Copia Communications, LLC v. AMResorts, LP, et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [15-1330]

Case: 15-1330

Document: 00116944668

Page: 1

Date Filed: 01/13/2016

Entry ID: 5969146

United States Court of Appeals
For the First Circuit
No. 15-1330
COPIA COMMUNICATIONS, LLC,
Plaintiff, Appellant,
v.
AMRESORTS, L.P.; SEAWIND KEY INVESTMENTS, LIMITED,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]

Before
Lynch, Selya, and Kayatta,
Circuit Judges.

Philip M. Giordano, with whom Siobhan M. Tolan, Giordano &
Company, P.C., and Reed & Giordano, P.A., were on brief, for
appellant.
Jack W. Pirozzolo, with whom Michelle Hartmann and Sidley
Austin LLP, were on brief, for appellee AMResorts, L.P.
Brett D. Carroll, with whom Ari Zivyon and Holland & Knight
LLP, were on brief, for appellee Seawind Key Investments, Limited.

January 13, 2016

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KAYATTA, Circuit Judge.

Date Filed: 01/13/2016

Entry ID: 5969146

In this action, Massachusetts

company Copia Communications, LLC ("Copia"), sues Jamaican resort
operator

Seawind

Key

Investments,

Limited

("Seawind"),

and

Seawind's alleged alter-ego, the Pennsylvania limited partnership
AMResorts, L.P. ("AMResorts"), for the alleged breach of a contract
between Copia and Seawind.

The contract at issue was proposed and

executed in Jamaica, performance on the contract occurred (as was
intended) almost exclusively in Jamaica, and the contract is
governed by the laws of Jamaica.

The district court dismissed

Copia's complaint for lack of personal jurisdiction over the
defendants, neither of which operates any business or has any
corporate presence in Massachusetts.
I.

We easily affirm.

Background

We derive our recitation of the case's facts from Copia's
properly documented evidentiary proffers and from those portions
of the defendants' proffers that are undisputed.

See Adelson v.

Hananel, 510 F.3d 43, 48 (1st Cir. 2007).
Copia is a Massachusetts limited liability company that
provides internet services to hotels in Jamaica, where Copia has
offices.

In October 2006, a Copia employee sent Seawind an offer

to provide internet services at two Jamaican resorts that Seawind
was then planning.

Through 2009, Copia's Chief Executive Officer,

Darryl Wehmeyer ("Wehmeyer"), negotiated with Seawind, a process
that involved several meetings in Jamaica and during which no
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Seawind employees traveled to Massachusetts.

Entry ID: 5969146

During negotiations,

Wehmeyer communicated by email with several Seawind employees and
alleged AMResorts employees,1 and he may have sent or received some
of these emails while in Massachusetts.

Neither Seawind nor

AMResorts does business; pays taxes; has an office, bank account,
or employee; or holds property in Massachusetts.
On June 29, 2009, the negotiations culminated in a
contract, which Wehmeyer signed in Jamaica on behalf of Copia.
The contract identifies Copia as a Massachusetts corporation and
lists Copia's Massachusetts address.

It provides that any notice

or service of legal process arising out of the contract must be
made at the "registered office" of the recipient.

Under the

contract, Copia agreed to install internet services at two Seawind
resorts and to provide ongoing on-site support and maintenance.
Seawind agreed to make payment in U.S. dollars and to comply with
all relevant U.S. export regulations for any equipment it was to
receive under the contract.

The contract provides that it is

governed by Jamaican law.
During the performance of the contract, Copia shipped
equipment to Jamaica from Massachusetts, Seawind addressed payment
to Copia's Massachusetts address, and Wehmeyer sometimes received

1

AMResorts is a Pennsylvania limited partnership.
Copia
alleges that AMResorts manages the Seawind-owned resorts for which
Copia provided internet services under the contract here at issue.
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contract-related phone and email communications in Massachusetts.
Installation and maintenance of the internet services occurred
entirely in Jamaica, with Jamaica-based Copia employees working
on-site at Seawind's resorts on a daily basis. No Seawind employee
traveled to Massachusetts during the contract term.
On April 28, 2014, Wehmeyer received a letter via email
attachment from the general manager of the two resorts receiving
Copia's

services

under

the

contract.

Addressed

to

Copia's

Massachusetts office, the letter stated that Seawind was not
renewing the contract.

Copia contested the timeliness of the

notice of nonrenewal and brought this action against Seawind and
AMResorts in federal district court in Massachusetts, asserting
various

claims

in

contract,

tort,

and

equity,

Massachusetts's consumer protection statute.

and

under

Both defendants

moved to dismiss, arguing lack of personal jurisdiction and forum
non conveniens.

The district court found that it lacked personal

jurisdiction over the defendants and so dismissed the case without
prejudice.

This appeal timely followed.
II.

A.

