

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1006

               RALPH M. NOWAK, ADMINISTRATOR OF THE
                ESTATE OF SALLY ANN NOWAK, ET AL.,

                     Plaintiffs - Appellees,

                                v.

                    TAK HOW INVESTMENTS, LTD.,
           d/b/a HOLIDAY INN CROWNE PLAZA HARBOUR VIEW,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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

                                           

                              Before

                      Stahl, Circuit Judge,                                                    

                  Coffin, Senior Circuit Judge,                                                        

                  and Cummings,* Circuit Judge.                                                        

                                           

     Alan  B.  Rubenstein,   with  whom  Robert  B.   Foster  and                                                                      
Rackemann, Sawyer &amp; Brewster were on brief for appellant.                                      
     Edward Fegreus for appellees.                             

                                           

                         August 22, 1996
                                           

                                                  

*  Of the Seventh Circuit, sitting by designation.

          CUMMINGS, Circuit Judge.1  A Massachusetts resident who                    CUMMINGS, Circuit Judge.                                           

accompanied her husband  on a business trip to  Hong Kong drowned

in their hotel's  swimming pool.   Plaintiffs later brought  this

wrongful death diversity action against the Hong Kong corporation

that  owns  the hotel  --  a  corporation that  has  no  place of

business outside of  Hong Kong.   Defendant moved for  dismissal,

arguing  that a Massachusetts  court could not  exercise personal

jurisdiction consistently  with due  process and,  alternatively,

that the  case should be  dismissed on the  grounds of forum  non                                                                           

conveniens.  The  district court denied both motions,  and we now                    

affirm.

                                I.

          Tak How is a Hong  Kong corporation with its only place

of business in  Hong Kong.   Its  sole asset is  the Holiday  Inn

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

accident  in  this  case took  place.   Tak  How  has  no assets,

shareholders, or  employees in  Massachusetts.   Sally Ann  Nowak

("Mrs. Nowak")  was at  all relevant  times married  to plaintiff

Ralph  Nowak  ("Mr. Nowak")  and  was  the  mother of  their  two

children  (collectively, the plaintiffs  are "the Nowaks").   The

Nowaks  lived in  Marblehead, Massachusetts,  and  Mr. Nowak  was

                                                  

1  Section II.A. was authored by  Judge Coffin.  This opinion was
circulated  to the  active  judges of  the  First Circuit  before
issuance.    This  informal  circulation,   however,  is  without
prejudice to  a petition for  rehearing or suggestion of  en banc
reconsideration on any issue in the  case.  NLRB v. Hospital  San                                                                           
Rafael, Inc., 42 F.3d 45, 51 n.1 (1st Cir. 1994).                      

                               -2-

employed  by  Kiddie  Products,  Inc., which  has  its  place  of

business  in Avon, Massachusetts.  Kiddie Products does extensive

business in Hong  Kong.  As  a Preliminary Design Manager  in the

Marketing  Department,  Mr. Nowak  customarily made  two business

trips to Hong Kong each year,  accompanied by his wife on one  of

those trips.

          Kiddie Products employees  had made trips to  Hong Kong

since at least 1982, but  the company's relationship with Tak How

and the Holiday Inn began only in 1992.  John Colantuone, a vice-

president, was one  such employee who had travelled  to Hong Kong

since 1982  and had stayed  at various other hotels.   Colantuone

was acquainted  with the  Holiday Inn  through advertisements  on

Hong Kong  radio in 1983 or 1984, but  only decided to stay there

in  1992 after  becoming  dissatisfied with  the  rates at  other

hotels.   On  his first  visit, Colantuone  met with  the Holiday

Inn's  sales manager to negotiate a corporate discount for Kiddie

Products employees.  Holiday Inn agreed to the discount and wrote

a letter confirming the arrangement  based on a minimum number of

room nights per  year.  Marie Burke,  Colantuone's administrative

assistant,  made   all  hotel  reservations   for  the  company's

employees.   Although Kiddie Products regularly compared rates at

other  hotels, Burke  was told  to book  all reservations  at the

Holiday  Inn  until  instructed otherwise.    Since  1992, Kiddie

Products employees have stayed exclusively at the Holiday Inn.

          In June 1993,  the Holiday Inn telecopied  Colantuone a

message announcing  new  corporate rates  and  other  promotional

                               -3-

materials.  Burke requested additional information, and the hotel

promptly responded.  In July 1993, after a series of exchanges by

telecopier,  Burke sent a reservation  request to the Holiday Inn

for several employees for September and October 1993.  One of the

reservations was  for Mr. and  Mrs. Nowak to arrive  on September

16.  On September 18, while the Nowaks were registered guests  at

the hotel, Mrs. Nowak  drowned in the hotel  swimming pool.   The

specific facts surrounding  her death are not relevant  here.  It

is  uncontested that  in 1992  and  1993, prior  to Mrs.  Nowak's

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

international   publications,  some   of   which  circulated   in

Massachusetts.    In addition,  in  February 1993,  Tak  How sent

direct mail solicitations to approximately 15,000 of its previous

guests, including previous guests residing in Massachusetts.

          The  Nowaks  filed  this   wrongful  death  action   in

Massachusetts state court in June 1994.  Tak How then removed the

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

- one for  lack of  personal jurisdiction under  Fed. R. Civ.  P.

