
USCA1 Opinion

	




          June 3, 1993      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2286                                    SCOTT MARTEL,                                Plaintiff, Appellant,                                          v.                   GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.                                Defendants, Appellees.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of the Court issued on May 25, 1993 is corrected          as follows:               On  page 12,  footnote 10,  lines 13-16    replace  with the          following:  under applicable Maryland law, Martel  would have had          to  present his claim against the estate within nine months after          the date  of the decedent's  death.  See  Md. Est. &  Trusts Code                                               ___          Ann.   8-103(a)(1)(1991).                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2286                                    SCOTT MARTEL,                                Plaintiff, Appellant,                                          v.                   GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                              _________________________               Kenneth  J.  Chesebro,  with   whom  Robert  E.  Manchester,               _____________________                ______________________          Patricia  S. Orr, and Manchester Law Offices, P.C. were on brief,          ________________      ____________________________          for appellant.               Christopher  S. Williams, with whom Griffin  & Goulka was on               ________________________            _________________          brief, for appellees.                              _________________________                                     May 25, 1993                              _________________________                    SELYA, Circuit Judge.  This appeal could do double duty                    SELYA, Circuit Judge.                           _____________          as  a law  school examination  question.   It follows  a district          court's  dismissal  of the  third  action  brought by  plaintiff-          appellant  Scott   Martel  in   what  has  been   a  consistently          unsuccessful effort  to  stay in  court  long enough  to  recover          damages  for  personal   injuries  sustained  in   an  automobile          accident.      Because   the  district   court   lacked  personal          jurisdiction  over the sole defendant, a foreign executor sued as          such, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Leaving to  one side the seepage  from the geographical          morass  in  which this  case is  mired,  the prefatory  facts are          straightforward.   On April 18,  1985, an accident  occurred on a          Vermont highway.  Martel,  a Vermont resident, sustained injuries          when an automobile in which he was riding collided with a vehicle          driven  by Wilhelmina S. Parker.   Parker, a  citizen of Maryland          who was  in the process  of moving  into a new  home in  Vermont,          perished two days  later as an aftermath of the  crash.  She died          testate,  owning property  located  exclusively in  Maryland  and          Vermont.    Pursuant   to  her  will,  probate   courts  in  both          jurisdictions  appointed  George  F.  Stafford,  a  Massachusetts          resident, as executor.   Letters of administration were issued to          Stafford  in Maryland on  May 22,  1985 and  letters testamentary          were issued to him in Vermont on August 19, 1985.                    Martel seemed to  be in no  particular hurry to  assert          his rights.   It was  not until  April 18, 1988  that he  brought                                          3          identical  suits against Stafford in a Vermont state court and in          Vermont's  federal district  court.   In due  course, each  court          dismissed Martel's  complaint as  time-barred on the  ground that          the  applicable statute of  limitations pretermitted  the action.          See  Vt.  Stat. Ann.  tit. 12,     557(a) (1973)  (providing that          ___          actions against an executor  for acts of the decedent  are barred          if  not commenced  within two  years of  the issuance  of letters          testamentary).                    Undeterred,  appellant  went  in  search  of  a  longer          statute  of limitations.1    On November  22,  1988, he  filed  a          diversity  action in  the United  States District  Court for  the          District of Massachusetts.  Over two years later,  Stafford moved          for  summary judgment  on a  bouillabaisse of  grounds, including          statute  of   limitations,  res  judicata,  absence  of  personal          jurisdiction,  and  forum non  conveniens.    The district  court          granted the motion  on the basis of res judicata,  but offered no          elaboration.  This appeal ensued.2          II.  ANALYSIS          II.  ANALYSIS                    While the  district court  invoked the doctrine  of res          judicata,  we  are  free to  affirm  the  judgment  below on  any                                        ____________________               1Appellant  also  appealed  the superior  court's  entry  of          judgment, but to no avail.  See Martel v. Stafford, 603 A.2d 345,                                      ___ ______    ________          346 (Vt. 1991) (affirming dismissal of Vermont action).               2During the  pendency of the proceedings,  Stafford died and          Marilyn S.  Elias, the executrix  of Stafford's estate,  became a          party-defendant  in this action.   See Fed. R.  Civ. P. 25(a)(1);                                             ___          Fed. R. App. P. 43(a).   Because Elias's arrival on the scene has          no  bearing  on  the disposition  of  this  appeal,  we refer  to          Stafford as if he were still alive and still the sole defendant.                                          