
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2173                       SUNVIEW CONDOMINIUM ASSOCIATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                             FLEXEL INTERNATIONAL, LTD.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                   [Hon. James R. Muirhead, U.S. Magistrate Judge]                                            _____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Christopher J. Sorenson, with whom Gary J. Gordon, Katherine               _______________________            ______________  _________          A.  Killen Hall,  Fetterly &  Gordon, P.A.,  John L.  Putnam, and          _______________   ________________________   _______________          Stebbins, Bradley, Wood & Harvey were on brief, for appellants.          ________________________________               Mark  G. DeGiacomo,  with  whom M.  Carolina Avellaneda  and               __________________              _______________________          Roche, Carens & DeGiacomo, P.C. were on brief, for appellee.          _______________________________                              _________________________                                    June 27, 1997                              _________________________                    SELYA, Circuit  Judge.  In this  appeal, the plaintiffs                    SELYA, Circuit  Judge.                           ______________          make two related arguments.   First, they contend that  they were          improperly precluded from  undertaking jurisdictional  discovery.          Second,  they assert that this  initial error was compounded when          the district  court subsequently dismissed their  action for want          of jurisdiction over  the corporate person  of defendant-appellee          Flexel International, Ltd. (Flexel).1   Discerning no  reversible          error, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    The Sunview Condominium  Complex is located amidst  the          serene  pastoral beauty of Derry, New Hampshire.  On December 17,          1993,  that   tranquility  went   up  in  smoke,   literally  and          figuratively, when a conflagration erupted at the complex.  Those          flames,  in turn,  ignited the  controversy which  underlies this          appeal.   Alleging  that radiant  heating panels  manufactured by          Flexel's  predecessor in interest, Thermaflex International, Ltd.          (Thermaflex),  had  caused  the  blaze, the  Sunview  Condominium          Association  and its  management  company, Evergreen  Management,          Inc.  (collectively, Sunview),  brought  this  product  liability          class action to recover damages.2                                        ____________________               1The  plaintiffs  originally  sued  both  Flexel and  Aztech          International,  Ltd. (Aztech).  Aztech  is now in bankruptcy, and          the  district court  certified  its order  dismissing the  action          against Flexel as  a final judgment under Fed.  R. Civ. P. 54(b).          Thus, we treat the appeal as if Flexel were the sole defendant.               2Sunview alleges that Thermaflex (the actual manufacturer of          the heating panels) transferred its assets to Flexel in mid-1993.          For the purpose of resolving the jurisdictional issue,  the lower          court assumed  arguendo that  Flexel, a Scottish  corporation, is                         ________          the  successor in interest to  Thermaflex, an English  firm.  We,                                          2                    The  relevant  chronology  is   as  follows.    Sunview          commenced  its suit  in August  1995.   In February  1996, Flexel          moved  to dismiss  for  want of  personal jurisdiction.   Without          having  undertaken any  other discovery,  Sunview sought  to take          depositions of Flexel officials in Scotland.   When Flexel turned          a  cold shoulder, Sunview moved to  compel it to cooperate in the          taking  of the  desired depositions.   Magistrate  Judge Muirhead          denied  Sunview's motion.   See  Sunview  Condo. Ass'n  v. Aztech                                      ___  _____________________     ______          Int'l, Ltd., Civ.  No. 95-418-B, slip  op. at 2-6 (D.N.H.  May 1,          ___________          1996).                    Sunview did not lodge  an objection to the magistrate's          ruling.  On May 28, 1996, it filed an opposition to the dismissal          motion.  On September  3, the district court, finding  an absence          of  minimum contacts, granted the motion to dismiss.  This appeal          ensued.          II.  ANALYSIS          II.  ANALYSIS                    Although   Sunview's   two   claims   of    error   are          interconnected,  a separate  set of  legal principles  applies in          each   instance.     Consequently,  we   treat  the   two  claims          sequentially.                       A.  