12(b)(2) and  the other for  forum non conveniens.   The district                                                           

court initially  denied  the  motion  to dismiss  for  forum  non                                                                           

conveniens,  and  then, after  allowing  time for  jurisdictional                    

discovery,  issued  a  memorandum  and  order  denying  the  Rule

12(b)(2) motion.  Nowak v. Tak How Inv. Ltd., 899 F. Supp. 25 (D.                                                      

Mass. 1995).   The  district court granted  Tak How's  motion for

certification  of the jurisdictional issue, but this Court denied

Tak How's  request for  a stay of  the district  court proceeding

                               -4-

pending appeal.  Nonetheless, believing that a resulting judgment

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

Nowaks' complaint.   Accordingly,  the district  court entered  a

default judgment  against  Tak How  for $3,128,168.33.   Tak  How

appeals the denial of its Rule 12(b)(2)  motion and its motion to

dismiss the case for forum non conveniens.                                                   

                               II.

          We  first  review the  denial  of Tak  How's  motion to

dismiss for  lack of personal  jurisdiction.  The  district court

employed  a  prima  facie standard  in  making  its determination

rather than adjudicating  the jurisdictional facts.   See Foster-                                                                           

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

Cir. 1995).   Both the court's  decision to use  the prima  facie

standard and its conclusion  under that standard are  reviewed de                                                                           

novo.  Id.  at 147.  To  begin, we find no error  in the district                    

court's  choice  of  the  prima facie  standard.    A  full-blown

evidentiary hearing was  not necessary in  this case because  the

facts  were, in  all  essential respects,  undisputed.   In  such

circumstances, the prima  facie standard is both  appropriate and

preferred.   Id. at 145; Boit  v. Gar-Tec Prods., Inc.,  967 F.2d                                                                

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

          The next question is whether the district court reached

the proper result.  In diversity cases such as this, the district

court's  personal  jurisdiction over  a nonresident  defendant is

governed  by the  forum state's  long-arm statute.   Sawtelle  v.                                                                       

                               -5-

Farrell,  70  F.3d  1381,  1387  (1st  Cir.  1995).    Under  the                 

Massachusetts statute,

            [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 .  . . transacting  any business
            in this Commonwealth.

Mass. Gen.  Laws Ann.  ch.  223A,    3(a)  (1985).   The  statute

imposes constraints on personal jurisdiction that go beyond those

imposed by the Constitution.  Gray v. O'Brien, 777 F.2d  864, 866                                                       

(1st Cir.  1985).   We must  therefore  find sufficient  contacts

between the  defendant and  the forum state  to satisfy  both the

Massachusetts long-arm statute and  the Constitution.   Sawtelle,                                                                          

70 F.3d at 1387.

          To satisfy  the requirements  of the  long-arm statute,

Section  3(a), the  defendant must  have  transacted business  in

Massachusetts and the plaintiffs' claim must have arisen from the

transaction of business  by the defendant.  Tatro  v. Manor Care,                                                                           

Inc.,  625   N.E.2d  549,  551   (Mass.  1994).    In   Tatro,  a                                                                       

Massachusetts  plaintiff  sued  a California  hotel  for injuries

sustained in California.   The Court  concluded that the  hotel's

solicitation of  business from Massachusetts  residents satisfied

the "transacting any  business" requirement of Section  3(a), id.                                                                           

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

where,  but for  the  hotel's  solicitations  and  acceptance  of

reservations,  the plaintiff  would  not  have  been  injured  in

California.   Id. at 554.   The factual  scenario in the  present                           

case  is analogous in  all essential  respects, and  we therefore

                               -6-

have little  difficulty concluding that sufficient contacts exist

to satisfy Section 3(a)'s requirements.

          Turning to  the constitutional  restraints, this  Court

follows  a tripartite analysis  for determining the  existence of

specific personal jurisdiction (plaintiffs do not  allege general

personal jurisdiction):

            First,   the    claim   underlying    the
            litigation must directly arise out of, or
            relate  to,  the  defendant's forum-state
            activities.    Second,   the  defendant's
            forum-state  contacts  must  represent  a
            purposeful availment of  the privilege of
            conducting activities in the forum state,
            thereby   invoking   the   benefits   and
            protections  of  that  state's  laws  and
            making   the    defendant's   involuntary
            presence   before   the   state's   court
            foreseeable.    Third,  the  exercise  of
            jurisdiction  must,   in  light   of  the
            Gestalt factors, be reasonable.

Pritzker  v. Yari,  42 F.3d  53, 60-61  (1st Cir.  1994) (quoting                           

United Elec.  Workers v. 163  Pleasant St. Corp., 960  F.2d 1080,                                                          

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

                         A.  Relatedness

          What this  Court calls  the "relatedness"  test is  one

aspect   of   demonstrating    minimum   contacts   pursuant   to

International Shoe  Co. v. Washington,  326 U.S. 310.   The other                                               

aspect, discussed  below, focuses  on the  deliberateness of  the

defendant's  contacts,  or  purposeful  availment.    Tak   How's

principal  argument  on  appeal is  that  relatedness  requires a

proximate   cause   relationship   between   its  contacts   with

Massachusetts and the Nowaks' cause of action. 

