USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1501

ARTHUR F. SAWTELLE, ETC., ET AL.,

Plaintiffs, Appellants,

v.

GEORGE E. FARRELL, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Selya and Stahl, Circuit Judges,

______________

and Gorton,* District Judge.

______________

_____________________

Stanley M. Brown, with whom Mark A. Abramson and Abramson,

_________________
_________________
_________
Reis, Brown & Dugan were on brief for appellants.
___________________
Joseph M. Kerrigan,
____________________
Hamblett & Kerrigan, P.A.
_________________________

with

whom Timothy G. Kerrigan

_____________________

were on brief for appellees

Farrell and Speiser, Krause,

and

George E.

Madole & Lear; Joel S. Perwin with

_______________

whom Paul R. Kfoury and Kfoury & Elliott, P.A. were on brief for
_______________
______________________

appellees

Michael

S.

Olin and

Podhurst,

Orseck,

Josefsberg,

Eaton, Meadow, Olin & Perwin, P.A.

____________________

December 5, 1995
____________________
____________________

Of the District of Massachusetts, sitting by designation.

GORTON,
GORTON,

District
District

Judge.
Judge.

New

Hampshire

residents,

_______________

Arthur

and

Judith Sawtelle

malpractice action

District

of

in the United

New Hampshire

result of the alleged

firms

(the

to

"Sawtelles"),

States District Court

recover damages

with respect to litigation in

jurisdiction

the

and

complaint

the

court

Plaintiffs filed the present appeal.

I.
I.

Standard of Review
Standard of Review

of

as a

their law

in New Hampshire, nor

for lack

district

for the

the State of Florida.

one of them licensed to practice law there.

dismiss

legal

sustained

negligence of two attorneys and

of the defendant-attorneys resides

to

filed a

None

is any

The defendants moved

specific

in
__

personam
________

allowed

the

motion.

We affirm.

When reviewing a district court's ruling on a motion to

dismiss

an action for failure

to make a

prima facie showing of

personal jurisdiction over a defendant, the appellate court draws

the

facts

from the

pleadings

and

the parties'

supplementary

filings, including affidavits, taking facts affirmatively alleged

by the plaintiff as true and

most

favorable to

Alioto,
______

viewing disputed facts in the light

plaintiff.

26 F.3d 201, 203

Ticketmaster-New York, Inc.

____________________________

(1st Cir. 1994);

Kowalski v. Doherty,
________
________

Wallace, Pillsbury & Murphy, 787 F.2d 7, 9 (1st Cir.

___________________________

so

doing, however, "we

do not credit

v.

1986).1

In

conclusory allegations or

____________________

Where the

holding
facie

district court

an evidentiary
standard.

considers such

hearing,

that court

United Elec. Workers

_____________________

v.

a motion
applies the

without

prima

163 Pleasant Street

____________________

Corp., 987 F.2d 39, 43 (1st Cir. 1993) ("Pleasant St. II").
_____

-2-

draw

farfetched

Because

the

inferences."

district court

applying the prima

Ticketmaster,
____________

makes

facie standard,

novo (nondeferential).
____

26

F.3d at

203.

legal determination

when

review by this

Court is

de
__

Boit v. Gar-Tec Products, Inc., 967 F.2d

____
_______________________

671, 675 (1st Cir. 1992).

II.
II.

Background
Background

On May 21, 1989, the plaintiffs' son, Corey, was killed

when

the aircraft he was

was struck

pilot under instruction,

over the New Hampshire-Vermont border

from Florida.

Several months later, the

attorney in New

death

flying, as a

Hampshire to

Sawtelles contacted an

discuss the filing

suit on behalf of their son's

by an aircraft

estate.

of a

wrongful

The local attorney

referred plaintiffs to the

California-based law firm of Speiser,

Krause,

presumably

Madole

&

Cook,

because

of

the

firm's

reputation for expertise in aircraft litigation.2

In

March 1990,

an

attorney at

the California

firm,

which is not a party to this litigation, sent duplicate originals

____________________

In an

affidavit dated January 20,

that plaintiffs

obtained the

they saw an advertisement

by

the Aircraft

Owners

name of

1995, Mr. Sawtelle stated

the California

for that firm in a

and Pilots

firm when

magazine published

Association ("AOPA").

The

affidavit is identical to an unsigned and undated draft affidavit

of Mr. Sawtelle except that the draft states that plaintiffs were
referred to

the California firm

by the New

Hampshire attorney.

In defendants' counter-affidavit they deny ever having advertised

in any AOPA publication and, in support of their contention, they

submitted an
confirms

affidavit of an

that there were no

advertising assistant at
advertisements for the

the AOPA magazine for the years 1988 through

court

discounted the

Sawtelles'

claim that

1991.

AOPA who

law firm in

The district

they retained

California law firm on the basis of a magazine advertisement.

do not disturb that determination.

-3-

the

We

of

behalf

retainer agreement,

of the

firm, to

which

had already

the Sawtelles

in New

been

executed on

Hampshire.

retainer agreement included a provision granting the firm

upon

any sum received in

the plaintiffs' cause

The

a lien

of action.

The

Sawtelles signed the agreement

and returned an executed original

to

then transferred the

the California firm, which

case to its

Washington, D.C. (now Rosslyn, Virginia) affiliate, the defendant

Speiser, Krause, Madole & Lear ("the Speiser firm").

The case

was assigned to defendant,

George E. Farrell

("Farrell"), a Virginia resident and an attorney with the Speiser

firm.

Mr. Farrell

is

not

licensed to

practice

law

in New

Hampshire.

Although Farrell never personally met the plaintiffs,

he sent at

least fifteen

spoke to

them

letters to them

by telephone

representation.

Among

on

the

in New Hampshire

numerous occasions

topics

addressed

communications was Farrell's recommendation

during

in

and

the

those

that Florida was the

most advantageous forum for the wrongful death claim.

To assist as local

the Florida

Eaton,

law firm, defendant,

Meadow,

Defendant

counsel in Florida, Farrell engaged

Olin

&

Michael S.

Perwin,

Olin

member of the Podhurst

Podhurst, Orseck,

P.A.

("the

("Olin"), a

Josefsberg,

Podhurst

firm").

Florida resident

and a

firm, handled the Sawtelles' claims.