Analysis

Standard of Review
The district court based its jurisdictional ruling on

the prima facie record instead of holding an evidentiary hearing
or making factual findings, so our review is de novo.

C.W. Downer

& Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir.
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2014).

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In conducting this review, we ask whether Copia has

"proffered

evidence

that,

if

credited,

is

enough

to

support

findings of all facts essential to personal jurisdiction" when
considered together with the undisputed proffers put forward by
the defendants.

Adelson, 510 F.3d at 48 (quoting Foster-Miller,

Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995)).
B.

The Governing Law
To

carry

its

burden

of

proving

that

personal

jurisdiction exists in this action, Copia must "demonstrate that
the Massachusetts long-arm statute," Mass. Gen. Laws ch. 223A,
§ 3, "grants jurisdiction over [the defendants] and that the
exercise of that jurisdiction comports with the Due Process Clause
of the Fifth Amendment."

Adelson, 510 F.3d at 48.

This court has

sometimes treated the limits of Massachusetts's long-arm statute
as coextensive with those of the Due Process Clause.

See Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
52 (1st Cir. 2002) (citing "Automatic" Sprinkler Corp. of Am. v.
Seneca Foods Corp., 280 N.E.2d 423, 424 (Mass. 1972)).

Recently,

however, we have suggested that Massachusetts's long-arm statute
might impose more restrictive limits on the exercise of personal
jurisdiction than does the Constitution.

See Cossart v. United

Excel Corp., 804 F.3d 13, 18–19 (1st Cir. 2015) (citing Good Hope
Indus., Inc. v. Ryder Scott Co., 389 N.E.2d 76, 80 (Mass. 1979)).
We need not address this possible tension in our precedent here,
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however,

because

both

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defendants

Date Filed: 01/13/2016

treat

the

Entry ID: 5969146

statutory

and

constitutional standards as identical and so have waived any
argument that the long-arm statute does not reach as far as the
Fifth Amendment allows.

Accordingly, we proceed directly to the

constitutional inquiry.
Under the Fifth Amendment, a court may exercise general
or specific jurisdiction over an out-of-state defendant only if
that defendant has "certain minimum contacts with [the forum state]
such that the 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, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)).

When such contacts are "so 'continuous

and systematic' as to render [a defendant] essentially at home in
the forum State," that state holds general jurisdiction over the
defendant as to all claims.

Goodyear Dunlop Tires Operations,

S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (quoting Int'l Shoe,
326

U.S.

at

Massachusetts

317).
may

Because
exercise

Copia
general

waives

any

argument

jurisdiction

over

that
the

defendants, Copia must demonstrate that the defendants' contacts
with Massachusetts are sufficient to establish Massachusetts's
specific jurisdiction over this contract action.2

2

Because all of Copia's claims are entwined in its contract
claims, none demand separate analysis. See Phillips v. Prairie
Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008).
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Under our precedent, a plaintiff seeking to establish
specific jurisdiction must show that each of three conditions is
satisfied:
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 . . . be reasonable.
Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008)
(quoting Adelson, 510 F.3d at 49).

While we doubt that Copia has

come close to satisfying any of these three conditions, we can
comfortably rest the disposition of this appeal on an analysis of
how Copia fails to demonstrate that the defendants' few contacts
with

Massachusetts

represent

a

purposeful

availment

of

the

protections of Massachusetts's laws.3

3

There is a factual dispute over the precise relationship
between Seawind and AMResorts.
But because Seawind, as the
ostensible contract participant, lacks sufficient Massachusetts
contacts to fall subject to the state's jurisdiction, we lack
jurisdiction over AMResorts a fortiori even if we assume, favorably
to Copia, that Seawind and AMResorts are alter-egos of one another.
Of course, Copia argues that AMResorts--and not necessarily
Seawind--has a regional director for group sales for customers "in
the Northeast, which presumably includes the Commonwealth of
Massachusetts." But even if this sort of presumptive contact were
meaningful, Copia has not explained how it relates to the contract
dispute here at issue--and such a relationship is necessary for
specific jurisdiction. See Harlow v. Children's Hosp., 432 F.3d
50, 60–61 (1st Cir. 2005). Accordingly, finding no other alleged
Massachusetts contacts that are unique to AMResorts, we proceed to
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Purposeful Availment
In

condition

determining

is

satisfied,

whether
our

the

"key

purposeful

focal

availment

points"

are

the

voluntariness of the defendants' relevant Massachusetts contacts
and

the

foreseeability

of

the

Massachusetts's jurisdiction.

defendants

falling

subject

See Adelson, 510 F.3d at 50.

to

As an

operator of luxury resorts in the Caribbean, Seawind does advertise
in Massachusetts, has Massachusetts residents among its customers,
and has some arrangements with travel agents in Massachusetts.

No

claim in this lawsuit, though, arises out of or relates directly
to any of these contacts, so they are not relevant to our specific
jurisdiction analysis.