                               -7-

          In  arguing for a proximate cause relatedness test, Tak

How  relies on  a series  of First  Circuit cases  beginning with

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

v. Hilton  Int'l Barbados,  Ltd., 976 F.2d  797 (1st  Cir. 1992);                                          

Fournier  v. Best  Western Treasure  Island Resort, 962  F.2d 126                                                            

(1st Cir. 1992);  Pizarro v.  Hoteles Concorde  Int'l, C.A.,  907                                                                     

F.2d 1256 (1st  Cir. 1990).  In  each of these cases,  this Court

construed the language of a  state long-arm statute requiring, as

does the Massachusetts  statute quoted above,  that the cause  of

action "arise" from  the forum-state contacts.   Construing those

statutes,  we rejected plaintiffs'  arguments that the  injury at

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

Instead, we held  that the defendant's conduct must  be the legal

or proximate cause of the injury.  Pizarro, 907 F.2d at 1260.                                                    

          At least for purposes  of construing the  Massachusetts

long-arm  statute, the  Supreme Judicial  Court of  Massachusetts

dealt  our  restrictive  interpretation a  fatal  blow  in Tatro,                                                                          

supra.    The  Court decided  that  the  "but for"  test  is more               

consistent   with  the  language  of  the  long-arm  statute  and

explicitly  rejected our  interpretation of  the  statute in  the

Marino line of cases.  625  N.E.2d at 553.  Personal jurisdiction                

was  proper in Tatro  because the California  hotel had solicited                              

business in Massachusetts and had agreed to provide the plaintiff

with accommodations; but for those acts,  the plaintiff would not

have been injured.  Id. at 554.                                 

                               -8-

          Tak How contends that Tatro was not fatal to Marino and                                                                       

its progeny.  It concedes, as  it must, that Tatro is controlling                                                            

insofar as it  deals with the  construction of the  Massachusetts

long-arm  statute, but insists that the relatedness discussion in

Marino had  constitutional significance as well.  Its position is                

not  without support.   In  Pleasant Street,  we stated  that the                                                     

Massachusetts  statute's relatedness  requirement "mirrors  a key

constitutional   requirement  for   the   exercise  of   specific

jurisdiction."     960  F.2d  at  1087.     Then,  in  explaining

constitutional   relatedness,  we   set  forth   proximate  cause

principles derived  from the Marino  line of cases.   See  id. at                                                                        

1089.

          The Nowaks, on the other  hand, argue that these  cases

have no  constitutional significance.   They find support  from a

footnote in Ticketmaster-New York,  Inc. v. Alioto, 26  F.3d 201,                                                            

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

            In our view, [the Marino line of cases] -                                              
            - which interpret the term "arising from"
            as  that  term is  used  in  the long-arm
            statutes  of Massachusetts  -- deal  with
            state-law   issues  and   have  no   real
            implication    for    the     relatedness
            requirement    specifically     or    for
            constitutional analysis generally. 

(citations omitted).

          Despite the apparent conflict, these cases are arguably

reconcilable.   After all,  Ticketmaster did not  directly reject                                                  

Pleasant Street  or the proximate  cause test, but  merely stated                         

the  evident fact  that  the  Marino line  of  cases centered  on                                              

interpretations of  state law.   It might follow, then,  that our

                               -9-

discussion  in Pleasant  Street should  govern  our course  here.                                         

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

relatedness concept in  only the most general way.   Neither case

specifically defined the  precise inquiry  under the  relatedness

test  in this  circuit.   Fortunately, however, these  cases, and

others, articulated certain principles that guide our inquiry.  

          As  an  initial matter,  "[w]e  know  .  . .  that  the

[relatedness]  requirement  focuses  on  the  nexus  between  the

defendant's  contacts  and  the  plaintiff's  cause  of  action."

Ticketmaster,  26  F.3d  at  206.   The  requirement  serves  two                      

purposes.

            First,  relatedness is  the divining  rod
            that   separates  specific   jurisdiction
            cases  from  general  jurisdiction cases.
            Second, it  ensures that  the element  of
            causation remains in the forefront of the
            due process investigation.

Id.   Most courts  share this emphasis  on causation,  but differ             

over  the proper  causative threshold.    Generally, courts  have

gravitated toward one of two  familiar tort concepts -- "but for"

or "proximate cause."

          The Ninth Circuit is the most  forceful defender of the

"but for" test.   In Shute v.  Carnival Cruise Lines,2  the court                                                              

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

                                                  

2    Shute was  reversed  by  the  Supreme Court  on  alternative                    
grounds.   499 U.S. 585.   As reflected by subsequent  cases, the
Ninth Circuit still adheres to  the "but for" test.  See  Ballard                                                                           
v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995); Terracom v. Valley                                                                           
Nat'l Bank,  49 F.3d 555, 561 (9th Cir. 1995).  But see Omeluk v.                                                                        
Langsten Slip &amp;  Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir. 1995)                                         
(questioning Shute's authority).                            

                               -10-

"preserv[ing]  the  essential  distinction  between  general  and

specific jurisdiction."   897 F.2d 377,  385 (9th Cir. 1990).   A

more  stringent standard, the court asserted, "would represent an

unwarranted  departure from the  core concepts of  'fair play and

substantial justice,'" because it would preclude  jurisdiction in

cases where it would  be reasonable.   Id. at 386.   In turn,  in                                                    

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

the court  predicted that the  third prong --  the reasonableness

inquiry -- would guard against unfairness. 

          Shute  and  its  progeny represent  the  only  explicit                         

adoption of  the "but for"  test.  Nonetheless, cases  from other

circuits suggest a  similar approach.   In Prejean v.  Sonatrach,                                                                           

Inc., the Fifth Circuit noted:               

            Logically,  there is no reason why a tort
            cannot grow out of a contractual contact.
            In  a  case  like   this,  a  contractual
            contact is  a "but for"  causative factor
            for the tort since it brought the parties
            within  tortious  "striking  distance" of
            one  another.    While  the  relationship
            between  a tort  suit  and a  contractual
            contact  is certainly  more tenuous  than
            when  a tort  suit  arises  from  a  tort
            contact,  that only  goes to  whether the
            contact is by  itself sufficient for  due
            process, not whether the suit arises from
            the contact.