He

is licensed to practice law in Florida, but not in New Hampshire.

Like

Farrell, Olin

never personally

send numerous letters to

met the Sawtelles

them in New Hampshire

but did

and participated

-4-

in several telephone conversations with them concerning his legal

representation.

In

action

Circuit

March 1991,

Attorney Olin

filed a

wrongful death

on behalf of the Sawtelles in the Broward County Judicial

Court

in Florida.

The

complaint

for the

estate was

signed on behalf

July

1991, negotiations

wrongful

By

of the Speiser firm and the

with the

concerns regarding the

Farrell told

allege

defendants in

In

the underlying

death claim resulted in a settlement offer of $155,000.

letter dated August 7,

[their]

Podhurst firm.

sufficiency of

the Sawtelles

best interest

that

1991, and in

to

Olin, too,

that "[he]

accept the

advised

response to plaintiffs'

the settlement,

Attorney

believe[ed] it

[was] in

settlement."

them, by

settlement was in their best interest.

telephone,

Plaintiffs

that the

The Sawtelles ultimately

accepted the settlement offer.

Olin later

settlement funds

minor

at the

became concerned about the

to Corey

time.

To

disbursement of

Sawtelle's brother Jason,

determine

his obligations

who was

under

New

Hampshire law, Olin

contacted an attorney

advice regarding the distribution of

in New Hampshire

the funds.

for

Having obtained

such advice, Attorney Olin finally disbursed the settlement funds

in December 1991.

The Sawtelles subsequently learned

of Ronald Brown, Corey's

the

crash, had filed

action had

that: 1) the estate

flight instructor who had also

a wrongful death

been consolidated

suit in

with the case

-5-

died in

Florida; 2) the

brought by

Corey's

estate;

$500,000.

and 3)

the

That

instructor's

claim

discovery prompted

present legal malpractice

had been

settled

for

the Sawtelles

to file

the

action against

defendants in

federal

district court in New Hampshire.

The

Sawtelles'

malpractice

claims

allege

that

the

defendants negligently negotiated an inadequate settlement of the

wrongful

death claim of their

son's estate.

shortcomings in defendants' performance

Among the alleged

were the failures: 1) to

take depositions; 2) to obtain an economist's projection of their

son's lost earning capacity; and 3) to consult liability

or engage

further

in significant

allege that

investigative efforts.

defendants negligently

experts

The Sawtelles

directed settlement

advice

to

into New Hampshire (by

rely on that

telephone and mail), causing them

advice and thereby suffer

economic loss in New

Hampshire.

The defendants

jurisdiction.

moved to

The motion was

dismiss for lack

granted by the

of personal

district court on

April 28, 1995, and this appeal followed.

III.
III.

Analysis
Analysis

When a court's jurisdiction is contested, the plaintiff

bears the burden of

state.

189

proving that jurisdiction lies in

the forum

McNutt v. General Motors Acceptance Corp., 298 U.S. 178,

______
_______________________________

(1936); Dalmau Rodr guez v. Hughes Aircraft Co., 781 F.2d 9,

________________
___________________

10

(1st

defendant

Cir.

1986).

In

determining

is

subject

to

its

whether

jurisdiction,

non-resident

federal

court

-6-

exercising diversity jurisdiction

of

F.3d

a state court sitting in the

at 204;

"is the functional

forum state."

equivalent

Ticketmaster, 26
____________

see also General Contracting & Trading Co.

_________ ____________________________________

Interpole, Inc. 940 F.2d 20, 23 n.4 (1st

_______________

Cir. 1991).

v.

The court

must, therefore,

find sufficient contacts

between the defendant

and the forum to

satisfy both that state's long-arm

statute and

the Fourteenth Amendment's Due Process clause.

See Ticketmaster,
___ ____________

26 F.3d at

204; United Electrical Workers v.

__________________________

163 Pleasant St.

_________________

Corp., 960
_____

F.2d 1080,

Hahn v.
____

1086 (1st

Cir. 1992)("Pleasant

Vermont Law School, 698 F.2d

___________________

48, 51 (1st

St. I");

Cir. 1983).3

We explore these requirements seriatim.

________

A.
A.

It

district

The New Hampshire Long-Arm Statute

The New Hampshire Long-Arm Statute

is well

court's

established in

personal

defendant is governed by

diversity cases

jurisdiction

over

that "the

nonresident

the forum's long-arm statute." Goldman,

________

Antonetti, Ferraiouli, Axtmayer & Hertell v. Medfit Int'l, Inc.,

__________________________________________
__________________

982

F.2d 686,

690 (1st

Concorde Int'l, C.A.,

____________________

the

case

at

individuals,

bar,

Cir. 1993)(quoting

Pizarro v.
_______

907 F.2d 1256, 1258 (1st Cir.

the

group

professional

of

defendants

association

and

Hoteles
_______

1990)).

includes

In

two

partnership.

____________________

In Ticketmaster, we observed
____________

jurisdictional showing
litigant

is

over

whether the

defendant under

"specific" jurisdiction.

26 F.3d

at 204

see also Donatelli v. National Hockey League, 893 F.2d 459,

___ ____ _________
______________________

462-63 (1st Cir.

hand,

plaintiff depends upon

asserting jurisdiction

theory of "general" or
n.3;

by a

that the extent of the required

the

jurisdiction

1990)(detailing differences).

Sawtelles'

action

turns

on

In the case

theory of

at

specific

(i.e., jurisdiction which a state may assert when a

claim arises directly out of forum-based activities. Id. at 462.

___

-7-

Accordingly, we must consider the New Hampshire long-arm statutes

applicable to each of these defendants.

The New Hampshire

individual defendants, Olin

("RSA") 510:4,

personal

long-arm statute

business within [the]

over

the

and Farrell, is N.H. Rev. Stat. Ann.

(Supp. 1994),

jurisdiction

applicable to

which permits

defendant

state" or "commits

who

the exercise

of

"transacts

any

a tortious act

within

[the] state."

In Estabrook v. Wetmore, 129 N.H. 520, 523 (1987),

_________
_______

the Supreme Court of New

to include situations

results

in

an

exhaustively

defendants

injury

within New

that

their

satisfy

each

of

Hampshire.

claims

The

against

the possible

activity

Sawtelles

the individual

bases

for

personal

Not surprisingly, defendants disagree.

