
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1006                         RALPH M. NOWAK, ADMINISTRATOR OF THE                          ESTATE OF SALLY ANN NOWAK, ET AL.,                               Plaintiffs - Appellees,                                          v.                              TAK HOW INVESTMENTS, LTD.,                     d/b/a HOLIDAY INN CROWNE PLAZA HARBOUR VIEW,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                _____________________               Alan  B.  Rubenstein,   with  whom  Robert  B.   Foster  and               ____________________                ___________________          Rackemann, Sawyer & Brewster were on brief for appellant.          ____________________________               Edward Fegreus for appellees.               ______________                                 ____________________                                   August 22, 1996                                 ____________________                                        ____________________          *  Of the Seventh Circuit, sitting by designation.                    CUMMINGS, Circuit Judge.1  A Massachusetts resident who                    CUMMINGS, Circuit Judge.                              _____________          accompanied her husband  on a business trip to  Hong Kong drowned          in their hotel's  swimming pool.   Plaintiffs later brought  this          wrongful death diversity action against the Hong Kong corporation          that  owns  the hotel  --  a  corporation that  has  no  place of          business outside of  Hong Kong.   Defendant moved for  dismissal,          arguing  that a Massachusetts  court could not  exercise personal          jurisdiction consistently  with due  process and,  alternatively,          that the  case should be  dismissed on the  grounds of forum  non                                                                 __________          conveniens.  The  district court denied both motions,  and we now          __________          affirm.                                          I.                    Tak How is a Hong  Kong corporation with its only place          of business in  Hong Kong.   Its  sole asset is  the Holiday  Inn          Crowne Plaza Harbour View in Hong Kong ("Holiday Inn"), where the          accident  in  this  case took  place.   Tak  How  has  no assets,          shareholders, or  employees in  Massachusetts.   Sally Ann  Nowak          ("Mrs. Nowak")  was at  all relevant  times married  to plaintiff          Ralph  Nowak  ("Mr. Nowak")  and  was  the  mother of  their  two          children  (collectively, the plaintiffs  are "the Nowaks").   The          Nowaks  lived in  Marblehead, Massachusetts,  and  Mr. Nowak  was                                        ____________________          1  Section II.A. was authored by  Judge Coffin.  This opinion was          circulated  to the  active  judges of  the  First Circuit  before          issuance.    This  informal  circulation,   however,  is  without          prejudice to  a petition for  rehearing or suggestion of  en banc          reconsideration on any issue in the  case.  NLRB v. Hospital  San                                                      ____    _____________          Rafael, Inc., 42 F.3d 45, 51 n.1 (1st Cir. 1994).          ____________                                         -2-          employed  by  Kiddie  Products,  Inc., which  has  its  place  of          business  in Avon, Massachusetts.  Kiddie Products does extensive          business in Hong  Kong.  As  a Preliminary Design Manager  in the          Marketing  Department,  Mr. Nowak  customarily made  two business          trips to Hong Kong each year,  accompanied by his wife on one  of          those trips.                    Kiddie Products employees  had made trips to  Hong Kong          since at least 1982, but  the company's relationship with Tak How          and the Holiday Inn began only in 1992.  John Colantuone, a vice-          president, was one  such employee who had travelled  to Hong Kong          since 1982  and had stayed  at various other hotels.   Colantuone          was acquainted  with the  Holiday Inn  through advertisements  on          Hong Kong  radio in 1983 or 1984, but  only decided to stay there          in  1992 after  becoming  dissatisfied with  the  rates at  other          hotels.   On  his first  visit, Colantuone  met with  the Holiday          Inn's  sales manager to negotiate a corporate discount for Kiddie          Products employees.  Holiday Inn agreed to the discount and wrote          a letter confirming the arrangement  based on a minimum number of          room nights per  year.  Marie Burke,  Colantuone's administrative          assistant,  made   all  hotel  reservations   for  the  company's          employees.   Although Kiddie Products regularly compared rates at          other  hotels, Burke  was told  to book  all reservations  at the          Holiday  Inn  until  instructed otherwise.    Since  1992, Kiddie          Products employees have stayed exclusively at the Holiday Inn.                    In June 1993,  the Holiday Inn telecopied  Colantuone a          message announcing  new  corporate rates  and  other  promotional                                         -3-          materials.  Burke requested additional information, and the hotel          promptly responded.  In July 1993, after a series of exchanges by          telecopier,  Burke sent a reservation  request to the Holiday Inn          for several employees for September and October 1993.  One of the          reservations was  for Mr. and  Mrs. Nowak to arrive  on September          16.  On September 18, while the Nowaks were registered guests  at          the hotel, Mrs. Nowak  drowned in the hotel  swimming pool.   The          specific facts surrounding  her death are not relevant  here.  It          is  uncontested that  in 1992  and  1993, prior  to Mrs.  Nowak's          death, Tak How advertised the Holiday Inn in certain national and          international   publications,  some   of   which  circulated   in          Massachusetts.    In addition,  in  February 1993,  Tak  How sent          direct mail solicitations to approximately 15,000 of its previous          guests, including previous guests residing in Massachusetts.                    The  Nowaks  filed  this   wrongful  death  action   in          Massachusetts state court in June 1994.  Tak How then removed the          case to federal district court and filed two motions to dismiss -          - one for  lack of  personal jurisdiction under  Fed. R. Civ.  P.          12(b)(2) and  the other for  forum non conveniens.   The district                                       ____________________          court initially  denied  the  motion  to dismiss  for  forum  non                                                                 __________          conveniens,  and  then, after  allowing  time for  jurisdictional          __________          discovery,  issued  a  memorandum  and  order  denying  the  Rule          12(b)(2) motion.  Nowak v. Tak How Inv. Ltd., 899 F. Supp. 25 (D.                            _____    _________________          Mass. 1995).   The  district court granted  Tak How's  motion for          certification  of the jurisdictional issue, but this Court denied          Tak How's  request for  a stay of  the district  court proceeding                                         -4-          pending appeal.  Nonetheless, believing that a resulting judgment          would not be enforceable in Hong Kong, Tak How did not answer the          Nowaks' complaint.   Accordingly,  the district  court entered  a          default judgment  against  Tak How  for $3,128,168.33.   Tak  How          appeals the denial of its Rule 12(b)(2)  motion and its motion to          dismiss the case for forum non conveniens.                               ____________________                                         II.                    We  first  review the  denial  of Tak  How's  motion to          dismiss for  lack of personal  jurisdiction.  