652  F.2d 1260,  1270 n.21  (5th Cir.  1981).   Subsequent cases,

however, have  not always  followed this teaching.   See  Luna v.                                                                        

Compa  a Paname a de Aviaci n, S.A.,  851 F. Supp. 826, 832 (S.D.                                             

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

River Ski Area, Inc.,  711 F. Supp. 1383, 1389-1390  &amp; n.11 (E.D.                              

Tex. 1989) (same).

                               -11-

          The  Sixth Circuit  applies a  "substantial connection"

standard.   See Third Nat'l  Bank v.  WEDGE Group Inc.,  882 F.2d                                                                

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

Mach. Co.  v. Mohasco  Indus., Inc. 401  F.2d 374, 384  n.27 (6th                                             

Cir. 1968).   The court's discussion in Lanier  v. American Board                                                                           

of Endodontics, 843 F.2d  901, 908-911 (6th Cir.  1988), however,                        

suggests that a  "but for" relationship survives the  due process

inquiry.

          Finally, the  Seventh Circuit  has upheld  jurisdiction

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

for claims that "lie in the wake of the  commercial activities by

which the defendant submitted to the jurisdiction of the Illinois

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

1209, 1215-1216 (7th  Cir. 1984) (breach of warranty);  In re Oil                                                                           

Spill  by Amoco  Cadiz, 699  F.2d  909, 915-916  (7th Cir.  1983)                                

(indemnity action),  cert. denied,  464 U.S. 864.   Whether  this                                           

indeterminate  standard   would  encompass   tortious  negligence

committed outside the  forum is unknown.  Cf.  Simpson v. Quality                                                                           

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

that  relatedness  is  limited  to  those  contacts substantively

related to the cause of action).

          On the other hand, the  Second and Eighth Circuits,  as

well as this  one, appear to approve a  proximate cause standard.

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

Accident Ins. Co.,  703 F.2d 1067, 1069 (8th  Cir. 1983); Gelfand                                                                           

v.  Tanner Motor  Tours, Ltd.,  339  F.2d 317,  321-322 (2d  Cir.                                       

                               -12-

1964).   The  courts  in  Pearrow and  Gelfland  found that,  for                                                         

purposes of the  long-arm statute at issue,  non-forum negligence

claims did not  arise from in-forum solicitation or ticket sales.

District  courts from the  Third and Tenth  circuits have reached

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

F. Supp. 264,  267-268 (E.D. Pa. 1991); Dirks  v. Carnival Cruise                                                                           

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

          This  circuit, whether  accurately  or  not,  has  been

recognized as the main proponent of the proximate cause standard.

We think the  attraction of proximate cause is  two-fold.  First,

proximate  or   legal   cause   clearly   distinguishes   between

foreseeable  and unforeseeable  risks of  harm.   See  Peckham v.                                                                        

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

Foreseeability  is  a  critical  component  in  the  due  process

inquiry, particularly  in evaluating purposeful availment, and we

think  it  also informs  the  relatedness  prong.   See  Pleasant                                                                           

Street, 960 F.2d  at 1089.  As  the Supreme Court said  in Burger                                                                           

King Corp. v. Rudzewicz,                                 

            [the Due process  Clause] requir[es] that
            individuals  have  "fair warning  that  a
            particular activity may subject [them] to
            the jurisdiction  of a  foreign sovereign
            . . . ."       [T]his   "fair    warning"
            requirement is satisfied if the defendant
            has    "purposefully     directed"    his
            activities at residents of the forum, and
            the  litigation   results  from   alleged
            injuries that "arise out of or relate to"
            those activities.  

471 U.S. 462,  472.  Adherence  to a proximate cause  standard is

likely  to enable defendants  better to anticipate  which conduct

                               -13-

might subject them to a  state's jurisdiction than a more tenuous

link in the chain of  causation.  Certainly, jurisdiction that is

premised  on  a contact  that  is a  legal  cause  of the  injury

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

or [at  least] material,  element of  proof'  in the  plaintiff's

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

presumably reasonable, assuming, of course, purposeful availment.

          As  our discussion  suggests,  and notwithstanding  any

contrary  implication from the footnote in Ticketmaster, we think                                                                 

the proximate cause standard better comports with the relatedness

inquiry  because it  so easily  correlates  to foreseeability,  a

significant component of the jurisdictional inquiry.  A "but for"

requirement,  on  the  other  hand,  has  in itself  no  limiting

principle; it literally  embraces every event that  hindsight can

logically identify  in the causative  chain.  True, as  the Ninth

Circuit has  noted, courts  can use the  reasonableness prong  to

keep Pandora's jar  from opening too wide.   But to say  that the

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

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

          That being said, we are persuaded that strict adherence

to  a   proximate  cause   standard  in   all  circumstances   is

unnecessarily restrictive.   The  concept of  proximate cause  is

critically important in the  tort context because it defines  the

scope of a  defendant's liability.  In contrast,  the first prong

of the jurisdictional  tripartite test is  not as rigid:   it is,

"relatively  speaking, .  . .  a  'flexible, relaxed  standard.'"

