

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

            GEORGE F. NOONAN AND ANN MARIE NOONAN,

                   Plaintiffs, Appellants,

                              v.

                 THE WINSTON COMPANY, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

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

                                         

                            Before

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

                                         

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

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

and  Anne  Marie   Noonan  challenge  the  district   court's

dismissal,  on  personal   jurisdiction  grounds,  of   their

defamation, misappropriation  and violation of  the right  of

publicity, and related  claims against Colour  Library Books,

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

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

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

fully considered plaintiffs' arguments, we affirm.

                              I.                                          I.                                            

A.  General Background                                  

          George  Noonan,  a Boston  Police  Detective and  a

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

career educating Bostonians about the health risks of tobacco

use.   During the  summer of  1992, a magazine  advertisement

sponsored  by  Winston  cigarettes featuring  Noonan's  image

appeared in several French magazines.  Noonan claims that the

unauthorized use of his image to  benefit tobacco sellers has

caused  him personal and professional harm and embarrassment.

          The  offending photograph has  a long history.   In

1979,  Neil Sutherland,  an  employee  of  the  English  book

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

                                                    

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

                             -2-                                          2

Noonan  in Boston  without  his  permission.    Although  the

photograph was meant to appear  in a coffee table book titled

Boston:     City  of  Dreams,  it  was   never  published  or                                        

distributed.   The  photograph remained  in  CLB files  until

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

later,  CLB sold  the photograph  to  the French  advertising

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

without advising Lintas:Paris  that Noonan had not  granted a

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

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

cigarette manufacturer.

          RJR France had  retained Lintas:Paris to  design an

advertising campaign both to publicize Winston cigarettes and

to market  an informational communications system  called The

Minitel  Service,  an   interactive  network  that   provides

consumer  services  such as  personal shopping,  banking, and

remittance  of income taxes.   Companies sponsor  segments of

the  service  in  exchange  for  a   share  of  the  revenues

generated.   The Winston  Way, one component  of the  Minitel

Service, provides information about dining and  entertainment

in  France and is  sponsored by the  Cooperation Gesellschaft

fuer Markendiversifikation  mbh, a German  company affiliated

with RJR France and unrelated to this action.

          The full-page advertisement pictures  Noonan in his

Boston  Police uniform and  on horseback  at Faneuil  Hall in

                             -3-                                          3

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

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

red  background.   The advertisement  also  provides a  phone

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

at  least 305 copies  of various French  magazines containing

the  advertisements were distributed to,  and at least 183 of

these were sold from, retail  magazine outlets in the  Boston

area.  

          Noonan became aware of  the offending advertisement

during the  summer  of 1992.    Fellow police  officers  told

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

cover was circulating.   Nancy Fay, a  Massachusetts resident

who had seen  the advertisement while vacationing  in France,

brought the  advertisement to Boston  and wrote to  Noonan to

inquire whether  the cigarette  manufacturer had  paid Noonan

for  the   advertisement.     Noonan's  son   Greg  saw   the

advertisement  when his  French teacher  brought a copy  of a

magazine  containing  the  advertisement   to  class;  Greg's

faculty  advisor told Greg that he had seen the advertisement

in France.   Some people, assuming that  Noonan had consented

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

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

attack on his reputation, he initiated this suit.

          Given  the number of parties to this litigation and

the   importance  of   their  relationships   to  plaintiffs'

                             -4-                                          4

jurisdictional  theories, we begin  with a brief  overview of

the  defendants.     Defendant  Lintas:Paris   is  a   French

corporation,   with  its  only   office  in   Paris,  France.

Defendant  RJR   France,  also  a   French  corporation,  has

corporate offices in Boulogne-Billancourt, France.  Defendant

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

corporation with its principal place of business in New York,

New York.  RJR Tobacco  is the organization through which its

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

cigarette  business.     Defendant  R.J.   Reynolds  Tobacco,

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

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

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

business  in   Winston-Salem,  North  Carolina.     Defendant

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

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

is also a  Delaware corporation.  Worldwide's  French offices

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

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

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

owned  subsidiary of the Interpublic Group of Companies, Inc.

("Interpublic").        Noonan   asserts    that    defendant

Lintas:Worldwide  is an  advertising  corporation managed  by

Interpublic.  Defendants claim, and the district court found,

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

                             -5-                                          5

shall  explain infra, its  existence vel non  does not affect                                                        

our decision.   Finally, defendant  CLB is a  British company

with offices in Surrey, England.