The  district court          employed  a  prima  facie standard  in  making  its determination          rather than adjudicating  the jurisdictional facts.   See Foster-                                                                    _______          Miller, Inc. v. Babcock & Wilcox  Can., 46 F.3d 138, 145-147 (1st          ____________    ______________________          Cir. 1995).   Both the court's  decision to use  the prima  facie          standard and its conclusion  under that standard are  reviewed de                                                                         __          novo.  Id.  at 147.  To  begin, we find no error  in the district          ____   ___          court's  choice  of  the  prima facie  standard.    A  full-blown          evidentiary hearing was  not necessary in  this case because  the          facts  were, in  all  essential respects,  undisputed.   In  such          circumstances, the prima  facie standard is both  appropriate and          preferred.   Id. at 145; Boit  v. Gar-Tec Prods., Inc.,  967 F.2d                       ___         ____     ____________________          671, 675-676 (1st Cir. 1992).                    The next question is whether the district court reached          the proper result.  In diversity cases such as this, the district          court's  personal  jurisdiction over  a nonresident  defendant is          governed  by the  forum state's  long-arm statute.   Sawtelle  v.                                                               ________                                         -5-          Farrell,  70  F.3d  1381,  1387  (1st  Cir.  1995).    Under  the          _______          Massachusetts statute,                      [a]   court    may   exercise    personal                      jurisdiction  over  a  person,  who  acts                      directly or by an agent, as to a cause of                      action in  law or equity arising from the                      person's .  . . transacting  any business                      in this Commonwealth.          Mass. Gen.  Laws Ann.  ch.  223A,    3(a)  (1985).   The  statute          imposes constraints on personal jurisdiction that go beyond those          imposed by the Constitution.  Gray v. O'Brien, 777 F.2d  864, 866                                        ____    _______          (1st Cir.  1985).   We must  therefore  find sufficient  contacts          between the  defendant and  the forum state  to satisfy  both the          Massachusetts long-arm statute and  the Constitution.   Sawtelle,                                                                  ________          70 F.3d at 1387.                    To satisfy  the requirements  of the  long-arm statute,          Section  3(a), the  defendant must  have  transacted business  in          Massachusetts and the plaintiffs' claim must have arisen from the          transaction of business  by the defendant.  Tatro  v. Manor Care,                                                      _____     ___________          Inc.,  625   N.E.2d  549,  551   (Mass.  1994).    In   Tatro,  a          ____                                                    _____          Massachusetts  plaintiff  sued  a California  hotel  for injuries          sustained in California.   The Court  concluded that the  hotel's          solicitation of  business from Massachusetts  residents satisfied          the "transacting any  business" requirement of Section  3(a), id.                                                                        ___          at 551-552, and that the "arising from" requirement was satisfied          where,  but for  the  hotel's  solicitations  and  acceptance  of          reservations,  the plaintiff  would  not  have  been  injured  in          California.   Id. at 554.   The factual  scenario in the  present                        ___          case  is analogous in  all essential  respects, and  we therefore                                         -6-          have little  difficulty concluding that sufficient contacts exist          to satisfy Section 3(a)'s requirements.                    Turning to  the constitutional  restraints, this  Court          follows  a tripartite analysis  for determining the  existence of          specific personal jurisdiction (plaintiffs do not  allege general          personal jurisdiction):                      First,   the    claim   underlying    the                      litigation must directly arise out of, or                      relate  to,  the  defendant's forum-state                      activities.    Second,   the  defendant's                      forum-state  contacts  must  represent  a                      purposeful availment of  the privilege of                      conducting activities in the forum state,                      thereby   invoking   the   benefits   and                      protections  of  that  state's  laws  and                      making   the    defendant's   involuntary                      presence   before   the   state's   court                      foreseeable.    Third,  the  exercise  of                      jurisdiction  must,   in  light   of  the                      Gestalt factors, be reasonable.          Pritzker  v. Yari,  42 F.3d  53, 60-61  (1st Cir.  1994) (quoting          ________     ____          United Elec.  Workers v. 163  Pleasant St. Corp., 960  F.2d 1080,          _____________________    _______________________          1089 (1st Cir. 1992)), cert. denied, 115 S. Ct. 1959.                                 ____________                                   A.  Relatedness                    What this  Court calls  the "relatedness"  test is  one          aspect   of   demonstrating    minimum   contacts   pursuant   to          International Shoe  Co. v. Washington,  326 U.S. 310.   The other          _______________________    __________          aspect, discussed  below, focuses  on the  deliberateness of  the          defendant's  contacts,  or  purposeful  availment.    Tak   How's          principal  argument  on  appeal is  that  relatedness  requires a          proximate   cause   relationship   between   its  contacts   with          Massachusetts and the Nowaks' cause of action.                                          -7-                    In  arguing for a proximate cause relatedness test, Tak          How  relies on  a series  of First  Circuit cases  beginning with          Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir. 1986).  See Crocker          ______    ___________                                     _______          v. Hilton  Int'l Barbados,  Ltd., 976 F.2d  797 (1st  Cir. 1992);             _____________________________          Fournier  v. Best  Western Treasure  Island Resort, 962  F.2d 126          ________     _____________________________________          (1st Cir. 1992);  Pizarro v.  Hoteles Concorde  Int'l, C.A.,  907                            _______     _____________________________          F.2d 1256 (1st  Cir. 1990).  In  each of these cases,  this Court          construed the language of a  state long-arm statute requiring, as          does the Massachusetts  statute quoted above,  that the cause  of          action "arise" from  the forum-state contacts.   Construing those          statutes,  we rejected plaintiffs'  arguments that the  injury at          issue would not have occurred "but for" the forum-state contacts.          Instead, we held  that the defendant's conduct must  be the legal          or proximate cause of the injury.  Pizarro, 907 F.2d at 1260.                                             _______                    At least for purposes  of construing the  Massachusetts          long-arm  statute, the  Supreme Judicial  Court of  Massachusetts          dealt  our  restrictive  interpretation a  fatal  blow  in Tatro,                                                                     _____          supra.    The  Court decided  that  the  "but for"  test  is more          _____          consistent   with  the  language  of  the  long-arm  statute  and          explicitly  rejected our  interpretation of  the  statute in  the          Marino line of cases.  