
USCA1 Opinion

	














                            United States Court of Appeals
                                For the First Circuit
                                 ____________________
        No. 97-1132

                        GEORGE F. NOONAN AND ANN MARIE NOONAN,

                               Plaintiffs, Appellants,

                                          v.

                             THE WINSTON COMPANY, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Richard G. Stearns, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                                Stahl, Circuit Judge,
                                       _____________
                             and Young,* District Judge.
                                         ______________

                                 ____________________

            Michael D. Lurie, with  whom Alex H. MacDonald, H. Bissell  Carey,
            ________________             _________________  __________________
        III, and Robinson & Cole, were on brief for appellants.
        ___      _______________
            Ralph G. Elliot, with whom Tyler  Cooper & Alcorn, Walter H. Mayo,
            _______________            ______________________  _______________
        III, and  Casner &  Edwards, were on  brief for Colour  Library Books,
        ___       _________________
        Ltd.
            Robert M.  Callagy, Joshua M. Rubins,  Satterlee Stephens Burke  &
            __________________  ________________   ___________________________
        Burke LLP, David  R. Friedman, and Palmer  & Dodge, were on  brief for
        _________  __________________      _______________
        The Winston Company, et al.
                                 ____________________
                                   February 2, 1998
                                 ____________________
        _____________________
        *Of the District of Massachusetts, sitting by designation.




















                      STAHL, Circuit Judge.  Plaintiffs-appellants George
                      STAHL, Circuit Judge.
                             _____________

            and  Anne  Marie   Noonan  challenge  the  district   court's

            dismissal,  on  personal   jurisdiction  grounds,  of   their

            defamation, misappropriation  and violation of  the right  of

            publicity, and related  claims against Colour  Library Books,

            Ltd.,  Lintas:Paris,  R.J.  Reynolds  Tobacco  Company,  R.J.

            Reynolds Tobacco  International, Inc., R.J.  Reynolds France,

            S.A., Worldwide  Brands, Inc., and Lintas:Worldwide.   Having

            fully considered plaintiffs' arguments, we affirm.

                                          I.
                                          I.
                                          __

            A.  General Background
            ______________________

                      George  Noonan,  a Boston  Police  Detective and  a

            devoted non-smoker, has spent the bulk of his twenty-two year

            career educating Bostonians about the health risks of tobacco

            use.   During the  summer of  1992, a magazine  advertisement

            sponsored  by  Winston  cigarettes featuring  Noonan's  image

            appeared in several French magazines.  Noonan claims that the

            unauthorized use of his image to  benefit tobacco sellers has

            caused  him personal and professional harm and embarrassment.



                      The  offending photograph has  a long history.   In

            1979,  Neil Sutherland,  an  employee  of  the  English  book

            packaging house1  Colour Library Books  ("CLB"), photographed


                                
            ____________________

            1.  Packaging houses  design and  print books  to be  sold to
            publishers.

                                         -2-
                                          2















            Noonan  in Boston  without  his  permission.    Although  the

            photograph was meant to appear  in a coffee table book titled

            Boston:     City  of  Dreams,  it  was   never  published  or
            ____________________________

            distributed.   The  photograph remained  in  CLB files  until

            1990, when CLB published it in An American Moment.  Two years
                                           __________________

            later,  CLB sold  the photograph  to  the French  advertising

            agency  Lintas:Paris, with  no restrictions  on  its use  and

            without advising Lintas:Paris  that Noonan had not  granted a

            release.  Lintas:Paris used the photograph  in a campaign for

            client  R.J. Reynolds France,  S.A. ("RJR France"),  a French

            cigarette manufacturer.

                      RJR France had  retained Lintas:Paris to  design an

            advertising campaign both to publicize Winston cigarettes and

            to market  an informational communications system  called The

            Minitel  Service,  an   interactive  network  that   provides

            consumer  services  such as  personal shopping,  banking, and

            remittance  of income taxes.   Companies sponsor  segments of

            the  service  in  exchange  for  a   share  of  the  revenues

            generated.   The Winston  Way, one component  of the  Minitel

            Service, provides information about dining and  entertainment

            in  France and is  sponsored by the  Cooperation Gesellschaft

            fuer Markendiversifikation  mbh, a German  company affiliated

            with RJR France and unrelated to this action.

                      The full-page advertisement pictures  Noonan in his

            Boston  Police uniform and  on horseback  at Faneuil  Hall in



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                                          3















            Boston.   The text reads,  "The Winston Way," printed  in the

            form of the Winston cigarette logo -- white letters against a

            red  background.   The advertisement  also  provides a  phone

            number for Minitel.   Without the knowledge  of Lintas:Paris,

            at  least 305 copies  of various French  magazines containing

            the  advertisements were distributed to,  and at least 183 of

            these were sold from, retail  magazine outlets in the  Boston

            area.  

                      Noonan became aware of  the offending advertisement

            during the  summer  of 1992.    Fellow police  officers  told

            Noonan that a  magazine with  a picture  of him  on the  back

            cover was circulating.   Nancy Fay, a  Massachusetts resident

            who had seen  the advertisement while vacationing  in France,

            brought the  advertisement to Boston  and wrote to  Noonan to

            inquire whether  the cigarette  manufacturer had  paid Noonan

            for  the   advertisement.     Noonan's  son   Greg  saw   the

            advertisement  when his  French teacher  brought a copy  of a

            magazine  containing  the  advertisement   to  class;  Greg's

            faculty  advisor told Greg that he had seen the advertisement

            in France.   Some people, assuming that  Noonan had consented

            to the  use of  his image, denounced  him for  supporting the

            cigarette industry.  As  a result of what Noonan felt  was an

            attack on his reputation, he initiated this suit.

