
USCA1 Opinion

	




          March 3, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1865                     UNITED ELECTRICAL RADIO AND MACHINE WORKERS                              OF AMERICA (UE)., ET AL.,                               Plaintiffs, Appellants,                                          v.                       163 PLEASANT STREET CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Bownes, Senior Circuit Judge,                                    ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Mark  D. Stern with whom  Brian W. Mellor, Mary  Leary, and Edward            ______________            _______________  ___________      ______        J. Dailey were on brief for appellants.        _________            David D.  Cole on brief for Barney Frank, Gerry E. Studds, Chester            ______________        G. Atkins,  Joseph D. Early, Joseph P.  Kennedy, II, Edward J. Markey,        Nicholas  Mavroules,  John Joseph  Moakley, Richard  E. Neal,  John W.        Oliver,  and Senators  Edward  M. Kennedy  and  John F.  Kerry,  amici        curiae.            Charles  L. Janes  with whom James  C. Stokes and  Bingham, Dana &            _________________            ________________      _______________        Gould were on brief for appellees.        _____                                 ____________________                                    March 3, 1993                                 ____________________                      STAHL, Circuit  Judge.  This appeal  requires us to                             ______________            decide  for  a  second  time1  whether  plaintiffs-appellants            ("plaintiffs")  have  sufficiently   demonstrated  that   the            district court  has personal  jurisdiction  over the  primary            defendants-appellees ("defendants") to this action  to pursue            their claims  under the  Employee Retirement  Income Security            Act ("ERISA"), 29  U.S.C.A.    1001-1461  (West 1985 &  Supp.            1992),  the  Labor-Management  Relations  Act   ("LMRA"),  29            U.S.C.A.       141-187   (West  1973   &  Supp.   1992),  and            Massachusetts common  law.  Finding  that plaintiffs' showing            at  this  stage of  the litigation  is  adequate to  meet the            relevant legal standard, we vacate the district court's order            of dismissal and remand this action for further proceedings.                                          I.                                          I.                                          __                                PROCEDURAL BACKGROUND                                PROCEDURAL BACKGROUND                                _____________________                      We  begin our  analysis  with a  recounting of  the            already  eventful  procedural  history  of  this  litigation.            Plaintiffs are  the  United  Electrical,  Radio  and  Machine            Workers  of  America ("the  Union")  and  certain retired  or            disabled employees  of the  defendant corporations or  one of            these  corporations' predecessor-in-interest.2   On  July 19,                                            ____________________            1.  See generally  United Elec.,  Radio and Mach.  Workers of                ___ _________  __________________________________________            America v. 163 Pleasant Street Corp., 960 F.2d 1080 (1st Cir.            _______    _________________________            1992) (hereinafter referred to as "163 Pleasant Street I").                                               _____________________            2.  One  plaintiff  is the  surviving  spouse  of a  deceased            retired employee of the defendant corporations.                                         -2-                                          2            1991,  plaintiffs  initiated   these  proceedings  by   suing            defendants   International   Twist  Drill   (Holdings),  Ltd.            ("ITDH"),   163  Pleasant   Street  Corporation   ("PSC"),  a            Massachusetts   subsidiary  of  ITDH,3  and  Blue  Cross/Blue            Shield  of  Massachusetts ("BCBS").    At  issue was  whether            defendants  were contractually  bound  to provide  plaintiffs            with  medical  and  life  insurance.4   In  their  complaint,            plaintiffs sought both damages and equitable relief.  As part            of the  equitable   relief sought, plaintiffs  requested that            the district  court enter a  preliminary injunction directing            defendants to continue paying plaintiffs'  insurance premiums            pendente lite.            ________ ____                      On July 24, 1991, the district court, after hearing            oral argument,  granted plaintiffs'  request for  a temporary            restraining order  preserving the status quo  until a hearing            on plaintiffs' request for  a preliminary injunction could be            arranged.   On August 13, 1991, the district court heard oral                                            ____________________            3.  Prior to 1991, PSC was known as Morse Tool, Inc.  Because            this fact is  not relevant to  this appeal, and  in order  to            identify the parties in a consistent fashion, we refer to the            company  as PSC  even  when describing  events that  occurred            while the company was still Morse Tool, Inc.            4.  Specifically,  plaintiffs alleged  that they  were either            signatories to  or beneficiaries  of agreements,  including a            collective  bargaining agreement  between PSC and  the Union,            under  which   PSC  contracted  to  provide   them  with  the            aforementioned insurance  "for life."  They further contended            that,  for  a  variety  of  reasons, ITDH,  which  owned  and            controlled  the  now  defunct   PSC,  was  liable  for  these            contractual obligations  despite the  fact that its  name did            not appear upon these agreements.                                         -3-                                          3            argument on plaintiffs' request for  a preliminary injunction            and  on a motion to dismiss for lack of personal jurisdiction            filed by ITDH on August 6.  