4          independently  sufficient ground  made manifest  by the  record.3          See Garside  v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990);          ___ _______     _______________          Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st          __________________    ________________          Cir. 1987);  Chongris v. Board  of Appeals, 811  F.2d 36, 37  n.1                       ________    _________________          (1st Cir.),  cert. denied, 483 U.S. 1021 (1987).  When, as now, a                       _____ ______          potential jurisdictional defect rears its ugly head, an appellate          court  should  not  hesitate  to scrutinize  that  defect  before          proceeding further.  See Feinstein v. Resolution Trust Corp., 942                               ___ _________    ______________________          F.2d  34,  40  (1st  Cir.  1991)  (stating  that  "courts  should          ordinarily  satisfy jurisdictional concerns before addressing the          merits of a  civil action").   Because jurisdiction  is the  most          natural and obvious starting point here, and because the district          court's rationale strikes us as problematic   the general rule is          that  a dismissal on limitations  grounds does not  bar the claim          generally, but only bars a second action in the same jurisdiction          or  in  a  jurisdiction that  would  apply  the  same statute  of          limitations,  see, e.g.,  18 Charles  A.  Wright et  al., Federal                        ___  ____                                   _______          Practice &  Procedure    4441,  at 366  (1981)    we  tackle  the          _____________________          jurisdictional issue first.                     A.  Personal Jurisdiction over an Executor.                     A.  Personal Jurisdiction over an Executor.                         ______________________________________                    Plaintiff sued only one defendant   Stafford   and sued                                        ____________________               3This option has particular  utility in the summary judgment          context, as a district court's entry  of summary judgment entails          plenary appellate review.   See, e.g., Rivera-Muriente v. Agosto-                                      ___  ____  _______________    _______          Alicea,  959 F.2d 349, 352 (1st Cir. 1992); Garside v. Osco Drug,          ______                                      _______    __________          Inc., 895 F.2d 46, 48 (1st Cir. 1990).          ____                                          5          him  solely  in his  capacity  as executor  of  Parker's estate.4          With exceptions not pertinent here,  the Civil Rules provide that          the law  of the forum  state determines a  representative party's          capacity to sue or be sued in a federal district court.  See Fed.                                                                   ___          R. Civ. P. 17(b); see  also 6A Charles A. Wright et  al., Federal                            ___  ____                               _______          Practice  & Procedure     1565, at  473  (2d  ed. 1990).    Thus,          _____________________          Massachusetts  law  governs  the  determination  of  whether  the          district court could lawfully exercise personal jurisdiction over          Stafford qua executor.                   ___                    The  traditional  Massachusetts rule  has been  that an          executor or administrator  appointed in another state    we shall          use the generic term "foreign executor"   is not subject to  suit          in Massachusetts unless a statute dictates to the contrary.  See,                                                                       ___          e.g., Saporita v. Litner,  371 Mass. 607, 614 (1976);  Old Colony          ____  ________    ______                               __________          Trust Co. v.  Clarke, 291 Mass. 17, 23 (1935);  Brown v. Boston &          _________     ______                            _____    ________          Me. R.R.,  283 Mass. 192, 195  (1933); Borden v. Borden,  5 Mass.          ________                               ______    ______          67, 76-77  (1809); see also  Gallup v. Gallup, 52  Mass. 445, 447                             ___ ____  ______    ______          (1846)   (holding  that   a  foreign   executor  cannot   sue  in          Massachusetts); Langdon  v. Potter,  11 Mass. 313,  313-14 (1814)                          _______     ______          (same).   The  rule  stems from  the  concept that  a  decedent's          personal  representative  is  a   creature  of  the  state  which          appointed him or  her, and, as  such, possesses  no power to  act          beyond the creator's boundaries.  See Saporita, 371 Mass. at 615;                                            ___ ________                                        ____________________               4At one point in the proceedings,  plaintiff sought to amend          his  complaint to  name Stafford,  individually, as  a defendant.          The court below denied the motion.  On appeal, plaintiff does not          assign error to this ruling.                                          6          Brown,  283 Mass.  at  195;  see  also  Derrick  v.  New  England          _____                        ___  ____  _______      ____________          Greyhound  Lines, Inc.,  148 F.  Supp. 496,  497 (D.  Mass. 1957)          ______________________          (dismissing action  against foreign  executor on the  ground that          "even if he were present and served he represents the estate only          to the extent of  his Connecticut appointment, i.e., not  at all,          as [the appointment] has no extraterritorial effect").                    The traditional rule   like most traditional rules   is          not without exceptions.   See Saporita, 371 Mass. at  615 (noting                                    ___ ________          that  "the  rule has  not  been  rigidly applied"  and  surveying          certain common law exceptions).   