                      Given  the number of parties to this litigation and

            the   importance  of   their  relationships   to  plaintiffs'



                                         -4-
                                          4















            jurisdictional  theories, we begin  with a brief  overview of

            the  defendants.     Defendant  Lintas:Paris   is  a   French

            corporation,   with  its  only   office  in   Paris,  France.

            Defendant  RJR   France,  also  a   French  corporation,  has

            corporate offices in Boulogne-Billancourt, France.  Defendant

            R.J.  Reynolds  Tobacco  ("RJR  Tobacco")  is  a  New  Jersey

            corporation with its principal place of business in New York,

            New York.  RJR Tobacco  is the organization through which its

            parent  company,  RJR Nabisco,  Inc.,  conducts  its domestic

            cigarette  business.     Defendant  R.J.   Reynolds  Tobacco,

            International ("RJRTI"),  the international  analogue to  RJR

            Tobacco  and also a  wholly-owned subsidiary of  RJR Nabisco,

            Inc., is a  Delaware corporation with its  principal place of

            business  in   Winston-Salem,  North  Carolina.     Defendant

            Worldwide Brands,  Inc. ("Worldwide"), a dealer  in trademark

            rights and licenses and another RJR Nabisco, Inc. subsidiary,

            is also a  Delaware corporation.  Worldwide's  French offices

            are  in Boulogne-Billancourt.    Defendant Lintas:Paris  is a

            wholly-owned  subsidiary of France C.C.P.M, in turn a wholly-

            owned subsidiary of  Lintas Holdings, B.V., itself  a wholly-

            owned  subsidiary of the Interpublic Group of Companies, Inc.

            ("Interpublic").        Noonan   asserts    that    defendant

            Lintas:Worldwide  is an  advertising  corporation managed  by

            Interpublic.  Defendants claim, and the district court found,

            that Lintas:Worldwide is not a  legal entity.  For reasons we



                                         -5-
                                          5















            shall  explain infra, its  existence vel non  does not affect
                           _____                 ___ ___

            our decision.   Finally, defendant  CLB is a  British company

            with offices in Surrey, England.

            B.  Prior Proceedings
            _____________________

                      The  complaint  sets forth  five  direct claims  --

            misappropriation and violation of the right of publicity, see
                                                                      ___

            Mass. Gen. Laws Ann. ch. 214,   3A (West 1985 &  Supp. 1996);

            defamation, invasion of  the right of privacy, see  id.   1B;
                                                           ___  ___

            reckless  or  intentional infliction  of  emotional distress;

            unfair and deceptive acts, see id. ch. 93A,    2,11 --  and a
                                       ___ ___

            derivative claim for loss of consortium, brought by Mrs. Anne

            Marie Noonan.

                      The district court  initially dismissed all claims,

            pursuant to  Fed. R. Civ.  P. 12(b)(2), except  those against

            CLB  for lack of personal jurisdiction over named defendants.

            See   Noonan v.  The Winston Co.,  902 F. Supp.  298 (D. Mass
            ___   ______     _______________

            1995)  ("Noonan   I").     After   allowing  Noonan   limited

            jurisdictional  discovery  with  respect  to  CLB,  the court

            dismissed all  claims  against CLB.    See Noonan  v.  Colour
                                                   ___ ______      ______

            Library  Books,  LTD.,  947  F. Supp.  564  (D.  Mass.  1996)
            _____________________

            ("Noonan II").  Noonan appeals from these rulings.

                      Because  the district  court dismissed  plaintiffs'

            claims  without holding an evidentiary hearing, we review the

            rulings  de novo, drawing  facts from the  parties' pleadings
                     __ ____

            and supplementary  filings, and construing  all inferences in



                                         -6-
                                          6















            the  plaintiffs' favor.   See Ticketmaster-New York,  Inc. v.
                                      ___ ____________________________

            Alioto, 26 F.3d 201, 203 (1st Cir. 1994).
            ______

















































                                         -7-
                                          7















                                         II.
                                         II.
                                         ___

                      On  appeal,  plaintiffs   advance  four  arguments.

            First, they  assert the  district court  erred in  concluding

            that  it lacked  specific  jurisdiction over  defendants CLB,

            Lintas:Paris  (as RJR  France's agent),  and  RJR France  (as

            Lintas:Paris' principal).   Second, they contend the district

            court  erred by failing to exercise general jurisdiction over

            RJR Tobacco  and CLB.   Third, they claim the  district court

            abused its discretion when it denied  them permission to take

            jurisdictional  discovery before it  ruled on the  motions to

            dismiss for lack of personal jurisdiction filed by defendants

            RJTC, RJRTI, RJR France,  Lintas:Worldwide, Lintas:Paris, and

            Worldwide Brands.   Finally,  they argue  the district  court

            improperly limited jurisdictional discovery as to CLB.  