That same day, the district court            granted  plaintiffs'  request for  a  preliminary injunction5            and denied ITDH's  motion.  On August 22, 1991, PSC filed for            bankruptcy without paying the  disputed premiums.  After ITDH            also  refused to pay the  premiums, the district court issued            an  order  holding  ITDH  in contempt.    Subsequently,  ITDH            appealed the preliminary injunction and the contempt orders.                      During  the  pendency of  ITDH's  appeals, however,            discovery was proceeding in the underlying case.  As a result            of  information obtained  in  the course  of this  discovery,            plaintiffs moved to  amend their complaint  in order to  join            International  Twist  Drill ("ITD")  as  a  defendant and  to            include additional  (at least  insofar as ITDH  is concerned)            allegations  against the ITD  companies.6  Plaintiffs' motion            was  allowed  on  January  23, 1992.    Meanwhile,  each side            continued  to  supplement  the  record  by  filing  with  the            district  court   further  documentation   in  the  form   of                                            ____________________            5.  Specifically,  the  district court  ordered  that "[PSC],            initially,  and  [ITDH], secondarily,  .  .  . make  whatever            payments  are necessary  to  continue  the medical  insurance            coverage of these plaintiffs  until final judgment is entered            in this case."            6.  ITD, a subsidiary of ITDH, was not a party when ITDH took            its appeal of the preliminary injunction and contempt orders.            Therefore, all uses of the acronym "ITD" made in 163 Pleasant                                                             ____________            Street I should be construed as being references to ITDH.            ________                                         -4-                                          4            affidavits and otherwise.   Because  of the  timing of  these            filings, this material was  not part of the record  in ITDH's            initial appeal.                      On  March  30, 1992,  this  court  handed down  163                                                                      ___            Pleasant  Street   I,  which  vacated  the  district  court's            ____________________            injunction  and contempt  orders.   In so  doing, we  did not            reach  the merits of the lower court's decisions.  Rather, we            found that plaintiffs had not established that  the court had            personal  jurisdiction over ITDH.   Accordingly,  we directed            that  the  preliminary  injunction  and  contempt  orders  be            vacated and  remanded the  case "for further  proceedings not            inconsistent [with our opinion]."  Id. at 1099.                                               ___                      After publication  of 163  Pleasant Street  I, ITDH                                            _______________________            and ITD filed a joint motion  to dismiss for lack of personal            jurisdiction, incorporating by reference our opinion of March            30,  1992.    Plaintiffs  opposed the  motion,  relying  upon            allegations  in their  recently  amended complaint  and  upon            materials  not part of the  record in 163  Pleasant Street I.                                                  ______________________            On  May  8,  1992,  the  district  court  issued  a  two-page            memorandum  and order granting ITDH's and ITD's motion.7  The            memorandum and order  stated:  "[Each] issue  and theory upon            which plaintiffs' claims  rest has  been thoroughly  analyzed            and addressed in the decision of the Court of Appeals.  There                                            ____________________            7.  Although entered on May 8, 1992, the memorandum and order            was dated May 4, 1992.                                         -5-                                          5            is nothing to be  gained from prolonging this  case further."            Plaintiffs moved for reconsideration of the  district court's            order,  again directing  the  court's attention  to materials            made  part of  the record  after ITDH  had taken  its initial            appeal  and other  materials filed  by plaintiffs  on May  8,            1992.   By margin order  entered June 24,  1992, the district            court denied plaintiffs' motion.8   Plaintiffs now appeal the            district  court's  order of  dismissal  and  denial of  their            motion for reconsideration.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Because   163   Pleasant   Street  I   exhaustively                                __________________________            delineated both  the facts underpinning this  dispute and the            law  implicated by its resolution, we do not engage in rehash            here. Suffice it to say that the question of whether, at this            stage of  the litigation,  plaintiffs have made  a sufficient            showing that  ITDH and  ITD, both Scottish  corporations, are            subject to  the personal  jurisdiction of the  district court            hinges upon  whether there  is adequate record  evidence that            the  two   entities  (1)  "transact[ed].  .   .  business  in                                            ____________________            8.  Although resolution of plaintiffs' motion by margin order            contravened the separate document requirement of Fed. R. Civ.            P. 58, see Fiore v. Washington County Community Mental Health                   ___ _____    _________________________________________            Ctr.,  960  F.2d  229,  234-36   (1st  Cir.  1992),  we  deem            ____            plaintiffs' appeal,  which is timely when  viewed against the            date  the  order  was   entered,  to  be  a  waiver   of  the            requirement.   See Bankers Trust Co. v. Mallis, 435 U.S. 381,                           ___ _________________    ______            387-88 (1978); Fiore, 960 F.2d at 236 n.10.                           _____                                         -6-                                          6            [Massachusetts],"  thus subjecting them to the Commonwealth's            long-arm statute, see Mass.  Gen. Laws Ann. ch. 223A,    3(a)                              ___            (West 1985 & Supp. 1992), and (2) have acted in such a manner            that the district court's  exercise of jurisdiction over them            would  not  offend  the  constitutionally  anchored  "minimum            contacts" rule.   See  International Shoe Co.  v. Washington,                              ___  ______________________     __________            326 U.S. 310, 316 (1945).9                                            ____________________            9.  In  163 Pleasant Street  I, though we  observed that "the                    ______________________            lower court's ruling  that ITD[H] was `transacting  business'            in  Massachusetts is  likely sustainable,"  see  163 Pleasant                                                        ___  ____________            Street I, 960 F.2d at 1087, we did not determine whether ITDH            ________            was  subject to  the  Commonwealth's long-arm  statute as  we            found that the minimum  contacts rule was not satisfied.   In            so  doing,  we began  by  noting  that  ITDH's contacts  with            Massachusetts were "manifestly insufficient to ground a claim            of  general jurisdiction.  . .  ."   Id. at  1088.   Next, we                                                 ___            distilled  the jurisprudence  governing the  ascertainment of            specific    jurisdiction    (which,   along    with   general            jurisdiction,   is  one   of  the   two  types   of  personal            jurisdiction   we  have   recognized  in   analyzing  minimum            contacts) into the following tripartite test:   (1) the claim            underlying  the litigation  must  directly arise  out of,  or            relate to, the  defendant's forum-state  activities, (2)  the            defendant's  in-state  contacts must  represent  a purposeful            availment of  the privilege  of conducting activities  in the            forum state, thereby invoking the benefits and protections of            that  state's laws  and  making the  defendant's  involuntary            presence before  the state's courts foreseeable,  and (3) the            exercise  of jurisdiction  must, in  light of  five specified            criteria  for  evaluating   the  fairness  of  subjecting   a            nonresident   to  the   authority  of   a   foreign  tribunal            (collectively  dubbed the "Gestalt  factors"), be reasonable.            See id. at 1088-89.            ___ ___                 In  applying the  specific  jurisdiction test,  we first            found that,  of the  forum-related contacts between  ITDH and            the  Commonwealth  mentioned by  the  district  court in  the            August  13,  1991,  hearing,  only the  involvement  of  John            Lindsay,  an ITDH  principal, in  negotiating  the collective            bargaining agreement at the heart of this litigation could be            thought of  as giving rise to, or  relating to, this cause of            action.   Id. at 1089.  Limiting our inquiry to this contact,                      ___            we then  determined that  the evidence  surrounding Lindsay's                                         -7-                                          7                      In  arguing  that  the  above  question  should  be            answered in  the  affirmative, plaintiffs  contend  that  our            analysis in 163 Pleasant Street  I has been rendered obsolete                        ______________________            by  additions to  the record which  occurred while  the first            appeal  was pending.   As  a result,  plaintiffs assert,  the            district  court's  uncritical   reliance  upon  our  previous            opinion  was   in  error.10     We  agree   with  plaintiffs'            position.                                            ____________________            involvement  was  insufficient  for  us  to  determine  "that            ITD[H], through  its  own affirmative  conduct,  purposefully            availed itself  of the privilege of  conducting activities in            Massachusetts.  . .  ."   Id. at  1090-91.   Central to  this                                      ___            determination was the lack of record evidence suggesting that            the  negotiations  over the  collective  bargaining agreement            and, a  fortiori, Lindsay's participation therein  took place                 _  ________            in  Massachusetts.  Id. at  1090.  Accordingly,  we held that                                ___            the constitutionally required  minimum contacts between  ITDH            and Massachusetts  were not  present and declined  to address            the  question  of  reasonableness  in light  of  the  Gestalt            factors.  See id. at 1090 n.11.                                   ___ ___            10.  In response  to plaintiffs' argument, defendants  do not            attempt   to  demonstrate   that   the  current   record   is            insufficient to support an  exercise of personal jurisdiction            over  them.   Rather, defendants  essentially argue  (1) that            ITDH and ITD  should not  be held  liable, through  corporate            veil  piercing, for  PSC's contractual  obligations,  and (2)            that  the materials submitted to the district court on May 8,            1992,  were  submitted  after  the  order  of  dismissal  and            therefore should not be considered by us in this appeal.                 Though  defendants' first argument  ultimately may prove            meritorious,  it has no bearing on the question raised in the            instant  appeal.     Accordingly,  we  do   not  discuss  it.            