We need not

long-arm statute

afford

where a defendant's out-of-state

argue

jurisdiction.

to

Hampshire interpreted the latter phrase

dwell on

foreign

"to the

full

process will allow."

130 N.H. 166, 171 (1987).

when a state's long-arm

Hampshire

been interpreted

defendants

statutory language and due

Phelps v. Kingston,
______
________

the court below,

The New

applicable to individuals has

jurisdiction over

extent that the

this issue.

As recognized by

statute is coextensive

with

the outer

limits

properly turns to the

of due

process,

the court's

issue of whether the exercise

attention

of personal

jurisdiction comports with federal constitutional standards.

Holt Oil & Gas Corp.

______________________

v. Harvey,
______

801 F.2d

1986), cert. denied, 481 U.S. 1015 (1987).

_____ ______

-8-

773, 777

See
___

(5th Cir.

We

reach

a similar

professional association

conclusion

defendant.

with

New

respect to

Hampshire's

statute governing unregistered foreign corporations,

Podhurst

1994).

professional association,

That statute includes

jurisdiction

available

RSA

state

jurisdiction over such entities

law

long-arm

such as the

293-A:15.10

no restriction upon

under

the federal Constitution.

is

and

thus

to the full extent

the

(Supp.

the scope of

authorizes

permitted by

See McClary v. Erie Engine & Mfg. Co.,

___ _______
______________________

856 F. Supp. 52, 55 (D.N.H. 1994)(because RSA 293-A:15.10 reaches

to

the

federal limit,

personal jurisdiction

the

traditional

"collapses

into the

whether the constitutional requirements

met").

two-part analysis

single

question

for

of

of due process have been

The appropriate

clear.

The

treatment of the Speiser

New Hampshire

long-arm statutes

terms, apply to partnerships,

any long-arm provision

that

unresolved

firm is less

do not,

by their

and the case law does

not discuss

applicable to such entities.

To address

issue of

state

law,

the Sawtelles

guidance to RSA 305-A:6-8 (Supp. 1994), which relates to

of process on a foreign partnership.

turn

for

service

Observing that service on a

foreign partnership is treated nearly identically to service on a

foreign corporation under RSA

partnerships are

to be

personal jurisdiction.

293-A:15.10, plaintiffs argue that

treated as corporations

for determining

If that is so, then, as in the individual

and corporate contexts discussed above, the scope of jurisdiction

-9-

over

the

Speiser firm

partnership

is

commensurate with

that

permitted under the Constitution.

We find it unnecessary

of

state

law

jurisdiction over

because

a foreign

to resolve this unsettled issue

plaintiff

seeking

defendant must satisfy

to

establish

the demands

not only of state law but also of the federal Constitution.

When

confronted with a similar

quandary in Ticketmaster, we
____________

bypass the statutory phase

of the jurisdictional inquiry because

the plaintiff's

case could not

F.3d

We therefore

at

206.

chose to

pass constitutional muster.

assume,

arguendo, that
________

26

under New

Hampshire law the scope of personal jurisdiction over the Speiser

firm partnership is, as

in the case of the

corporate defendant,

coextensive with the outer limits of due process.

B.
B.

When

whether

embarking

forum

may

defendant, the court's

Indeed,

The Due Process Clause

The Due Process Clause

upon

assert

the

fact-sensitive

personal

task is not a

inquiry

jurisdiction

over

of

rote, mechanical exercise.

"[d]ivining personal jurisdiction is 'more an art than a

science.'" Ticketmaster,
____________

F.2d

at

468

n.7).

26 F.3d at 206

The

Fourteenth

fundamental fairness is achieved

certain "minimum

(quoting Donatelli, 893

_________

Amendment's

concern

of

by the central requirement that

contacts" exist

between the defendant

and the

forum state. International Shoe Co. v. State of Washington,

_______________________
___________________

U.S. 310, 316 (1945); Ticketmaster, 26 F.3d at 206.

____________

-10-

326

This Circuit

utilizes

three-part

analysis

to

determine

if

sufficient

contacts exist to exercise specific personal jurisdiction:

First,

the

claim underlying

the litigation

must directly arise out of, or relate to, the

defendant's forum-state
the

defendant's

represent

privilege

of

forum
and

state,

before
Third,

in-state

purposeful

the defendant's
the

state's

must
of

the

activities in

the

thereby invoking
that

Second,

contacts

availment

conducting

protections of

making

activities.

the benefits

state's

laws

and

involuntary presence
courts

foreseeable.

the exercise of jurisdiction must, in

light of the Gestalt factors, be reasonable.

Pleasant St. I,
______________

F.3d

960 F.2d at 1089; see also

________

53, 60-61 (1st Cir. 1994),

Pritzker v. Yari, 42
________
____

cert. denied, ___ U.S. ___, 115

_____ ______

S.

each

Ct. 1959

step

(1995); Ticketmaster, 26
____________

of

the

established

F.3d at 206.

analysis,

Central to

therefore,

are

the

contacts which are attributable to each defendant in this case.4

1.
1.

Relatedness.
Relatedness.

Our

is

first consideration under the tripartite framework

whether the plaintiffs' claim

defendants' in-forum

activities.

Although this requirement

due

process

inquiry,"

arises out of,

Ticketmaster, 26
____________

is "the least

it

serves

the

or relates to,

F.3d at 206.

developed prong of

important

the

function

of

contacts

of

____________________

Under

elemental

principles

of

agency,

the

Attorneys Olin and Farrell with New Hampshire are attributable to

the Podhurst and Speiser firm,

respectively. See Pleasant St. I,

___ ______________

960 F.2d at 1090 (contacts of corporation's agent can subject the

corporation to personal jurisdiction); Donatelli, 893 F.2d at 467

_________
(contacts of

a partner

committed in furtherance

of partnership

business are imputed to the partnership).

-11-

focusing the court's attention on the nexus between a plaintiff's

claim and the defendant's contacts with the forum.

Id.; see also

___ ________

Pleasant St. I, 960

________________

speaking, the

F.2d at

1089.

Relatively

relatedness test is a

F.3d

at

61,

requirement.

