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

     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. &amp;  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  &amp; 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

          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

          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 &amp;  Procedure    4441,  at 366  (1981)    we  tackle  the
                     

jurisdictional issue first.

           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  &amp; 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 &amp;
                                                                 

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  &amp;  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).
                                          

          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  &amp; Milling Co.,  243 U.S.  93, 95
                                              

(1917); Holloway v. Wright  &amp; 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 &amp; Trading Co.  v. Interpole,
                                                                 
Inc., 940 F.2d 20, 22-23 &amp; 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  &amp;  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.
                                                        
&amp; 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.  &amp; Trusts Code
                                         
Ann.   8-103(a)(1) (1991).

                                13

point,  properly preserved,  never abandoned,  and sufficient  to

carry the day.

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.
                             

                    

     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
