
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1692                             TICKETMASTER-NEW YORK, INC.,                                Plaintiff, Appellant,                                          v.                                  JOSEPH M. ALIOTO,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                     Torruella, Selya and Stahl, Circuit Judges.                                                 ______________                              _________________________               Jonathan  W.  Lubell,  with  whom Malcolm  I.  Lewin,  Frank               ____________________              __________________   _____          McClain-Sewer,  Morrison Cohen  Singer  & Weinstein,  Stephen  R.          _____________   ___________________________________   ___________          Wainwright, and Wainwright,  Wainwright, Wainwright, Wainwright &          __________      _________________________________________________          Wainwright were on brief, for appellant.          __________               James A. G. Hamilton, with whom  Theodore F. Schwartz, Jerry               ____________________             ____________________  _____          Cohen, and Perkins, Smith & Cohen were on brief, for appellee.          _____      ______________________                              _________________________                                    April 13, 1994                              _________________________                    SELYA, Circuit  Judge.  This case  probes the frontiers                    SELYA, Circuit  Judge.                           ______________          of the  doctrine of  personal jurisdiction  in a  context fraught          with  constitutional implications.    The issue,  simply put,  is          this:   Can a Massachusetts-based  court, consistent with the Due          Process Clause,  assert jurisdiction over  a California  resident          who  is alleged  to  have made  a  defamatory comment  during  an          unsolicited  telephone  interview with  a  staff  reporter for  a          Massachusetts newspaper?  We conclude, on the facts of this case,          that the lower court correctly disclaimed jurisdiction.          I.  BACKGROUND          I.  BACKGROUND                    Inasmuch as the district  court dismissed this suit for          failure of  the plaintiff to  make a  prima facie  jurisdictional                                                _____ _____          showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st                   ___ ____    ____________________          Cir. 1992), we draw the facts from the pleadings and the parties'          supplementary   filings,   including  affidavits,   taking  facts          affirmatively  alleged  by  plaintiff   as  true  and  construing          disputed facts in  the light  most hospitable to  plaintiff.   Of          course,  we   do  not  credit  conclusory   allegations  or  draw          farfetched  inferences.    See  generally  Dartmouth  Review   v.                                     ___  _________  _________________          Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (discussing line          _______________          between "facts"  and "conclusions" for  purposes of  a motion  to          dismiss).                    Defendant-appellee  Joseph  M.  Alioto  is  an attorney          practicing  in California.    Among his  other  cases, Alioto  is          pressing  a  class  action   in  the  California  courts  against          Ticketmaster-Southern  California,   Inc.   (T-SC).     T-SC,   a                                          2          California-based corporation, is affiliated with Ticketmaster-New          York,  Inc. (T-NY),  a Delaware  corporation.   Both Ticketmaster          entities  are  engaged  in  the  business  of  selling ducats  to          entertainment events.                    The  litigation  between  T-NY  and  Alioto  finds  its          genesis in the decision  by the Boston Globe, a  daily newspaper,                                          ____________          to  undertake   an  investigation   into  pricing  practices   on          "Ticketmaster's"  part.1   In  conducting  this investigation,  a          Globe reporter conversed by telephone with Alioto.  The plaintiff          _____          does not allege,  and the  record does not  suggest, that  Alioto          dialed the telephone or otherwise initiated the call.  The record          is equally  barren  of  any  showing that  Alioto  solicited  the          inquiry2  or that  more than  one call  occurred.   It  is clear,          nevertheless,  that  Alioto, who  was  in  California, knew  when          speaking  that  his  comments would  inform  a  story  slated for          publication in a newspaper circulated chiefly in Massachusetts.                    The investigation  culminated  in a  front-page  expose          that  hit the newsstands on Sunday, September 20, 1992, under the          banner headline,  "Rising ticket fees pad concert  profits."  The          ensuing article contained  over fifty paragraphs.   Well past the          midpoint, the article mentioned  mounting complaints about  price                                        ____________________               1The article that capped this investigation makes no attempt          to distinguish among corporate entities (although it contains one          vague  reference to  "Ticketmaster and its  affiliates").   At no          point does the article refer by name to either T-NY or T-SC.               2Although there is  a passing  allusion in the  record to  a          press  release issued by Alioto regarding  the lawsuit against T-          SC,  there is  no indication  that he  forwarded this  release to          Massachusetts or that it sparked the Globe's story.                                               _____                                          3          gouging in New York and California.  It then reported that "three          class action antitrust lawsuits" had recently been filed "against          Ticketmaster" in California.  There followed the paragraph around          which this controversy revolves  (buried deep in the body  of the          article).   We quote  the allegedly offending  paragraph in full,          and,  in the  interests  of context,  add  the beginning  of  the          following paragraph.                         Attorney Joseph M. Alioto, who filed one                    of the suits, charged that kickbacks are  the                    key  to  Ticketmaster's California  monopoly.                    "They're nothing more than a straight bribe,"                    he said.                         Ticketmaster and its affiliates  took on                    their   California  adversaries   in  typical                    aggressive fashion, . . .                    Based  on  this  reported comment,  T-NY  brought  suit          against  Alioto  in the  United  States  District Court  for  the          District  of Massachusetts.   Invoking diversity jurisdiction, 28          U.S.C.    1332 (1988), it alleged that Alioto, with the requisite          intent, conveyed and/or caused  to be conveyed certain defamatory          impressions of and  concerning T-NY, namely, that T-NY engaged in          bribery and related criminal conduct.                    In due season, Alioto moved to dismiss.  T-NY objected.          The district judge heard  oral argument and dismissed  the action          for lack  of in personam jurisdiction,  concluding that appellant                       __ ________          failed  to make  the  requisite showing  at  every stage  of  the          obligatory jurisdictional inquiry  under the due  process clause.          See United Electrical Workers v. 163 Pleasant St. Corp., 960 F.2d          ___ _________________________    ______________________          1080, 1089 (1st Cir. 1992) (Pleasant St. I) (discussing nature of                                      ______________          requisite inquiry).   