"flexible, relaxed standard," Pritzker, 42

________

as suggested

by

the

disjunctive

nature of

the

See Ticketmaster, 26 F.3d at 206.

___ ____________

The relatedness requirement is not met merely because a

plaintiff's cause of action arose out of the general relationship

between the parties;

of the

state.

rather, the action must

specific contacts

See,
___

Resort, 962
______

e.g.,
____

between

Fournier v.
________

F.2d 126, 127

of-state, cause

of

the defendant

action did

resort operator's contacts with

and the

forum

Best Western Treasure Island

______________________________

(1st Cir.

made vacation arrangements in

directly arise out

1992)(where plaintiff

had

Massachusetts but was injured out-

not "arise

from" the

defendant

Massachusetts within the meaning

of the state long-arm

427 (1st Cir.

(6th

statute); Marino v. Hyatt Corp.,

______
___________

1986)(same); Pickens
_______

Cir. 1978)(no personal

state

long-arm statute

v. Hess, 573
____

jurisdiction over

which extends to

F.2d 380,

acts of

the defendants

in [the

386

defendants under

limits of

due process

when "the cause of action between the parties did not

any

793 F.2d

arise from

forum state]");

Bryant v.
______

Weintraub, Genshlea, Hardy, Erich & Brown, 844 F. Supp. 640, 642
__________________________________________

(D. Or. 1994) (where Oregon resident sued California law firm for

failure

directly

to

obtain

from

service

alleged

connection to the

in

California,

malpractice

the

in California

injury

and

firm's other Oregon contacts), aff'd,

_____

-12-

arose

had

no

42 F.3d

1398

(9th Cir. 1994).

between the

We therefore must

defendants and

the forum

consider the contacts

state viewed

through the

prism of plaintiffs' legal malpractice claim.

Of the limited contacts

Hampshire during their legal

the

Sawtelles' claim

them in satisfying the

between the defendants and New

representation, few are relevant to

of legal

malpractice and thus

few assist

relatedness element of the jurisdictional

inquiry.

Speiser

mailed

For

the Virginia defendants, Attorney Farrell

and the

firm, the relevant contact was the August 7, 1991 letter

to

the plaintiffs

in

New Hampshire,

in

which Farrell

stated that he believed it to be in the Sawtelles' best interests

to

accept

the

defendants,

contact

$155,000

Attorney Olin

with

the

settlement

and the

forum,

malpractice claim,

for

offer.

For the

Podhurst firm,

purposes

of

Florida

the relevant

the

Sawtelles'

was Olin's telephone call to New Hampshire in

which he concurred in the settlement recommendation.

The transmission of

information into New Hampshire

by

way of telephone or mail is unquestionably a contact for purposes

of our analysis.

462, 476 (1985).

that

See Burger King Corp. v.

___ __________________

It

those isolated

would, however, be

recommendations

Rudzewicz, 471
_________

illogical to

constituted the

U.S.

conclude

negligent

conduct that

caused the

acts sufficient

New

Florida injury

to establish

Hampshire.5

and thus were

specific personal

in-forum

jurisdiction in

A review of all the allegedly negligent actions

____________________

The

alleged
adequate

injury suffered
negligent

by

the Sawtelles

activities--the loss

recovery on

the wrongful

-13-

of

as a

result of

their

death claim

right to

which

the

an

had been

of the

forum

defendants preceding

decisions

Florida,

reached

but not

in

investigation, in

judgment

about

settlement.

by

the

the

amount

and

Virginia

the

which

propriety

numerous non-

in

It was

and Virginia,

In short, it

defendants'

informed

of

and

the

their

proposed

was the aggregate

of the defendants'

acts and omissions which

caused the Florida

injury, and the out-of-forum

negligence was the effective cause.

See Ticketmaster,
___ ____________

26 F.3d at 207;

1089

causation

(noting how

defendants

New Hampshire.

Florida

allegedly negligent

the injury indicates

Pleasant St. I,
______________

principles inform

960 F.2d at

the due

process

analysis).

In

district

its analysis

court

relied

of

upon

the relatedness

Kowalski
________

v.

requirement, the

Doherty, Wallace,
__________________

Pillsbury & Murphy, 787 F.2d

__________________

New Hampshire

resident filed

Massachusetts

law firm

permitted the

dismissal

Massachusetts.

client's

New

of a

Hampshire

malpractice action

New

wrongful

residency

In

at

Kowalski, a
________

Hampshire against

the firm

Although the

pending

firm was aware

the

time

it

In so doing,

plaintiff's contention that, because

in

of its

filed the

dismissal of the

of personal jurisdiction

statute.

had negligently

death suit

this Court affirmed the

for lack

New Hampshire long-arm

suit in

alleging that

Id. at 8.
___

wrongful death action,

7 (1st Cir. 1986).

under the

we rejected

the

the "effects" of the firm's

____________________

filed

in

Florida--occurred

in

Florida when

approved the

recommended settlement

lawsuit. See
___

Kowalski v.
________

the

and terminated

state

court

the pending

Doherty, Wallace, Pillsbury & Murphy,

_____________________________________

787 F.2d 7, 11 (1st Cir. 1986).

-14-

negligence were felt in New Hampshire, the law firm had caused an

injury there by conduct directed

at that forum.

See id.
___ ___

Instead, we observed that:

[the client's] injury

was

dismissed

The

consequence of

plaintiffs

are

by

occurred when the suit

the Massachusetts
the
barred

dismissal
from

court.
is

that

bringing

at 11.

wrongful

death

action in

courts.

The

injury, if

the Massachusetts
any,

occurred in

Massachusetts.

Id.;
___

see also
________

Cote
____

v.

Wadel,
_____

1986)(where the negligence of

Wisconsin

plaintiff

consisting of

handful

of

losing

a cause of

letters and

796 F.2d

(7th

Cir.

a Michigan law firm resulted

in a

"a

valuable

action against a

phone

calls" that

981,

984

property in

doctor, . .

passed

Michigan

. [t]he

between the

client and firm was not enough for personal jurisdiction over the

firm in Wisconsin).

The Sawtelles attempt to

by

pointing out

involved

legal

attorneys to

that, unlike

the

malpractice claims

comply with

distinguish Kowalski and Cote

________
____

instant action,

based

upon

those cases

the failure

procedural rules, thereby

of

causing the

loss of

rights of their respective clients.