                               -14-

Sawtelle, 70 F.3d at 1389  (citation omitted).  We see  no reason                  

why, in  the context of  a relationship between a  contractual or

business  association and  a  subsequent  tort,  the  absence  of

proximate cause  per  se should  always  render the  exercise  of

specific jurisdiction unconstitutional.  

          When a foreign  corporation directly targets  residents

in  an ongoing  effort to  further  a business  relationship, and

achieves its purpose,  it may not necessarily  be unreasonable to

subject that corporation  to forum jurisdiction when  the efforts

lead  to  a  tortious  result.   The  corporation's  own  conduct

increases  the likelihood that  a specific resident  will respond

favorably.  If the resident is harmed while engaged in activities

integral to the relationship the corporation sought to establish,

we think  the nexus between the contacts  and the cause of action

is  sufficiently  strong to  survive the  due process  inquiry at

least at the relatedness stage.

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

"proximate cause."  In a sense it is a narrower and more specific

identification   of  the   Seventh   Circuit's  formulation   for

jurisdiction-worthiness  of   claims  lying  "in   the  wake"  of

commercial activities in  the forum.  It may be  that other kinds

of  fact patterns  will  be found  to  meet the  basic factor  of

foreseeability, but  we have no  occasion here to  pronounce more

broadly.

          This  case is illustrative  of our reasoning.   Through

its ongoing  correspondence with  Kiddie Products,  Tak How  knew

                               -15-

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

easily anticipate  that  they  might  use the  pool,  a  featured

amenity of the  hotel.  The  district court thoroughly  described

t   h   i   s           c   o   n   n   e   c   t   i   o   n   .
            The  Hotel's  solicitation   of  Kiddie's
            business and the extensive back-and-forth
            resulting in  Burke's reserving a  set of
            rooms  for  Kiddie  employees  and  their
            spouses  set   in  motion   a  chain   of
            reasonably  foreseeable events  resulting
            in Mrs. Nowak's  death.  The  possibility
            that   the   solicitation   would   prove
            successful  and that one  or more  of the
            guests staying  at the Hotel as  a result
            would use the pool was in no sense remote
            or  unpredictable;  in  fact,  the  Hotel
            included the pool as an attraction in its
            promotional materials.

899  F.  Supp.  at  31.    While  the  nexus  between  Tak  How's

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

does  not  constitute  a proximate  cause  relationship,  it does

represent a meaningful  link between  Tak How's  contact and  the

harm suffered.   Given these circumstances, we think  it would be

imprudent  to reject  jurisdiction  at this  early  stage of  the

inquiry.

          By this approach, we intend to emphasize the importance

of proximate causation,  but to allow a slight  loosening of that

standard when circumstances  dictate.  We think  such flexibility

is necessary in  the jurisdictional inquiry:   relatedness cannot

merely be  reduced to  one tort  concept  for all  circumstances.

Though we are  recognizing a  narrow exception  to the  proximate

cause  test, we  note an  additional  protection for  defendants'

rights:  "the relatedness requirement  . . . authorizes the court

                               -16-

to  take  into   account  the  strength  (or   weakness)  of  the

plaintiff's relatedness  showing in passing upon  the fundamental

fairness of allowing the suit to proceed."  Ticketmaster, 26 F.3d                                                                  

at 207.

          We recognize it  will not always be easy  to apply this

flexible  approach to  particular circumstances,  but  that is  a

function of  the  complexity  of  this  area of  the  law.    The

jurisdictional  inquiry   is  often  a  difficult  fact  specific

analysis in which  "[t]he greys are dominant and  even among them

the shades are  innumerable."  Pleasant Street, 960  F.2d at 1088                                                        

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

                               -17-

                     B.  Purposeful Availment

          The  next  issue  is whether  Tak  How's  contacts with

Massachusetts constitute  purposeful availment.   The  purposeful

availment requirement ensures  that jurisdiction is not  premised

on  "random, isolated,  or fortuitous"  contacts  with the  forum

state,  Sawtelle,  70 F.3d  at  1391 (quoting  Keeton  v. Hustler                                                                           

Magazine,  Inc., 465 U.S.  770, 774), but  rather guarantees that                         

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

(quoting  Rush v.  Savchuk, 444  U.S. 320, 329).   Our  two focal                                    

points are  voluntariness and  foreseeability.   Ticketmaster, 26                                                                       

F.3d at 207.  The defendant's contacts with the  forum state must

be voluntary -- that is,  not based on the unilateral  actions of

another party  or a third person.  Burger  King, 471 U.S. at 475;                                                         

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

Cir. 1977).  In addition, the defendant's contacts with the forum

state must  be such  that he should  reasonably anticipate  being

haled into court there.   World-Wide Volkswagen Corp. v. Woodson,                                                                          

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

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

          We   think  that   Tak   How's  unprompted   June  1993

correspondence  with Kiddie Products,  which led directly  to the

ill-fated  Hong  Kong  trip  in  September  1993,  was  at  least

minimally sufficient  to satisfy this requirement.  The June 1993

correspondence contained promotional  materials from the  Holiday

Inn  designed to further entice Kiddie Products employees to stay

at the  hotel.  Even  if it may be  said that the  materials were

                               -18-

sent  as  part  of  an  on-going  relationship  between  the  two

companies  that was originally instigated by Kiddie Products, the

continued correspondence  by Tak  How to  Massachusetts does  not

amount to  the kind  of unilateral action  that makes  the forum-

state  contacts involuntary.   Tak  How had an  obvious financial

interest in  continuing business  with Kiddie  Products, and  the

June 1993  correspondence is  the best example  of an  unprompted

solicitation designed  to facilitate that  business relationship.