625  N.E.2d at 553.  Personal jurisdiction          ______          was  proper in Tatro  because the California  hotel had solicited                         _____          business in Massachusetts and had agreed to provide the plaintiff          with accommodations; but for those acts,  the plaintiff would not          have been injured.  Id. at 554.                              ___                                         -8-                    Tak How contends that Tatro was not fatal to Marino and                                          _____                  ______          its progeny.  It concedes, as  it must, that Tatro is controlling                                                       _____          insofar as it  deals with the  construction of the  Massachusetts          long-arm  statute, but insists that the relatedness discussion in          Marino had  constitutional significance as well.  Its position is          ______          not  without support.   In  Pleasant Street,  we stated  that the                                      _______________          Massachusetts  statute's relatedness  requirement "mirrors  a key          constitutional   requirement  for   the   exercise  of   specific          jurisdiction."     960  F.2d  at  1087.     Then,  in  explaining          constitutional   relatedness,  we   set  forth   proximate  cause          principles derived  from the Marino  line of cases.   See  id. at                                       ______                        ___          1089.                    The Nowaks, on the other  hand, argue that these  cases          have no  constitutional significance.   They find support  from a          footnote in Ticketmaster-New York,  Inc. v. Alioto, 26  F.3d 201,                      ____________________________    ______          207 n.8 (1st Cir. 1994):                      In our view, [the Marino line of cases] -                                        ______                      - which interpret the term "arising from"                      as  that  term is  used  in  the long-arm                      statutes  of Massachusetts  -- deal  with                      state-law   issues  and   have  no   real                      implication    for    the     relatedness                      requirement    specifically     or    for                      constitutional analysis generally.           (citations omitted).                    Despite the apparent conflict, these cases are arguably          reconcilable.   After all,  Ticketmaster did not  directly reject                                      ____________          Pleasant Street  or the proximate  cause test, but  merely stated          _______________          the  evident fact  that  the  Marino line  of  cases centered  on                                        ______          interpretations of  state law.   It might follow, then,  that our                                         -9-          discussion  in Pleasant  Street should  govern  our course  here.                         ________________          Pleasant  Street, however, as well as Ticketmaster, described the          ________________                      ____________          relatedness concept in  only the most general way.   Neither case          specifically defined the  precise inquiry  under the  relatedness          test  in this  circuit.   Fortunately, however, these  cases, and          others, articulated certain principles that guide our inquiry.                      As  an  initial matter,  "[w]e  know  .  . .  that  the          [relatedness]  requirement  focuses  on  the  nexus  between  the          defendant's  contacts  and  the  plaintiff's  cause  of  action."          Ticketmaster,  26  F.3d  at  206.   The  requirement  serves  two          ____________          purposes.                      First,  relatedness is  the divining  rod                      that   separates  specific   jurisdiction                      cases  from  general  jurisdiction cases.                      Second, it  ensures that  the element  of                      causation remains in the forefront of the                      due process investigation.          Id.   Most courts  share this emphasis  on causation,  but differ          ___          over  the proper  causative threshold.    Generally, courts  have          gravitated toward one of two  familiar tort concepts -- "but for"          or "proximate cause."                    The Ninth Circuit is the most  forceful defender of the          "but for" test.   In Shute v.  Carnival Cruise Lines,2  the court                               _____     _____________________          stated that "but for" serves the basic function of relatedness by                                        ____________________          2    Shute was  reversed  by  the  Supreme Court  on  alternative               _____          grounds.   499 U.S. 585.   As reflected by subsequent  cases, the          Ninth Circuit still adheres to  the "but for" test.  See  Ballard                                                               ___  _______          v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995); Terracom v. Valley             ______                                      ________    ______          Nat'l Bank,  49 F.3d 555, 561 (9th Cir. 1995).  But see Omeluk v.          __________                                      ___ ___ ______          Langsten Slip &  Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir. 1995)          _______________________________          (questioning Shute's authority).                       _____                                         -10-          "preserv[ing]  the  essential  distinction  between  general  and          specific jurisdiction."   897 F.2d 377,  385 (9th Cir. 1990).   A          more  stringent standard, the court asserted, "would represent an          unwarranted  departure from the  core concepts of  'fair play and          substantial justice,'" because it would preclude  jurisdiction in          cases where it would  be reasonable.   Id. at 386.   In turn,  in                                                 ___          those cases where "but for" might lead to an unreasonable result,          the court  predicted that the  third prong --  the reasonableness          inquiry -- would guard against unfairness.                     Shute  and  its  progeny represent  the  only  explicit                    _____          adoption of  the "but for"  test.  Nonetheless, cases  from other          circuits suggest a  similar approach.   In Prejean v.  Sonatrach,                                                     _______     __________          Inc., the Fifth Circuit noted:           ____                      Logically,  there is no reason why a tort                      cannot grow out of a contractual contact.                      In  a  case  like   this,  a  contractual                      contact is  a "but for"  causative factor                      for the tort since it brought the parties                      within  tortious  "striking  distance" of                      one  another.    While  the  relationship                      between  a tort  suit  and a  contractual                      contact  is certainly  more tenuous  than                      when  a tort  suit  arises  from  a  tort                      contact,  that only  goes to  whether the                      contact is by  itself sufficient for  due                      process, not whether the suit arises from                      the contact.          652  F.2d 1260,  1270 n.21  (5th Cir.  1981).   Subsequent cases,          however, have  not always  followed this teaching.   See  Luna v.                                                                    ____          Compa  a Paname a de Aviaci n, S.A.,  851 F. Supp. 826, 832 (S.D.          ___________________________________          Tex. 1994) (employing a proximate cause standard); Kervin  v. Red                                                             ______     ___          River Ski Area, Inc.,  711 F. Supp. 1383, 1389-1390  & n.11 (E.D.          ____________________          Tex. 1989) (same).                                         -11-                    The  Sixth Circuit  applies a  "substantial connection"          standard.   See Third Nat'l  Bank v.  WEDGE Group Inc.,  882 F.2d                          _________________     ________________          1087, 1091 (6th Cir. 1989), cert. denied, 493 U.S. 1058; Southern                                      ____________                 ________          Mach. Co.  v. Mohasco  Indus., Inc. 401  F.2d 374, 384  n.27 (6th          _________     _____________________          Cir. 1968).   The court's discussion in Lanier  v. American Board                                                  ______     ______________          of Endodontics, 843 F.2d  901, 908-911 (6th Cir.  1988), however,          ______________          suggests that a  "but for" relationship survives the  due process          inquiry.                    Finally, the  Seventh Circuit  has upheld  jurisdiction          under the  Illinois long-arm statute, and the Due Process Clause,          for claims that "lie in the wake of the  commercial activities by          which the defendant submitted to the jurisdiction of the Illinois          courts."  See Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d                        ____________________    _________________          1209, 1215-1216 (7th  Cir. 1984) (breach of warranty);  In re Oil                                                                  _________          Spill  by Amoco  Cadiz, 699  F.2d  909, 915-916  (7th Cir.  1983)          ______________________          (indemnity action),  cert. denied,  464 U.S. 864.   Whether  this                               ____________          indeterminate  standard   would  encompass   tortious  negligence          committed outside the  forum is unknown.  Cf.  Simpson v. Quality                                                         _______    _______          Oil Co., 723 F. Supp. 382, 388 & n.4 (S.D. Ind. 1989) (suggesting          _______          that  relatedness  is  limited  to  those  contacts substantively          related to the cause of action).                    On the other hand, the  Second and Eighth Circuits,  as          well as this  one, appear to approve a  proximate cause standard.          See Pleasant Street, 960 F.2d at 1089; Pearrow v. National Life &              _______________                    _______    _______________          Accident Ins. Co.,  703 F.2d 1067, 1069 (8th  Cir. 1983); Gelfand          _________________                                         _______          v.  Tanner Motor  Tours, Ltd.,  339  F.2d 317,  321-322 (2d  Cir.              _________________________                                         -12-          1964).   The  courts  in  Pearrow and  Gelfland  found that,  for                                    _______      ________          purposes of the  long-arm statute at issue,  non-forum negligence          claims did not  arise from in-forum solicitation or ticket sales.          District  courts from the  Third and Tenth  circuits have reached          similar results.  See Wims v. Beach  Terrace Motor Inn, Inc., 759                                ____    ______________________________          F. Supp. 264,  267-268 (E.D. Pa. 1991); Dirks  v. Carnival Cruise                                                  _____     _______________          Lines, 642 F. Supp. 971, 975 (D. Kan. 1986).          _____                    This  circuit, whether  accurately  or  not,  has  been          recognized as the main proponent of the proximate cause standard.          We think the  attraction of proximate cause is  two-fold.  First,          proximate  or   legal   cause   clearly   distinguishes   between          foreseeable  and unforeseeable  risks of  harm.   See  Peckham v.                                                                 _______          Continental Casualty Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990).          _____________________________          Foreseeability  is  a  critical  component  in  the  due  process          inquiry, particularly  in evaluating purposeful availment, and we          think  it  also informs  the  relatedness  prong.   See  Pleasant                                                                   ________          Street, 960 F.2d  at 1089.  As  the Supreme Court said  in Burger          ______                                                     ______          King Corp. v. Rudzewicz,          __________    _________                      [the Due process  Clause] requir[es] that                      individuals  have  "fair warning  that  a                      particular activity may subject [them] to                      the jurisdiction  of a  foreign sovereign                      . . . ."       [T]his   "fair    warning"                      requirement is satisfied if the defendant                      has    "purposefully     directed"    his                      activities at residents of the forum, and                      the  litigation   results  from   alleged                      injuries that "arise out of or relate to"                      those activities.            471 U.S. 462,  472.  Adherence  to a proximate cause  standard is          likely  to enable defendants  better to anticipate  which conduct                                         -13-          might subject them to a  state's jurisdiction than a more tenuous          link in the chain of  causation.  Certainly, jurisdiction that is          premised  on  a contact  that  is a  legal  cause  of the  injury          underlying  the controversy -- i.e., that "form[s] an 'important,                                         ____          or [at  least] material,  element of  proof'  in the  plaintiff's          case," Pleasant Street, 960 F.2d at 1089 (citation omitted) -- is                 _______________          presumably reasonable, assuming, of course, purposeful availment.                    As  our discussion  suggests,  and notwithstanding  any          contrary  implication from the footnote in Ticketmaster, we think                                                     ____________          the proximate cause standard better comports with the relatedness          inquiry  because it  so easily  correlates  to foreseeability,  a          significant component of the jurisdictional inquiry.  A "but for"          requirement,  on  the  other  hand,  has  in itself  no  limiting          principle; it literally  embraces every event that  hindsight can          logically identify  in the causative  chain.  True, as  the Ninth          Circuit has  noted, courts  can use the  reasonableness prong  to          keep Pandora's jar  from opening too wide.   But to say  that the          harm that might be done by one factor can be prevented by another          is not, after all, an affirmative justification for the former.                    That being said, we are persuaded that strict adherence          to  a   proximate  cause   standard  in   all  circumstances   is          unnecessarily restrictive.   The  concept of  proximate cause  is          critically important in the  tort context because it defines  the          scope of a  defendant's liability.  In contrast,  the first prong          of the jurisdictional  tripartite test is  not as rigid:   it is,          "relatively  speaking, .  . .  a  'flexible, relaxed  standard.'"                                         -14-          Sawtelle, 70 F.3d at 1389  (citation omitted).  We see  no reason          ________          why, in  the context of  a relationship between a  contractual or          business  association and  a  subsequent  tort,  the  absence  of          proximate cause  per  se should  always  render the  exercise  of          specific jurisdiction unconstitutional.                      