In such cases, the

Sawtelles contend,

the exercise

have been improper

because the malpractice actions did not arise

out of the contacts

In contrast,

satisfies

of personal jurisdiction

between the attorneys and the

the plaintiffs

the relatedness

argue that their

requirement

because

forum states.

malpractice claim

the

defendants

directed negligent settlement advice into New Hampshire,

-15-

would

thereby

causing plaintiffs harm

in New

Hampshire as a

result of

their

plaintiffs

have

reliance upon such advice.

We

are

not

convinced

distinguished themselves from

be

true

that

consummated

plaintiffs

the

that

the

the plaintiff in Kowalski.

________

defendants'

alleged

malpractice

was

not

until they communicated their misconceived advice to

in

New

Hampshire

by

telephone and

mail

plaintiffs' relied on the advice to their detriment.

however,

the

suffered

in

negligence

It may

gravamen of

New

Hampshire

the

Sawtelles'

the "effects"

committed elsewhere.

claim is

of

See Kowalski,
___ ________

the

and

the

Ultimately,

that

they

defendants'

787 F.2d

at 11.

The communications sent into New Hampshire were ancillary

to the

allegedly

negligent

non-forum

activities,

and

because

those

communications were the only relevant contacts with the forum for

purposes of

the Sawtelles'

malpractice claim, we

conclude that

the plaintiffs' showing of relatedness should be characterized as

tenuous at best.

2.
2.

It hangs, as it were, by a thread.

Purposeful Availment.
Purposeful Availment.

We

next consider whether defendants' contacts with New

Hampshire represent

privilege

a purposeful availment by

of conducting business in that State.

the purposeful

availment requirement is to

jurisdiction is

not premised solely upon

isolated,

or

fortuitous" contacts

with

defendants of the

The function of

assure that personal

a defendant's "random,

the

forum state.

See
___

Keeton
______

v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984).

______________________

Our

-16-

focus

is on whether a

activity related to

jurisdiction

U.S.

320, 329

defendant has "engaged

the forum

fair, just,

(1980).

that would make

or reasonable."

in any purposeful

the exercise

Rush v.
____

In Ticketmaster, 26
____________

of

Savchuk, 444
_______

F.3d at

207, this

Court

observed that the

cornerstones upon which

the concept of

purposeful availment rest are voluntariness and foreseeability.

a.
a.

Voluntariness
Voluntariness

The Sawtelles contend

is

present

because

"in

that the requisite voluntariness

the

relationships the act of knowingly

context

of

attorney-client

agreeing to represent an out-

of-state client is plainly sufficient."

Plaintiffs' Brief at 36.

Plaintiffs aim to bolster their argument by pointing to their law

firms'

alleged

promotion

respective borders.

to

their

reputations

beyond

their

We consider these arguments in turn.

At the time

representation

of

the

they agreed

plaintiffs,

to provide

the

legal advice

defendants

knew

and

the

Sawtelles were residents of

with New

New Hampshire.

Hampshire, however, were limited

the clients in their

home state.

Defendants' contacts

to communicating with

The wrongful

death litigation

was prosecuted in Florida, while other legal services

rendered

in Florida and other

places outside New

were being

Hampshire.

review of the totality of the defendants' contacts with the forum

state leaves us gravely doubtful that the defendants purposefully

availed

themselves

of

the

benefits

Hampshire law.

-17-

and

protections

of

New

The

Eighth

Edmonds, 823 F.2d

_______

Circuit case

223 (8th

of

Cir. 1987), is

requirement for personal jurisdiction.

firm

represented

a South

pending in Maryland.

Dakota during the

mailings,

The

Pennie &
________

this

In Austad, a New York law

______

client

in patent

contacts between the

litigation

firm and

South

phone calls,

and a three-day factfinding visit to South Dakota by a

firm for

Dakota.

Dakota

v.

instructive on

representation included numerous

lawyer from the firm. See

___

the

Austad Co.
__________

The

malpractice

id. at 224-25.
__

in federal

The client

district

later sued

court in

South

Court of Appeals held that the defendant law firm's

contacts

with

the

forum

were

insufficient

to

satisfy

the

"purposeful availment" requirement, stating:

While

we do not dispute [the client's] claim

that an

attorney-client relationship existed

between [the parties], we do not believe that

[the firm] had sufficient contacts with South
Dakota to confer personal jurisdiction.

823 F.2d

at 226.

"substantial

representation

outside

The

Austad court thus deemed

______

connection"

of

with

South

the

Dakota

the firm's only

forum,

its

voluntary

corporation

in

litigation

of South Dakota, as insufficient to support a finding of

purposeful availment.

See id. at 227.

___ ___

In the case at

bar, as in Austad, the contacts

______

of the

defendants with New Hampshire

of written and telephone

were limited, consisting primarily

communications with the clients in

state where they happened to live.

F.2d 1357, 1362-63

Compare
_______

the

Sher v. Johnson, 911

____
_______

(9th Cir. 1990) (contacts between

client and

-18-

non-resident law

firm consisting

and three visits by

of telephone

lawyer to forum state

calls, mailings,

to visit client

were

not,

by

themselves,

sufficient

connections

with

forum

to

establish purposeful availment) with Trinity Industries, Inc. v.

____ _________________________

Myers & Associates, Ltd.,

___________________________

1995)(jurisdiction over

client

for

malpractice

purposefully availed

Texas by extended

41

F.3d

an Illinois

was

itself of

229,

230-31

law firm

sued

upheld

because

the client in

Cir.

by a

the

privileges of doing

representation of

(5th

Texas

firm

had

business in

at least

40

matters, including a court appearance in the forum).

The mere existence of an

unaccompanied by

not

attorney-client relationship,

other sufficient contacts with

confer personal

jurisdiction over

the forum, does

the non-resident

in the

forum state; more is required.

See Burger King, 471 U.S. at 479___ ___________

80;

U.S.

Hanson
______

v.

Denckla,
_______

357

235,

253

(1958);

Trinity
_______

Industries,
__________

41

F.3d

at

230

& n.6;

Cote,
____

796

F.2d

at

984

("[p]ersonal jurisdiction over nonresidents...is a quid for a quo

that

consists

services to

of

the

state's extending

the nonresident").