B.  Prior Proceedings                                 

          The  complaint  sets forth  five  direct claims  --

misappropriation and violation of the right of publicity, see                                                                         

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

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

reckless  or  intentional infliction  of  emotional distress;

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

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

Marie Noonan.

          The district court  initially dismissed all claims,

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

CLB  for lack of personal jurisdiction over named defendants.

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

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

jurisdictional  discovery  with  respect  to  CLB,  the court

dismissed all  claims  against CLB.    See Noonan  v.  Colour                                                                         

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

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

          Because  the district  court dismissed  plaintiffs'

claims  without holding an evidentiary hearing, we review the

rulings  de novo, drawing  facts from the  parties' pleadings                            

and supplementary  filings, and construing  all inferences in

                             -6-                                          6

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

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

                             -7-                                          7

                             II.                                         II.                                            

          On  appeal,  plaintiffs   advance  four  arguments.

First, they  assert the  district court  erred in  concluding

that  it lacked  specific  jurisdiction over  defendants CLB,

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

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

court  erred by failing to exercise general jurisdiction over

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

abused its discretion when it denied  them permission to take

jurisdictional  discovery before it  ruled on the  motions to

dismiss for lack of personal jurisdiction filed by defendants

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

Worldwide Brands.   Finally,  they argue  the district  court

improperly limited jurisdictional discovery as to CLB.  

          "Specific  personal  jurisdiction may  be  asserted

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

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

Radio &amp; Mach.  Workers of America v. 163  Pleasant St. Corp.,                                                                        

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

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

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

the litigation  is not  directly founded  on the  defendant's

forum-based contacts,  but  the  defendant  has  nevertheless

engaged  in continuous and  systematic activity, unrelated to

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

                             -8-                                          8

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

constitute   both   the   specific   and   general   personal

jurisdiction analyses: 1) whether  the Massachusetts long-arm

statute authorizes jurisdiction; 2) whether the defendant has

sufficient   minimum  contacts   so  that  the   exercise  of

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

exercise of  jurisdiction is  reasonable, and  therefore does

not  offend due  process.   Cf. United  Elec., Radio  &amp; Mach.                                                                         

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

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

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

reasonableness by  applying  factors  we  have  described  as

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

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

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

personal jurisdiction.

A.  Jurisdictional Issues                                     

          (i)  Specific Jurisdiction over CLB                                                         

          As  an  initial  matter,  we  decline  to  consider

whether  CLB  is  subject to  personal  jurisdiction  under a

theory of specific  jurisdiction because the Noonans  did not

                                                    

2.  The  criteria  are:    "(1)  the  defendant's  burden  of
appearing, (2) the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in obtaining convenient
and effective relief,  (4) the judicial system's  interest in
obtaining the most effective  resolution of the  controversy,
and (5) the  common interests of all  sovereigns in promoting
substantive social policies."  Pleasant I, 960 F.2d at 1088.                                                     

                             -9-                                          9

assert this theory  below.  Plaintiffs initially  opposed the

defendants' motions to  dismiss by arguing that  the district

court had  specific  jurisdiction over  all  the  defendants.

After  completing  discovery  over CLB,  however,  plaintiffs

abandoned their  specific  jurisdiction  claim  against  CLB,

arguing only that  the court had general jurisdiction over it

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

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

discovery obligations.  Plaintiffs, therefore,  may not raise

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

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

most extraordinary circumstances,  legal theories not  raised

squarely in the lower court  cannot be broached for the first

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

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

extraordinary  circumstances  in  this case;  plaintiffs  had

ample  time  to  consider and  advance  their  best arguments

supporting specific jurisdiction.

          (ii)  Specific Jurisdiction  over Lintas:Paris  and                                                                         

RJR France                        

          Because we determine that the assertion of personal

jurisdiction over  Lintas:Paris and  RJR France  would offend

due  process, we  decline to  decide  the difficult  question

whether  plaintiffs  have  established  a  prima  facie  case                                                                   

authorizing personal jurisdiction over these defendants under

                             -10-                                          10

the  Massachusetts long-arm  statute.   See Ticketmaster,  26                                                                    

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

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

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

          The  Due Process Clause of the Fourteenth Amendment

permits a state to exercise personal jurisdiction over a non-

resident  defendant only  when the  defendant has  sufficient

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

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

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

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

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

defendant's  in-state contacts .  . . represent  a purposeful

availment  of the privilege  of conducting activities  in the

forum state, thereby invoking the benefits and protections of

that  state's  laws and  making  the  defendant's involuntary

presence before  the  state's courts  foreseeable,  and"  (3)

exercising jurisdiction  is fair under  the gestalt  factors.