Denial of Jurisdictional Discovery.                       A.  Denial of Jurisdictional Discovery.                           __________________________________                    Sunview  argues  heatedly  that  it  should  have  been          permitted   to  engage   in  jurisdictional   discovery.     This          asseveration has  some superficial appeal.  After all, a diligent          plaintiff who sues an out-of-state corporation  and who makes out                                        ____________________          too, proceed on that assumption.                                          3          a colorable case  for the existence  of in personam  jurisdiction                                                  __ ________          may  well be entitled to a modicum of jurisdictional discovery if          the  corporation  interposes  a  jurisdictional  defense.3    See                                                                        ___          Whittaker Corp.  v. United  Aircraft Corp.,  482 F.2d 1079,  1086          _______________     ______________________          (1st Cir. 1973); Surpitski v. Hughes-Keenan Corp.,  362 F.2d 254,                           _________    ___________________          255-56 (1st Cir. 1966) (per curiam).  But that entitlement is not          absolute; in all  events, it  presupposes that  the plaintiff  is          reasonably  attentive to the preservation of its rights.  That is          not the situation here.                    When   Sunview  could  not  convince  Magistrate  Judge          Muirhead  to approve the depositions  that it wished  to take, it          dropped  the matter.  Specifically,  it eschewed the  filing of a          timely objection to  the magistrate's order denying its motion to          compel discovery.    This omission  is fatal  to Sunview's  first          assignment of error.  We explain briefly.                    Since  the  motion  to   compel  discovery  involved  a          nondispositive matter, the magistrate's order  was effective when          made, and it was therefore immediately appealable to the district          court.  See 28 U.S.C.   636(b)(1)(A).  To receive  such review, a                  ___                                        ____________________               3This rule  has its limitations.   See,  e.g., Compagnie  De                                                  ___   ____  _____________          Bauxites  De Guinee v. L'Union Atlantique S.A., 723 F.2d 357, 362          ___________________    _______________________          (3d Cir. 1983)  (indicating that discovery  may be disallowed  if          the assertion of jurisdiction appears frivolous).  Moreover, even          when the rule applies, the plaintiff is  not necessarily entitled          to take  depositions.   Here,  Sunview never  attempted to  learn          jurisdictional  facts  through  interrogatories  or  demands  for          document production, see Fed. R.  Civ. P. 33, 34, and we  have no                               ___          way to tell either how effective these less intrusive devices may          have been or to  what extent Flexel would have  sought protection          from them (and if so, whether the magistrate would have permitted          their use).                                          4          party must file objections within ten days from service of a copy          of the order.  See Fed. R. Civ. P. 72(a).  Unless an objection is                         ___          filed within this window of opportunity, a magistrate's  order on          a nondispositive matter, such as a self-operating order granting,          denying,  or  limiting  pretrial  discovery,  is  not  thereafter          reviewable on  appeal.  See  Pagano v. Frank,  983 F.2d  343, 346                                  ___  ______    _____          (1st Cir. 1993); see also  Keating v. Secretary of HHS,  848 F.2d                           ___ ____  _______    ________________          271, 275 (1st Cir.  1988) (per curiam) (explicating same  rule in          respect  to a  party's failure  to file  timeous objections  to a          magistrate's  recommended disposition  of a  dispositive motion).          The Civil Rules are quite explicit on this point:                    Within 10 days after being served with a copy                    of the magistrate judge's  order, a party may                    serve and  file objections  to  the order;  a                    party may not  thereafter assign  as error  a                    defect in  the  magistrate judge's  order  to                    which objection was not timely made.          Fed.  R. Civ.  P.  72(a);  see  also  28  U.S.C.     636(b)(1)(A)                                     ___  ____          (empowering  the district  court  to reconsider  and set  aside a          magistrate's  order on a nondispositive  matter when the order is          clearly erroneous or contrary to law).                    