                      "Specific  personal  jurisdiction may  be  asserted

            where the cause of action  arises directly out of, or relates

            to, the  defendant's  forum-based contacts."   United  Elec.,
                                                           ______________

            Radio & Mach.  Workers of America v. 163  Pleasant St. Corp.,
            _________________________________    _______________________

            960 F.2d 1080, 1088-89 (1st Cir. 1992) ("Pleasant I") (citing

            Helicopteros Nacionales de  Colombia, S.A. v. Hall,  466 U.S.
            __________________________________________    ____

            408, 414 &  n.8 (1984)).   "General jurisdiction exists  when

            the litigation  is not  directly founded  on the  defendant's

            forum-based contacts,  but  the  defendant  has  nevertheless

            engaged  in continuous and  systematic activity, unrelated to

            the  suit,  in  the  forum  state."    Id.  at  1088  (citing
                                                   ___



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                                          8















            Helicopteros, 466  U.S. at  414-16 & n.9).   Three  questions
            ____________

            constitute   both   the   specific   and   general   personal

            jurisdiction analyses: 1) whether  the Massachusetts long-arm

            statute authorizes jurisdiction; 2) whether the defendant has

            sufficient   minimum  contacts   so  that  the   exercise  of

            jurisdiction does not  offend due process; and 3) whether the

            exercise of  jurisdiction is  reasonable, and  therefore does

            not  offend due  process.   Cf. United  Elec., Radio  & Mach.
                                        ___ _____________________________

            Workers of  America v.  163 Pleasant St.  Corp., 987  F.2d 39
            ___________________     _______________________

            (1st  Cir.  1993)  (setting  out  steps   for  jurisdictional

            analysis  generally)   ("Pleasant   II").      We   determine

            reasonableness by  applying  factors  we  have  described  as

            "gestalt factors."2  If the  requirements of either the state

            statute or  the Due Process  Clause of the  U.S. Constitution

            are not  met, the  foreign defendant will  not be  subject to

            personal jurisdiction.

            A.  Jurisdictional Issues
            _________________________

                      (i)  Specific Jurisdiction over CLB
                           ______________________________

                      As  an  initial  matter,  we  decline  to  consider

            whether  CLB  is  subject to  personal  jurisdiction  under a

            theory of specific  jurisdiction because the Noonans  did not

                                
            ____________________

            2.  The  criteria  are:    "(1)  the  defendant's  burden  of
            appearing, (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."  Pleasant I, 960 F.2d at 1088.
                                           __________

                                         -9-
                                          9















            assert this theory  below.  Plaintiffs initially  opposed the

            defendants' motions to  dismiss by arguing that  the district

            court had  specific  jurisdiction over  all  the  defendants.

            After  completing  discovery  over CLB,  however,  plaintiffs

            abandoned their  specific  jurisdiction  claim  against  CLB,

            arguing only that  the court had general jurisdiction over it

            or, in the alternative, that jurisdiction should  be found as

            a sanction for CLB's failure to comply in good faith with its

            discovery obligations.  Plaintiffs, therefore,  may not raise

            a specific jurisdiction theory against CLB now, for "[i]f any

            principle is settled in this  circuit, it is that, absent the

            most extraordinary circumstances,  legal theories not  raised

            squarely in the lower court  cannot be broached for the first

            time on  appeal."    Teamsters,  Local No.  59  v.  Superline
                                 _________________________      _________

            Transp. Co., 953 F.2d  17, 21 (1st Cir. 1992).   There are no
            ___________

            extraordinary  circumstances  in  this case;  plaintiffs  had

            ample  time  to  consider and  advance  their  best arguments

            supporting specific jurisdiction.

                      (ii)  Specific Jurisdiction  over Lintas:Paris  and
                            _____________________________________________

            RJR France 
            ___________

                      Because we determine that the assertion of personal

            jurisdiction over  Lintas:Paris and  RJR France  would offend

            due  process, we  decline to  decide  the difficult  question

            whether  plaintiffs  have  established  a  prima  facie  case
                                                       ____________

            authorizing personal jurisdiction over these defendants under



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                                          10















            the  Massachusetts long-arm  statute.   See Ticketmaster,  26
                                                    ___ ____________

            F.3d at 205;  U.S.S. Yachts, Inc. v. Ocean  Yachts, Inc., 894
                          ___________________    ___________________

            F.2d  9, 11  (1st Cir.  1990); Eveland  v. Director  of Cent.
                                           _______     __________________

            Intelligence Agency, 843 F.2d 46, 50 (1st Cir. 1988).    
                                                                   
            ___________________

                      The  Due Process Clause of the Fourteenth Amendment

            permits a state to exercise personal jurisdiction over a non-

            resident  defendant only  when the  defendant has  sufficient

            minimum  contacts with  the forum.    See Int'l  Shoe Co.  v.
                                                  ___ _______________

            Washington, 326  U.S. 310,  316 (1945).   Sufficient  minimum
            __________

            contacts  exist for specific jurisdiction when "(1) the claim

            underlying the litigation . .  . directly arise[s] out of, or

            relate[s] to, the defendant's forum-state activities, (2) 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)

            exercising jurisdiction  is fair under  the gestalt  factors.

            Pleasant II,  987 F.2d at 43  n.9.  The decisive  due process
            ___________

            issue  in this  case is  whether  the defendants'  activities

            satisfy the purposeful availment requirement.

                      Plaintiffs correctly  draw our attention  to Calder
                                                                   ______

            v.  Jones, 465  U.S. 783 (1984),  in which the Supreme  Court
               ______

            adopted an effects test for determining  purposeful availment

            in  the context of  defamation cases.   Calder  concerned two
                                                    ______



                                         -11-
                                          11















            Florida  reporters, employed  by The  National Enquirer,  who
                                             ______________________

            wrote a libelous article about California entertainer Shirley

            Jones.    Id.    The  Supreme  Court  held  that jurisdiction
                      ___

            properly could  be asserted  over the  reporters because  the

            defendants had aimed an act at  the forum state, knew the act

            would  likely have a devastating  effect, and knew the injury

            would  be felt  in the  forum  state, where  Jones lived  and

            worked "and  in which the National Enquirer ha[d] its largest

            circulation."  Id. at 790.    Plaintiffs'       circumstances
                           ___

            satisfy only the  injurious-effects part of the  Calder test.
                                                             ______

            Like Jones,  plaintiffs felt a  tortious effect in  the forum

            state where they lived and  worked.  Moreover, the content of

            the picture -- a Boston Police Officer in uniform, sitting on

            a saddle blanket  decorated with the Boston  Police insignia,

            in front of  a distinctive Boston landmark -- indicated where

            any injury would be felt.