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

issue  in this  case is  whether  the defendants'  activities

satisfy the purposeful availment requirement.

          Plaintiffs correctly  draw our attention  to Calder                                                                         

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

adopted an effects test for determining  purposeful availment

in  the context of  defamation cases.   Calder  concerned two                                                          

                             -11-                                          11

Florida  reporters, employed  by The  National Enquirer,  who                                                                   

wrote a libelous article about California entertainer Shirley

Jones.    Id.    The  Supreme  Court  held  that jurisdiction                         

properly could  be asserted  over the  reporters because  the

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

would  likely have a devastating  effect, and knew the injury

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

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

circulation."  Id. at 790.    Plaintiffs'       circumstances                              

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

Like Jones,  plaintiffs felt a  tortious effect in  the forum

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

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

a saddle blanket  decorated with the Boston  Police insignia,

in front of  a distinctive Boston landmark -- indicated where

any injury would be felt.

          For  the first  part of  Calder's  framework to  be                                                     

satisfied, however, the defendants must have acted toward the

forum state with  sufficient intent to make  them "reasonably

anticipate  being   haled  into  court  there."    World-Wide                                                                         

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

Calder,  the court  found  that  the defendants'  intentional                  

conduct  was  "calculated to cause  injury  to  respondent in                                     

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

There is no analogous intentional behavior here.

                             -12-                                          12

          Plaintiffs do not  allege, and the record  does not

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

sufficient purpose to  satisfy the intent requirement.4   The

defendants did not direct their actions toward Massachusetts.

That  the advertisement  contains French  text  and a  French

phone  number suggests Lintas:Paris  created it for  a French

audience.    This  interpretation  is  corroborated,  without

contradiction, by  a Lintas:Paris  representative who  stated

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

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

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

bearing  the advertisement" would reach Massachusetts.  Id.                                                                         

15. 

          Although    plaintiffs    fleetingly    refer    to

Lintas:Paris' knowledge that  the advertisements would  reach

Massachusetts  and  passingly  contest the  district  court's

                                                    

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

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

                             -13-                                          13

denial  of  discovery  as to  what  Lintas:Paris  should have

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

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

the  defendant intentionally  sent  fraudulent or  defamatory

material  into   the  forum,   plaintiffs   imply  that   the

defendants'  intent to  reach Massachusetts  can  be inferred

from  the placement  of advertisements  in publications  with

international circulations.  Cf. Murphy v. Erwin-Wasey, Inc.,                                                                        

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

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

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

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

          In Calder, because the libelous story was generated                               

from California  sources, concerned  a California  celebrity,

and  appeared  in a  newspaper  with a  forum  circulation of

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

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

                                                    

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

                             -14-                                          14

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

advertisement  which appeared  in  305 individual  magazines,

circulated in  Massachusetts.   This  small distribution,  by

itself, does not  merit a finding that  Massachusetts was the

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

aimed the advertisements toward Massachusetts.  The size of a

distribution of offending material  helps determine whether a

defendant acted intentionally.    The Supreme Court has  held

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

magazines  containing allegedly libelous  content in  a forum

state indicated  deliberate and continuous  exploitation of a

market   and,   therefore,   was    sufficient   to   support

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

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

publication  indicates deliberate  action, thin  distribution

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

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

jurisdiction over  an Israeli  publisher for  a libel  action

involving an  insignificant distribution  --  four copies  or

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

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

97-6984).

          Plaintiffs urge  us to rely  on Gordy v.  The Daily                                                                         

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

Circuit  found   that  the  distribution   of  under   twenty

                             -15-                                          15

newspapers  was  sufficient  to confer  jurisdiction  over  a

foreign  newspaper  and its  reporter.   Unlike Lintas:Paris,

however, the  Gordy defendants  targeted the  forum state  by                               

distributing newspapers via regular customer subscriptions to

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

the  ultimate  destination  of  the  magazines  that  reached

Massachusetts,  and plaintiffs  have  not alleged  otherwise.

While we sympathize  with George Noonan's distress  at seeing

his  image  used  to  promote  a  product  he  despises,  his

Massachusetts-based   injury  is   not   enough  to   support

jurisdiction  over the defendants.   To find  otherwise would

inappropriately  credit   random,  isolated,   or  fortuitous

contacts and negate  the reason for the  purposeful availment

requirement.   Without finding minimum contacts, we need not,

and  do not,  proceed to  the reasonableness  analysis.   See                                                                         

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

Cir. 1990).

