

in

This

Tak

Court has

inconvenient and

foreign

jurisdiction.

Thus for this particular gestalt factor

any significance,

the defendant

must demonstrate

that

"exercise of jurisdiction in the present circumstances is onerous

in

a special,

unusual,

or

other constitutionally

significant

way."

Id.
___

Tak How alleges

nothing special or unusual about its

situation beyond the ordinary cost and inconvenience of defending

an action

so far

from its place

of business.

Under Pritzker,
________

-21-

that is not enough:

it simply cannot be the case that every Hong

Kong corporation is

immune from suit in Massachusetts.

But see

Ticketmaster,
____________

considering

26

F.3d

at

the distance

weight to this

210

(noting

the defendant

factor in the analysis).

the

must

importance

travel in

We are also

of

giving

persuaded

that the burden on Tak How will be minimized by, for example, the

availability of transcripts

from the Coroner's Court for

use in

the Massachusetts proceeding.

We have also noted that

important gestalt factor

the burden of appearance is an

primarily because it allows

guard against harassing litigation.

(citing

there any

present

Gulf Oil Corp. v. Gilbert,

_______________
_______

indication in the

suit to

harass Tak

Ticketmaster, 26 F.3d at 211

____________

330 U.S. 501,

record that the Nowaks

How,

a court to

the burden

508)).

Were

brought the

of appearance

in

Massachusetts might weigh in Tak How's favor; however, the record

does not so indicate.

2.

Interest of

the Forum.

Although a forum state has

a significant interest in obtaining jurisdiction over a defendant

who causes tortious

injury within its borders,

F.3d

interest

at

211, that

occurred outside

the forum

Nonetheless, our task is not

sovereigns -- the place

is

state.

diminished

Sawtelle,
________

Ticketmaster, 26
____________

where

the

70 F.3d

to compare the interest of

of the injury and forum state

determine whether the forum state has an interest.

___

Id.
___

injury

at 1395.

the two

-- but to

While it

is true that the injury in this case occurred in Hong Kong, it is

-22-

equally true (unlike Sawtelle) that significant events took place

________

in Massachusetts giving

it an interest in this

How

in the

solicited business

noted,

citizens

Massachusetts has

state.

a strong

As

interest

from out-of-state solicitations

litigation.

the district

in protecting

for goods

Tak

court

its

or services

that prove to be unsafe, and it also has an interest in providing

its citizens

with a

convenient forum in

which to

assert their

claims.

Burger King,
___________

activities

that took

471 U.S. at

place

prior

conclude that Massachusetts

473.

to

Given the forum-state

Mrs. Nowak's

has a strong interest

death,

we

in exercising

jurisdiction even though the injury took place in Hong Kong.

3.

The

accord deference

See,
___

46 F.3d

a Massachusetts

than another

Further, there

This

Court must

to the Nowaks' choice of a Massachusetts forum.

e.g., Foster-Miller,
____ _____________

obvious that

Nowaks

Plaintiffs' Convenience.

forum,

Regardless,

forum is more

particularly

exists substantial

adequately resolve

at 151.

the dispute in

it is

convenient for

Hong

Kong

doubt that

the Nowaks

Hong Kong:

Hong

the

forum.

could

Kong's laws

regarding contingency fees and posting of security bonds with the

court

make litigation

economically onerous for

plaintiffs, and

the future of Hong Kong's political system is also uncertain.

4.

The Administration of Justice.

This factor focuses

on the judicial system's interest in obtaining the most effective

resolution of

the controversy.

Usually this factor is

-23-

a wash,

Ticketmaster, 26 F.3d at 211;

____________

Sawtelle, 70 F.3d at 1395,

________

but in

one case we held that preventing piecemeal litigation might favor

one jurisdiction over another.

argues

Pritzker, 42 F.3d at 64.

________

Tak How

that a Massachusetts action would require the application

of Hong Kong law, the use of interpreters, and the transportation

of

key

witnesses

compulsory

from

process.

Hong

Kong

On the

other

that

are

hand, the

not

subject

to

Nowaks point

to

possible political instability in Hong Kong as the British Colony

prepares

to revert

transportation of

Hong

Kong.

administration

We

to Chinese

sovereignty.

witnesses would

conclude

that

of justice favors

likely also

the

Interpreters

and

be necessary

question

of

in

efficient

a Massachusetts forum.

Given

the likelihood that the Nowaks would face great obstacles in Hong

Kong due to possible political

laws

instability, as well as Hong Kong

on contingency fees and security bonds, efficiency concerns

require a Massachusetts

Pleasant St. Corp.,

__________________

forum.