Saporita illustrates the point.                                            ________          There,  a  Massachusetts  resident  sued a  foreign  executor  to          recover  payment for  services  rendered to  the  testator.   The          Massachusetts Supreme  Judicial  Court  (SJC)  approved  a  state          court's  exercise  of  personal jurisdiction  over  the executor,          primarily because  the testator  had a  wealth  of contacts  with          Massachusetts.  See id. at 618.   Although Saporita and this case                          ___ ___                    ________          share  a  certain factual  resemblance     in  both instances,  a          foreign state  appointed the executor  according to the  terms of          the   decedent's   will,   the   foreign   executor   resided  in          Massachusetts and was thus subject  to in-hand service of process          there, and the decedent  owned no real estate in  Massachusetts            the two cases  are more noteworthy  for their dissimilarity  than          for their similitude.                    In  Saporita,  the   plaintiff  lived  and  worked   in                        ________          Massachusetts.  See id. at  612-13.  The contract upon which  she                          ___ ___          sued had been made and  performed there.  See id.   Moreover, the                                                    ___ ___                                          7          testator's links  with Massachusetts  were pervasive;  he resided          and practiced medicine  there, considered Boston to  be his home,          and spent approximately seventy-five percent of each week  in the          Commonwealth.   See id. at 611-12.   In the last analysis, it was                          ___ ___          the testator's contacts with  Massachusetts that prompted the SJC          to relax the traditional rule and find personal jurisdiction over          the foreign executor.   The court  reasoned that, given  contacts          "sufficient  .  .  . to  allow  the  court  to exercise  personal          jurisdiction over [the testator],"  substituting an executor who,          although appointed  in a foreign jurisdiction,  had himself lived          and  worked  in Massachusetts  and who  had  been served  in hand          there, would "not alter the court's jurisdiction."  Id. at 618.                                                              ___                    The  case  before  us  is  at  a  considerable  remove.          Despite ample  time for pretrial discovery,  the record discloses          no  relationship between the decedent and the forum state.5  From          aught   that   appears,  Parker   had   not  a   single   tie  to                                        ____________________               5It is  apodictic  that  a plaintiff  bears  the  burden  of          proving facts necessary to establish jurisdiction.  See Donatelli                                                              ___ _________          v. National Hockey League, 893 F.2d 459, 468 (1st Cir. 1990).  On             ______________________          such an issue,  a party faced with a motion  for summary judgment          "must  reliably demonstrate  that  specific  facts sufficient  to          create an authentic dispute exist."  Garside, 895 F.2d at 48; see                                               _______                  ___          also Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676-78 (1st Cir.          ____ ____    ____________________          1992) (discussing  standards for  determining motions to  dismiss          for want  of  personal jurisdiction  that  involve the  court  in          weighing  evidence);   General  Contracting  &  Trading   Co.  v.                                 ______________________________________          Interpole,  Inc., 899  F.2d  109, 115  (1st  Cir. 1990)  (drawing          ________________          analogy to Fed. R. Civ. P. 56 in connection with proving disputed          jurisdictional facts).    Thus,  the  absence  of  "relationship"          evidence  at the  summary judgment  stage weighs  heavily against          appellant.   As  we have  observed before,  a litigant  is always          chargeable with knowledge that  his "decision to sit idly  by and          allow  the summary judgment proponent to  configure the record is          likely to  prove  fraught with  consequence."   Kelly  v.  United                                                          _____      ______          States, 924 F.2d 355, 358 (1st Cir. 1991).          ______                                          8          Massachusetts.  And, moreover,  the cause of action arose  out of          state.  Had Parker  survived and Martel attempted  to sue in  the          Commonwealth, there is not the slightest reason to believe that a          Massachusetts court  could  have obtained  jurisdiction over  her          person.  Here, then, unlike in  Saporita, allowing the suit to go                                          ________          forward based on the foreign executor's presence in Massachusetts          would significantly alter the jurisdictional calculus.                    We have  said enough.   Because the  Saporita exception                                                         ________          confers personal  jurisdiction over a foreign  executor only when          the testator manifests sufficient contacts  with Massachusetts to          support the exercise of jurisdiction, not merely when the foreign          executor is  within  the  physical  reach of  a  process  server,          Parker's  behavioral  patterns  assume   decretory  significance.          Because she forged no links of any kind with Massachusetts in her          lifetime, her executor's Massachusetts  residency cannot tilt the          jurisdictional balance.  