          (iii) General Jurisdiction over CLB and RJR Tobacco                                                                         

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

contacts with Massachusetts were sufficiently continuous  and

systematic to permit  the district court to  exercise general

jurisdiction.  

               (a) CLB                                  

          We  begin our analysis with the relevant section of

the Massachusetts long-arm statute: 

                             -16-                                          16

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

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

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

legitimate desire to  protect its citizens," we  construe the

statute broadly.   Mark v. Obear &amp;  Sons, Inc., 313 F.  Supp.                                                          

373, 376 (D. Mass. 1970).

          Viewing  the facts  in a  light  most favorable  to

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

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

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

injury  in Massachusetts  where the  use  of George  Noonan's

image caused him  shame and embarrassment and  engendered the

loss  of consortium  of which  Anne  Marie Noonan  complains.

Furthermore, CLB's  allegedly improper act,  the unauthorized

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

foreign act that arguably contributed to plaintiffs' in-state

injuries.

          Plaintiffs' appeal raises the issue of  whether the

district  court properly  decided  that plaintiffs  failed to

                             -17-                                          17

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

sufficient  additional contacts with the forum.  The district

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

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

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

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

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

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

satisfied.    While  the  parties  energetically  debate  the

success of CLB's Massachusetts solicitations, we measure only

the solicitations themselves.

          CLB  solicited   business  in   Massachusetts  with

sufficient regularity to  satisfy the statute.   Beginning in

the fall of  1992 and continuing until  plaintiffs' complaint

was  filed in  May 1994,  CLB  employees regularly  solicited

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

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

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

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

                                                    

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

                             -18-                                          18

from  England to Massachusetts on at least two occasions with

the  intention  of  developing  a  relationship  with  World.

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

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

solicitations of forum  companies are adequately  regular and

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

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

of 6000 pairs of shoes  to a Massachusetts wholesaler and the

subsequent shipping of 18 sample  shoes indicated defendants'

intent to begin ongoing relations).

          We  therefore turn  to  whether these  contacts are

sufficient  to  satisfy  the Constitution.    Until  the date

plaintiffs  filed their  complaint,  CLB's relevant  contacts

with   Massachusetts  were   Neil   Sutherland's  visits   to

Massachusetts in 1979,  the business solicitations  discussed

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

                                                    

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

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

                             -19-                                          19

standard for  evaluating whether  these contacts  satisfy the

constitutional  general  jurisdiction test  "is  considerably

more  stringent" than that  applied to  specific jurisdiction

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

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

care  before  exercising personal  jurisdiction  over foreign

nationals.   See Asahi  Metal Indust. Co.  v. Superior Court,                                                                        

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

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

dissenting)).

          Plaintiffs assert CLB's contacts were sufficient to

establish general jurisdiction  because they are  purposeful,

frequent,  intense, and  successful.   Although  our decision

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

contacts,  we  are guided  by  the types  of  contacts deemed

sufficiently continuous and systematic in other cases.

          We look to  two of our previous cases  in which the

appellants  argued,  as  plaintiffs  do  now,  that   general

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

                                                    

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

                             -20-                                          20

cases,  the  defendant  had more  continuous  and  systematic

contact with the forum state than CLB had with Massachusetts.

In both cases, we judged the contacts insufficient to  permit

an assertion of general jurisdiction.

          First,  in Glater, we found that a manufacturer who                                       

advertised,   employed   eight   sales   representatives   to

distribute information, and sold  products to distributors in

the forum was  not subject to general jurisdiction.   See 744                                                                     

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

based sales-force represented substantial work, they were not

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

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

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

also supra notes 6 &amp; 7.                      

          In  Donatelli, we found that ten years of providing                                   

league  officials  at   exhibition  hockey  games,  scouting,

providing television broadcasts, and selling products bearing

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

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

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

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

contacts were arguably  more intense than the  NHL's contacts

                             -21-                                          21

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

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

          Having determined that  sufficient minimum contacts

to authorize general  jurisdiction over CLB do  not exist, we

do not need to assess whether asserting jurisdiction would be

reasonable under  the gestalt  factors.   See Donatelli,  893                                                                   

F.2d at 471.

                                                    

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

                             -22-                                          22

               (b)  RJR Tobacco                                           

          Plaintiffs  also  argue that  general  jurisdiction

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

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

jurisdiction lies  over RJR Tobacco  because we do  not agree

with the  premise that  purportedly connects  RJR Tobacco  to

this  litigation.    Cf. Hachikian  v.  Federal  Deposit Ins.                                                                         

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

affirm the entry of summary judgment  on any alternate ground

made manifest by the record). 