This  court has  applied  the plain  directive of  Rule          72(a) straightforwardly and  in accordance with  its tenor.   See                                                                        ___          Pagano,  983 F.2d at 346;  Unauthorized Practice of  Law Comm. v.          ______                     ___________________________________          Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992) (per curiam); see also          ______                                                   ___ ____          United States  v. Ecker,  923  F.2d 7,  9  (1st Cir.  1991)  (per          _____________     _____          curiam) (citing  28 U.S.C.    636(b)(1)(A)).   These  cases stand          unambiguously  for  the proposition  that,  in  order to  receive          review  of a magistrate's order  on a nondispositive  matter in a                                          5          court of  appeals, the  aggrieved  party first  must have  sought          district court review by timely filing an objection to the order.                    The instant  case presents no occasion  for a departure          from this salutary  proposition.  Because Sunview never sought to          have the district court review the magistrate's ruling, the issue          of jurisdictional discovery is  by the boards and Sunview  cannot          resurrect it in this venue.                       B.  Dismissal for Want of Jurisdiction.                       B.  Dismissal for Want of Jurisdiction.                           __________________________________                    Sunview argued below, as it does here, that Thermaflex,          Flexel's predecessor in interest,  see supra note 2, purposefully                                             ___ _____          availed  itself  of  the  privilege  of  doing  business  in  New          Hampshire,  and therefore  subjected itself  (and Flexel,  as its          successor)  to  suits in  New Hampshire  arising  out of  its New          Hampshire-directed activities.    Judge Barbadoro  rejected  this          thesis, holding, after an  exhaustive review of the record,  that          Sunview  had pointed  to  "insufficient  contact[s] to  establish          Thermaflex's  purposeful availment of New Hampshire as a place to          do business."  Sunview  Condo. Ass'n v. Aztech Int'l,  Ltd., Civ.                         _____________________    ___________________          No. 95-418-B,  slip op. at  10 (D.N.H.  Sept. 3, 1996).   Sunview          assigns error to this order.4  We see none.                    To wax longiloquent would serve no useful purpose.   We          have  stated before, and today reaffirm, that "when a lower court          produces  a comprehensive,  well-reasoned decision,  an appellate                                        ____________________               4Because Sunview  never  raised the  discovery issue  before          Judge Barbadoro, see supra Part II(A), we pay no heed to its vain                           ___ _____          attempt to attack  the judge's  order on the  basis of  curtailed          discovery.                                          6          court should refrain from writing at length to no other end  than          to  hear its  own words  resonate."   Lawton v.  State  Mut. Life                                                ______     ________________          Assur. Co. of  Am., 101 F.3d 218, 220 (1st  Cir. 1996); accord In          __________________                                      ______ __          re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d  36, 38 (1st          __________________________________________          Cir.  1993).    That  principle  is  dispositive   here.    Judge          Barbadoro's  rescript cites  the  relevant case  law, see,  e.g.,                                                                ___   ____          Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Foster-Miller,          ________    _______                                ______________          Inc. v.  Babcock & Wilcox  Canada, 46  F.3d 138 (1st  Cir. 1995);          ____     ________________________          Ticketmaster-N.Y., Inc. v.  Alioto, 26 F.3d 201  (1st Cir. 1994);          _______________________     ______          Boit  v. Gar-Tech  Prods., Inc.,  967 F.2d  671 (1st  Cir. 1992),          ____     ______________________          applies the legal principles  derived therefrom to the documented          facts in an impeccable manner, and reaches an  unarguably correct          conclusion.   Hence, we  dispense with  this aspect of  Sunview's          appeal  for substantially  the  reasons elucidated  in the  lower          court's opinion.                    We  need go  no  further.   Given Sunview's  procedural          default on the discovery front and the paucity of  its proffer on          the merits of  the jurisdictional issue, the  judgment below must          be          Affirmed.          Affirmed.          ________                                          7