In this

attorneys' only connection with

protection

case, the

or

other

defendant-

New Hampshire was the Sawtelles'

residence there. See Trinity Industries, 41 F.3d at 231 n.8.

___ __________________

The case on

the

which the plaintiffs

rely as "most

instant action

is Waterval
________

v. District Court, 620

_______________

(Colo. 1980), cert.

_____

denied, 452
______

U.S. 960 (1981),

like"

P.2d 5

in which

the

Colorado

courts exercised jurisdiction

over a Virginia attorney

who

rendered negligent

services

had

financial

-19-

to a

Colorado

resident.

when both

In Waterval,
________

parties were

established and

the attorney-client

residents of

oversaw for the

the

relationship

transaction

client

moved

continued when

to

Virginia and

a Virginia bank.

Colorado,

the

the attorney

client the administration

discretionary investment account in

After

relationship arose

the

lawyer handled

Id.
___

of a

at 7.

attorney-client

a real

estate

in connection with the sale of his client's house in

Virginia.

He

later

correspondence, with

recommended

dealt

the client

transfer

and

investment account assets.

After

contacts

court

that the

contacts

that

with respect

liquidation

the

of purposeful

of

chose

of

certain

jurisdiction comported

Id. at 7-8.
___

availment, the court

defendant and

to

to a

the Waterval
________

the

continue

an

with

With respect to

described several

forum state

significantly, that defendant voluntarily:

1)

and

defendant-attorney's

Colorado long-arm statute,

exercise

between the

telephone

Id.
___

federal due process requirements.

the issue

by

in Colorado

eventual

determining

satisfied the

held

negligently,

attorney-client

relationship which had originated in Virginia

but, most

even after the client had moved to Colorado,

2) engaged
in

in contacts which

character and resulted

were "personal

in a tangible and

monetary benefit to [himself]," and

3) acted in a way to impact directly upon the

legal and financial

interests of a

Colorado

resident.

Id. at
___

the

10.

adverse

Because the

consequences

cause of action stemmed,

of defendant's

-20-

in part, from

negligent

legal

and

financial counseling directed to a Colorado resident over a

two-

year

have

period,

reasonably

the

anticipated

those activities.

The

retained the

initiated

handled, his

concluded that

being held

is

contacted the

Podhurst firm,

contact

could

accountable in

Colorado for

distinguishable.

Whereas Mr.

and

Speiser firm which,

in turn,

the defendant-attorney in

Waterval
________

actively

client's investment

to Colorado.

defendant

Id.
___

instant action

Sawtelle initially

moved

court

Furthermore,

solicited,

and

negligently

business after the

client had

the relationship

between the

Sawtelles and the Speiser firm was not extended and was much less

pervasive than the relationship in Waterval.

________

The Sawtelles next attempt to demonstrate the requisite

voluntariness

cultivate

by

their

claiming

images

that

the

as "national"

defendants'

efforts

firms

deliberate,

were

to

significant activities within the forum sufficient to satisfy the

purposeful availment requirement.

475-76;

Keeton, 465
______

point to the Podhurst

U.S. at

See Burger King, 471

___ ___________

781.

For example,

U.S. at

the Sawtelles

firm's listing in Martindale-Hubbell which

proudly reports of "serv[ing] clients and corporations throughout

the

United States."6

As

a result of

contend, the defendants purposefully

those efforts, plaintiffs

derived benefits from their

interstate activities.
____________________

Plaintiffs

Speiser

firm's

seek to fortify this argument by

alleged

advertisement

in

reference to the

an AOPA

publication

discussed in note 2, supra.

_____
we

choose

to

disregard

For the reasons articulated therein,

the

discounted

allegation

in

our

adopt

the

consideration of purposeful availment.

-21-

This

Court

"stream of commerce"

which

previously declined

to

theory of personal jurisdiction,

is thus advanced

Products, Inc., 967

_______________

has

by the Sawtelles.

F.2d 671,

681-82 (1st

See
___

Cir.

a form of

Boit v. Gar-Tec
____
_______

1992); Dalmau
______

Rodr guez v. Hughes Aircraft Co., 781 F.2d 9, 15 (1st Cir. 1986).
_________
___________________

We are guided to this conclusion by the Supreme Court's rejection

of

the claim that a

commercial enterprise should

personal jurisdiction

wherever

injury, regardless of whether

toward the forum state.

See
___

its conduct

be subject to

foreseeably

causes

the defendant directed its conduct

Asahi Metal Indus. Co. v.

______________________

Superior
________

Court of California, 480 U.S. 102, 112 (1987) ("The placement of

____________________

a product into the

act

of

stream of commerce,

the defendant

without more, is not

an

purposefully

directed

toward the

forum

firm's

promotional

activity

falls

State").

The

Podhurst

substantially short of sufficing to subject that firm to personal

jurisdiction

in New Hampshire.

First, the

Florida firm became

involved

in the

affirmative

only

efforts to

after being

litigation

subject

representation not

promote business

requested

in Florida.

by the

firm's general statement in

in New

Virginia

More importantly,

as

the result

of

Hampshire, but

firm to

commence

to treat the Podhurst

Martindale-Hubbell as a sufficiently

direct "targeting" of New Hampshire would, in effect, embrace the

"stream of

commerce" theory of personal

Court has already rejected.

jurisdiction which this

See Boit, 967 F.2d at 681-82; Dalmau

___ ____
______

Rodr guez, 781 F.2d at 15.

_________

-22-

b.
b.

Foreseeability
Foreseeability

Bearing

availment

contention

haled

requirement,

obligation

we proceed

New Hampshire

representation of

foreseeable

the second

that it was foreseeable

into a

personal

in mind

when that

over

the purposeful

consider

the Sawtelles'

that the defendants would be

court as

New Hampshire

jurisdiction

to

pillar of

a result

residents.

defendant

The

non-resident

has

of their

enforcement of

defendant

established a

between itself and the forum state.

legal

is

continuing

See Burger King,

___ ___________

471 U.S. at

643, 648

476; Travelers Health Ass'n v.

_______________________

(1950).