In   order  to  be  subject  to  Massachusetts'  jurisdiction,  a

defendant need  only have  one contact with  the forum  state, so

long as that contact is  meaningful.  McGee v. International Live                                                                           

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

          Whether  prompted  or  unprompted, Tak  How's  on-going

correspondence and relationship with Kiddie Products, designed to

bring   Massachusetts   residents   into   Hong  Kong,   rendered

foreseeable the possibility  of being haled into  a Massachusetts

court.    That  Tak  How  might  have  to  defend  itself  in   a

Massachusetts  court is certainly foreseeable based on its direct

correspondence  with Kiddie Products, but its other contacts with

Massachusetts reveal an even more substantial attempt by  Tak How

to  purposefully  avail  itself of  the  privilege  of conducting

business activities in  the state:  Tak How  advertised its hotel

in  national and  international publications  that circulated  in

Massachusetts; it solicited by  direct mail some of  its previous

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

various  hotel guides used  at travel agencies  in Massachusetts.

                               -19-

Exercising  jurisdiction  is   appropriate  where  the  defendant

purposefully  derives  economic  benefits  from  its  forum-state

activities.  Pritzker, 42 F.3d  at 61-62 (citing Burger King, 471                                                                      

U.S. at 476).

                     C.  The Gestalt Factors

          Our conclusion that minimum contacts exist in this case

does  not end  the inquiry.   Personal  jurisdiction may  only be

exercised if  it comports with traditional notions  of "fair play

and substantial justice."   International Shoe, 326  U.S. at 320.                                                        

Out of  this  requirement,  courts  have developed  a  series  of

factors that bear on the  fairness of subjecting a nonresident to

a  foreign tribunal.   Burger  King,  471 U.S.  at 477;  Pleasant                                                                           

Street,  960  F.2d at  1088.    These  "gestalt factors"  are  as                

follows:

            (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.

Id. (citing Burger  King, 471 U.S. at  477).  The purpose  of the                                  

gestalt factors  is to  aid  the court  in achieving  substantial

justice, particularly where the minimum contacts question is very

close.    In  such  cases,   the  gestalt  factors  may  tip  the

constitutional  balance.   Ticketmaster,  26  F.3d at  209.   The                                                 

Supreme  Court's decision in  Asahi Metal Indus.  Co. v. Superior                                                                           

                               -20-

Court, 480  U.S.  102, is  one  such example.     In  Asahi,  the                                                                     

question of minimum contacts divided  the Court, but eight of the

Justices agreed  that exercising personal jurisdiction  would not

comport with notions of fair  play and substantial justice.  This

Court has thus  adopted a sliding scale approach:   "[T]he weaker

the plaintiff's showing on the first  two prongs (relatedness and

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

unreasonableness to  defeat jurisdiction."  Ticketmaster, 26 F.3d                                                                  

at  210.   The  reverse is  equally  true:   a strong  showing of

reasonableness may  serve to fortify  a more marginal  showing of

relatedness and  purposefulness.   See id.  (citing Donatelli  v.                                                                       

National Hockey  League, 893 F.2  459, 465 (1st Cir.  1990)); see                                                                           

also Sawtelle, 70 F.3d at 1396.                       

          1.  The Burden of  Appearance.  It would undoubtedly be

burdensome for  Tak How to  defend itself in Massachusetts:   Tak

How's only  place of business  is in Hong  Kong.  This  Court has

recognized,  however, that it  is almost always  inconvenient and

costly  for  a  party  to litigate  in  a  foreign  jurisdiction.

Pritzker, 42 F.3d at 64.  Thus for this particular gestalt factor                  

to have  any significance,  the defendant  must demonstrate  that

"exercise of jurisdiction in the present circumstances is onerous

in  a special,  unusual,  or  other constitutionally  significant

way."  Id.  Tak How alleges  nothing special or unusual about its                    

situation beyond the ordinary cost and inconvenience of defending

an action  so far  from its place  of business.   Under Pritzker,                                                                          

                               -21-

that is not enough:  it simply cannot be the case that every Hong

Kong corporation is  immune from suit in Massachusetts.   But see

Ticketmaster,   26  F.3d  at   210  (noting  the   importance  of                      

considering  the distance  the defendant  must  travel in  giving

weight to this  factor in the analysis).   We are also  persuaded

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

availability of transcripts  from the Coroner's Court for  use in

the Massachusetts proceeding.

          We have also noted that  the burden of appearance is an

important gestalt factor  primarily because it allows  a court to

guard against harassing litigation.  Ticketmaster, 26 F.3d at 211                                                           

(citing  Gulf Oil  Corp. v. Gilbert,  330 U.S. 501,  508)).  Were                                             

there any  indication in the  record that the Nowaks  brought the

present  suit to  harass Tak  How,  the burden  of appearance  in

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

does not so indicate.

          2.  Interest of  the Forum.  Although a forum state has

a significant interest in obtaining jurisdiction over a defendant

who causes tortious  injury within its borders,  Ticketmaster, 26                                                                       

F.3d  at  211, that  interest  is  diminished  where  the  injury

occurred outside  the forum  state.  Sawtelle,  70 F.3d  at 1395.                                                       

Nonetheless, our task is not  to compare the interest of  the two

sovereigns -- the place  of the injury and forum state  -- but to

determine whether the forum state has an interest.  Id.  While it                                                                 

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

                               -22-

equally true (unlike Sawtelle) that significant events took place                                       

in Massachusetts giving  it an interest in this  litigation.  Tak

How  solicited business  in the  state.   As  the district  court

noted,  Massachusetts has  a strong  interest  in protecting  its

citizens  from out-of-state solicitations  for goods  or services

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

its citizens  with a  convenient forum in  which to  assert their

claims.   Burger King,  471 U.S. at  473.   Given the forum-state                               

activities  that took  place  prior  to  Mrs. Nowak's  death,  we

conclude that Massachusetts  has a strong interest  in exercising

jurisdiction even though the injury took place in Hong Kong.