                      For  the first  part of  Calder's  framework to  be
                                               ______

            satisfied, however, the defendants must have acted toward the

            forum state with  sufficient intent to make  them "reasonably

            anticipate  being   haled  into  court  there."    World-Wide
                                                               __________

            Volkswagen Corp.  v. Woodson, 444  U.S. 286, 297 (1980).   In
            ________________     _______

            Calder,  the court  found  that  the defendants'  intentional
            ______

            conduct  was  "calculated to cause  injury  to  respondent in
                           __________

            California."    Calder,  465 U.S.  at  791  (emphasis added).
                            ______

            There is no analogous intentional behavior here.



                                         -12-
                                          12















                      Plaintiffs do not  allege, and the record  does not

            suggest, that any  acts by Lintas:Paris3 were  committed with

            sufficient purpose to  satisfy the intent requirement.4   The

            defendants did not direct their actions toward Massachusetts.

            That  the advertisement  contains French  text  and a  French

            phone  number suggests Lintas:Paris  created it for  a French

            audience.    This  interpretation  is  corroborated,  without

            contradiction, by  a Lintas:Paris  representative who  stated

            that  "[t]he advertisement  was aimed  solely  at the  French

            consumer  market."     Roux   Aff.,      12.     Furthermore,

            Lintas:Paris "was not aware that some copies of the magazines

            bearing  the advertisement" would reach Massachusetts.  Id.  
                                                                    ___

            15. 

                      Although    plaintiffs    fleetingly    refer    to

            Lintas:Paris' knowledge that  the advertisements would  reach

            Massachusetts  and  passingly  contest the  district  court's

                                
            ____________________

            3.  We first consider Lintas:Paris' actions alone because the
            Noonans'  jurisdictional claims over  RJR France rest  on its
            agency  relationship with  Lintas:Paris.    The viability  of
            plaintiffs'  claims against RJR  France depends on  our first
            finding that Lintas:Paris purposefully  availed itself of the
            forum state.

            4.  The district court emphasizes that Noonan "did not allege
            any  of the defendants . . . even  knew who he was, much less
            that they published his  picture intending that he be  harmed
            in Massachusetts."   Noonan I, 902 F.  Supp. at 305.   In our
                                 ________
            view  this argument implies too high a jurisdictional hurdle.
            Because  this is an  inquiry regarding jurisdiction,  not the
            underlying tort,  the defendant  must only be  shown to  have
            intentionally directed  an act, tortious or otherwise, toward
            the forum state.   The defendants' lack of  a specific intent
            to harm Noonan is irrelevant.    

                                         -13-
                                          13















            denial  of  discovery  as to  what  Lintas:Paris  should have

            known, they  do not  dispute Lintas:Paris'  claims of  actual

            ignorance.5  Instead, relying on Calder and other cases where
                                             ______

            the  defendant intentionally  sent  fraudulent or  defamatory

            material  into   the  forum,   plaintiffs   imply  that   the

            defendants'  intent to  reach Massachusetts  can  be inferred

            from  the placement  of advertisements  in publications  with

            international circulations.  Cf. Murphy v. Erwin-Wasey, Inc.,
                                         ___ ______    _________________

            460  F.2d 661 (1st  Cir. 1972) (defendant  intentionally sent

            fraudulent  material  into  forum);  Borshow  Hosp.   &  Med.
                                                 ________________________

            Supplies,  Inc.  v.  Burdick-Siemens  Corp.,  143  F.R.D. 472
            _______________      ______________________

            (D.P.R. 1992) (defendant sent letters into forum). 

                      In Calder, because the libelous story was generated
                         ______

            from California  sources, concerned  a California  celebrity,

            and  appeared  in a  newspaper  with a  forum  circulation of

            600,000 copies, the Court found that California was the focal

            point of both the effect and the story.  See Calder, 465 U.S.
                                                     ___ ______


                                
            ____________________

            5.  As  noted  above,  plaintiffs  only  vaguely  referred to
            Lintas:Paris'  knowledge in  its appellate  brief.   Further,
            plaintiffs perfunctorily asserted to the district court, in a
            footnote, a  need for  discovery as  to whether  Lintas:Paris
            should have known that the magazines would  be distributed in
            Massachusetts.   These  assertions are  not  tantamount to  a
            rebuttal  of Lintas:Paris' claims  of ignorance.   See United
                                                               ___ ______
            States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not
            ______    _______
            enough  merely  to mention  a possible  argument in  the most
            skeletal way, leaving the court to do counsel's  work, create
            the ossature for the argument, and put flesh on its bones.").
            Nor is the  footnote sufficient to have preserved an argument
            that  negligence  is  sufficient  to  constitute   purposeful
            availment.