Moreover, because, as will be  more fully explained infra, we                                                                _____            find that the record was sufficient for the court to exercise            personal  jurisdiction  over ITDH  and  ITD  even before  the            documents submitted on May 8, 1992, were made a part thereof,            we need notreach the merits of defendants' second argument.                                           -8-                                          8                      Where, as here, a  district court elects to dispose            of a Fed. R. Civ.  P. 12(b)(2) motion to dismiss for  lack of            personal   jurisdiction   without   holding  an   evidentiary            hearing,11 the  "prima  facie"  standard  should  govern  the            court's  review.   See  Boit, 967  F.2d  at 675;  Kowalski v.                               ___  ____                      ________            Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 8 (1st Cir.            ____________________________________            1986).   Under  this standard,  it is  plaintiff's  burden to            demonstrate the existence of  "every fact required to satisfy            `both the  forum's long-arm  statute and the  [D]ue [P]rocess            [C]lause  of  the  Constitution.'"   Boit,  967  F.2d at  675                                                 ____            (quoting  U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d                      ___________________    __________________            9, 11 (1st Cir. 1990)).                        The prima facie showing must be based upon evidence            of specific facts set forth in the record.  Boit, 967 F.2d at                                                        ____                                            ____________________            11.  During the  course of oral  argument at  the August  13,            1991,  hearing on  ITDH's initial  Rule 12(b)(2)  motion, the            district court did make reference to certain affidavits which            had  been introduced  into the  record at  that time  and did            allow  counsel for  ITDH to  speak on  the issue  of personal            jurisdiction.  (Plaintiffs' counsel did not address the court            on this issue because the court found in plaintiffs' favor at            the conclusion of ITDH's presentation.)  Also, in determining            that  it  had  personal  jurisdiction over  ITDH,  the  court            indicated  that   it  so  found  by   "clear  and  convincing            evidence."  Therefore,  it appears that the August  13, 1991,            hearing  was a limited evidentiary hearing.  See Boit v. Gar-                                                         ___ ____    ____            Tec  Products,  Inc.,  967  F.2d 671,  676  (1st  Cir.  1992)            ____________________            (evidentiary hearings need not  involve evidence taken orally            in  open court,  but  may  proceed  with all  evidence  being            introduced by  means of affidavits,  authenticated documents,            answers to  interrogatories or  requests for admissions,  and            depositions,  and   with   findings  being   made   under   a            preponderance-of-the-evidence-standard).     However,  it  is            apparent from the record that no evidentiary hearing was held            on the joint motion to dismiss filed by ITDH and ITD.                                            -9-                                          9            675;  Kowalski, 787  F.2d at  9.   This means  that plaintiff                  ________            "`must go beyond the  pleadings and make affirmative proof.'"            Boit, 967 F.2d at 675 (quoting Chlebda v. H.E. Fortna & Bro.,            ____                           _______    ___________________            Inc.,  609 F.2d  1022, 1024  (1st Cir.  1979)).   However, in            ____            determining whether  the prima  facie demonstration has  been            made,  the district  court  is not  acting  as a  factfinder;            rather, it accepts properly supported proffers of evidence by            a plaintiff  as true and makes its ruling as a matter of law.            See Boit, 967 F.2d at 675;  see also Kowalski, 787 F.2d at 9.            ___ ____                    ___ ____ ________            Therefore,   appellate   review   of   such   a   ruling   is            nondeferential and plenary.  See Boit, 967 F.2d at 675.                                         ___ ____                      Leaving aside  the material which was  filed on May            8, 1992, see supra note 10, we believe that the effect of two                     ___ _____            additions to  the record made  by plaintiffs while  the first            appeal was  pending is such  that, applying  the prima  facie            standard,  the district  court should  have denied  the joint            motion to dismiss  filed by ITDH  and ITD.   First, in  their            amended  complaint,  plaintiffs had  made  the following  new            allegations:                      3. .  . .  [T]he  plaintiff retirees were                      employed  at the  defendant corporations'                      plant in New Bedford,  Massachusetts, the                      obligations  to  provide  insurance  were                      incurred   in   Massachusetts,  and   the                      termination of the insurance  giving rise                      to this claim occurred in this District.                      14.  The defendant [ITDH] of Scotland  is                      incorporated  in  Great  Britain and  was                      doing business as Morse Tool, Inc. in the                      Commonwealth  of  Massachusetts prior  to                                         -10-                                          10                      and up to the time of  the closure of its                      New Bedford facility  in January[]  1990.                      It   is  the  sole   shareholder  in  the                      defendant [PSC].                      15.   The defendant [ITD] of  Scotland is                      incorporated  in  Great  Britain and  was                      doing business as Morse Tool, Inc. in the                      Commonwealth  of  Massachusetts prior  to                      and up to the time of  the closure of its                      New Bedford Facility in January 1990.  