Among

defendants and the forum

1)

the involvement of New

Virginia, 339
________

the continuing obligations

state relied upon by the

Hampshire law in

U.S.

between the

Sawtelles are

the distribution of

the settlement proceeds, and 2) the contract by which the Speiser

firm

obtained a lien on any proceeds received in connection with

the plaintiffs' cause of action.

We

argument.

are underwhelmed

by the

force of

the plaintiffs'

The requirements of New Hampshire law with respect to

the distribution of settlement proceeds procured from the Florida

litigation has no bearing upon the question of whether or not the

defendants

purposefully availed

importantly, although

themselves of

that law.

the plaintiffs required the

More

assistance of

New Hampshire counsel in

to their

order to distribute settlement proceeds

minor son, the defendant law firms themselves performed

no legal services in New Hampshire in that regard.

-23-

In support of their contention that the lien granted to

the Speiser firm by the retainer agreement constitutes purposeful

availment of

the

benefits of New

Hampshire law,

Sawtelles rely upon Sher v. Johnson, 911 F.2d 1357 (9th Cir.
____
_______

1990).

Sher
____

California by

law

the privileges and

involved a

legal

a resident of

that State who had

firm to represent him in a

Florida

malpractice action

in

hired a Florida

criminal matter in Florida.

firm's contact with California included:

and letters sent to

brought

The

1) phone calls

the client; 2) three California

visits with

the client by a member of the firm; and 3) execution of a deed of

trust whereby the law

in California.

In

client's home

Id. at 1360.
___

reversing

malpractice action

Circuit

firm obtained a lien on the

the district

court's

for lack of personal

dismissal of

the

jurisdiction, the Ninth

Court of Appeals found that the deed of trust tipped the

scale in favor of a finding of purposeful availment.

1363.

See id. at
___ ___

Although neither the written and telephonic communications

nor the

California visits sufficed, by

purposeful availment,

of trust

invocation of the

of the deed

benefits and

of the laws of California to warrant the exercise of

jurisdiction.

security

the addition of the execution

signified a sufficient

protections

themselves, to establish

See id.
___ ___

interest

at 1363-64.

The Court reasoned

"contemplated

that the

[significant]

future

consequences" in the forum-state, i.e., perfecting an interest in

real

estate

would

require

recording

in

California,

while

obtaining and enforcing a judgment on the deed would require both

-24-

the

application

California.

of

the

forum's

the

us, however.

Florida partnership

located in California, the

not

and

court

action

in

Id. at 1363.
___

The Sher decision

____

case before

law

is readily distinguishable from

While

the deed of trust

security interest

the

in Sher gave
____

in real

property

lien granted to the Speiser

firm did

encumber or affect title

to any New

Hampshire real estate.

The

Speiser

wherever

Even

firm's

lien was

transitory

the Sawtelles or the

obligation which

holder of the

traveled

proceeds might go.

without a lien, a contractual obligation to pay the Speiser

fee

Sawtelles

existed,

were

an

obligation

located.

Unlike

enforceable

the

Sher
____

wherever

deed

of

the

trust,

therefore, the Speiser lien required no entanglement with the law

of the forum state.

Consequently,

this second stage of

more

pronounced

discussed supra.
_____

act of

state

than

the frailty

of

the personal jurisdiction analysis

the

tenuous

showing

of

without more,

does

not

at

is even

relatedness,

This "thread" is frayed and tattered.

agreeing to represent (and then

client,

plaintiffs' showing

The mere

representing) an out-of-

suffice to

demonstrate

voluntary purposeful availment of the benefits and protections of

the

laws of the client's

home state.

Furthermore, the alleged

continuing obligation between the defendants and New Hampshire is

virtually non-existent.

arguments

Ultimately, the

with respect to the

jurisdiction analysis

provides

weakness of plaintiffs'

first two stages

of the personal

insufficient support

-25-

for

their

appeal, even when stitched together with their argument as to the

final stage, to which we now turn.

3.
3.

The Gestalt Factors.

The Gestalt Factors.

court's

jurisdictional

inquiry

is

not

merely

"mechanical exercise," Ticketmaster, 26 F.3d at 208, and concepts

____________

of reasonableness must illuminate the

See
___

World-Wide Volkswagen Corp.,

_____________________________

Pleasant St. I,
_______________

generated

960 F.2d

contacts exist,

at 1088

courts

minimum contacts analysis.

444 U.S.

286,

("[E]ven where

must

consider

292

(1980);

purposefully

. .

other

factors which bear upon the fairness of subjecting [nonresidents]

to the authority of a foreign tribunal").

identified five such considerations,

The Supreme Court

has

which this Court has termed

the "gestalt

factors": (1) the defendant's

(2) the forum state's

the plaintiff's

relief;

interest in adjudicating the dispute;

interest in

obtaining convenient

resolution

interests

of

and effective

all

of the

controversy;

sovereigns

in

and

(5) the

common

promoting

substantive social

See Burger King, 471 U.S. at 477.

___ ___________

Although this part

of the jurisdictional analysis has parameters which are

defined, we know

achieve

(3)

(4) the judicial system's interest in obtaining the most

effective

policies.

burden of appearing;

it serves

substantial justice.

Ticketmaster, 26 F.3d at 209.

____________

the purpose of

See Pritzker,
___ ________

not well

assisting courts

42 F.3d

to

at 63-64;

-26-

In

reasonableness

Ticketmaster,
____________

stage of

this

the

Court

jurisdictional

observed

analysis evokes

sliding scale:

[T]he weaker the

plaintiff's showings on the

first two prongs (relatedness

that

and purposeful

availment), the less a defendant need show in

the

terms

of

unreasonableness

jurisdiction.
an

The reverse

especially

reasonableness
borderline

to

is equally true:

strong
may

showing

serve

showing

of

defeat

to

of

fortify

relatedness

a
and

purposefulness.

26 F.3d at 210.

Moreover, we note that a

failure to demonstrate

the necessary minimum contacts eliminates

the need even to reach

the issue of reasonableness:

"[t]he [g]estalt factors

play only

segments of

if the

first two

jurisdiction have been fulfilled."

1091 n.11.

in

mind

We

the

the test for

showings

of

relatedness

availment made by the plaintiffs in this case.

a.

specific

Pleasant St. I, 960

______________

proceed to consider the gestalt

flimsy

come into

The Defendants' Burden of Appearance

F.2d at

factors, bearing

and

purposeful

a.