                                         -14-
                                          14















            at 789.    Here,  however,  plaintiffs'  claims  rest  on  an

            advertisement  which appeared  in  305 individual  magazines,

            circulated in  Massachusetts.   This  small distribution,  by

            itself, does not  merit a finding that  Massachusetts was the

            focal  point of the events in  question, or that Lintas:Paris

            aimed the advertisements toward Massachusetts.  The size of a

            distribution of offending material  helps determine whether a

            defendant acted intentionally.    The Supreme Court has  held

            that a publisher's regular  circulation of a large  number of

            magazines  containing allegedly libelous  content in  a forum

            state indicated  deliberate and continuous  exploitation of a

            market   and,   therefore,   was    sufficient   to   support

            jurisdiction.  See Keeton v. Hustler Magazine, Inc., 465 U.S.
                           ___ ______    ______________________

            770,  781  (1984).    Just  as  widespread  circulation of  a

            publication  indicates deliberate  action, thin  distribution

            may indicate a lack of purposeful contact.  See Chaiken v. VV
                                                        ___ _______    __

            Publ.  Corp., 119  F.3d  1018 (2d  Cir.  1997) (holding  that
            ____________

            jurisdiction over  an Israeli  publisher for  a libel  action

            involving an  insignificant distribution  --  four copies  or

            .04% of total  circulation -- offends due  process), petition
                                                                 ________

            for cert. filed,  ___ U.S.L.W. ___ (U.S. Nov.  25, 1997) (No.
            ___ _____ _____

            97-6984).

                      Plaintiffs urge  us to rely  on Gordy v.  The Daily
                                                      _____     _________

            News, 95 F.3d 829 (9th Cir. 1996),  a case in which the Ninth
            ____

            Circuit  found   that  the  distribution   of  under   twenty



                                         -15-
                                          15















            newspapers  was  sufficient  to confer  jurisdiction  over  a

            foreign  newspaper  and its  reporter.   Unlike Lintas:Paris,

            however, the  Gordy defendants  targeted the  forum state  by
                          _____

            distributing newspapers via regular customer subscriptions to

            forum addresses.  Here, as noted, Lintas:Paris denies knowing

            the  ultimate  destination  of  the  magazines  that  reached

            Massachusetts,  and plaintiffs  have  not alleged  otherwise.

            While we sympathize  with George Noonan's distress  at seeing

            his  image  used  to  promote  a  product  he  despises,  his

            Massachusetts-based   injury  is   not   enough  to   support

            jurisdiction  over the defendants.   To find  otherwise would

            inappropriately  credit   random,  isolated,   or  fortuitous

            contacts and negate  the reason for the  purposeful availment

            requirement.   Without finding minimum contacts, we need not,

            and  do not,  proceed to  the reasonableness  analysis.   See
                                                                      ___

            Donatelli v. National Hockey League,  893 F.2d 459, 471  (1st
            _________    ______________________

            Cir. 1990).

                      (iii) General Jurisdiction over CLB and RJR Tobacco
                            _____________________________________________

                      According  to plaintiffs,  CLB's and  RJR Tobacco's

            contacts with Massachusetts were sufficiently continuous  and

            systematic to permit  the district court to  exercise general

            jurisdiction.  

                           (a) CLB
                               ___

                      We  begin our analysis with the relevant section of

            the Massachusetts long-arm statute: 



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                                          16















                      A    court    may    exercise    personal
                      jurisdiction  over  a  person,  who  acts
                      directly or by an agent, as to a cause of
                      action in  law or equity arising from the
                      person's . . .
                      (d)  causing  tortious   injury  in  this
                      commonwealth  by   an  act   or  omission
                      outside this commonwealth if he regularly
                      does or solicits business, or engages  in
                      any other  persistent course  of conduct,
                      or derives substantial revenue from goods
                      used or consumed or services rendered, in
                      this commonwealth . . . .  

            Mass. Gen. Laws Ann. ch. 223A,   3(d) (1985 & Supp. 1996).

            In  our  effort to  "effectuate  . .  .  [the Commonwealth's]

            legitimate desire to  protect its citizens," we  construe the

            statute broadly.   Mark v. Obear &  Sons, Inc., 313 F.  Supp.
                               ____    ___________________

            373, 376 (D. Mass. 1970).

                      Viewing  the facts  in a  light  most favorable  to

            plaintiffs,  the  threshold  requirement   of     3(d),  that

            plaintiffs'  in-state harm was caused by the defendant's out-

            of-state act,  is  easily met.   The  plaintiffs suffered  an

            injury  in Massachusetts  where the  use  of George  Noonan's

            image caused him  shame and embarrassment and  engendered the

            loss  of consortium  of which  Anne  Marie Noonan  complains.

            Furthermore, CLB's  allegedly improper act,  the unauthorized

            sale  of  the  photograph containing  Noonan's  image,  was a

            foreign act that arguably contributed to plaintiffs' in-state

            injuries.

                      Plaintiffs' appeal raises the issue of  whether the

            district  court properly  decided  that plaintiffs  failed to



                                         -17-
                                          17















            satisfy  the  second requirement  of     3(d),  that CLB  had

            sufficient  additional contacts with the forum.  The district

            court  assumed that plaintiffs'  "best case [fell]  under the

            'substantial  revenues'  test  of     3(d),"  and  found  the

            revenues insufficient  to meet the  test.  Noonan II,  947 F.
                                                       _________

            Supp. at 571.  We think, however, plaintiffs' best case falls

            under the "doing or soliciting business" test.   Because this

            clause is  disjunctive, only  one of its  prongs needs  to be

            satisfied.    While  the  parties  energetically  debate  the

            success of CLB's Massachusetts solicitations, we measure only

            the solicitations themselves.