          3.    The  Plaintiffs' Convenience.    This  Court must

accord deference  to the Nowaks' choice of a Massachusetts forum.

See,  e.g., Foster-Miller,  46 F.3d  at 151.   Regardless,  it is                                   

obvious that  a Massachusetts  forum is more  convenient for  the

Nowaks  than another  forum,  particularly  a  Hong  Kong  forum.

Further, there  exists substantial  doubt that  the Nowaks  could

adequately resolve  the dispute in  Hong Kong:  Hong  Kong's laws

regarding contingency fees and posting of security bonds with the

court  make litigation  economically onerous for  plaintiffs, and

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

          4.  The Administration of Justice.  This factor focuses

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

resolution of  the controversy.   Usually this factor is  a wash,

                               -23-

Ticketmaster, 26 F.3d at 211;  Sawtelle, 70 F.3d at 1395,  but in                                                 

one case we held that preventing piecemeal litigation might favor

one jurisdiction over another.  Pritzker, 42 F.3d at 64.  Tak How                                                  

argues  that a Massachusetts action would require the application

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

of  key  witnesses  from  Hong  Kong  that  are  not  subject  to

compulsory  process.   On the  other  hand, the  Nowaks point  to

possible political instability in Hong Kong as the British Colony

prepares  to revert  to Chinese  sovereignty.   Interpreters  and

transportation of  witnesses would  likely also  be necessary  in

Hong   Kong.    We  conclude  that   the  question  of  efficient

administration  of justice favors  a Massachusetts forum.   Given

the likelihood that the Nowaks would face great obstacles in Hong

Kong due to possible political  instability, as well as Hong Kong

laws  on contingency fees and security bonds, efficiency concerns

require a Massachusetts  forum.  See United Elec.  Workers v. 163                                                                           

Pleasant St. Corp.,  987 F.2d 39, 46-47 (1st  Cir. 1993) (finding                            

that fourth gestalt factor weighed against a foreign jurisdiction

where "it  is  far from  clear that  there will  be any  judicial

resolution,  let alone the most effective judicial resolution, of

this   controversy"  if   the   case   could   not   proceed   in

Massachusetts).

          5.   Pertinent  Policy Arguments.    The final  gestalt

factor addresses  the interests  of the  affected governments  in

substantive  social policies.   Massachusetts has an  interest in

                               -24-

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

services as well as affording  its citizens a convenient forum in

which to bring their claims.  These interests are best  served by

the exercise  of  jurisdiction in  Massachusetts.   On the  other

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

and  preserve its tourism industry, in protecting its businesses,

and  in providing all parties with a  convenient forum.  Only one

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

compromised  by  a  Massachusetts   forum,  while  Massachusetts'

primary  interest  --   protecting  its  citizens  --   might  be

compromised by  a Hong Kong  forum.   We thus  conclude that  the

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

          On balance, we think the gestalt factors weigh strongly

in  favor  of  a   Massachusetts  forum.    When  considered   in

combination with the  Nowaks' adequate showing  on the first  two

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

facts of this case, the exercise of jurisdiction in Massachusetts

is reasonable and does  not offend the notions  of fair play  and

substantial  justice.    The  district  court therefore  properly

denied  Tak How's  Rule 12(b)(2)  motion to  dismiss for  lack of

personal jurisdiction.

                               III.

          Tak  How  next  appeals the  denial  of  its motion  to

dismiss  for forum  non conveniens.   The  doctrine of  forum non                                                                           

conveniens permits  a trial court,  on a discretionary  basis, to                    

                               -25-

dismiss  a case  where an  alternative  forum is  a available  in

another country  that is fair  to the  parties and  substantially

more convenient for them or the courts.  Howe v.  Goldcorp Invs.,                                                                           

Ltd., 946 F.2d 944, 947 (1st  Cir. 1991), cert. denied, 502  U.S.                                                                

1095.   Application  of the  doctrine is  committed to  the sound

discretion  of  the  trial  court,  whose decision  will  not  be

reversed absent a clear abuse of discretion.  Mercier v. Sheraton                                                                           

Int'l, Inc.,  981 F.2d 1345,  1349 (1st Cir. 1992)  (Mercier III)                                                                          

(appeal  after remand  of Mercier II,  infra; we  have previously                                                      

referred to  the district  court's opinion  as Mercier  I), cert.                                                                           

denied, 508  U.S. 912.   This Court finds an  abuse of discretion                

only where the  district court (1) failed to  consider a material

factor, (2) substantially relied on an immaterial  factor, or (3)

assessed  the appropriate factors  but clearly erred  in weighing

those factors.   Mercier v.  Sheraton Int'l, Inc., 935  F.2d 419,                                                           

423  (1st  Cir. 1991)  (Mercier  II).   Since there  is  a strong                                             

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

must  bear the  burden of  proving  both the  availability of  an

adequate alternative forum and that considerations of convenience

and  judicial efficiency strongly  favor litigating the  claim in

the alternative forum.  Id. at  423-424; Mercier III, 981 F.2d at                                                              

1349.