The Defendants' Burden of Appearance

The extent of the burden

the

malpractice action in New Hampshire

constitutional

Speiser

be

significance.

For

falls short of reaching

Attorney

Farrell

and

the

firm, the burden of defending in New Hampshire would not

substantively

Florida.

the

on the defendants to litigate

different from

the

burden

of litigating

in

Of course, the comparative burden on Attorney Olin and

Podhurst firm

of litigating

-27-

in

New Hampshire

rather than

their

home state would be

greater.

Court recognized that defending

always

presents some

Pritzker, however, this

________

in a foreign jurisdiction almost

measure of

factor becomes meaningful

In

inconvenience, and

only where a

party can demonstrate

"special or unusual burden." 42 F.3d at 64.

firm

regularly represents

clients

hence this

When, as here, a law

outside its

home state,

we

conclude that the burden is neither special nor unusual.

b.
b.

The Forum State's Adjudicatory Interest

The Forum State's Adjudicatory Interest

This Court has recently observed that "[t]he purpose of

[this] inquiry is not to compare the

_______

forum's interest to that of

some other jurisdiction, but to determine the extent to which the

forum

has an interest."
___

Canada, 46 F.3d 138, 151

______

Although

it

interest in

tortious

211,

is

the

(1st Cir. 1995)(emphasis in

true that

forum

obtaining jurisdiction

state

New Hampshire

defendants'

("[A]part

demonstrable

over a defendant

has a

far less

who causes

compelling interest

a legal malpractice suit stemming

occurred outside of its borders.

outside

has a

original).

injury within its borders, see Ticketmaster, 26 F.3d at

____________

prosecution of

that

Foster-Miller, Inc. v. Babcock & Wilcox

___________________
________________

of

New

alleged

negligence

Hampshire.

See
___

domiciliaries,

the

[forum]

state

from an injury

Here, the acts comprising

occurred

Donatelli,
_________

from a generalized concern

in the

almost

893

for the rights

has

no

real

entirely

F.2d at

472

of its own

interest

in

adjudicating the

controversy").

This factor thus

cuts against

jurisdiction.

-28-

c.
c.

The Plaintiffs' Interest in Obtaining Convenient Relief

The Plaintiffs' Interest in Obtaining Convenient Relief

The

third

factor

to

consider

is

the

plaintiffs'

interest

in obtaining convenient and

not dwell long

plaintiff's

deference

here.

choice

This Court has repeatedly

of

forum

must

observed that a

accorded

degree

F.3d at 151; Pritzker, 42

________

64; Ticketmaster, 26 F.3d at 211.

____________

more

be

We need

of

with respect to the issue of its own convenience. See,

___

e.g., Foster-Miller, Inc., 46

____ ___________________

be

effective relief.

convenient

for

the

F.3d at

Here, unquestionably, it would

Sawtelles

to

litigate

their

malpractice claim in their home state rather than elsewhere.

d.
d.

The Administration of Justice

The Administration of Justice

We

obtaining

the

next

most

evaluate

the judicial

effective resolution

Although the Virginia defendants

system's

of

the

interest in

controversy.

contend that this consideration

would

best be satisfied by litigating the case in Florida, where

some of the defendants reside and where the wrongful death action

was pending, as in

the judicial

does

our oft-cited earlier case, "the

system in

interest of

the effective administration

not appear to cut in either direction" here.

of justice

Ticketmaster,
____________

26 F.3d at 211.

e.
e.

Pertinent Policy Arguments

Pertinent Policy Arguments

This final "gestalt" factor requires us to consider the

common

interests

of

all

sovereigns

-29-

in

promoting substantive

social policies.

Here, the most prominent

the ability

state to

of a

residents to redress

See
___

Burger King,
___________

importance in

so

facilitated

provide a

convenient forum for

injuries inflicted by out-of-forum

471 U.S.

at 473.

our age of advanced

the

policy implicated is

representation

This policy

its

actors.

assumes added

telecommunications, which has

of

geographically

clients that it is not uncommon for a firm to

distant

represent a client

without meeting him or her in person or traveling to the client's

state of residence.

Although

adjust as

the concept

technological

of

long-arm

advances render

jurisdiction

blurry the

must

boundaries

between the states, see World-Wide Volkswagen, 444 U.S. at 308-09

_____________________

(Brennan, J., dissenting), we must heed the warning that "it is a

mistake

to assume that this trend heralds the eventual demise of

all restrictions

on the personal jurisdiction

of state courts."

Pickens v. Hess, 573 F.2d 380, 387 (6th Cir. 1978)(quoting Hanson
_______
____
______

v. Denckla, 357 U.S. at 251).

_______

To permit the exercise of personal

jurisdiction over the defendants in

Court to disregard that sage advice.

IV.
IV.

Conclusion
Conclusion

this case would require this

In review, the Sawtelles

than

a bare

stages

minimum, if

that,

of the due process

have demonstrated little more

with respect

inquiry.

The

to the

first two

plaintiffs' showing of

relatedness is weak because their claim for legal malpractice did

not

directly arise out of, nor was it related (in any meaningful

-30-

way)

to the law firms'

contacts with New

Hampshire.

Moreover,

the law

firms' telephone communications and

correspondence into

the forum did not represent a "purposeful availment" by the firms

of

the

privilege

Hampshire.

The

of

law

conducting

business

firms

not meaningfully

benefits and protections

haling of such

did

of the

defendants into

activities

laws of New

in

New

invoke

the

Hampshire and

the

New Hampshire's

courts was

not

foreseeable.

The frailty of plaintiffs'

purposeful

availment

consideration

of

the

jurisdiction

over

the

Although the

exercise

borderline

supported by

showing of

is not

showings on relatedness and

strengthened

reasonableness

defendants

of

by a

as a

of

relatedness and

an especially solid showing

an

New

jurisdiction may

result

exercise

Hampshire

be

of our

proper

purposeful

of

court.

when

availment is

of reasonableness, see

Ticketmaster,
____________

instant

case

26

F.3d at

fails

to

210,

our "gestalt"

reveal

any

such

analysis

in the

fortification.

Accordingly, the decision of the district court is AFFIRMED.

AFFIRMED

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