                      CLB  solicited   business  in   Massachusetts  with

            sufficient regularity to  satisfy the statute.   Beginning in

            the fall of  1992 and continuing until  plaintiffs' complaint

            was  filed in  May 1994,  CLB  employees regularly  solicited

            business from World Publications, Inc. ("World"), a remainder

            house located in Dighton, Massachusetts.  During the two-year

            period, CLB employees  telephoned, faxed, and wrote  to World

            to  secure book orders.6  In addition, CLB employees traveled


                                
            ____________________

            6.  The  lower court sets  forth the details  regarding CLB's
            courtship of World,  beginning with the early  1994 contacts.
            See Noonan  II, 947 F. Supp. at 567-68.  Because the district
            ___ __________
            court recognized  only successful solicitations,  it did  not
            recount  the following pre-1994  contacts:  In  October 1992,
            CLB's  International  Sales  Director,  Bill  Dancer,   began
            soliciting  World's  business.   World  provided  CLB  with a
            credit  reference, and  CLB  provided  World  with  a  credit
            application  form.    In November  1992,  Dancer  traveled to
            Massachusetts, met with World, and secured a $210,000 order.

                                         -18-
                                          18















            from  England to Massachusetts on at least two occasions with

            the  intention  of  developing  a  relationship  with  World.

            Finally, in  the spring of 1994, World  employees visited CLB

            in  England  to negotiate  orders.7    In sum,  CLB's  direct

            solicitations of forum  companies are adequately  regular and

            targeted to  satisfy   3(d).   Cf. Keds Corp.  v. Renee Int'l
                                           ___ __________     ___________

            Trading Corp., 888 F.2d 215, 217-19 (1st Cir. 1989) (the sale
            _____________

            of 6000 pairs of shoes  to a Massachusetts wholesaler and the

            subsequent shipping of 18 sample  shoes indicated defendants'

            intent to begin ongoing relations).

                      We  therefore turn  to  whether these  contacts are

            sufficient  to  satisfy  the Constitution.    Until  the date

            plaintiffs  filed their  complaint,  CLB's relevant  contacts

            with   Massachusetts  were   Neil   Sutherland's  visits   to

            Massachusetts in 1979,  the business solicitations  discussed

            above, and approximately $585,000 of orders from World.8  The

                                
            ____________________

            7.  In  1993, CLB also sought business relationships with two
            other  Massachusetts  publishers, Lauriat's  Booksellers  and
            Little  Brown  and Company.   CLB  disputes the  propriety of
            counting the  Little Brown  and Company  contact because,  in
            response to CLB's overture, Little Brown and Company directed
            CLB to contact a  New York office.  We need  not resolve this
            dispute  because, for purposes of   3(d), CLB's solicitations
            are  sufficient even  without the  Little  Brown and  Company
            solicitation. 

            8.  The  parties   clash  over  which   contacts  should   be
            considered in the general jurisdiction analysis.  First, they
            dispute whether  a foreign  corporation's  contacts with  the
            forum should be measured up to the time of the  alleged tort,
            up to  the time the complaint  is filed, or at any  time.  We
            have  considered  all  contacts established  up  to  the time
            Noonan  filed his complaint.  See infra.  at 23-25.   Second,
                                          ___ ______

                                         -19-
                                          19















            standard for  evaluating whether  these contacts  satisfy the

            constitutional  general  jurisdiction test  "is  considerably

            more  stringent" than that  applied to  specific jurisdiction

            questions.  Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st
                        ______    _______________

            Cir.  1984).  In addition, courts  must exercise even greater

            care  before  exercising personal  jurisdiction  over foreign

            nationals.   See Asahi  Metal Indust. Co.  v. Superior Court,
                         ___ ________________________     ______________

            480 U.S. 102, 115 (1987) (citing United States v. First Nat'l
                                             _____________    ___________

            City   Bank,  379   U.S.  378,   404   (1965)  (Harlan,   J.,
            ___________

            dissenting)).

                      Plaintiffs assert CLB's contacts were sufficient to

            establish general jurisdiction  because they are  purposeful,

            frequent,  intense, and  successful.   Although  our decision

            must   be  based  on  a  fact-specific  evaluation  of  CLB's

            contacts,  we  are guided  by  the types  of  contacts deemed

            sufficiently continuous and systematic in other cases.

                      We look to  two of our previous cases  in which the

            appellants  argued,  as  plaintiffs  do  now,  that   general

            jurisdiction  applied to  an out-of-state  seller.   In  both

                                
            ____________________

            they  disagree over  whether it  is  appropriate to  consider
            revenues other than  those actually paid to CLB  prior to the
            filing of the complaint.  On this point we part company  with
            the district court and think it reasonable to include amounts
            owed,  but  not  yet  paid,  to CLB  from  orders  placed  by
            Massachusetts  companies.   Third, they  arrive at  different
            totals of the amounts owed, but not yet  paid, to CLB because
            some  orders were  changed before  the  complaint date.   For
            purposes  of this analysis, we  have included amounts paid to
            and  ordered from  CLB,  but not  cancelled  before the  date
            Noonan filed his complaint.

                                         -20-
                                          20















            cases,  the  defendant  had more  continuous  and  systematic

            contact with the forum state than CLB had with Massachusetts.

            In both cases, we judged the contacts insufficient to  permit

            an assertion of general jurisdiction.