When a foreign  corporation directly targets  residents          in  an ongoing  effort to  further  a business  relationship, and          achieves its purpose,  it may not necessarily  be unreasonable to          subject that corporation  to forum jurisdiction when  the efforts          lead  to  a  tortious  result.   The  corporation's  own  conduct          increases  the likelihood that  a specific resident  will respond          favorably.  If the resident is harmed while engaged in activities          integral to the relationship the corporation sought to establish,          we think  the nexus between the contacts  and the cause of action          is  sufficiently  strong to  survive the  due process  inquiry at          least at the relatedness stage.                    This concept represents a small overlay of "but for" on          "proximate cause."  In a sense it is a narrower and more specific          identification   of  the   Seventh   Circuit's  formulation   for          jurisdiction-worthiness  of   claims  lying  "in   the  wake"  of          commercial activities in  the forum.  It may be  that other kinds          of  fact patterns  will  be found  to  meet the  basic factor  of          foreseeability, but  we have no  occasion here to  pronounce more          broadly.                    This  case is illustrative  of our reasoning.   Through          its ongoing  correspondence with  Kiddie Products,  Tak How  knew                                         -15-          that Kiddie Products employees would stay at its hotel, and could          easily anticipate  that  they  might  use the  pool,  a  featured          amenity of the  hotel.  The  district court thoroughly  described          t   h   i   s           c   o   n   n   e   c   t   i   o   n   .                      The  Hotel's  solicitation   of  Kiddie's                      business and the extensive back-and-forth                      resulting in  Burke's reserving a  set of                      rooms  for  Kiddie  employees  and  their                      spouses  set   in  motion   a  chain   of                      reasonably  foreseeable events  resulting                      in Mrs. Nowak's  death.  The  possibility                      that   the   solicitation   would   prove                      successful  and that one  or more  of the                      guests staying  at the Hotel as  a result                      would use the pool was in no sense remote                      or  unpredictable;  in  fact,  the  Hotel                      included the pool as an attraction in its                      promotional materials.          899  F.  Supp.  at  31.    While  the  nexus  between  Tak  How's          solicitation  of Kiddie Products' business and Mrs. Nowak's death          does  not  constitute  a proximate  cause  relationship,  it does          represent a meaningful  link between  Tak How's  contact and  the          harm suffered.   Given these circumstances, we think  it would be          imprudent  to reject  jurisdiction  at this  early  stage of  the          inquiry.                    By this approach, we intend to emphasize the importance          of proximate causation,  but to allow a slight  loosening of that          standard when circumstances  dictate.  We think  such flexibility          is necessary in  the jurisdictional inquiry:   relatedness cannot          merely be  reduced to  one tort  concept  for all  circumstances.          Though we are  recognizing a  narrow exception  to the  proximate          cause  test, we  note an  additional  protection for  defendants'          rights:  "the relatedness requirement  . . . authorizes the court                                         -16-          to  take  into   account  the  strength  (or   weakness)  of  the          plaintiff's relatedness  showing in passing upon  the fundamental          fairness of allowing the suit to proceed."  Ticketmaster, 26 F.3d                                                      ____________          at 207.                    We recognize it  will not always be easy  to apply this          flexible  approach to  particular circumstances,  but  that is  a          function of  the  complexity  of  this  area of  the  law.    The          jurisdictional  inquiry   is  often  a  difficult  fact  specific          analysis in which  "[t]he greys are dominant and  even among them          the shades are  innumerable."  Pleasant Street, 960  F.2d at 1088                                         _______________          (citing Estin v. Estin, 334 U.S. 541, 545).                  _____    _____                                         -17-                               B.  Purposeful Availment                    The  next  issue  is whether  Tak  How's  contacts with          Massachusetts constitute  purposeful availment.   The  purposeful          availment requirement ensures  that jurisdiction is not  premised          on  "random, isolated,  or fortuitous"  contacts  with the  forum          state,  Sawtelle,  70 F.3d  at  1391 (quoting  Keeton  v. Hustler                  ________                               ______     _______          Magazine,  Inc., 465 U.S.  770, 774), but  rather guarantees that          _______________          the exercise of jurisdiction is "fair, just, or reasonable."  Id.                                                                        ___          (quoting  Rush v.  Savchuk, 444  U.S. 320, 329).   Our  two focal                    ____     _______          points are  voluntariness and  foreseeability.   Ticketmaster, 26                                                           ____________          F.3d at 207.  The defendant's contacts with the  forum state must          be voluntary -- that is,  not based on the unilateral  actions of          another party  or a third person.  Burger  King, 471 U.S. at 475;                                             ____________          Vencedor Mfg. Co. v. Gougler Indus., Inc., 557 F.2d 886, 891 (1st          _________________    ____________________          Cir. 1977).  In addition, the defendant's contacts with the forum          state must  be such  that he should  reasonably anticipate  being          haled into court there.   World-Wide Volkswagen Corp. v. Woodson,                                    ___________________________    _______          444 U.S. 286, 297; Escude Cruz v. Ortho Pharmaceutical Corp., 619                             ___________    __________________________          F.2d 902, 905 (1st Cir. 1980).                    We   think  that   Tak   How's  unprompted   June  1993          correspondence  with Kiddie Products,  which led directly  to the          ill-fated  Hong  Kong  trip  in  September  1993,  was  at  least          minimally sufficient  to satisfy this requirement.  The June 1993          correspondence contained promotional  materials from the  Holiday          Inn  designed to further entice Kiddie Products employees to stay          at the  hotel.  Even  if it may be  said that the  materials were                                         -18-          sent  as  part  of  an  on-going  relationship  between  the  two          companies  that was originally instigated by Kiddie Products, the          continued correspondence  by Tak  How to  Massachusetts does  not          amount to  the kind  of unilateral action  that makes  the forum-          state  contacts involuntary.   Tak  How had an  obvious financial          interest in  continuing business  with Kiddie  Products, and  the          June 1993  correspondence is  the best example  of an  unprompted          solicitation designed  to facilitate that  business relationship.          In   order  to  be  subject  to  Massachusetts'  jurisdiction,  a          defendant need  only have  one contact with  the forum  state, so          long as that contact is  meaningful.  McGee v. International Live                                                _____    __________________          Ins. Co., 355 U.S. 220, 223; Burger King, 471 U.S. at 475 n.18.          ________                     ___________                    Whether  prompted  or  unprompted, Tak  How's  on-going          correspondence and relationship with Kiddie Products, designed to          bring   Massachusetts   residents   into   Hong  Kong,   rendered          foreseeable the possibility  of being haled into  a Massachusetts          court.    That  Tak  How  might  have  to  defend  itself  in   a          Massachusetts  court is certainly foreseeable based on its direct          correspondence  with Kiddie Products, but its other contacts with          Massachusetts reveal an even more substantial attempt by  Tak How          to  purposefully  avail  itself of  the  privilege  of conducting          business activities in  the state:  Tak How  advertised its hotel          in  national and  international publications  that circulated  in          Massachusetts; it solicited by  direct mail some of  its previous          guests residing in Massachusetts; and Tak How listed its hotel in          various  hotel guides used  at travel agencies  in Massachusetts.                                         -19-          Exercising  jurisdiction  is   appropriate  where  the  defendant          purposefully  derives  economic  benefits  from  its  forum-state          activities.  Pritzker, 42 F.3d  at 61-62 (citing Burger King, 471                       ________                            ___________          U.S. at 476).                               C.  The Gestalt Factors                    Our conclusion that minimum contacts exist in this case          does  not end  the inquiry.   Personal  jurisdiction may  only be          exercised if  it comports with traditional notions  of "fair play          and substantial justice."   International Shoe, 326  U.S. at 320.                                      __________________          Out of  this  requirement,  courts  have developed  a  series  of          factors that bear on the  fairness of subjecting a nonresident to          a  foreign tribunal.   Burger  King,  471 U.S.  at 477;  Pleasant                                 ____________                      ________          Street,  960  F.2d at  1088.    These  "gestalt factors"  are  as          ______          follows:                      (1) the defendant's  burden of appearing,                      (2)   the  forum   state's  interest   in                      adjudicating   the   dispute,   (3)   the                      plaintiff's    interest   in    obtaining                      convenient and effective  relief, (4) the                      judicial system's  interest in  obtaining                      the  most  effective  resolution  of  the                      controversy, and (5) the common interests                      of    all    sovereigns    in   promoting                      substantive social policies.          Id. (citing Burger  King, 471 U.S. at  477).  The purpose  of the          ___         ____________          gestalt factors  is to  aid  the court  in achieving  substantial          justice, particularly where the minimum contacts question is very          close.    In  such  cases,   the  gestalt  factors  may  tip  the          constitutional  balance.   Ticketmaster,  26  F.3d at  209.   The                                     ____________          Supreme  Court's decision in  Asahi Metal Indus.  Co. v. Superior                                        _______________________    ________                                         -20-          Court, 480  U.S.  102, is  one  such example.     In  Asahi,  the          _____                                                 _____          question of minimum contacts divided  the Court, but eight of the          Justices agreed  that exercising personal jurisdiction  would not          comport with notions of fair  play and substantial justice.  This          Court has thus  adopted a sliding scale approach:   "[T]he weaker          the plaintiff's showing on the first  two prongs (relatedness and          purposeful availment), the less a defendant need show in terms of          unreasonableness to  defeat jurisdiction."  Ticketmaster, 26 F.3d                                                      ____________          at  210.   The  reverse is  equally  true:   a strong  showing of          reasonableness may  serve to fortify  a more marginal  showing of          relatedness and  purposefulness.   See id.  (citing Donatelli  v.                                                 ___          _________          National Hockey  League, 893 F.2  459, 465 (1st Cir.  1990)); see          _______________________                                       ___          also Sawtelle, 70 F.3d at 1396.          ____ ________                    1.  The Burden of  Appearance.  It would undoubtedly be          burdensome for  Tak How to  defend itself in Massachusetts:   Tak          How's only  place of business  is in Hong  Kong.  This  Court has          recognized,  however, that it  is almost always  inconvenient and          costly  for  a  party  to litigate  in  a  foreign  jurisdiction.          Pritzker, 42 F.3d at 64.  Thus for this particular gestalt factor          ________          to have  any significance,  the defendant  must demonstrate  that          "exercise of jurisdiction in the present circumstances is onerous          in  a special,  unusual,  or  other constitutionally  significant          way."  Id.  Tak How alleges  nothing special or unusual about its                 ___          situation beyond the ordinary cost and inconvenience of defending          an action  so far  from its place  of business.   Under Pritzker,                                                                  ________                                         -21-          that is not enough:  it simply cannot be the case that every Hong          Kong corporation is  immune from suit in Massachusetts.   But see          Ticketmaster,   26  F.3d  at   210  (noting  the   importance  of          ____________          considering  the distance  the defendant  must  travel in  giving          weight to this  factor in the analysis).   We are also  persuaded          that the burden on Tak How will be minimized by, for example, the          availability of transcripts  from the Coroner's Court for  use in          the Massachusetts proceeding.                    We have also noted that  the burden of appearance is an          important gestalt factor  primarily because it allows  a court to          guard against harassing litigation.  Ticketmaster, 26 F.3d at 211                                               ____________          (citing  Gulf Oil  Corp. v. Gilbert,  330 U.S. 501,  508)).  Were                   _______________    _______          there any  indication in the  record that the Nowaks  brought the          present  suit to  harass Tak  How,  the burden  of appearance  in          Massachusetts might weigh in Tak How's favor; however, the record          does not so indicate.                    2.  Interest of  the Forum.  Although a forum state has          a significant interest in obtaining jurisdiction over a defendant          who causes tortious  injury within its borders,  Ticketmaster, 26                                                           ____________          F.3d  at  211, that  interest  is  diminished  where  the  injury          occurred outside  the forum  state.  Sawtelle,  70 F.3d  at 1395.                                               ________          Nonetheless, our task is not  to compare the interest of  the two          sovereigns -- the place  of the injury and forum state  -- but to          determine whether the forum state has an interest.  Id.  While it                                            ___               ___          is true that the injury in this case occurred in Hong Kong, it is                                         -22-          equally true (unlike Sawtelle) that significant events took place                               ________          in Massachusetts giving  it an interest in this  litigation.  