See Harlow v. Children's Hosp., 432 F.3d

50,

2005)

60–61

(1st

Cir.

(contacts

relevant

for

specific

jurisdiction are those to which the cause of action is related).
In its relevant, i.e., contract-related, dealings with Copia,
Seawind

sought

Massachusetts

no

and

privilege
did

nothing

to

conduct

to

invoke

any
the

activities

in

benefits

and

protections of Massachusetts's laws beyond implicitly relying on
the state's laws in the way that any party to a contract relies on
the laws of the jurisdiction in which his counter-party happens to
reside.
suit,

Cf. Prairie Eye Ctr., 530 F.3d at 28–29 (in a contract

defendant's

awareness

treat the defendants
exposition.

as

of

plaintiff's

identically
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location

situated

for

in

forum

ease

of

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state,

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combined

with

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defendant's

Date Filed: 01/13/2016

occasional

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transmission

of

contract-related communications into forum state, was insufficient
to establish defendant's purposeful availment of forum state).
Copia's efforts to draw support from its portrayal of
Seawind's performance (or "nonperformance") of the contract serve
only to highlight the absence of any meaningful attempt by Seawind
to secure the protections of Massachusetts's laws.
to

Seawind's

receipt

of

equipment

shipped

by

Copia points
Copia

from

Massachusetts as a voluntary contact between the defendants and
the forum state.

We view the origins of such shipments, instead,

as resulting from Copia's own "unilateral activity."

Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Helicopteros
Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 417 (1984)).
The contract does not require shipment from any particular state,
and there is no evidence that the defendants cared about the
geographic origin of the shipments.

Similarly, the contract's

requirements that Seawind make payment in U.S. dollars and comply
with U.S. export law when applicable create no explicit expectation
of contact between Seawind and Massachusetts in particular.

And

the contract's requirement that Seawind give legal notice to Copia
at Copia's "registered office," as we can assume Seawind did when
sending notice of nonrenewal,4 represented a convenience for Copia

4

Copia points to its receipt of the nonrenewal notice in
Massachusetts to suggest that Massachusetts was the site of Copia's
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rather than the type of availment by Seawind that would justify
Copia haling Seawind into Massachusetts court on a contract that
otherwise created no link between Seawind and Massachusetts.
Finally, Copia argues that our decision in C.W. Downer
& Co., 771 F.3d 59, somehow compels us to find purposeful availment
here.

It does not.

In Downer, an employee of a Canadian business

traveled to the Boston headquarters of a Massachusetts investment
bank to discuss the Canadian business's imminent sale.

Id. at 63.

During the ensuing "four-year working relationship" between the
parties, id. at 67, the Massachusetts bank performed "extensive
services" in Massachusetts, id. at 69, requiring "intensive[]"
collaboration between the out-of-state business and the bank's
Boston-based team, id. at 67.

We have recently described Downer's

determination that the Canadian business had "purposefully availed
itself of the privilege of doing business in Massachusetts" as
hinging on three factors: the defendant's in-forum solicitation of
the plaintiff's services, the defendant's anticipation of the
plaintiff's

in-forum

services,

and

the

performance of extensive in-forum services.

plaintiff's

actual

Cossart, 804 F.3d at

alleged breach. See Phillips Exeter Acad. v. Howard Phillips Fund,
Inc., 196 F.3d 284, 291 (1st Cir. 1999) (breach of contract
arguably takes place "where a promisor fails to perform"). But
regardless of any significance this argument may have for specific
jurisdiction's relatedness inquiry, it does not suggest that
Seawind purposefully availed itself of Massachusetts's laws. In
any event, as we have discussed, Seawind had no contractual duty
to perform in or send payment into Massachusetts specifically.
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None of those factors are present to remotely the same degree

here.
In sum, Seawind did no more than welcome in Jamaica
Copia's offer to provide equipment and services to Seawind in
Jamaica, and Seawind had no relevant contact with Massachusetts
beyond the insubstantial contacts that anyone would have when
buying goods and services from a company that itself happens to be
in Massachusetts.

None of this by itself represents the type of

purposeful availment of the privilege of conducting business in
Massachusetts that would have made it reasonably foreseeable that
Seawind could be "haled into court" in Massachusetts on its
contract with Copia.

Burger King, 471 U.S. at 486 (quoting World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

The

district court therefore correctly dismissed this lawsuit for lack
of personal jurisdiction.5
III.
Finding

the

Conclusion

unconsented

exercise

of

personal

jurisdiction over the defendants barred by the Due Process Clause
of the Fifth Amendment, we affirm the district court's dismissal
for lack of jurisdiction.

5

Because we find that Copia has not shown purposeful
availment, we need not proceed to consider whether it would be
reasonable for Massachusetts to exercise jurisdiction. Likewise,
we need not consider the defendants' alternate argument for
dismissal on forum non conveniens grounds.
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