                      First,  in Glater, we found that a manufacturer who
                                 ______

            advertised,   employed   eight   sales   representatives   to

            distribute information, and sold  products to distributors in

            the forum was  not subject to general jurisdiction.   See 744
                                                                  ___

            F.2d at 217.  Although  CLB's selling efforts by its England-

            based sales-force represented substantial work, they were not

            as  intense, active,  and  frequent as  those  of the  Glater
                                                                   ______

            manufacturer's full-time sales representatives.   Compare id.
                                                              _______ ___

            at 214-15, 217 with  Noonan II, 947 F.  Supp. at 567-68;  see
                                 _________                            ___

            also supra notes 6 & 7.
            ____ _____

                      In  Donatelli, we found that ten years of providing
                          _________

            league  officials  at   exhibition  hockey  games,  scouting,

            providing television broadcasts, and selling products bearing

            the  National Hockey League  (NHL) logo, taken  together, did

            not meet the due process test.  See Donatelli v. Nat'l Hockey
                                            ___ _________    ____________

            League, 708 F.  Supp. 31, 35 (D.R.I.  1989) (reciting facts),
            ______

            reversed  893 F.2d  459  (1st  Cir.  1990).   Although  CLB's
            ________

            contacts were arguably  more intense than the  NHL's contacts









                                         -21-
                                          21















            in Rhode Island, its two-year history in Massachusetts is far

            less continuous than the ten years of activity in that case.9

                      Having determined that  sufficient minimum contacts

            to authorize general  jurisdiction over CLB do  not exist, we

            do not need to assess whether asserting jurisdiction would be

            reasonable under  the gestalt  factors.   See Donatelli,  893
                                                      ___ _________

            F.2d at 471.





























                                
            ____________________

            9.  We note that in Keeton,  the Supreme Court suggested that
                                ______
            the distribution of  10-15,000 copies  of a  magazine in  the
            forum  state each month may not  have been substantial enough
            to support  general jurisdiction.   465 U.S.  at 779.   CLB's
            efforts were not as regular as those of Hustler Magazine's in
            New  Hampshire, where  Hustler had  built  up a  subscription
            base.  

                                         -22-
                                          22















                           (b)  RJR Tobacco
                                ___________

                      Plaintiffs  also  argue that  general  jurisdiction

            over RJR Tobacco is proper  under   3(d) and Mass. Gen.  Laws

            ch.  223,    38.    We will  not,  however, consider  whether

            jurisdiction lies  over RJR Tobacco  because we do  not agree

            with the  premise that  purportedly connects  RJR Tobacco  to

            this  litigation.    Cf. Hachikian  v.  Federal  Deposit Ins.
                                 ___ _________      _____________________

            Corp.,   96  F.3d 502,  504  (1996) (concluding  that we  may
            _____

            affirm the entry of summary judgment  on any alternate ground

            made manifest by the record). 

                      While not disputing  that it is the  actions of RJR

            France,  and not RJR  Tobacco, that are  put in issue  by the

            allegations in  their complaint, plaintiffs  have nonetheless

            named RJR  Tobacco as  a defendant because  (1) it,  like RJR

            France,  sells Winston cigarettes; and  (2) it belongs to the

            same  family  of  corporations  as RJR  Tobacco.    These two

            assertions  ignore  the  corporate  form,  and  are  patently

            insufficient to  raise a  claim involving  an attribution  of

            liability  to RJR  Tobacco under  a  veil-piercing theory  in

            Massachusetts.  Cf. Birbara v.  Locke, 99 F.3d 1233 (1st Cir.
                            ___ _______     _____

            1996)  (discussing the  stringent  test  for corporate  veil-

            piercing in Massachusetts); Omni-Wave Elec. Corp. v. Marshall
                                        _____________________    ________

            Indus., 127 F.R.D. 644, 647 (D. Mass. 1989) (stating that the
            ______

            mere  assertion that  defendants  are  alter  egos  or  joint

            ventures is not sufficient to withstand a motion to dismiss);



                                         -23-
                                          23















            American  Home Assurance  Co. v.  Sport  Maska, Inc.,  808 F.
            _____________________________     __________________

            Supp. 67, 73 (D. Mass. 1992) ("Piercing the corporate veil is

            permitted only where there is confused  intermingling between

            corporate  entities or  where  one corporation  actively  and

            directly   participates  in  the  activities  of  the  second

            corporation, apparently exercising pervasive control.").

            B.  Discovery Issues
            ____________________

                      Plaintiffs contend  that the district  court abused

            its   discretion   in  denying   them   permission   to  take

            jurisdictional  discovery over  defendants RJR  Tobacco, R.J.

            Reynolds Tobacco  International, Inc., R.J.  Reynolds France,

            S.A., Lintas:Worldwide,  Lintas:Paris, and  Worldwide Brands,

            Inc.  In addition, plaintiffs  assert that the district court

            improperly   limited  discovery  over   CLB.    We   apply  a

            deferential standard in reviewing the lower court's discovery

            rulings, reversing only if the orders were "plainly wrong and

            resulted  in substantial prejudice  to the  aggrieved party."

            Crocker v. The Hilton Int'l Barbados, Ltd., 976 F.2d 797, 801
            _______    _______________________________

            (1st Cir. 1992) (citing Santiago v. Fenton, 891 F.2d 373, 379
                                    ________    ______

            (1st Cir. 1989)).

                      (i)  The Advertising and Tobacco Defendants
                           ______________________________________

                      The    denial    of   plaintiffs'    request    for

            jurisdictional discovery as  to the  tobacco and  advertising

            defendants  was not an abuse  of discretion.  Throughout this

            litigation,  plaintiffs have argued  that the denial  of this



                                         -24-
                                          24















            request deprived  them of  the opportunity  to ascertain  the

            interrelationships among the defendants.   Proving ties among

            the  tobacco  defendants  or  between  Lintas:Paris  and  the

            tobacco defendants would not assist plaintiffs' cause  absent

            a concomitant demonstration that Lintas:Paris availed  itself

            of the Massachusetts  forum.  We  have already ruled  against

            plaintiffs on this point.

