
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1498                                 FOSTER-MILLER, INC.,                                Plaintiff, Appellant,                                          v.                               BABCOCK & WILCOX CANADA,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               James  J. Foster,  with  whom Michael  A.  Diener and  Wolf,               ________________              ___________________      _____          Greenfield & Sacks, P.C. were on brief, for appellant.          ________________________               Peter L. Resnik, with whom Cherie L. Krigsman and McDermott,               _______________            __________________     __________          Will & Emery were on brief, for appellee.          ____________                              _________________________                                   February 9, 1995                              _________________________                    SELYA, Circuit Judge.  In Boit v. Gar-Tec Prods., Inc.,                    SELYA, Circuit Judge.                           _____________      ____    ____________________          967 F.2d  671 (1st Cir. 1992), we urged district courts to take a          flexible approach in handling  motions to dismiss for lack  of in                                                                         __          personam jurisdiction, and,  concomitantly, to tailor  procedures          ________          for  use in  those purlieus.   Turning  from the  general to  the          particular,  we recommended  that district courts  employ varying          levels of scrutiny in connection with  such motions, adapting the          level of scrutiny to the exigencies  of the individual case.  See                                                                        ___          id. at 674-78.   Among other possibilities, we suggested  using a          ___          special intermediate standard when  "factual issues are common to          both the jurisdictional question and the claim  on the merits . .          . ."  Id. at 677.                ___                    The case before  us today   an appeal by Foster-Miller,          Inc.  (FMI) from an  order dismissing its  commercial tort action          against Babcock  & Wilcox Canada (BWC)   illustrates vividly that          Boit's   flexible  approach   demands   circumspection   in   its          ____          application.   In this  case, the district  court applied  Boit's                                                                     ____          intermediate standard  too rashly when,  eager to test  whether a          legally  sufficient showing  of  jurisdiction had  been made,  it          neither  gave the parties adequate notice that it intended to use          this special standard nor ensured that FMI had a fair opportunity          to  gather and present the evidence necessary for such a showing.          While  we are not  without sympathy for  the district judge    he          inherited this  case midstream,  and Boit, in  retrospect, should                                               ____          have emphasized the need to forewarn litigants of a trial court's          intention  to  go  beyond  the  prima  facie  standard  typically                                          2          associated with motions to dismiss under Fed. R. Civ. P. 12(b)(2)            we cannot permit the dismissal order to stand.          I.  THE FACTS          I.  THE FACTS                    We  sketch the operative  facts, drawing liberally from          the  lower court's opinion.  See Foster-Miller, Inc. v. Babcock &                                       ___ ___________________    _________          Wilcox Can., 848 F. Supp. 271 (D. Mass. 1994).          ___________                    The  parties to  this appeal  are  quondam competitors:          FMI is  a Massachusetts corporation engaged  in furnishing sludge          and particle  removal services for nuclear  steam generators; BWC          is  a Canadian  firm  that,  among  other things,  services  such          generators.  At  its  core,  the litigation  concerns  a  virtual          meltdown of the parties' relationship, which in turn  detonated a          lawsuit.  The tale follows.                    As early as 1988, FMI and BWC  entertained the prospect          of  a joint venture to furnish sludge removal services to Ontario          Hydro,  a  Canadian utility.    Although the  joint  venture idea          stalled  and  the principals  went  their  separate ways,  Canada          remained an  alluring target.  But  the road to  prosperity had a          large  pothole.    FMI's  then-extant technology,  known  by  the          acronym  "CECIL," featured flexible lances that directed powerful          bursts  of water at pockets  of sludge found  within the hard-to-          reach crannies of nuclear  steam boilers.  While this  system had          distinct  competitive advantages  over  BWC's  rival rigid  lance          system, neither system performed satisfactorily  in the cleansing          of Canadian boilers (known in the trade as Candu boilers).                    Determined  to  detour  around  the  "can't  do  Candu"                                          3          pothole  and penetrate the Canadian market, BWC set out to design          a  lance of  unprecedented  flexibility.   In  1989, while  BWC's          development  efforts  were  underway,  Ontario Hydro  (acting  on          behalf of  a consortium  of Canadian  utilities) retained FMI  to          study the feasibility of adapting FMI's flexible lance technology          for use  in  Candu  boilers.   As  part  of  this  endeavor,  FMI          contracted with  a well-known supplier, U.S. Composites (CompCo),          to create a new type of hose.                    In March 1990, Robert A.S. Lee, an FMI employee who had          been  instrumental  in  perfecting  CECIL, attended  an  industry          conference  in  Tennessee.   Daniel  St.  