See United Elec. Workers v. 163

_____________________
___

987 F.2d 39, 46-47 (1st

Cir. 1993) (finding

that fourth gestalt factor weighed against a foreign jurisdiction

where "it

is

resolution,

this

far from

clear that

there will

be any

judicial

let alone the most effective judicial resolution, of

controversy"

if

the

case

could

not

proceed

in

Massachusetts).

5.

Pertinent

factor addresses

substantive

Policy Arguments.

the interests

social policies.

of the

The final

gestalt

affected governments

Massachusetts has an

in

interest in

-24-

protecting

its citizens from out-of-state providers of goods and

services as well as affording

which to bring their claims.

the exercise

of

its citizens a convenient forum in

These interests are best

jurisdiction in

Massachusetts.

served by

On the

other

hand, Hong Kong has an interest in protecting visitors to promote

and

preserve its tourism industry, in protecting its businesses,

and

in providing all parties with a

convenient forum.

Only one

of Hong Kong's interests -- protecting its businesses -- might be

compromised

primary

by

interest

compromised by

Massachusetts

--

forum,

protecting

a Hong Kong

its

forum.

while

citizens

We thus

Massachusetts'

--

might

conclude that

be

the

final Gestalt factor tips only slightly in the Nowaks' favor.

On balance, we think the gestalt factors weigh strongly

in

favor

of

Massachusetts

combination with the

forum.

When

Nowaks' adequate showing

considered

in

on the first

two

prongs of the constitutional test, we think that, on the specific

facts of this case, the exercise of jurisdiction in Massachusetts

is reasonable and does

substantial

denied

justice.

Tak How's

not offend the notions

The

district

Rule 12(b)(2)

of fair play

court therefore

motion to

dismiss for

and

properly

lack of

personal jurisdiction.

III.

Tak

dismiss

How

next

appeals the

for forum non conveniens.

_____________________

conveniens permits
__________

a trial court,

-25-

denial

The

of

its motion

to

doctrine of

forum non
_________

on a discretionary

basis, to

dismiss

a case

another country

where an

alternative

that is fair

to the

forum is

parties and

more convenient for them or the courts.

Ltd., 946 F.2d 944, 947 (1st

____

1095.

Application

discretion

of

the

of the

Howe v.
____

court,

reversed absent a clear abuse of discretion.

Int'l, Inc.,
___________

(appeal

981 F.2d 1345,

after remand

the district

denied, 508
______

U.S. 912.

infra; we
_____

court's opinion

This Court finds an

will

U.S.

the sound

not

be

Mercier v. Sheraton
_______
________

1349 (1st Cir. 1992)

of Mercier II,
__________

referred to

Goldcorp Invs.,
_______________

committed to

whose decision

in

substantially

Cir. 1991), cert. denied, 502

____________

doctrine is

trial

a available

(Mercier III)
___________

have previously

as Mercier I), cert.

__________
_____

abuse of discretion

only where the

district court (1) failed to

consider a material

factor, (2) substantially relied on an immaterial

assessed

the appropriate factors

those factors.

423

(1st

Mercier v.
_______

Cir. 1991)

factor, or (3)

but clearly erred

in weighing

Sheraton Int'l, Inc., 935

____________________

(Mercier II).
___________

Since there

is

F.2d 419,

a strong

presumption in favor of a plaintiff's forum choice, the defendant

must

bear the

burden of

proving

both the

availability of

an

adequate alternative forum and that considerations of convenience

and

judicial efficiency strongly

the alternative forum.

Id. at
___

favor litigating the

claim in

423-424; Mercier III, 981 F.2d at

___________

1349.

We

conveniens

have

is

used

emphasized

to

avoid

that the

"serious

doctrine

of

unfairness"

forum non
_________

and

that

__________

plaintiff's

choice of

Howe, 946 F.2d

____

a forum

will

be disturbed

only rarely.

at 950 (citing Piper Aircraft Co. v.

___________________

Reyno, 454
_____

-26-

U.S.

235, 259;

Gulf Oil Corp.

______________

v. Gilbert, 330
_______

U.S. 501, 507).

The Supreme Court has provided a list of relevant considerations.

"Private interest"

factors include

relative ease

of access

to

sources of proof, availability of compulsory process, comparative

trial

costs,

ability

practical problems that

and inexpensive."

factors

include

imposing upon

to enforce

judgment,

make trial of

a case easy,

Gilbert, 330 U.S. at 508.

_______

the

practical

a busy court

"and

all other

expeditious

"Public interest"

difficulties

of

the obligation to

unnecessarily

hear a case

more

fairly

adjudicated elsewhere, the imposition on jurors called to

hear a

case that has

no relation

to their

community, and

familiarity of the court with applicable laws.

One

the

Id. at 508-509.
___

final principle informs our analysis in this case.