          While not disputing  that it is the  actions of RJR

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

allegations in  their complaint, plaintiffs  have nonetheless

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

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

same  family  of  corporations  as RJR  Tobacco.    These two

assertions  ignore  the  corporate  form,  and  are  patently

insufficient to  raise a  claim involving  an attribution  of

liability  to RJR  Tobacco under  a  veil-piercing theory  in

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

1996)  (discussing the  stringent  test  for corporate  veil-

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

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

mere  assertion that  defendants  are  alter  egos  or  joint

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

                             -23-                                          23

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

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

permitted only where there is confused  intermingling between

corporate  entities or  where  one corporation  actively  and

directly   participates  in  the  activities  of  the  second

corporation, apparently exercising pervasive control.").

B.  Discovery Issues                                

          Plaintiffs contend  that the district  court abused

its   discretion   in  denying   them   permission   to  take

jurisdictional  discovery over  defendants RJR  Tobacco, R.J.

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

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

Inc.  In addition, plaintiffs  assert that the district court

improperly   limited  discovery  over   CLB.    We   apply  a

deferential standard in reviewing the lower court's discovery

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

resulted  in substantial prejudice  to the  aggrieved party."

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

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

(1st Cir. 1989)).

          (i)  The Advertising and Tobacco Defendants                                                                 

          The    denial    of   plaintiffs'    request    for

jurisdictional discovery as  to the  tobacco and  advertising

defendants  was not an abuse  of discretion.  Throughout this

litigation,  plaintiffs have argued  that the denial  of this

                             -24-                                          24

request deprived  them of  the opportunity  to ascertain  the

interrelationships among the defendants.   Proving ties among

the  tobacco  defendants  or  between  Lintas:Paris  and  the

tobacco defendants would not assist plaintiffs' cause  absent

a concomitant demonstration that Lintas:Paris availed  itself

of the Massachusetts  forum.  We  have already ruled  against

plaintiffs on this point.

          (ii) Limitation of Discovery over CLB                                                             

          Plaintiffs contend that  if the district court  had

allowed  them leeway to discover all contacts between CLB and

Massachusetts throughout  the litigation  period, they  would

have  been able to  establish general jurisdiction  over CLB.

In its decision  to deny jurisdiction over  CLB, the district

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

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

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

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

applied the  middle approach, and  limited Noonan's discovery

requests  to  contacts  through the  date  the  complaint was

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

irrelevant post-complaint contacts.   Metropolitan Life  Ins.                                                                         

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

("In  general  jurisdiction  cases,  district  courts  should

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

period  that is reasonable  under the circumstances  -- up to

                             -25-                                          25

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

whether  they   satisfy  the   'continuous  and   systematic'

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

          Plaintiffs dispute this approach on the grounds  of

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

routinely analyze contacts  with the forum based  on evidence

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

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

directly  speaks  to the  question posed  here.   See Wheeler                                                                         

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

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

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

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

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

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

each  case,  from  a  survey  of  data   that  spans  several

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

the  majority  approach is  not as  plaintiffs suggest.   See                                                                         

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

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

          Plaintiffs also  claim that  limiting discovery  to

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

a rule,  an entity which  causes an  injury in  Massachusetts

from its non-forum based operations and thereafter chooses to

enter the forum market could  deny that jurisdiction over  it

                             -26-                                          26

existed even though  it enjoys the benefits of  the forum and

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

They  also warn that  undesirable exploitation of  statute of

limitations  periods will  result  from limiting  the contact

analysis  to the  period  before the  complaint date.   Savvy

plaintiffs  who wait until the  end of the limitations period

to  maximize the  chance of  asserting  jurisdiction will  be

rewarded for their dilatory tactics.

          Whatever merit  such policy  arguments might  have,

the central fact remains that the time the complaint is filed

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

its authority  over the defendant.  It  would be conceptually

incoherent  to permit  the court  to  look to  post-complaint

contacts  in proving  that  it had  authority  at a  previous

time.10   Therefore,   while  Noonan   may  have   discovered

                                                    

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

                             -27-                                          27

additional contacts between CLB and Massachusetts had he been

permitted to  continue discovery  throughout the  litigation,

such contacts have no bearing on the jurisdictional analysis.

Accordingly,  the district court did not abuse its discretion

in ruling as it did. 

          For the reasons  stated above, the judgment  of the

district court is affirmed.  Costs to appellees.                              affirmed.                                      

                                                    

the court asked to exercise its sovereignty.

                             -28-                                          28