Louis, a  BWC  engineer          involved  in that  company's  push to  fashion a  flexible lance,          attended  the same session.  During a previous encounter, the men          had  casually discussed high  pressure hoses.   On this occasion,          their  conversation  became  more  detailed and  focused  on  the          possibility  of  reinforcing  high pressure  hoses  with  certain          fibers.    The   discussion  proved  prophetic:    a   few  weeks          thereafter, CompCo delivered the special  hose that FMI had asked          it  to design.    The hose  was thought  in  certain quarters  to          represent  a  technological  breakthrough.     One  of  its  more          revolutionary features  was a  double-layered Kevlar sheath  that          supplied desired reinforcement.                    On May 11, 1990, an Ontario Hydro representative, James          Malaugh, traveled  to FMI's  plant in Waltham,  Massachusetts, to          assess FMI's  progress.   Seeking expertise and  insight, Malaugh          invited St. Louis to join him.  Nonplussed, FMI allowed St. Louis                                          4          to attend only after BWC signed a confidentiality agreement.  The          agreement,  duly  executed  by  a ranking  official  of  BWC  and          transmitted via facsimile machine from  Canada, acknowledged that          FMI  "anticipate[d] disclosing  . .  . certain  information  of a          novel, proprietary,  or  confidential nature,"  and  memorialized          BWC's  promise "not  to  use [the]  information  for any  purpose          unless specifically authorized in writing by FMI."  The agreement          also  stipulated that  FMI would  be entitled  to relief  for any          breach.                    William  Leary,  the  FMI  engineer in  charge  of  the          Ontario  Hydro   project,  hosted  the  Waltham   session.    The          participants   debated   various   aspects  of   flexible   lance          technology, including the  preferred characteristics of  the hose          and possible  methods  of reinforcement.    At one  point  Leary,          responding to a direct  question by St. Louis, identified  CompCo          as FMI's supplier.  Not long after the Waltham meeting, St. Louis          contacted  CompCo  and inquired  about  the  possibility of  that          company  fabricating  a  similar  hose   for  BWC.    St.  Louis'          suggestion  that FMI  would  not object  proved overly  sanguine;          after consulting with FMI, CompCo rebuffed BWC's overtures.1                    Undaunted, BWC forged ahead in its research effort.  It          eventually  succeeded in  manufacturing its  own flexible  lance,          suitable for  Candu boilers.   Thereafter, Ontario  Hydro awarded          BWC a lucrative contract.                                        ____________________               1Nonetheless, BWC managed to obtain a sample of  the special          hose.   The parties dispute whether this occurred before or after          the May 11 meeting.                                          5          II.  THE LITIGATION          II.  THE LITIGATION                    On  November 12,  1993,  FMI, claiming  to have  gotten          hosed,  commenced suit against BWC in  the United States District          Court  for the  District  of Massachusetts.   Invoking  diversity          jurisdiction,  28 U.S.C.   1332 (1988), FMI charged breach of the          confidentiality agreement, misappropriation of trade secrets, and          unfair competition.  BWC moved to dismiss for lack of in personam                                                                __ ________          jurisdiction  or, in the alternative,  on the basis  of forum non                                                                  _____ ___          conveniens.          __________                    Judge  Keeton  drew  the  case.    Concerns  about  the          parties'  trade  secrets  slowed discovery  to  a  crawl.   At  a          conference held  on December 16,  1993, Judge Keeton  scheduled a          hearing  on the motion for  January 4, 1994, restricted discovery          for the time being to matters "bear[ing]  upon the jurisdictional          issue," and advised counsel  that, absent an agreement dissolving          the discovery deadlock, he would use  the traditional prima facie          standard, not the  special intermediate  standard, in  evaluating          the motion to dismiss.                    At that point, fate intervened.  In a routine shuffling          of cases  ancillary to  the appointment  of several  new judicial          officers, this case was plucked from Judge Keeton  and reassigned          to  Judge Stearns.   The  January 4  hearing  never materialized.          Instead,  Judge Stearns heard the motion to dismiss on February 1          and 2, 1994.  Though the discovery dispute had not been resolved,          Judge Stearns, to  FMI's obvious chagrin,  undertook not only  to          probe  the existence  of the  basic  facts on  which jurisdiction                                          6          might be  premised but also to adjudicate  certain ultimate facts          (e.g.,   whether   the   participants   actually   disclosed  any           ____          confidential  information  at  the  Waltham meeting).2    And  he          applied the  special intermediate  level of scrutiny  rather than          the more easily satisfied prima facie standard.                    The district  court  granted  the  motion  to  dismiss.          After  stressing  the importance  of the  Waltham meeting  to the          jurisdictional issue    BWC, after all, had no  other significant          contacts with the forum   Judge Stearns articulated two bases for          refusing to  exercise jurisdiction.  First, he  found it unlikely          either  that proprietary  information had  been disclosed  at the          meeting  or that such information came into BWC's possession as a          result of the meeting;  therefore, FMI's cause of action  did not          arise  from BWC's participation in the meeting as required by the          Massachusetts long-arm statute.   