It                      is owned and controlled by  the defendant                      ITDH.                      17.  At all relevant times the defendants                      constituted   an   integrated  enterprise                      and/or single employer doing  business in                      the Commonwealth of Massachusetts.                      18.  At all relevant times the defendants                      ITDH and/or ITD constituted the alter ego                      of the defendant [PSC].                      19.  At all relevant times the defendants                      ITDH  and/or  ITD  jointly  employed  the                      plaintiffs   along  with   the  defendant                      [PSC].                      20.  .  . .  The  most  recent collective                      bargaining  agreement between  plaintiffs                      and  defendant  corporations  covers  the                      period from May 1987  through May 1990. .                      . . [The collective bargaining agreement]                      was negotiated for  the defendants by  an                      agent  of the  defendant ITD,  acting for                      and on behalf of the defendant ITDH.            Moreover,  on April  16, 1992,  plaintiffs had  introduced an            affidavit  of Dennis Brady, a Union officer and member of the            Union   negotiating  team,  which   contained  the  following            assertions:                      3.    All the  negotiations  between [the                      Union] and [ITDH and ITD] occurred in New                      Bedford, Massachusetts. . . .                                         -11-                                          11                      5.  Raymond  Zemon [sic] was the  primary                      negotiator  of the  collective bargaining                      agreement.   He acted  on behalf of [ITDH                      and ITD]. . . .                      6.  During the negotiations Raymond Zemon                      [sic] would often make telephonic contact                      from  Massachusetts  with individuals  in                      Scotland    before   agreeing    to   any                      proposals. . . .12                      Simply put, we believe  that the combination of the            complaint amendments and the Brady affidavit is sufficient to            cure the  deficiency --  i.e., that  ITDH  had not  purposely            availed itself  of the privilege of  conducting activities in            Massachusetts  -- on which our holding in 163 Pleasant Street                                                      ___________________            I was premised.   As noted above, see supra  note 9, the only            _                                 ___ _____            record  evidence before us in 163 Pleasant Street I which was                                          _____________________            even remotely  relevant to  the purposeful  availment inquiry            was  the fact that John Lindsay had some "involvement in" the            negotiation of the collective  bargaining agreement.  See 163                                                                  ___ ___            Pleasant Street I,  960 F.2d  at 1090.   The  record did  not            _________________            reveal  where Lindsay  was located  during the period  of his            involvement   Id.  Indeed,  the record did  not even indicate                          ___            where the negotiations had taken place.  Id.                                                     ___                                            ____________________            12.  Further support  for the allegation  that the collective            bargaining agreement  between the Union and  PSC actually was            negotiated  by Raymond Zeman acting on behalf of ITDH and ITD            can be found in the agreement itself.  The first paragraph of            the  agreement  contains  the  following  provision:    "This            Agreement is  contingent upon  and will not  become effective            until  [PSC] is  purchased  by  Scottish interests  presently            represented by  Zeman International."  The  agreement then is            signed by Raymond Zeman on behalf of Zeman International.                                          -12-                                          12                      After   remand,  however,  the  record  before  the            district court  was  significantly less  enigmatic than  that            before us  in 163  Pleasant Street  I.   It now  contained an                          _______________________            affirmative   allegation   that  the   collective  bargaining            agreement was negotiated  "for the defendants by  an agent of            ITD, acting for  and on  behalf of defendant  ITDH."13   More            significantly, the record also contained "affirmative proof,"            see Boit, 967 F.2d at 675, tending to support this allegation            ___ ____            and  plaintiffs' claim  that the  aforementioned negotiations            took place in the Commonwealth of Massachusetts.                         We  think  that  this  is  sufficient.    If  true,            plaintiffs'  evidence tends  to show  that, at  the time  the            collective bargaining agreement between PSC and the Union was            being negotiated, (1)  ITDH and ITD were  actively engaged in            the process of  purchasing PSC, a Massachusetts  corporation,            (2) ITD, acting on behalf of  ITDH, had retained an agent  to            negotiate  the  agreement, the  efficacy  of  which was  made            contingent upon ITDH's and  ITD's subsequent purchase of PSC,            (3) the negotiations took place in Massachusetts, and (4) the            agent   often   called   "individuals   in   Scotland"   from            Massachusetts before agreeing to any proposals.  In our view,            such  activity  within  Massachusetts  cannot  be  viewed  as                                            ____________________            13.  As  our  earlier  opinion   noted,  the  contacts  of  a            corporation's agent obviously can  subject the corporation to            the  personal  jurisdiction  of  the  forum  in  which  those            contacts occur.  