Two perceptions figured  prominently in the                                          4          district  court's  reasoning.    First,  the  defendant  did  not          actively  shape  and focus  the  reporter's  story, but,  rather,          passively  responded to a telephone call.   Second, the allegedly          defamatory  comment dealt  with  the California  activities of  a          California corporation, T-SC, and did not pertain to T-NY.                    Plaintiff appeals.   Because the court  below dismissed          the  case  on legal  grounds,  without  convening an  evidentiary          hearing  or resolving contested  evidentiary questions, appellate          review is plenary.  See United Electrical Workers v. 163 Pleasant                              ___ _________________________    ____________          St. Corp., 987  F.2d 39, 43-44 (1st Cir. 1993) (Pleasant St. II);          _________                                       _______________          Boit, 967 F.2d at 675.   In conducting this tamisage, we  are not          ____          wedded  to the  district  court's rationale,  but remain  free to          affirm the judgment below  on any independently sufficient ground          made manifest by the record.   See  Martel v. Stafford,  992 F.2d                                         ___  ______    ________          1244, 1245 (1st Cir. 1993).          II.  ANALYSIS          II.  ANALYSIS                    To subject a non-resident defendant to its jurisdiction          in a  diversity case, a court    and for this  purpose, a federal          court  exercising  diversity   jurisdiction  is  the   functional          equivalent  of  a state  court sitting  in  the forum  state, see                                                                        ___          General Contracting  & Trading Co.  v. Interpole, Inc.,  940 F.2d          __________________________________     _______________          20,  23 n.4  (1st Cir. 1991)    must  find contacts  that, in the          aggregate,  satisfy the  requirements of  both the  forum state's          long-arm  statute and  the Fourteenth  Amendment.3   See Pleasant                                                               ___ ________                                        ____________________               3To  be sure,  the  extent of  the necessary  jurisdictional          showing  varies   depending  upon  whether   a  litigant  asserts          jurisdiction over an adverse party under a theory of "general" or                                          5          St. I, 960 F.2d at 1086 ("In Massachusetts, a court may  exercise          _____          personal   jurisdiction  over   a  foreign   defendant  if   such          jurisdiction  is authorized  by  state statute  or  rule and  its                                                                   ___          exercise does not offend due process."); Bond Leather Co. v. Q.T.                                                   ________________    ____          Shoe Mfg.  Co., 764 F.2d 928, 931 (1st Cir. 1985) (similar).  The          ______________          district court  determined that  T-NY satisfied neither  of these          two prerequisites. We explore these determinations.                                A.  The State Statute.                                A.  The State Statute.                                    _________________                    The applicable Massachusetts statute,  familiarly known          as "section 3(c)," deals with torts committed by persons who have          no  ongoing relationship with the  forum state.   The language of          this provision  tracks the Uniform  Interstate and  International          Procedure Act,  and  differs  significantly  from  other  leading          formulations.   See Murphy  v. Erwin-Wasey,  Inc., 460  F.2d 661,                          ___ ______     __________________          663-64  (1st Cir.  1972); see  also Margoles  v. Johns,  483 F.2d                                    ___  ____ ________     _____          1212, 1216 (D.C. Cir. 1973).  The statute states:                         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 . . .                           (c)  causing tortious injury by an act                    or omission in this Commonwealth . . . .          Mass. Gen. Laws ch. 223A,   3 (1986).                    Although  the lower court did not reach the question of          jurisdiction under state  law, we have pondered  whether the case          might more appropriately be dispatched on that basis.  After all,                                        ____________________          "specific"  jurisdiction.    See  Donatelli  v.  National  Hockey                                       ___  _________      ________________          League,  893  F.2d  459,  462-63  (1st  Cir.  1990)  (elucidating          ______          standards and  enumerating differences).   Here, plaintiff's case          stands or falls on a theory of specific jurisdiction.                                          6          "[i]t has long been a basic tenet of the federal courts to eschew          the decision of cases on  constitutional grounds unless and until          all other available avenues of resolution [have been] exhausted."          Aggarwal v. Ponce Sch.  of Medicine, 745 F.2d 723,  726 (1st Cir.          ________    _______________________          1984).  But  here, as we explain below, the  state-law issues are          extremely  murky.  Thus, on  balance, we agree  with the district          court that it makes sense to  resolve the jurisdictional question          on constitutional grounds.                    In the  first place,  although logic suggests  that, on          these facts, the defendant  cannot be said to have  performed "an          act" in  Massachusetts, that suggestion is  not easily reconciled          with  Murphy.   There, we  ruled that  an allegedly  tortious act                ______          committed  outside the  borders  of  Massachusetts,  purposefully          directed at the state  and intended to cause injury  there, could          constitute an  in-forum act within  the meaning of  section 3(c).          See Murphy, 460  F.2d at 664.  While Murphy  can be distinguished          ___ ______                           ______          on the  ground that it  was decided in the  context of fraudulent          misrepresentation, as opposed  to defamation,4 its interpretation          of section  3(c) is worded  in general  terms and its  reasoning           conceivably could  be  transferred  to  the  defamation  context.          Despite  our  profound  reservations about  extending  the Murphy                                                                     ______                                        ____________________               4Appellant argues  that we  have already extended  Murphy to                                                                  ______          the  defamation arena  in Hugel v.  McNell, 886 F.2d  1 (1st Cir.                                    _____     ______          1989), cert. denied, 494 U.S. 1079 (1990).  We do not think Hugel                 _____ ______                                         _____          must  necessarily be  read so  broadly.   That case  turned on  a          construction  of the  New Hampshire  long-arm statute,  N.H. Rev.          Stat.  Ann.   510:4 (1993), and the New Hampshire statute, unlike          its Massachusetts  counterpart, does  not embody the  language of          the Uniform Act.                                          7          rationale,5 it spreads  a shadow of  uncertainty over the  state-          law issues.                    In  the second  place,  because we  are skeptical  that          defendant made  any remark  "of and  concerning" T-NY, we  harbor          doubts  whether  defendant  can  be said  to  have  inflicted any          "tortious injury" within the  meaning of section 3(c).6   We are,          however, hesitant to move beyond an expression of skepticism.  