See Foster-Miller, 848 F. Supp.                                            ___ _____________          at 276-77.  Second, and alternatively,  the judge concluded that,          even  if FMI's claims did  arise from BWC's  participation in the          Waltham meeting,  it would  be unreasonable for  a Massachusetts-          based court to  exercise jurisdiction over  BWC, in part  because          the court might not be able to grant effective injunctive relief.          See id. at 277.          ___ ___                    FMI moved for reconsideration, specifically withdrawing                                        ____________________               2Because  the scope of this inquiry caught FMI off guard, it          tendered a series of post-hearing offers of proof in an effort to          make  up lost ground.  We  do not comment on  the timing of FMI's          proffers.    Further  proceedings   in  the  district  court  are          obligatory,  see infra  Parts  IV(C)  &  V,  at  which  time  new                       ___ _____          evidentiary submissions can be assembled.                                          7          its  prayer for an injunction.   Judge Stearns  denied the motion          without comment.  This appeal ensued.          III.  SPECIFIC PERSONAL JURISDICTION          III.  SPECIFIC PERSONAL JURISDICTION                    Prior to  reexamining the Boit  framework, we  rehearse                                              ____          certain  general  principles  of  law  relating  to  specific  in                                                                         __          personam jurisdiction.          ________                    Personal jurisdiction  implicates the power of  a court          over a  defendant.  In a  federal court, both its  source and its          outer limits are  defined exclusively by  the Constitution.   See                                                                        ___          Insurance Corp. of  Ireland v. Compagnie des  Bauxites de Guinee,          ___________________________    _________________________________          456 U.S. 694, 702 (1982).                    There are two  different avenues by  which a court  may          arrive at  personal jurisdiction.  One  frequently traveled route          leads to general jurisdiction.  "General jurisdiction exists when          the litigation is not directly founded  on the defendant's forum-          based  contacts, but  the defendant  has nevertheless  engaged in          continuous and systematic activity, unrelated to the suit, in the          forum  state."  United Elec.  Workers v. 163  Pleasant St. Corp.,                          _____________________    _______________________          960  F.2d 1080,  1088 (1st Cir.  1992) (Pleasant  St. I).   Here,                                                  _______________          BWC's forum-related  contacts are far  too scanty to  justify the          invocation of  general jurisdiction.   See Foster-Miller,  848 F.                                                 ___ _____________          Supp. at 273 (marshalling certain undisputed facts).                    When  general  jurisdiction  is  lacking, the  lens  of          judicial inquiry narrows to  focus on specific jurisdiction.   As          the  label  implies,  this  focus  requires  weighing  the  legal                                          8          sufficiency  of a  specific set  of interactions  as a  basis for          personal jurisdiction.  See  Helicopteros Nacionales de Colombia,                                  ___  ____________________________________          S.A. v. Hall, 466  U.S. 408, 414-15 & nn.8-9  (1984) (recognizing          ____    ____          "general"  and "specific" jurisdiction and distinguishing between          them); Pleasant St. I,  960 F.2d at 1088 (similar);  Donatelli v.                 ______________                                _________          National Hockey  League, 893  F.2d 459,  462-63  (1st Cir.  1990)          _______________________          (similar).   In  that  exercise,  the  applicable  constitutional          limits assume critical importance.  We explain briefly.                    The existence of specific personal jurisdiction depends          upon  the  plaintiff's   ability  to   satisfy  two   cornerstone          conditions:  "first, that the forum in which the federal district          court  sits  has  a  long-arm  statute  that  purports  to  grant          jurisdiction over the defendant; and second, that the exercise of          jurisdiction  pursuant   to  that   statute  comports  with   the          strictures of the Constitution."  Pritzker v. Yari, ___ F.3d ___,                                            ________    ____          ___  (1st Cir.  1994)  [No. 93-2374,  slip op.  at  9]; see  also                                                                  ___  ____          Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.          ___________________________    ______          1994); Hahn  v. Vermont  Law  Sch., 698  F.2d  48, 51  (1st  Cir.                 ____     __________________          1983).                    Although   we  deem   the  first  of   the  cornerstone          conditions to  be self-explanatory, the second condition requires          amplification.     This   condition  implicates   three  distinct          components, namely, relatedness, purposeful  availment (sometimes          called "minimum contacts"), and reasonableness:3                                        ____________________               3This  trilogy  forms  an   interesting  contrast  with  the          jurisprudence of the branch of the Massachusetts long-arm statute          that applies in  many business disputes.   See Mass. Gen.  L. ch.                                                     ___                                          9                    First,  the  claim underlying  the litigation                    must directly arise out of, or relate to, the                    defendant's forum-state  activities.  