          We  have  emphasized  that the  doctrine  of  forum non                                                                           

conveniens  is  used  to  avoid  "serious  unfairness"  and  that                    

plaintiff's  choice of  a forum  will  be disturbed  only rarely.

Howe, 946 F.2d  at 950 (citing Piper  Aircraft Co. v.  Reyno, 454                                                                      

                               -26-

U.S.  235, 259;  Gulf Oil Corp.  v. Gilbert, 330  U.S. 501, 507).                                                     

The Supreme Court has provided a list of relevant considerations.

"Private interest"  factors include  relative ease  of access  to

sources of proof, availability of compulsory process, comparative

trial  costs,  ability  to enforce  a  judgment,  "and  all other

practical problems that  make trial of  a case easy,  expeditious

and inexpensive."   Gilbert, 330 U.S. at 508.   "Public interest"                                     

factors  include  the  practical  difficulties  of  unnecessarily

imposing upon  a busy court  the obligation to  hear a case  more

fairly  adjudicated elsewhere, the imposition on jurors called to

hear a  case that has  no relation  to their  community, and  the

familiarity of the court with applicable laws.  Id. at 508-509.                                                             

          One  final principle informs our analysis in this case.

The Supreme Court has stated that,

            Where  there are  only two  parties  to a
            dispute, there  is  good  reason  why  it
            should be  tried in the  plaintiff's home
            forum  if that has  been his choice.   He
            should not  be deprived  of the  presumed
            advantages  of   his  home   jurisdiction
            except  upon  a  clear  showing of  facts
            which   either    (1)   establish    such
            oppressiveness   and   vexation    to   a
            defendant as to be  out of all proportion
            to plaintiff's convenience,  which may be
            shown to be slight or nonexistent, or (2)
            make   trial   in    the   chosen   forum
            inappropriate  because of  considerations
            affecting the court's  own administrative
            or legal problems.

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

          Based on  these principles, we  are unable to  say that

the district  court  abused  its discretion.    Tak  How's  first

argument is  that  the district  court failed  to articulate  its

                               -27-

reasons for  denying the motion to dismiss.   It is true that the

district judge  chose to  rule on the  motion orally  rather than

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

transcript  that the judge  considered relevant factors.   Before

ruling on  the motion,  the judge  questioned  counsel about  the

plaintiffs'  right to  have a  jury  trial in  Hong Kong,  and he

stated  that granting the  motion would be  outcome determinative

because,  as a  practical matter  and due  to additional  burdens

under Hong Kong laws,  it would be very difficult  for the Nowaks

to bring suit there.  The  hearing transcript is certainly not as

detailed  as  the  written  opinion  denying  the  jurisdictional

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

          The  question here is whether the district court failed

to consider  a material factor  or failed to correctly  weigh the

factors.   Given  that Tak  How  has the  burden  of proving  the

elements of  forum non  conveniens, we shall  review the  factors                                            

alleged to justify dismissal that  Tak How has put forth, bearing

in mind that  Koster, supra, places a heavy  burden on defendants                                     

where,  as here,  plaintiffs brought  suit in  their home  forum.

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

How is subject to  service of process in Hong Kong.   Mercier II,                                                                          

935 F.2d at 424.   There also appears to be  no dispute that Hong

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

recognize a similar cause of action.   Tak How next contends that

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

a Hong Kong  forum:  it notes  that it would bear  the expense of

                               -28-

transporting witnesses to  the United States, that  it might face

difficulty in  joining third-party defendants in  a Massachusetts

court, and that a Hong Kong court might not enforce  the judgment

of a  Massachusetts court.   These factors do not  constitute the

type   of  "oppressiveness  and   vexation"  required  by  Koster                                                                           

disproportionate  to the Nowaks'  inconvenience of suing  in Hong

Kong.  The Nowaks  would also have to transport witnesses to Hong

Kong and later seek to  enforce a foreign judgment in their  home

state.  In addition, the Nowaks point to private interest factors

that weigh in  their favor:  they would  face financial obstacles

because Hong  Kong law  prohibits contingent  fee agreements  and

requires that  they deposit  an amount equal  to Tak  How's costs

with  the  court;  also, possible  political  instability  in the

region could add further difficulties to litigation in Hong Kong.

Regardless  of  the difficulties  the Nowaks  might face  in Hong

Kong,  it is  enough that  Tak How  failed to  demonstrate either

oppressiveness to itself or only a slight or nonexistent interest

in convenience on the Nowaks' part.  Koster, 330 U.S. at 524.                                                      

          Nor  is Tak  How able  to  demonstrate public  interest

factors  that  make  trial in  Massachusetts  inappropriate.   It

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

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

"more at home" with such laws.  This concern is not sufficient to

overcome  the presumption in  favor of plaintiffs'  chosen forum.

This  Court  has previously  noted  that  "the  task of  deciding

foreign  law [is]  a chore  federal courts  must often  perform."

                               -29-

Mercier III, 981 F.2d at  1357 (quoting Manu Int'l, S.A.  v. Avon                                                                           

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

this factor  little weight.   Id.   Tak  How points  to no  other                                           

public interest factor that weighs against a Massachusetts forum.

                               -30-

                               IV.

          For  the   foregoing  reasons,  the   district  court's

decision  to  deny Tak  How's  motions  to  dismiss for  lack  of

personal jurisdiction and on the grounds of  forum non conveniens                                                                           

is AFFIRMED.

                               -31-