At          this  stage of the proceedings, appellant has not had the benefit          of  an  evidentiary hearing  or  a  comparable opportunity  (say,          access  to  the  full-dress  summary judgment  protocol  after  a          reasonable period of  discovery) for presenting proof.   Thus, it          may be too early to reach the state-law issues.                    To be sure, our reservations about one or both of these                                        ____________________               5Intuitively, it would seem hard to characterize the act  of          publishing an allegedly defamatory remark outside the forum state          as an act  within the forum state.   In fact, no  fewer than five          courts applying long-arm statutes patterned after the Uniform Act          have eschewed  Murphy's reasoning  in the defamation  context and                         ______          declined to assert  jurisdiction on  this basis.   See Reuber  v.                                                             ___ ______          United  States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dietrich v.          ______________                                        ________          Wisconsin Patients Comp.  Fund, 485 N.W.2d 614,  617-18 (Wis. Ct.          ______________________________          App. 1992); Wheeler  v. Teufel,  443 N.W.2d 555,  558 (Minn.  Ct.                      _______     ______          App.  1989);  Ramada  Inns,  Inc. v.  Drinkhall,  No.  83C-AU-ty,                        ___________________     _________          unpaginated slip op. available  on LEXIS (Del. Super. Ct.  1984);          Zinz v. Evans  & Mitchell Indus.,  Inc., 324 A.2d  140, 144  (Md.          ____    _______________________________          App. 1974); see also St. Clair v. Righter, 250 F.  Supp. 148, 151                      ___ ____ _________    _______          (W.D. Va.  1966) (using  similar reasoning to  interpret long-arm          statute  containing  "tortious  act"  language);   see  generally                                                             ___  _________          Margoles,   483   F.2d    at   1218-19   (criticizing    Murphy's          ________                                                 ______          interpretation of language drawn from the Uniform Act).               6In Massachusetts,  a court  has  power to  determine, as  a          matter of law, that a particular remark is not susceptible of any          defamatory construction "of and  concerning" the plaintiff,  and,          therefore, not actionable.  See Eyal v. Helen Broadcasting Corp.,                                      ___ ____    ________________________          583 N.E.2d  228, 232 (Mass. 1991).   At least one  court has used          this type of power to dismiss a defamation case on jurisdictional          grounds.  See Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 1982).                    ___ _____    ______                                          8          points  might well  be resolved upon  closer perscrutation.   But          there  is no need to sally forth.  Because it is apodictic that a          jurisdiction-seeking plaintiff must  satisfy the  demands of  not          only state law  but also the  federal Constitution, see  Pleasant                                                              ___  ________          St. I,  960 F.2d  at 1086,  and because  T-NY's case  cannot pass          _____          constitutional muster, we choose to bypass the statutory phase of          the jurisdictional  inquiry.   Consistent with this  approach, we          accept appellant's alleged facts as true for present purposes and          assume arguendo that the allegedly defamatory remark concerned T-                 ________          NY.                             B.  The Due Process Clause.                             B.  The Due Process Clause.                                 ______________________                    Divining personal  jurisdiction is "more an  art than a          science."  Donatelli v. National Hockey League, 893 F.2d 459, 468                     _________    ______________________          n.7 (1st  Cir.  1990).7   In broad  outline, a  party wishing  to          validate a court's jurisdiction must show that "minimum contacts"          exist between the defendant  and the forum state.   International                                                              _____________          Shoe Co.  v. State of Washington,  326 U.S. 310, 316  (1945).  To          ________     ___________________          establish minimum contacts on  a theory of specific jurisdiction,          a  plaintiff  must first  demonstrate  that its  cause  of action          "arises  out of,  or relates  to" defendant's  contacts with  the          forum state,  Helicopteros Nacionales de Colombia,  S.A. v. Hall,                        __________________________________________    ____          466 U.S. 408, 414  (1984).  Then, the plaintiff  must demonstrate          the  deliberateness  of  the defendant's  contacts,  or,  phrased                                        ____________________               7In  Donatelli,  893  F.2d  at  462-65,  we  chronicled  the                    _________          historical  development of  due  process  standards for  personal          jurisdiction,  and  in  Pleasant St.  I,  960  F.2d  at 1089,  we                                  _______________          rehearsed the current state of the law.                                          9          another way, that the defendant "purposefully avail[ed] itself of          the privilege  of conducting activities within  the forum State."          Hanson v. Denckla, 357 U.S. 235, 253 (1958).          ______    _______                    Even  if  a  plaintiff  succeeds in  making  these  two          showings, it is  not home  free.  The  defendant may  nonetheless          avoid having  to defend in  a strange place  if it  can establish          that allowing the suit  to go forward would be  inconsistent with          "fair play and substantial justice," International Shoe, 326 U.S.                                               __________________          at 320.                    Following   this  analytic   model,  we   first  assess          relatedness  and   purposeful   availment  in   terms  of   their          applicability   to  the  case  at  hand.    Finding  them  to  be          inconclusive  in  this rather  odd  situation, we  then  mull the          extent  to  which  considerations  of  fairness  and  substantial          justice must influence our ultimate decision.                    1.  Relatedness.  The requirement that a suit arise out                    1.  Relatedness.                        ___________          of,  or  be  related  to,  the  defendant's  in-forum  activities          comprises the least  developed prong of the  due process inquiry.          See Pleasant St.  I, 960 F.2d  at 1089 &  n.9; see also  Carnival          ___ _______________                            ___ ____  ________          Cruise Lines v.  Shute, 499  U.S. 585, 589  (1991) (declining  to          ____________     _____          reach issue despite  having certified it for review).  We know to          a certainty  only  that  the requirement  focuses  on  the  nexus          between  the defendant's  contacts and  the plaintiff's  cause of          action.                    The Court has kept  its own counsel on the  question of          whether,  on  the one  hand, the  two  halves of  the relatedness                                          10          requirement are merely  two ways of  expressing the same  thought          or, on the other  hand, they are meant to import different values          into the  jurisdictional equation. See Helicopteros,  466 U.S. at                                             ___ ____________          415  n.10  (reserving  question).   