                      (ii) Limitation of Discovery over CLB 
                           _________________________________

                      Plaintiffs contend that  if the district court  had

            allowed  them leeway to discover all contacts between CLB and

            Massachusetts throughout  the litigation  period, they  would

            have  been able to  establish general jurisdiction  over CLB.

            In its decision  to deny jurisdiction over  CLB, the district

            court posed the question, "Is a foreign corporation's contact

            with the forum to be measured at the time of the alleged tort

            . . . , at the time the Complaint is filed . . . , or  at any

            time . . . ?"  Noonan II, 947 F. Supp. at 571.  Judge Stearns
                           _________

            applied the  middle approach, and  limited Noonan's discovery

            requests  to  contacts  through the  date  the  complaint was

            filed.  We  agree with this  ruling insofar as it  rejects as

            irrelevant post-complaint contacts.   Metropolitan Life  Ins.
                                                  _______________________

            Co. v.  Robertson-Ceco Corp., 84  F.3d 560, 569-70  (2d Cir.)
            ___     ____________________

            ("In  general  jurisdiction  cases,  district  courts  should

            examine a defendant's  contacts with the  forum state over  a

            period  that is reasonable  under the circumstances  -- up to



                                         -25-
                                          25















            and  including the  date  the  suit was  filed  -- to  assess

            whether  they   satisfy  the   'continuous  and   systematic'

            standard."), cert. denied, 117 S. Ct. 508 (1996).
                         _____ ______

                      Plaintiffs dispute this approach on the grounds  of

            law and policy.  They first contend that a majority of courts

            routinely analyze contacts  with the forum based  on evidence

            from both before and after  the date of the complaint.   None

            of the cases they cite  in support of this argument, however,

            directly  speaks  to the  question posed  here.   See Wheeler
                                                              ___ _______

            Energy  Corp. v. Metallgesellschaft  AG, No. 91-214-SLR, 1993
            _____________    ______________________

            U.S. Dist. LEXIS 20450 (D.  Del. Jan. 4, 1993); American Home
                                                            _____________

            Assurance, 808  F. Supp.  67;  Kolikof v.  Samuelson, 488  F.
            _________                      _______     _________

            Supp. 881 (D. Mass. 1980); Mark v. Obear & Sons, 313 F. Supp.
                                       ____    ____________

            at  375.  Moreover,  all of these  cases, at  best, involve a

            court's inclusion of fiscal-year sales or revenue figures (in

            each  case,  from  a  survey  of  data   that  spans  several

            proceeding years) in its minimum-contacts analysis.  Finally,

            the  majority  approach is  not as  plaintiffs suggest.   See
                                                                      ___

            Robertson-Ceco,  84 F.3d  at 569  (surveying  cases from  the
            ______________

            Supreme Court and the Second, Fifth, and Ninth Circuits).

                      Plaintiffs also  claim that  limiting discovery  to

            the complaint date is unfair.  They maintain that, under such

            a rule,  an entity which  causes an  injury in  Massachusetts

            from its non-forum based operations and thereafter chooses to

            enter the forum market could  deny that jurisdiction over  it



                                         -26-
                                          26















            existed even though  it enjoys the benefits of  the forum and

            was,  prior to  market entry,  on notice  of the  litigation.

            They  also warn that  undesirable exploitation of  statute of

            limitations  periods will  result  from limiting  the contact

            analysis  to the  period  before the  complaint date.   Savvy

            plaintiffs  who wait until the  end of the limitations period

            to  maximize the  chance of  asserting  jurisdiction will  be

            rewarded for their dilatory tactics.

                      Whatever merit  such policy  arguments might  have,

            the central fact remains that the time the complaint is filed

            is the time at which the plaintiff  urges the court to assert

            its authority  over the defendant.  It  would be conceptually

            incoherent  to permit  the court  to  look to  post-complaint

            contacts  in proving  that  it had  authority  at a  previous

            time.10   Therefore,   while  Noonan   may  have   discovered

                                
            ____________________

            10.  Given our  basis for  rejecting  plaintiffs' claims,  we
            have  considerable  doubt  about  CLB's   argument  that  the
            sufficiency of  contacts for  general jurisdiction should  be
            assessed at  the time  of the alleged  tort.   Although Judge
            Stearns used the complaint date to bound the minimum contacts
            analysis, he appears to have agreed with CLB,  positing that,
            "to the  extent that  foreseeability is a  touchstone of  due
            process[,] logic would measure general jurisdiction as of the
            date the tortious act is committed."  Noonan II, 947 F. Supp.
                                                  _________
            at 571.   CLB argues  the choice to forbear  from the conduct
            that might  cause the injury  inspiring the suit can  be made
            only at the  time the tort is about to be committed.  We note
            the  foreseeability question  is  not whether  the  defendant
            should reasonably expect to be called into court but whether,
            given that  the  defendant  has  been called  to  court,  the
            defendant would be  surprised to find a  particular court has
                                                     __________
            called him.  Asking this question from the perspective of the
            defendant  at the  time he  allegedly committed  the tort  is
            likely premature because not until the complaint  is filed is

                                         -27-
                                          27















            additional contacts between CLB and Massachusetts had he been

            permitted to  continue discovery  throughout the  litigation,

            such contacts have no bearing on the jurisdictional analysis.

            Accordingly,  the district court did not abuse its discretion

            in ruling as it did. 

                      For the reasons  stated above, the judgment  of the

            district court is affirmed.  Costs to appellees.
                              affirmed.
                              ________



































                                
            ____________________

            the court asked to exercise its sovereignty.

                                         -28-
                                          28