Tak          How  solicited business  in the  state.   As  the district  court          noted,  Massachusetts has  a strong  interest  in protecting  its          citizens  from out-of-state solicitations  for goods  or services          that prove to be unsafe, and it also has an interest in providing          its citizens  with a  convenient forum in  which to  assert their          claims.   Burger King,  471 U.S. at  473.   Given the forum-state                    ___________          activities  that took  place  prior  to  Mrs. Nowak's  death,  we          conclude that Massachusetts  has a strong interest  in exercising          jurisdiction even though the injury took place in Hong Kong.                    3.    The  Plaintiffs' Convenience.    This  Court must          accord deference  to the Nowaks' choice of a Massachusetts forum.          See,  e.g., Foster-Miller,  46 F.3d  at 151.   Regardless,  it is          ___   ____  _____________          obvious that  a Massachusetts  forum is more  convenient for  the          Nowaks  than another  forum,  particularly  a  Hong  Kong  forum.          Further, there  exists substantial  doubt that  the Nowaks  could          adequately resolve  the dispute in  Hong Kong:  Hong  Kong's laws          regarding contingency fees and posting of security bonds with the          court  make litigation  economically onerous for  plaintiffs, and          the future of Hong Kong's political system is also uncertain.                    4.  The Administration of Justice.  This factor focuses          on the judicial system's interest in obtaining the most effective          resolution of  the controversy.   Usually this factor is  a wash,                                         -23-          Ticketmaster, 26 F.3d at 211;  Sawtelle, 70 F.3d at 1395,  but in          ____________                   ________          one case we held that preventing piecemeal litigation might favor          one jurisdiction over another.  Pritzker, 42 F.3d at 64.  Tak How                                          ________          argues  that a Massachusetts action would require the application          of Hong Kong law, the use of interpreters, and the transportation          of  key  witnesses  from  Hong  Kong  that  are  not  subject  to          compulsory  process.   On the  other  hand, the  Nowaks point  to          possible political instability in Hong Kong as the British Colony          prepares  to revert  to Chinese  sovereignty.   Interpreters  and          transportation of  witnesses would  likely also  be necessary  in          Hong   Kong.    We  conclude  that   the  question  of  efficient          administration  of justice favors  a Massachusetts forum.   Given          the likelihood that the Nowaks would face great obstacles in Hong          Kong due to possible political  instability, as well as Hong Kong          laws  on contingency fees and security bonds, efficiency concerns          require a Massachusetts  forum.  See United Elec.  Workers v. 163                                               _____________________    ___          Pleasant St. Corp.,  987 F.2d 39, 46-47 (1st  Cir. 1993) (finding          __________________          that fourth gestalt factor weighed against a foreign jurisdiction          where "it  is  far from  clear that  there will  be any  judicial          resolution,  let alone the most effective judicial resolution, of          this   controversy"  if   the   case   could   not   proceed   in          Massachusetts).                    5.   Pertinent  Policy Arguments.    The final  gestalt          factor addresses  the interests  of the  affected governments  in          substantive  social policies.   Massachusetts has an  interest in                                         -24-          protecting  its citizens from out-of-state providers of goods and          services as well as affording  its citizens a convenient forum in          which to bring their claims.  These interests are best  served by          the exercise  of  jurisdiction in  Massachusetts.   On the  other          hand, Hong Kong has an interest in protecting visitors to promote          and  preserve its tourism industry, in protecting its businesses,          and  in providing all parties with a  convenient forum.  Only one          of Hong Kong's interests -- protecting its businesses -- might be          compromised  by  a  Massachusetts   forum,  while  Massachusetts'          primary  interest  --   protecting  its  citizens  --   might  be          compromised by  a Hong Kong  forum.   We thus  conclude that  the          final Gestalt factor tips only slightly in the Nowaks' favor.                    On balance, we think the gestalt factors weigh strongly          in  favor  of  a   Massachusetts  forum.    When  considered   in          combination with the  Nowaks' adequate showing  on the first  two          prongs of the constitutional test, we think that, on the specific          facts of this case, the exercise of jurisdiction in Massachusetts          is reasonable and does  not offend the notions  of fair play  and          substantial  justice.    The  district  court therefore  properly          denied  Tak How's  Rule 12(b)(2)  motion to  dismiss for  lack of          personal jurisdiction.                                         III.                    Tak  How  next  appeals the  denial  of  its motion  to          dismiss  for forum  non conveniens.   The  doctrine of  forum non                       _____________________                      _________          conveniens permits  a trial court,  on a discretionary  basis, to          __________                                         -25-          dismiss  a case  where an  alternative  forum is  a available  in          another country  that is fair  to the  parties and  substantially          more convenient for them or the courts.  Howe v.  Goldcorp Invs.,                                                   ____     _______________          Ltd., 946 F.2d 944, 947 (1st  Cir. 1991), cert. denied, 502  U.S.          ____                                      ____________          1095.   Application  of the  doctrine is  committed to  the sound          discretion  of  the  trial  court,  whose decision  will  not  be          reversed absent a clear abuse of discretion.  Mercier v. Sheraton                                                        _______    ________          Int'l, Inc.,  981 F.2d 1345,  1349 (1st Cir. 1992)  (Mercier III)          ___________                                          ___________          (appeal  after remand  of Mercier II,  infra; we  have previously                                    __________   _____          referred to  the district  court's opinion  as Mercier  I), cert.                                                         __________   _____          denied, 508  U.S. 912.   This Court finds an  abuse of discretion          ______          only where the  district court (1) failed to  consider a material          factor, (2) substantially relied on an immaterial  factor, or (3)          assessed  the appropriate factors  but clearly erred  in weighing          those factors.   Mercier v.  Sheraton Int'l, Inc., 935  F.2d 419,                           _______     ____________________          423  (1st  Cir. 1991)  (Mercier  II).   Since there  is  a strong                                  ___________          presumption in favor of a plaintiff's forum choice, the defendant          must  bear the  burden of  proving  both the  availability of  an          adequate alternative forum and that considerations of convenience          and  judicial efficiency strongly  favor litigating the  claim in          the alternative forum.  Id. at  423-424; Mercier III, 981 F.2d at                                  ___              ___________          1349.                    