For  our  part,  we think  it          significant that the constitutional catchphrase is disjunctive in          nature, referring  to suits "aris[ing] out of, or relat[ing] to,"                                                         __          in-forum activities.  Id. at 414 (emphasis supplied).  We believe                                ___          that this added language portends added flexibility and signals a          relaxation  of the applicable standard.  A number of other courts          share this belief.  See, e.g., City of Virginia Beach v. Roanoake                              ___  ____  ______________________    ________          River Basin Ass'n, 776  F.2d 484, 487 (4th Cir.  1985); Southwire          _________________                                       _________          Co.  v. Trans-World Metals  & Co., 735  F.2d 440, 442  (11th Cir.          ___     _________________________          1984); Thos. P. Gonzalez Corp. v. Consejo Nacional de Production,                 _______________________    ______________________________          614 F.2d 1247, 1254  (9th Cir. 1980); see also In re Oil Spill by                                                ___ ____ __________________          the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir. 1983).          _______________                    While  we  do not  have occasion  today to  give fuller          content to the  relatedness requirement,8 it is evident  that the          requirement  serves two  functions.   First,  relatedness is  the                                        ____________________               8At least one scholar reads a line of First Circuit cases as          going   beyond   this   point   and   proposing   an   innovative          constitutional  test.   See  Mark M.  Maloney, Specific  Personal                                  ___                    __________________          Jurisdiction and the "Arise From or  Relate to" Requirement . . .          _________________________________________________________________          What Does  it Mean? 50  Wash. & Lee L.  Rev. 1265, nn.  118-130 &          ___________________          accompanying  text  (1993).   In our  view,  these cases    which          interpret  the term "arising  from" as that  term is used  in the          long-arm statutes of Massachusetts,  see Fournier v. Best Western                                               ___ ________    ____________          Treasure Island Resort, 962 F.2d 126, 127 (1st Cir. 1992); Marino          ______________________                                     ______          v. Hyatt  Corp., 793 F.2d  427, 430  (1st Cir. 1986),  and Puerto             ____________          Rico, see Pizarro v. Hoteles Concorde Int'l, Inc., 907 F.2d 1256,                ___ _______    ____________________________          1259-60 (1st Cir. 1990)   deal with state-law issues and  have no          real implications for the relatedness requirement specifically or          for constitutional analysis generally.                                          11          divining  rod that  separates  specific  jurisdiction cases  from          general jurisdiction cases.  Second,  it ensures that the element          of  causation  remains  in  the  forefront  of  the  due  process          investigation.   Even if the facts are  such that a court may not          dismiss  a given  case  for  lack  of  relatedness  per  se,  the                                                              ___  __          relatedness   requirement,  in   serving  its   second  function,          authorizes  the  court  to take  into  account  the strength  (or          weakness) of the plaintiff's  relatedness showing in passing upon          the fundamental fairness of allowing the suit to proceed.                    In this  vein, it is important to  recognize that, when          the defendant  in a defamation  action is a  journalist's source,          the  link between the defendant's conduct and the cause of action          is  attenuated by  the intervening  activities of  third parties,          e.g.,  the reporter, the editor, the media outlet, and that those          ____          intermediaries  shape,  amplify,  and  occasionally  distort  the          original  utterance.    This case  illustrates  the  point.   The          original  comment, technically  a  tort in  its   own  right  (if          defamatory),  inflicted no significant  injury, except insofar as          it  led to republication in  the ensuing newspaper  article   and          the form  and tone of the republication was not by any stretch of          the  most  active  imagination within  the  defendant's effective          control.                    2.   Purposeful Availment.   The question  here must be                    2.   Purposeful Availment.                         ____________________          phrased  in terms of whether  an individual who  merely answers a          telephone  call,  but,  having  done so,  knowingly  directs  his          comments into the forum  state, may be said to  have purposefully                                          12          availed himself of the privilege of conducting activities in  the          state.9                    To answer the question, we begin by considering McBreen                                                                    _______          v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), a case that             ____________________          the district court thought highly pertinent and that Alioto touts          as dispositive.  There,  the Seventh Circuit refused to  sanction          the   exercise   of   jurisdiction  because   the   defendant,  a          journalistic source,  did not  initiate the  defamatory exchange,          and, being  unaware of either  the reporter's whereabouts  or the          magazine's  reach, could  not reasonably  have foreseen  that his          comment would cause injury in the forum state.  See id. at 28.                                                          ___ ___                    The  two conditions  identified  as salient  in McBreen                                                                    _______          correspond to the two  cornerstones of purposeful availment.  One          cornerstone is foreseeability.  See,  e.g., Escude Cruz v.  Ortho                                          ___   ____  ___________     _____          Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir. 1980); see also          ____________________                                     ___ ____          World-Wide Volkswagen Corp. v. Woodson, 444  U.S. 286, 297 (1980)          ___________________________    _______          (stating  that, for a court to assert jurisdiction, a defendant's          "conduct  and connection with the forum State [must be] such that          he should  reasonably anticipate being haled  into court there").          The second  cornerstone, less  frequently recognized as  such, is                                        ____________________               9Appellant's  efforts to  reframe this  question by  hinting          that  Alioto instigated the call  are unavailing.   The burden of          proving jurisdictional facts rests on the shoulders  of the party          who  seeks to  invoke the  court's jurisdiction.   See  McNutt v.                                                             ___  ______          General  Motors  Acceptance  Corp.,  298 U.S.  178,  189  (1936);          __________________________________          Martel, 992 F.2d at 1247  n.5; Pleasant St. I, 960 F.2d  at 1090.          ______                         ______________          On this principle, and in the absence of even a representation or          firm  allegation to  the contrary,  we must  presume, as  did the          court below,  that  Alioto  played  no  part  in  initiating  the          telephone call.                                          13          voluntariness.  See   Vencedor Mfg. Co. v. Gougler  Indus., Inc.,                          ___   _________________    _____________________          557 F.2d  886, 891 (1st Cir. 1977); see also Burger King Corp. v.                                              ___ ____ _________________          Rudziewicz,   471   U.S.  462,   475   (1985)   (cautioning  that          __________          jurisdiction may not  rest on the "unilateral activity of another          party  or a third person").   In McBreen,  these two cornerstones                                           _______          were  poorly  laid:   a failed  showing  of foreseeability  and a          questionable  showing   of  voluntariness  combined  to  form  an          insufficiently  sturdy   foundation   to  support   in   personam                                                              __   ________          jurisdiction.   The instant  case, which amalgamates  an arguably          successful showing  of foreseeability  with a dubious  showing of          voluntariness, is a  closer call.   We turn,  then, to a  broader          survey of analogous case law.                    Courts are  consentient that  when, as in  McBreen, the                                                               _______          source  of an allegedly  defamatory remark  did not  initiate the          pivotal  contact,  and  the  in-forum injury  is  not  reasonably          foreseeable,  jurisdiction may  not be  asserted over  the source          based on  the comment.10   See, e.g.,  Madara v.  Hall, 916  F.2d                                     ___  ____   ______     ____          1510,  1517-19 (11th  Cir. 1990); Mann  v. Tom James  Co., 802 F.                                            ____     ______________          Supp.  1293, 1296-97 (E.D. Pa.  1992).  However,  when the source                                        ____________________               10Appellant characterizes  Hugel v. McNell, 886  F.2d 1 (1st                                          _____    ______          Cir.  1989), cert.  denied, 494  U.S.  1079 (1990),  and Advanced                       _____  ______                               ________          Dictating Supply, Inc.  v. Dale,  524 P.2d 1404  (Ore. 1974),  as          ______________________     ____          cases  in   which  courts  asserted   jurisdiction  even   though          defamatory  exchanges were  initiated by  persons other  than the          defendants.   We reject  the  characterization.   Our opinion  in          Hugel, read in context, makes it clear that the defendants played          _____          an active role, meeting repeatedly with journalists and supplying          them  with audiotapes and other information.  See Hugel, 886 F.2d                                                        ___ _____          at  2-3.  The Advanced Dictating  court likewise found sufficient                        __________________          evidence to  conclude that the defendants  incited the reporter's          telephone call.  See Advanced Dictating, 524 P.2d at 1406-07.                           ___ __________________                                          14          takes the initiative and  causes foreseeable injury, jurisdiction          may lie.  See, e.g., Brown v. Flowers Indus., Inc., 688 F.2d 328,                    ___  ____  _____    ____________________          333-34 (5th Cir. 1982); Rusack  v. Harsha, 470 F. Supp. 285,  291                                  ______     ______          (M.D.  Pa. 1978); Fallang v. Hickey, 532 N.E.2d 117, 118-19 (Ohio                            _______    ______          1988); see also supra note 10 and cases discussed therein.                 ___ ____ _____                    This case  falls between the stools,  for, although the          source  did  not initiate  the  contact,  the resultant  in-forum          injury was  foreseeable.   In this posture,  the authorities  are          divided.    Two  courts  have declined  jurisdiction  under  such          circumstances.   See National Ass'n of Real  Estate Appraisers v.                           ___ _________________________________________          Schaeffer, Bates &  Co., 1989 U.S.  Dist. LEXIS  3098 at *2,  *10          _______________________          (C.D. Cal. Mar. 23, 1989) (refusing to assert jurisdiction over a          Rhode Island source for comments made in the course of responding          to  a telephone call from a reporter for a California newspaper);          McDonald v. St.  Joseph's Hosp.,  574 F. Supp.  123, 124,  126-27          ________    ___________________          (N.D. Ga.  1983) (similar; individual defendant  answered several          telephone  calls  from   a  hospital   interested  in   employing          plaintiff,  and  made  allegedly  defamatory  remarks  with  full          knowledge of  their potential consequences).  At  least one other          court has asserted jurisdiction in such a situation.  See Dion v.                                                                ___ ____          Kiev,  566 F.  Supp.  1387, 1388-90  (E.D. Pa.  1983) (exercising          ____          jurisdiction  over a New York  defendant who answered a telephone          call from a reporter for a Philadelphia newspaper).  Other straws          in   the   decisional  wind   blow  in   differing  directions.11                                        ____________________               11In examining  the  case  law,  we have  considered     and          rejected    appellant's suggested analogy to a line of fraudulent          misrepresentation  cases.   See,  e.g., Ealing  Corp. v.  Harrods                                      ___   ____  _____________     _______                                          15          Compare, e.g., Berrett v. Life Ins. Co. of the Southwest, 623  F.          _______  ____  _______    ______________________________          Supp.  946,  950   n.3  (D.  Utah  1985)   (declining  to  assert          jurisdiction, discussing McBreen, and  treating the fact that the                                   _______          defendant  did not  initiate  the contact  as dispositive)  with,                                                                      ____          e.g.,  Cole v. Doe, 258  N.W.2d 165, 168  (Mich. 1977) (upholding          ____   ____    ___          jurisdiction, without  any  discussion  of  initiation,  where  a          source, able to foresee republication in the forum state, made an          allegedly  defamatory  remark in  a  telephone  interview with  a          nationally syndicated columnist).                       Having found  the case  law  in a  muddle, we  consider          appellant's invitation that  we adopt the classic  analogy for an          out-of-state libel:  the gunman firing across a state line.   See                                                                        ___          Buckley v. New York Post Corp., 373 F.2d 175, 179 (2d Cir. 1967).          _______    ___________________          In  a situation like  this one,  the analogy  is imperfect.   The          person who responds to  a journalist's question in the  course of          an interview initiated by  the latter is less like  a traditional          sniper and  more like a  person who has  been transported  to the          border  and eased  into position behind  a rifle aimed  at a pre-          selected  target.   While  such a  person  retains the  choice of          pulling the trigger, or not, he cannot fairly be equated  with an          individual who has achieved the same position through a series of                                        ____________________          Ltd., 790 F.2d 978, 982 (1st Cir. 1986); Murphy, 460 F.2d at 663-          ____                                     ______          64;  Johnson v. Witkowski, 573 N.E.2d 513, 523 (Mass. App. 1991);               _______    _________          Burtner  v. Burnham,  430 N.E.2d  1233, 1236  (Mass. App.  1982).          _______     _______          These cases are unhelpful  because a business relationship almost          invariably entails  some degree of initiative  and forethought on          the  part of the persons involved, and, therefore, initiation and          foreseeability are necessarily present.                                          