And  putting Stafford's residency aside,          appellant has  identified no other state-law  basis for grounding          personal  jurisdiction.   For our  part, we  can envision  none.6          Therefore,  we  must  apply  the  traditional  rule.    Under it,          Stafford,   like  the   stereotypical  foreign  executor,   is  a          nonentity, ergo,  not amenable to  suit beyond the  boundaries of          the  state(s)  of   his  appointment.     Giving  force  to   the                                        ____________________               6The other exceptions to the traditional rule, see Saporita,                                                              ___ ________          371 Mass. at  615-17, are  plainly inapposite, as  are two  state          statutes  authorizing jurisdiction over  foreign executors upon a          showing of sufficient decedent  contacts with Massachusetts.  See                                                                        ___          Mass. Gen. L.  ch. 90,   3A (1990);  Mass. Gen. L. ch. 199A,    9          (1990).                                          9          Massachusetts  cases and  the policies  behind them,  we conclude          that  the  district  court   lacked  personal  jurisdiction  over          Stafford qua foreign executor.                   ___                    We  add a  small  eschatocol.   Absent some  persuasive          indication  that   a  Massachusetts  court   would  abandon   its          longstanding rule  to find jurisdiction on these specific facts            an extremely dubious prospect given that  the lawsuit's center of          gravity  obviously lies  elsewhere7    we are  not at  liberty to          manufacture  a basis for ignoring  the rule.   We have repeatedly          warned that a plaintiff who, like Martel, selects a federal forum          in  preference to  an available  state forum  may not  expect the          federal   court   to   steer   state   law   into   unprecedented          configurations.  See, e.g., Catrone v. Thoroughbred Racing Ass'ns                           ___  ____  _______    __________________________          of N.A.,  Inc.,  929 F.2d  881, 889  (1st Cir.  1991); Porter  v.          ______________                                         ______          Nutter, 913 F.2d 37,  41 (1st Cir. 1990); Kassel  v. Gannett Co.,          ______                                    ______     ___________          875  F.2d 935, 949-50 (1st Cir. 1989).   While the SJC is free to          reshape  Massachusetts's judge-made  law, we  are not;  rather, a          diversity court, with  exceptions not germane to  this case, must          take state law as it stands.                                B.  Consent (Waiver).                                B.  Consent (Waiver).                                    ________________                    Appellant  argues   that  Stafford  consented   to  the          jurisdiction of a Massachusetts  court, or, alternatively, waived                                        ____________________               7We  think  it unlikely  that the  SJC  would fashion  a new          exception to  an old  and honored  jurisdictional rule  where, as          here,  the  plaintiff  is a  non-resident,  the  decedent had  no          contacts with Massachusetts, the cause of action arose in another          place,  and no discernible state  interest would be  served by an          assertion of jurisdiction.                                          10          his jurisdictional defense,8 by  means of statements contained in          a  brief  filed  in the  United  States  District  Court for  the          District of  Vermont.    There,  the defendant,  in  response  to          plaintiff's  threat  to bring  an  action  in Maryland's  federal          district   court,   speculated   that,   because   of  Stafford's          Massachusetts  residency,  the proper  fall-back  forum would  be          Massachusetts, not Maryland.                    Appellant's  basic  premise  is  sound:   a  party  may          consent  to  a  court's   in  personam  jurisdiction  before  the                                    __  ________          commencement of an action.  See, e.g., National Equipment Rental,                                      ___  ____  __________________________          Ltd. v. Szukhent, 375 U.S.  311, 314-15 (1964); Pennsylvania Fire          ____    ________                                _________________          Ins. Co.  v. Gold  Issue Mining  & Milling Co.,  243 U.S.  93, 95          ________     _________________________________          (1917); Holloway v. Wright  & Morrissey, Inc., 739 F.2d  695, 699                  ________    _________________________          (1st Cir. 1984).   But,  consent to personal  jurisdiction cannot          be said to have  occurred here.  The allegedly  consenting words,          buried, as they were,  in a responsive argument to  a speculative          threat in a prior suit before a different court  and concerning a          matter unrelated to that suit's determination, dealt with a topic          wholly separate  from the issue of personal  jurisdiction.  Taken          in  context,  the  language  to which  plaintiff  clings,  quoted                                        ____________________               8Because the alleged conduct occurred beyond the confines of          the  present  suit, the  argument may  be  more aptly  phrased as          involving  "consent" rather than "waiver."   We do  not probe the          point,  however,  for  the  distinction  is  immaterial  in  this          situation.  See  General Contracting & Trading Co.  v. Interpole,                      ___  _________________________________     __________          Inc., 940 F.2d 20, 22-23 & n.3 (1st Cir. 1991).          ____                                          11          verbatim in the  margin,9 constituted no  more than an  assertion          ________          that,  because   an  executor's  residence  controls   for  venue          purposes, see, e.g., Smith v. Harris, 308 F. Supp. 527, 528 (E.D.                    ___  ____  _____    ______          Wis.   1970),   venue   would   likely   lie  in   Massachusetts.                          _____          Notwithstanding appellant's  effort to muddle  the two  concepts,          venue  and personal  jurisdiction  are not  the  same.   Pre-suit          consent  to a  court's jurisdiction  must be  far more  clear and          unequivocal than  a passing  remark directed to  another subject.          Cf., e.g., National Equipment, 375  U.S. at 314 (equating consent          ___  ____  __________________          with  agreement  to appoint  an  agent for  service  of process);          Petrowski v. Hawkeye-Security Ins. Co.,  350 U.S. 495, 496 (1956)          _________    _________________________          (holding that defendant's  stipulation submitting to jurisdiction          waived  any   right  to   contest   in  personam   jurisdiction);                                              __  ________          Pennsylvania Fire Ins., 243 U.S. at 94-95 (holding that a foreign          ______________________          corporation's  registration   to  do  business  within   a  state          constitutes  consent);  General  Contracting  &  Trading  Co.  v.                                  _____________________________________          Interpole,  Inc., 940 F.2d 20, 23  (1st Cir. 1991) (ruling that a          ________________          plaintiff who  purposefully avails himself of  a particular forum          surrenders jurisdictional objections to claims arising out of the          same transaction that are brought against him in the same forum).                      Furthermore,  unlike,  say,  factual  allegations  in          trial court  pleadings, statements contained in  briefs submitted          by  a party's attorney  in one case  cannot routinely be  used in                                        ____________________               9The exact words Stafford's counsel used were:  "venue might          . .  . be proper in  the U.S. District Court for  the District of          Massachusetts."    Defendant's  Response  to  Plaintiffs's  Reply          Memorandum, at 9 (July 26, 1988).                                          12          another case as evidentiary  admissions of the party.   See Hardy                                                                  ___ _____          v. Johns-Manville Sales Corp., 851 F.2d 742, 745 (5th Cir. 1988);             __________________________          cf. Fragoso v. Lopez,     F.2d    ,     (1st Cir. 1993), [No. 92-          ___ _______    _____  ___      ___  ___          2046,  slip  op.  at  21]  (holding  that,  in  opposing  summary          judgment, a  litigant may not rest  upon freestanding allegations          contained in a lawyer's brief).  And although such statements may          achieve  binding  force  in  highly  unusual  circumstances,  see                                                                        ___          Kassel,  875 F.2d at  952 n.17 (suggesting  that specific factual          ______          statements  contained in  a pro se  brief may  be used  in cross-                                      ___ __          examining the author), we discern no such circumstances here.10                    Having read the  entire record with care,  we find that          it  reveals  no  word, act,  or  omission  that  may properly  be          construed as consent to the jurisdiction of a Massachusetts court          or as a waiver  of any available defenses in that regard.  To the          contrary, defendant  raised the  jurisdictional objection  in his          answer and  by motion,  and in  his briefs  below and  on appeal.          Throughout, he made his point abundantly clear.  It  is a winning                                        ____________________               10We think it is well to note that appellant has not claimed          that the venue-related allusion  caused any detrimental reliance.          At any rate, such a claim would be bootless.   Maryland generally          views "the question as to which period of limitations applies" as          "a matter of procedural, not substantive, law."  Turner v. Yamaha                                                           ______    ______          Motor Corp., U.S.A., 591 A.2d 886, 887 (Md. Ct. Spec. App. 1991).          ___________________          Thus, a court  sitting in Maryland would apply Maryland's statute          of limitations.  By July 26, 1988 (the date  when Stafford served          the  brief  containing  the  controversial  comment),  Maryland's          three-year statute of limitations for civil actions, see Md. Cts.                                                               ___          & Jud. Proc. Code  Ann.   5-101 (1992),  had expired.   Plaintiff          has called no applicable tolling provision to our attention; and,          furthermore, under applicable Maryland law, Martel would have had          to  present his claim against the estate within nine minths after          the  date of the  decedent's death.   See Md. Est.  & Trusts Code                                                ___          Ann.   8-103(a)(1) (1991).                                          13          point,  properly preserved,  never abandoned,  and sufficient  to          carry the day.          III.  CONCLUSION          III.  CONCLUSION                    We need go  no further.11   As Massachusetts has  never          recognized personal jurisdiction over a foreign executor on facts          akin to those presented here, the action may not proceed.          Affirmed.  Costs to appellees.          Affirmed.  Costs to appellees.          ________   __________________                                        ____________________               11Since the  jurisdictional issue is determinative,  we take          no  view of the  intriguing choice-of-law questions  that lurk in          the record or any of the other defenses Stafford advances.                                          14