We  have  emphasized  that the  doctrine  of  forum non                                                                  _________          conveniens  is  used  to  avoid  "serious  unfairness"  and  that          __________          plaintiff's  choice of  a forum  will  be disturbed  only rarely.          Howe, 946 F.2d  at 950 (citing Piper  Aircraft Co. v.  Reyno, 454          ____                           ___________________     _____                                         -26-          U.S.  235, 259;  Gulf Oil Corp.  v. Gilbert, 330  U.S. 501, 507).                           ______________     _______          The Supreme Court has provided a list of relevant considerations.          "Private interest"  factors include  relative ease  of access  to          sources of proof, availability of compulsory process, comparative          trial  costs,  ability  to enforce  a  judgment,  "and  all other          practical problems that  make trial of  a case easy,  expeditious          and inexpensive."   Gilbert, 330 U.S. at 508.   "Public interest"                              _______          factors  include  the  practical  difficulties  of  unnecessarily          imposing upon  a busy court  the obligation to  hear a case  more          fairly  adjudicated elsewhere, the imposition on jurors called to          hear a  case that has  no relation  to their  community, and  the          familiarity of the court with applicable laws.  Id. at 508-509.                                                          ___                    One  final principle informs our analysis in this case.          The Supreme Court has stated that,                      Where  there are  only two  parties  to a                      dispute, there  is  good  reason  why  it                      should be  tried in the  plaintiff's home                      forum  if that has  been his choice.   He                      should not  be deprived  of the  presumed                      advantages  of   his  home   jurisdiction                      except  upon  a  clear  showing of  facts                      which   either    (1)   establish    such                      oppressiveness   and   vexation    to   a                      defendant as to be  out of all proportion                      to plaintiff's convenience,  which may be                      shown to be slight or nonexistent, or (2)                      make   trial   in    the   chosen   forum                      inappropriate  because of  considerations                      affecting the court's  own administrative                      or legal problems.          Koster v. Lumbermens Mut. Co., 330 U.S. 518, 524.          ______    ___________________                    Based on  these principles, we  are unable to  say that          the district  court  abused  its discretion.    Tak  How's  first          argument is  that  the district  court failed  to articulate  its                                         -27-          reasons for  denying the motion to dismiss.   It is true that the          district judge  chose to  rule on the  motion orally  rather than          issue a written opinion; however, it is apparent from the hearing          transcript  that the judge  considered relevant factors.   Before          ruling on  the motion,  the judge  questioned  counsel about  the          plaintiffs'  right to  have a  jury  trial in  Hong Kong,  and he          stated  that granting the  motion would be  outcome determinative          because,  as a  practical matter  and due  to additional  burdens          under Hong Kong laws,  it would be very difficult  for the Nowaks          to bring suit there.  The  hearing transcript is certainly not as          detailed  as  the  written  opinion  denying  the  jurisdictional          motion, but the court was entitled to rule on the motion orally.                    The  question here is whether the district court failed          to consider  a material factor  or failed to correctly  weigh the          factors.   Given  that Tak  How  has the  burden  of proving  the          elements of  forum non  conveniens, we shall  review the  factors                       _____________________          alleged to justify dismissal that  Tak How has put forth, bearing          in mind that  Koster, supra, places a heavy  burden on defendants                        ______  _____          where,  as here,  plaintiffs brought  suit in  their home  forum.          There is no question that Hong Kong is an available forum, as Tak          How is subject to  service of process in Hong Kong.   Mercier II,                                                                __________          935 F.2d at 424.   There also appears to be  no dispute that Hong          Kong would provide an adequate forum in the sense that its courts          recognize a similar cause of action.   Tak How next contends that          the private interest factors of Gilbert, supra, weigh in favor of                                          _______  _____          a Hong Kong  forum:  it notes  that it would bear  the expense of                                         -28-          transporting witnesses to  the United States, that  it might face          difficulty in  joining third-party defendants in  a Massachusetts          court, and that a Hong Kong court might not enforce  the judgment          of a  Massachusetts court.   These factors do not  constitute the          type   of  "oppressiveness  and   vexation"  required  by  Koster                                                                     ______          disproportionate  to the Nowaks'  inconvenience of suing  in Hong          Kong.  The Nowaks  would also have to transport witnesses to Hong          Kong and later seek to  enforce a foreign judgment in their  home          state.  In addition, the Nowaks point to private interest factors          that weigh in  their favor:  they would  face financial obstacles          because Hong  Kong law  prohibits contingent  fee agreements  and          requires that  they deposit  an amount equal  to Tak  How's costs          with  the  court;  also, possible  political  instability  in the          region could add further difficulties to litigation in Hong Kong.          Regardless  of  the difficulties  the Nowaks  might face  in Hong          Kong,  it is  enough that  Tak How  failed to  demonstrate either          oppressiveness to itself or only a slight or nonexistent interest          in convenience on the Nowaks' part.  Koster, 330 U.S. at 524.                                                ______                    Nor  is Tak  How able  to  demonstrate public  interest          factors  that  make  trial in  Massachusetts  inappropriate.   It          points to the fact that Massachusetts choice-of-law rules require          application of Hong Kong law, and that a Hong Kong court would be          "more at home" with such laws.  This concern is not sufficient to          overcome  the presumption in  favor of plaintiffs'  chosen forum.          This  Court  has previously  noted  that  "the  task of  deciding          foreign  law [is]  a chore  federal courts  must often  perform."                                         -29-          Mercier III, 981 F.2d at  1357 (quoting Manu Int'l, S.A.  v. Avon          ___________                             ________________     ____          Prods., Inc., 641 F.2d 62, 68 (2d Cir. 1981)).  We therefore give          ____________          this factor  little weight.   Id.   Tak  How points  to no  other                                        ___          public interest factor that weighs against a Massachusetts forum.                                         -30-                                         IV.                    For  the   foregoing  reasons,  the   district  court's          decision  to  deny Tak  How's  motions  to  dismiss for  lack  of          personal jurisdiction and on the grounds of  forum non conveniens                                                       ____________________          is AFFIRMED.                                         -31-