16          personalized  affirmative choices reaffirmed at every significant          juncture.12                    The conclusion that we draw from this line of reasoning          is that appellant  has made  only the most  marginal of  showings          that Alioto purposefully availed himself of an opportunity to act          in  Massachusetts.   And  the weakness  of  this showing  assumes          decretory  significance  when  we  step  back  and  evaluate  the          fairness  of  asserting  jurisdiction  in  the  totality  of  the          circumstances.                     3.  The Gestalt Factors.  In constitutional terms,  the                    3.  The Gestalt Factors.                        ___________________          jurisdictional inquiry is  not a mechanical exercise.   The Court          has  long insisted that concepts of  reasonableness must inform a          properly   performed  minimum  contacts  analysis.    See,  e.g.,                                                                ___   ____          Woodson,  444 U.S. at 292;  International Shoe, 326  U.S. at 320.          _______                     __________________          "This  means that,  even  where  purposefully generated  contacts          exist, courts must consider a panoply of other factors which bear          upon the fairness of subjecting a nonresident to the authority of          a foreign  tribunal."  Pleasant St.  I, 960 F.2d  at 1088; accord                                 _______________                     ______          Donatelli,  893 F.2d at 464-65.  The Supreme Court has identified          _________          five  such  factors,  namely,   (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                                        ____________________               12Withal,  we  recognize  that  a  person  speaking  on  the          telephone is free to refrain from making defamatory statements in          the same way that a person standing beside a telephone is free to          refrain from calling a  reporter.  In terms of  moral philosophy,          both persons, by acting, commit acts of will.                                          17          the  most effective  resolution of the  controversy, and  (5) the          common  interests  of  all sovereigns  in  promoting  substantive          social policies.   See  Burger King,  471 U.S. at  477.   We have                             ___  ___________          labelled this group of considerations the "gestalt factors."  See                                                                        ___          Pleasant St. I, 960 F.2d at 1088; Donatelli, 893 F.2d at 465.          ______________                    _________                    The  gestalt factors  are not  ends in  themselves, but          they are, collectively, a means of  assisting courts in achieving          substantial  justice.   In  very close  cases,  they may  tip the          constitutional  balance.   See Burger  King, 471  U.S. at  477-78                                     ___ ____________          (explaining that "minimum requirements inherent in the concept of          'fair play and substantial justice' may defeat the reasonableness          of jurisdiction even if the defendant has purposefully engaged in          forum  activities") (citation  omitted).   For example,  in Asahi                                                                      _____          Metal  Indus. Co. v. Superior  Court, 480 U.S.  102 (1987), eight          _________________    _______________          Justices   agreed   that    asserting   jurisdiction   would   be          unreasonable, although  the question  of minimum contacts  was so          close that it  divided the  Court.  See  id. at 114-15.   In  the                                              ___  ___          estimation   of  at  least   four  Justices,   considerations  of          reasonableness  sufficed  to defeat  jurisdiction notwithstanding          that the defendant purposefully  engaged in activities within the          forum.    See id.  at 116-17  (separate  opinion of  Brennan, J.,                    ___ ___          joined by White,  Marshall, & Blackmun,  JJ.).  Justice  Stevens,          although not  joining  Justice Brennan's  concurrence,  expressed          satisfaction with the theory underlying this conclusion.  See id.                                                                    ___ ___          at 121-22 (separate opinion of Stevens, J.).                     This  aspect  of  the  jurisdictional  inquiry  remains                                          18          something  of an unknown quantity.  The gestalt factors have been          applied by the Court  only once (in Asahi); beyond  mere mention,                                              _____          they  have  been discussed  on rare  occasions  by the  courts of          appeals,  see, e.g., Gould v.  Krakatau Steel, 957  F.2d 573, 576                    ___  ____  _____     ______________          (8th  Cir.), cert. denied, 113  S. Ct. 304  (1992); Theunissen v.                       _____ ______                           __________          Matthews, 935 F.2d 1454,  1460-61 (6th Cir. 1991), and  they have          ________          been  used  regularly to  defeat jurisdiction  only in  the Ninth          Circuit, see  Mona  A. Lee,  Burger  King's Bifurcated  Test  for                   ___                 ____________________________________          Personal  Jurisdiction, 66  Temp. L.  Rev. 945  (1993) (surveying          ______________________          circuits).   That circuit  has  concluded that  dismissal may  be          appropriate  on grounds of  reasonableness even if considerations          of  relatedness  or  purposefulness,  taken  in  isolation, could          support the  exercise of  jurisdiction.   See Fields v.  Sedgwick                                                    ___ ______     ________          Associated  Risks,  Ltd.,  796  F.2d  299,  302 (9th  Cir.  1986)          ________________________          (finding the  assertion of  jurisdiction unreasonable  though the          showing of purposefulness was  "certainly of a nature  that would          support jurisdiction"); see  also FDIC  v. British-American  Ins.                                  ___  ____ ____     ______________________          Co., 828 F.2d  1439, 1442  (9th Cir. 1987)  (collecting cases  in          ___          which  courts  denied  jurisdiction  for  lack  of reasonableness          without    resolving    questions    anent     relatedness    and          purposefulness); Decker Coal Co.  v. Commonwealth Edison Co., 805                           _______________     _______________________          F.2d 834,  840 (9th  Cir. 1986)  (limning Ninth Circuit's  multi-          factor reasonableness test).                    We agree in principle with the Ninth Circuit.  We hold,          therefore,  that  the  Due  Process  Clause  bars  a  court  from          asserting jurisdiction over the person of a defendant if doing so                                          19          would be fundamentally unfair.  In this context, gauging fairness          requires  an   assessment  of  reasonableness  for,   in  certain          circumstances, unreasonableness can  trump a minimally sufficient          showing of  relatedness and purposefulness.   We think, moreover,          that the reasonableness prong of the due process inquiry evokes a          sliding scale:  the  weaker the plaintiff's showing on  the first          two  prongs (relatedness  and purposeful  availment), the  less a          defendant  need  show  in  terms of  unreasonableness  to  defeat          jurisdiction.  The reverse is equally true:  an especially strong          showing  of  reasonableness may  serve  to  fortify a  borderline          showing of  relatedness and  purposefulness.  