See id.                             ___ ___                                         -13-                                          13            "random, fortuitous,  or attenuated."  Cf.  Burger King Corp.                                                   ___  _________________            v.  Rudzewicz, 471  U.S. 462,  475 (1985)  ("Th[e] purposeful                _________            availment requirement  ensures that  a defendant will  not be            haled  into  a jurisdiction  solely  as a  result  of random,            fortuitous, or  attenuated contacts. . .  .") (quoting Keeton                                                                   ______            v.  Hustler Magazine,  Inc.,  465 U.S.  770,  774 (1984)  and                _______________________            World-Wide  Volkswagen Corp.  v. Woodson,  444 U.S.  286, 299            ____________________________     _______            (1980))  (internal  quotation  marks  omitted).   Rather,  we            believe  that  it  is  more  accurately  characterized  as  a            deliberate  engagement  in   significant  activities   within            Massachusetts,   and  thus  a  purposeful  availment  of  the            privilege of  conducting activities within  the Commonwealth,            making involuntary  presence before  a Massachusetts  court a            reasonably foreseeable event.   See Burger King,  471 U.S. at                                            ___ ___________            474-76.  Accordingly, we hold that plaintiffs have  met their            prima   facie  burden  of   demonstrating  the  existence  of            sufficient facts to meet the  second prong of the  tripartite            specific jurisdiction test announced in our previous opinion.            See 163 Pleasant Street I, 960 F.2d at 1089.14            ___ _____________________                      This  conclusion  does not  end  our  inquiry.   As            previously  noted,  see  supra   note  9,  because  we  found                                ___  _____                                            ____________________            14.  Obviously,  the evidence  that Raymond  Zeman negotiated            the  agreement as an agent of ITD,  acting on behalf of ITDH,            is  also  sufficient,  under  the prima  facie  standard,  to            satisfy part  one  of the  tripartite  specific  jurisdiction            test: that the claim underlying the litigation arise  out of,            or relate to, ITDH's  and ITD's forum state activities.   See                                                                      ___            163 Pleasant Street I, 960 F.2d at 1089.            _____________________                                         -14-                                          14            insufficient proof of minimum contacts in 163 Pleasant Street                                                      ___________________            I, we did not address whether subjecting ITDH to the personal            _            jurisdiction of Massachusetts would be reasonable in light of            the Gestalt  factors.  Nor did we  formally determine whether            ITDH  was  within the  reach  of  the Massachusetts  long-arm            statute.  Extending our query also to include ITD, we discuss            each question in turn.                      Once a  court has  determined that a  defendant has            purposefully  established minimum  contacts within  the forum            state, these contacts may  be considered in light  of certain            factors  to  determine  whether  the  assertion  of  personal            jurisdiction would  comport with  "fair play and  substantial            justice."     Burger   King,   471  U.S.   at  476   (quoting                          _____________            International Shoe, 326 U.S. at  320).  These Gestalt factors            __________________            include:   (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.   163 Pleasant  Street I, 960  F.2d at  1088                               ______________________            (citing Burger King, 471 U.S. at 477).                    ___________                      Application of  these  five factors  to  the  facts            before  us easily  yields  the conclusion  that the  district            court's exercise  of personal jurisdiction over  ITDH and ITD                                         -15-                                          15            would meet International  Shoe's "fair  play and  substantial                       ___________________            justice" requirement.   While we do not doubt  that traveling            to Massachusetts  for purposes of defending  this action will            place a significant burden upon ITDH and ITD, we believe that            this burden  is  substantially outweighed  by  Massachusetts'            interest  in   adjudicating  this  dispute   and  plaintiffs'            interest in  obtaining convenient and effective  relief.  Cf.                                                                      ___            Asahi Metal Indus. Co.  v. Superior Court, 480 U.S.  102, 114            ______________________     ______________            (1987) ("[O]ften the interests of the plaintiff and the forum            in the exercise of jurisdiction will justify even the serious            burdens  placed upon [an] alien defendant.").  In this era of            ever burgeoning  health care costs, Massachusetts clearly has            a  vital interest  in seeing  bargained-for health  insurance            benefits  provided  to  its  residents.    If  this  case  is            dismissed, many plaintiffs may be forced to rely  upon public            funds  to help defray health  care costs, which  fact in turn            will   place  an   increased   financial  burden   upon   the            Commonwealth.15  Moreover, in  light of the obvious costs  of            and obstacles to obtaining  insurance elsewhere, the  effects            upon plaintiffs  of  losing the  benefits  at issue  in  this            lawsuit are manifest and can hardly be overstated.                                            ____________________            15.  