The Supreme Court has stated that,

Where

there are

dispute, there
should be

only two
is

good

tried in the

parties
reason

why

to a
it

plaintiff's home

forum

if that has

been his choice.

should not

be deprived

advantages

of

except

upon

which

either

his
a

oppressiveness

of the

home

He

presumed

jurisdiction

clear

showing of

facts

(1)

establish

such

and

defendant as to be

vexation

to

out of all proportion

to plaintiff's convenience,

which may be

shown to be slight or nonexistent, or (2)

make

trial

inappropriate

in

the

because of

affecting the court's

chosen

forum

considerations

own administrative

or legal problems.

Koster v. Lumbermens Mut. Co., 330 U.S. 518, 524.

______
___________________

Based on

the district

argument is

court

that

these principles, we

abused

are unable to

its discretion.

the district

court failed

-27-

Tak

say that

How's

to articulate

first

its

reasons for

denying the motion to dismiss.

district judge

chose to

rule on the

It is true that the

motion orally

rather than

issue a written opinion; however, it is apparent from the hearing

transcript

that the judge

ruling on

the motion,

plaintiffs'

stated

because,

right to

the judge

have a

that granting the

as a

considered relevant factors.

jury

trial in

motion would be

practical matter

under Hong Kong laws,

questioned

and due

Before

counsel about

Hong Kong,

the

and he

outcome determinative

to additional

it would be very difficult

burdens

for the Nowaks

to bring suit there.

detailed

as

the

The

written

hearing transcript is certainly not as

opinion

denying

the

jurisdictional

motion, but the court was entitled to rule on the motion orally.

The

to consider

factors.

question here is whether the district court failed

a material factor

Given

elements of

that Tak

or failed to correctly

How

where,

burden

forum non conveniens, we shall

_____________________

alleged to justify dismissal that

in mind that

has the

of proving

review the

the

factors

Tak How has put forth, bearing

Koster, supra, places a heavy

______ _____

as here,

weigh the

plaintiffs brought

suit in

burden on defendants

their home

forum.

There is no question that Hong Kong is an available forum, as Tak

How is subject to

service of process in Hong Kong.

935 F.2d at 424.

There also appears to be

Mercier II,
__________

no dispute that Hong

Kong would provide an adequate forum in the sense that its courts

recognize a similar cause of action.

Tak How next contends that

the private interest factors of Gilbert, supra, weigh in favor of

_______ _____

a Hong Kong

forum:

it notes

that it would bear

the expense of

-28-

transporting witnesses to

difficulty in

the United States, that

joining third-party defendants in

it might face

a Massachusetts

court, and that a Hong Kong court might not enforce

of a

type

Massachusetts court.

of

"oppressiveness

disproportionate

Kong.

The Nowaks

vexation"

constitute the

required

by

inconvenience of suing

Koster
______

in Hong

would also have to transport witnesses to Hong

enforce a foreign judgment in their

home

In addition, the Nowaks point to private interest factors

that weigh in

because Hong

the

their favor:

Kong law

requires that

with

and

to the Nowaks'

Kong and later seek to

state.

These factors do not

the judgment

face financial obstacles

prohibits contingent

they deposit

court;

they would

an amount equal

also, possible

political

fee agreements

to Tak

and

How's costs

instability

in the

region could add further difficulties to litigation in Hong Kong.

Regardless

of

the difficulties

the Nowaks

might face

in Hong

Kong,

it is

enough that

Tak How

failed to

demonstrate either

oppressiveness to itself or only a slight or nonexistent interest

in convenience on the Nowaks' part.

Nor

factors

that

is Tak

make

How able

trial in

to

Koster, 330 U.S. at 524.

______

demonstrate public

Massachusetts

interest

inappropriate.

It

points to the fact that Massachusetts choice-of-law rules require

application of Hong Kong law, and that a Hong Kong court would be

"more at home" with such laws.

overcome

This

the presumption in

Court

foreign

has previously

law [is]

a chore

This concern is not sufficient to

favor of plaintiffs'

noted

that

federal courts

-29-

"the

chosen forum.

task of

must often

deciding

perform."

Mercier III, 981 F.2d at

___________

1357 (quoting Manu Int'l, S.A.

________________

Prods., Inc., 641 F.2d 62, 68 (2d Cir. 1981)).

____________

this factor

little weight.

Id.
___

Tak

v. Avon
____

We therefore give

How points

to no

other

public interest factor that weighs against a Massachusetts forum.

-30-

IV.

For

decision

to

the

foregoing

deny Tak

How's

reasons,

motions

the

to

personal jurisdiction and on the grounds of

is AFFIRMED.

district

dismiss for

court's

lack

of

forum non conveniens

____________________

-31-