See  Donatelli, 893                                                        ___  _________          F.2d at 465.  It is  against this backdrop, then, that we proceed          to sift the gestalt factors.13                    a.   The Burden  of Appearance.   The burden associated                    a.   The Burden  of Appearance.                         _________________________          with forcing a California  resident to appear in a  Massachusetts          court  is  onerous  in  terms  of  distance,  and  there  are  no          mitigating  factors to  cushion that  burdensomeness here.   This          burden, and its inevitable concomitant, great  inconvenience, are          entitled to substantial weight in calibrating the  jurisdictional          scales.   Indeed, the Court  has stated that  this element, alone                                        ____________________               13The approach  that we endorse today  differs slightly from          that of the Ninth Circuit, which has crafted its own version of a          sliding scale approach.   The Ninth Circuit's  methodology, as we          understand it,  incorporates the  element of  purposefulness into          the  third  prong  of the  inquiry,  and  weighs  it against  the          remaining considerations of reasonableness.   See Core-Vent Corp.                                                        ___ _______________          v. Nobel  Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993); see also             ________________                                      ___ ____          Insurance Co. of North Am. v. Marina Salina  Cruz, 649 F.2d 1266,          __________________________    ___________________          1271  (9th Cir.  1981)  ("The smaller  the element  of purposeful          interjection,  the less is jurisdiction to be anticipated and the          less reasonable is its exercise.").                                          20          among  the  gestalt  factors,  is  "always  a  primary  concern."          Woodson, 444 U.S. at 292.          _______                    These are not empty words, for  most  of the cases that          have  been dismissed on grounds  of unreasonableness are cases in          which the defendant's center of gravity, be it place of residence          or place of business, was located at an appreciable distance from          the forum.  See, e.g., Asahi, 480 U.S. at 114 (Japanese defendant                      ___  ____  _____          sued  in California); Core-Vent Corp. v. Novel Indus. AB, 11 F.3d                                _______________    _______________          1482,  1488-90  (9th  Cir.   1993)  (Swedish  defendant  sued  in          California;  defamation action);  Amoco Egypt  Oil Co.  v. Leonis                                            ____________________     ______          Navigation  Co.,  1  F.3d  848, 852  (9th  Cir.  1993)  (Filipino          _______________          defendant  sued   in  Washington);  Casualty   Assur.  Risk  Ins.                                              _____________________________          Brokerage  Co. v.  Dillon,  976 F.2d  596,  600 (9th  Cir.  1992)          ______________     ______          (District of Columbia defendant sued in Guam; defamation action);          Fields, 796 F.2d at  302 (British defendant sued in  California).          ______          The effect of distance  on jurisdictional outcomes is graphically          illustrated by the two cases in which a defendant's contacts with          the forum  were most  strikingly reminiscent  of those  that have          been  assembled  here.  Compare  National Ass'n  of  Real  Estate                                  _______  ________________________________          Appraisers, 1989  U.S. Dist.  LEXIS at  *11 (declining  to assert          __________          jurisdiction over  Rhode Island defendant  who would have  had to          defend  defamation suit in California) with Dion, 566 F. Supp. at                                                 ____ ____          1387 (asserting  jurisdiction over  New York defendant  forced to          defend defamation suit in Pennsylvania).                    Furthermore,   as   the  court   below   observed,  the          circumstances   surrounding   this   case   suggest    that   the                                          21          inconvenience  to the defendant may  not be coincidental.   It is          the rare libel case in which both the newspaper and the reporter,          though amenable to process, are relegated to the sidelines at the          behest  of an avowedly defamed  plaintiff.  It  is rarer still to          discover that such a plaintiff has intentionally selected a forum          in which  punitive damages are unavailable,  bypassing other fora          in which such damages might be awarded.                    Such considerations are important.  One reason that the          factor of  inconvenience to the  defendant weighs heavily  in the          jurisdictional balance  is that  it provides a  mechanism through          which  courts may guard against harassment.  It is firmly settled          that  a "plaintiff may not,  by choice of  an inconvenient forum,          `vex,' `harass,'  or `oppress'  the defendant by  inflicting upon          him expense or trouble not  necessary to his own right to  pursue          his remedy."  Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)                        ______________    _______          (citations  omitted).   And  although  vexatious  suits are  more          frequently dismissed under the doctrine of forum non conveniens,                                                      ____________________          we believe that the reasonableness analysis required by the third          prong  of the due process inquiry must  be in service to the same          ends.                     b.   Interest of  the Forum.   The  forum  state has  a                    b.   Interest of  the Forum.                         ______________________          demonstrable  interest in  exercising jurisdiction  over one  who          causes tortious injury within its borders.  See Keeton v. Hustler                                                      ___ ______    _______          Magazine, Inc.,  465 U.S.  770, 776  (1984).   Though we deem  it          ______________          inappropriate  to   correlate   the  strength   or  weakness   of          appellant's case on the  merits with the strength or  weakness of                                          22          the forum state's interest  in this regard,  we think it is  both          appropriate  and  useful  to  note  two  special  considerations.          First, the  Commonwealth's interest in the  litigation sub judice                                                                 ___ ______          is  arguably   lessened   by  the   doubts  surrounding   whether          defendant's act can be said to  have been committed in the forum,          see supra  p.  7.    Second, if  appellant  in  fact  filed  suit          ___ _____          primarily to  retaliate against  Alioto's role in  the California          litigation rather than  to right  an independent wrong    and  as          previously  mentioned there  are some  clues in  the record  that          could lead  to such  a  deduction    the Commonwealth's  interest          would be much diminished.   Cf., e.g., Asahi, 480 U.S.  at 114-15                                      ___  ____  _____          (minimizing  forum state's  interest  in protecting  its citizens          from  tortious  injury because  a  dispute  was "primarily  about          indemnification rather than safety standards").  Mindful of these          special considerations, we conclude  that the forum has a  milder          than usual interest in the further prosecution of T-NY's suit.                    c.  The Plaintiff's  Convenience.  Given the sparseness                    c.  The Plaintiff's  Convenience.                        ____________________________          of the record, it is difficult  to say whether trying the case in          Massachusetts would be more  convenient for plaintiff than trying          it in  California.  Certain key witnesses  on the issue of injury          may be in Massachusetts,  including the reporter.  But  other key          witnesses may well  be residents  of California.   While we  must          accord plaintiff's  choice  of forum  a  degree of  deference  in          respect to the issue  of its own convenience, see  Piper Aircraft                                                        ___  ______________          Co.  v. Reyno, 454 U.S.  235, 241 (1981),  the plaintiff's actual          ___     _____                                              ______          convenience seems to be at best a makeweight in this situation.                                          23                    d.   The Administration  of  Justice.   Apart from  the                    d.   The Administration  of  Justice.                         _______________________________          possibility that  plaintiff's action might be  thought vexatious,          see  supra Part II(B)(3)(a), the interest  of the judicial system          ___  _____          in the effective administration of justice does not appear to cut          in either direction.                    e.  Pertinent Policy Arguments.  One substantive social                    e.  Pertinent Policy Arguments.                        __________________________          policy that  seems to counsel against  exercising jurisdiction is          the widely  shared  interest in  preserving citizens' willingness          to  talk openly  with the press.   Forcing  an individual  to fly          cross-country on the strength of one answered telephone call from          a journalist likely would  tend to dry up sources  of information          and thereby impede the press in the due performance of its proper          function.  Nonetheless,  the Court has  shied away from  allowing          First  Amendments  concerns  to  enter  into  the  jurisdictional          analysis.  See Keeton, 465 U.S. at 780 n.12; Calder v. Jones, 465                     ___ ______                        ______    _____          U.S. 783, 790 (1984).   Although it might be  argued convincingly          that  the  jurisdictional  calculus  ought  to  produce  somewhat          different results in defamation actions filed  against reporters'          sources than in actions filed against the journalists responsible          for  republication of a source's remark, as in Calder, or against                                                         ______          the media corporation itself, as in Keeton, these precedents give                                              ______          us  pause.  Consequently, we  place no weight  on First Amendment          values for purposes of this appeal.                    4.  Tallying the  Results.  We begin the final phase of                    4.  Tallying the  Results.                        _____________________          our  analysis by retracing our steps.   At the first stage of the          due  process inquiry,  appellant  succeeded in  showing that  its                                          24          putative cause  of action arose from, or  related to, defendant's          contacts with the forum.  See supra Part II(B)(1).  At the second                                    ___ _____          stage of the inquiry,  appellant succeeded in showing defendant's          purposeful  availment.   See  supra  Part II(B)(2).    On neither                                   ___  _____          prong,  however,  did  appellant  demonstrate more  than  a  bare          minimum;  we found  its  claim of  relatedness  enfeebled by  the          attenuated causal link between the allegedly defamatory utterance          and  the harm allegedly suffered, and its claim of purposefulness          enfeebled  by the fact that the defendant did not initiate either          the telephone call or the resultant interview.                    The frailty  of appellant's  showings on the  first two          furcula  of the due process  inquiry required us  to consider the          gestalt factors and  assess the reasonableness of an assertion of          jurisdiction  by a Massachusetts court.  Doing so, see supra Part                                                             ___ _____          II(C),  we found that, while many of those factors possess little          significance for purposes of this case, there is one factor   the          defendant's convenience   that stands out from the crowd.   It is          this factor that consistently has  been declared deserving of the          greatest weight in kindred cases.  And it is this factor that may          serve as an amulet to ward off vexatiousness and harassment.   We          now conclude, considering the totality of the circumstances, that          defendant's burden of  appearance is so  onerous that it  renders          the  exercise of  in  personam jurisdiction  unreasonable.   This                            __  ________          conclusion   carries   the  day.      A   distant  court   cannot          constitutionally  exercise in personam  jurisdiction over  a non-                                     __ ________          resident  defendant at the behest  of a plaintiff  who can muster                                          25          only the most tenuous  showings of relatedness and purposefulness          if, as in this case, forcing the defendant to defend in the forum          would be plainly unreasonable.                    This is as it  should be, for, at bottom,  the dictates          of due process  demand that  a court's assertion  of in  personam                                                               __  ________          jurisdiction   comport  with  considerations  of  fair  play  and          substantial justice.  See, e.g., International  Shoe, 326 U.S. at                                ___  ____  ___________________          320.   To  ensure  achievement of  this  goal, the  machinery  of          jurisdictional analysis is designed  to refine judges' intuitions          about the relevant equities, not to eliminate those equities from          the decisional process.  Relatedness and purposeful availment are          cogs in  this analytic machinery.   The gestalt  factors comprise          the  machinery's fail-safe device; they  are not a necessary part          of the machinery's day-to-day operation, but if, in the course of          a particularized  analysis, the gears mesh  imperfectly because a          given  set of facts does not fit  into any of the standard molds,          the gestalt factors take hold.                      This case exemplifies the proper operation of the fail-          safe  device.  It hardly seems fair,  on the strength of a single          remark uttered  in the course  of a single  unsolicited telephone          call  from   a  Massachusetts-based   journalist,  to  compel   a          California resident to defend  a tort suit in a court  3000 miles          away.   The unfairness is heightened because the link between the          remark and the injury has been attenuated by republication in the          popular  press.   Our  commitment  to fair  play  and substantial          justice  precludes us from subjecting  a person to  the rigors of                                          26          long-distance litigation on the basis of so gossamer a showing of          causation and voluntariness.                    We  need go no  further.   When all  is said  and done,          courts must assert jurisdiction, or abjure its assertion, with an          eye  toward  fundamental  fairness.   Thus,  here,  the  district          court's dismissal of the  instant action for want of  in personam                                                                __ ________          jurisdiction must be          Affirmed.          Affirmed.          ________                                          27