We note  that the cogent  and persuasive brief  filed on            behalf  of   plaintiffs   by  the   individual   members   of            Massachusetts'  congressional  delegation  as   amici  curiae                                                            _____  ______            speaks  volumes about  the  interest of  the Commonwealth  in            seeing this matter adjudicated before the district court.                                         -16-                                          16                      The fourth Gestalt criterion, the judicial system's            interest in  obtaining the  most effective resolution  of the            controversy, also  favors the retention  of jurisdiction over            this  dispute.   If this case  is dismissed,  it is  far from            clear that there  will be any judicial  resolution, let alone            the most effective judicial  resolution, of this controversy.            Even  if we  assume  that this  action  could be  brought  in            Scotland,  the  fact  remains  that  all  of  the  individual            plaintiffs,  many of  whom  are disabled  and/or of  advanced            years,  reside in  Massachusetts.   Moreover, it  is apparent            that most  of the  potential witnesses reside  nearer to  the            seat of the district court than to wherever the case might be            tried  in  Scotland.   Given  these facts,  the  logistics of            bringing suit in Scotland might prove insurmountable.  At any            rate,  whether  or not  the significant  logistical obstacles            could   be   overcome,   it   is   obvious  that   efficiency            considerations weigh heavily in favor of litigating this case            in Massachusetts.                      The final Gestalt factor,  the common interests  of            all sovereigns in promoting substantive social policies, does            not  support a contrary conclusion.  As an initial matter, we            note that defendants have not identified, nor can we discern,            any  substantive Scottish social  policy which  might counsel            against  an exercise of jurisdiction on  the facts before us.            More  importantly,  however,  while  we are  mindful  of  the                                         -17-                                          17            Supreme Court's admonition that courts should be "unwilling[]            to  find the serious burdens on an alien defendant outweighed            by  minimal interests  on the  part of  the plaintiff  or the            forum State[,]" Asahi Metal Industry, 480 U.S. at 115, we are                            ____________________            confident  that plaintiffs'  and Massachusetts'  interests in            litigating this  dispute before the district  court, far from            being minimal, are serious enough to outweigh any such social            policy.    Therefore,  we   conclude  that  the  exercise  of            jurisdiction  over ITDH and ITD is reasonable in light of the            Gestalt factors.                      Having  determined  that,  under  the  prima  facie            standard, plaintiffs  have made a sufficient  showing to pass            constitutional muster, we need  now only formally assert that            which we indicated was "likely" before:  plaintiffs have also            made a prima facie showing that ITDH and ITD are  amenable to            suit in  Massachusetts.   Without question, ITDH's  and ITD's            activities  during   the   negotiation  of   the   collective            bargaining agreement, see supra page 13, must, even under the                                  ___ _____            narrowest possible construction of  the term, be construed as            a "transaction of business"  within Massachusetts.  Moreover,            plaintiffs'  cause   of  action   clearly  arose   from  this            transaction  of business.  Thus, ITDH and ITD fall within the            reach of the Commonwealth's long-arm statute.  See Mass. Gen.                                                           ___            Laws. Ann. ch. 223A,   3(a).                                         -18-                                          18                      Before   concluding,  we  elaborate  upon  why  the            district court should not  have construed 163 Pleasant Street                                                      ___________________            I   as  a  mandate  to  dismiss  ITDH  and  ITD  on  personal            _            jurisdiction grounds.16  We begin by reiterating that, at the            August  13,  1991,  hearing,  the  district  court's  initial            personal   jurisdiction  determination   was   made  at   the            conclusion   of  ITDH's   oral   presentation   and   without            plaintiffs' input.    See supra  note  11.   Therefore,  with                                  ___ _____            regard  to the question  of personal jurisdiction, plaintiffs            never had a full opportunity (1) to address the court, either            orally or on  paper,17 (2) to introduce further  evidence, or            (3) to request discovery.  As a result, the  record before us            in 163 Pleasant Street I was incomplete.               _____________________                      Under the facts of this case, the incomplete nature            of the record prevented  any sort of conclusive determination            on  the personal jurisdiction issue  at the time 163 Pleasant                                                             ____________                                            ____________________            16.  In  so stating,  we  clarify  that  our comment  in  163                                                                      ___            Pleasant Street I that "[i]t follows inexorably that ITD[H]'s            _________________            motion  to   quash  the   complaint  for  want   of  personal            jurisdiction should have been  granted,"  163 Pleasant Street                                                      ___________________            I, 960 F.2d  at 1099, was not intended as  a directive to the            _            district  court, but  as an  assessment of  the record  as it                                                                    __ __            stood when the original motion to  dismiss was filed.            _____ ____ ___ ________ ______ ___ _______ ___ _____            17.  We  note that ITDH  first moved  to dismiss  on personal            jurisdiction  grounds on  August 6, 1991,  a mere  seven days            before  the August 13, 1991, hearing.   We also note that the            fourteen day  period for  submitting an opposition  to ITDH's            motion  provided for by Rule 7.1(a)(2) of the Local Rules for            the  United  States  District   Court  for  the  District  of            Massachusetts  had  not yet  expired  when  the court  denied            ITDH's motion.                                         -19-                                          19            Street  I was  handed  down.   The jurisdictional  deficiency            _________            which  informed the holding  in our previous  opinion did not            stem  from  either a  settled  factual  predicate or  legally            insufficient allegations,  but from  perceived  voids in  the            evidentiary landscape.   See 163 Pleasant Street  I, 960 F.2d                                     ___ ______________________            at  1090.  As noted,  no discovery directed  at filling these            voids took  place.   Accordingly, 163  Pleasant Street I  can                                              ______________________            only    be   interpreted   as    holding   that   plaintiffs'            jurisdictional showing was insufficient to support  the entry            of the injunction  and contempt orders  against ITDH.18   See                                                                      ___            7-Pt. 2 James  W. Moore  et al., Moore's  Federal Practice                                        __ ___            65.03[3],  at  65-28 (2d  ed. 1989)  ("A  court must  have in            personam  jurisdiction  over  the   party  against  whom  the                                            ____________________            18.  To  reinforce this point, we note that if, on the record            before  it,  the  district  court had  decided  the  personal            jurisdiction issue adversely  to plaintiffs without at  least                               _________            affording them the opportunity  to respond to ITDH's argument            and/or to  request discovery, we almost  certainly would have            declined to affirm the district court's judgment and held the            ruling to be  an abuse of the court's discretion.   Cf. Boit,                                                                ___ ____            967 F.2d at  681 (refusal  to defer ruling  on Rule  12(b)(2)            motion  until  after there  has  been  discovery on  personal            jurisdiction issue can be  an abuse of discretion); Surpitsky                                                                _________            v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st  Cir. 1966)               ___________________            (district  court  erred  in  refusing  to  allow  a  diligent            plaintiff  who  was a  stranger  to  a defendant  corporation            discovery on question of  personal jurisdiction); see also 5A                                                              ___ ____            Charles  A. Wright &  Arthur R. Miller,  Federal Practice and            Procedure   1351  at 256-59 (2d  ed. 1990) ("In  particularly            complex cases, . . . it  may be desirable to hold in abeyance            a  decision on  a  motion to  dismiss  for lack  of  personal            jurisdiction.  Doing  so will  enable the  parties to  employ            discovery on the jurisdictional issue, which might lead  to a            more accurate judgment than  one made solely on the  basis of            affidavits.").                                         -20-                                          20            injunction runs."); see also 163 Pleasant  Street I, 960 F.2d                                ___ ____ ______________________            at  1084 ("`Given that  civil contempt is  designed to coerce            compliance with  the court's decree,  it is logical  that the            contempt  order itself  should fall with  a showing  that the            court  was   without  authority   to  enter  the   underlying            decree.'") (quoting Willy v. Coastal Corp., 112 S.  Ct. 1076,                                _____    _____________            1081 (1992)).                        In  sum,  the   district  court  should  not   have            summarily  granted  ITDH's  and  ITD's  motion   to  dismiss.            Instead,  after remand,  it  should have  determined, on  the            record  then before it, whether it had jurisdiction over ITDH            and ITD.  In so doing, it should have proceeded in accordance            with one of the approaches  outlined in Boit.  See  Boit, 967                                                    ____   ___  ____            F.2d at 675-78.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Because   plaintiffs  have   made  a   prima  facie            demonstration  of  every   fact  required  to   satisfy  both            Massachusetts' long-arm statute and the Due Process Clause of            the United  States Constitution, the district  court erred in            granting  the second motion to dismiss filed by ITDH and ITD.            Accordingly, we vacate the judgment of the district court and            remand this case for further proceedings.19                                            ____________________            19.  Having  found that  plaintiffs have  made a  prima facie            showing  that the  district  court had  personal jurisdiction            over  the  ITD companies,  we need  not  reach the  merits of                                         -21-                                          21                 Vacated and remanded.                 _____________________                                            ____________________            plaintiffs' argument that alternative bases for the assertion            of jurisdiction over defendants exist in this matter.                                         -22-                                          22