Second,                    the   defendant's   in-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  courts   foreseeable.                    Third, the exercise  of jurisdiction must, in                    light of the Gestalt factors, be reasonable.          Pleasant St. I, 960  F.2d at 1089; accord  Pritzker, ___ F.3d  at          ______________                     ______  ________          ___ [slip op. at 10-11]; Ticketmaster, 26 F.3d at 206.                                   ____________          IV.  APPLYING THE JURISDICTIONAL RULES          IV.  APPLYING THE JURISDICTIONAL RULES                    A long-arm statute is  plainly available for FMI's use.          See Mass. Gen. L. ch. 223A,   3(a) (1992).   Section 3(a), quoted          ___          supra  note  3, is  not modest  in its  reach.   Its  language is          _____          expansive, and its words are to be generously applied in order to          determine  whether a given defendant  fairly can be  said to have          participated in the forum's  economic life.  See Pleasant  St. I,                                                       ___ _______________          960  F.2d at 1087 (collecting cases).  Since section 3(a) applies          here,  we  turn directly  to the  second  of the  two cornerstone                                        ____________________          223A,    3(a) (1992) (providing in relevant part for the exercise          of  "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 Massachusetts).          The  Massachusetts  Supreme  Judicial  Court has  held  that,  to          animate  the statute, the facts must show both that the defendant          transacted business  in Massachusetts, and  that the  plaintiff's          claim arises out of the transaction of that business.  See  Tatro                                                                 ___  _____          v. Manor  Care, Inc., 625 N.E.2d 549, 551 (Mass. 1994); Good Hope             _________________                                    _________          Indus.,  Inc. v.  Ryder Scott  Co., 389  N.E.2d 76  (Mass. 1979).          _____________     ________________          From  our coign  of  vantage, these  two  requirements appear  to          correspond,  in  reverse order,  to the  first  two of  the three          constitutional components,  i.e., the "transacting  any business"                                      ____          requirement corresponds to "minimum contacts," while the "arising          from" requirement corresponds to relatedness.                                          10          conditions  that  constitute  the  foundation for  a  finding  of          specific in personam jurisdiction.                   __ ________                    As  we  have   said,  the  condition  comprises   three          components.  The first    minimum contacts   is  not legitimately          in issue.  The seminal jurisdictional fact   that BWC voluntarily          dispatched  a  representative  to  Massachusetts  for  commercial          advantage  pursuant to  a written  contract with  a Massachusetts          firm      cannot  be  gainsaid.    In  taking  this  action,  BWC          purposefully  conducted activities  in the  forum state,  thereby          making  a suit foreseeable.  See id.  at 1089.  Hence, we endorse                                       ___ ___          the district  court's conclusion that BWC  transacted business in          Massachusetts to  such an  extent, and in  such a  manner, as  to          satisfy the minimum contacts requirement.  See Foster-Miller, 848                                                     ___ _____________          F. Supp. at 276; compare  Pritzker, ___ F.3d at ___ [slip  op. at                           _______  ________          14]  (finding  jurisdiction  in   part  because  the  nonresident          defendant, by contract, had "knowingly acquir[ed] an economically          beneficial interest" in a forum-based commercial venture).                    Setting the matter of minimum contacts to rest, we come          face to  face with  the next  component:   relatedness.   In this          case, evaluating that requirement  reduces to whether FMI's claim          arises from BWC's  minimum contacts.   To place  this issue  into          proper perspective, we  first limn the options that are available          to a district court in  handling a motion to dismiss for  want of          jurisdiction  over the person.  We then refine that framework and          scrutinize the decision below in light of our handiwork.                 A.  Establishing and Testing Personal Jurisdiction.                 A.  Establishing and Testing Personal Jurisdiction.                     ______________________________________________                                          11                    It  is  apodictic that  the  plaintiff,  who bears  the          burden of proving the existence of in personam jurisdiction, must                                             __ ________          carry the devoir of persuasion on the elements of relatedness and          minimum contacts.  See  Ticketmaster, 26 F.3d at 207  n.9; Martel                             ___  ____________                       ______          v.  Stafford, 992 F.2d 1244, 1247 n.5 (1st Cir. 1993); Donatelli,              ________                                           _________          893 F.2d at 468.  But this is merely one step  along the path; to          allocate the burden is neither to  define the evidentiary showing          necessary to meet it  nor to explain whether that  showing varies          from context to context.                    We addressed these important issues in Boit.  There, we                                                           ____          tried  to formulate a procedural matrix that would serve to endow          the decisional  process with  appropriate degrees of  economy and          manageability.  That  endeavor produced a trio of standards, each          corresponding to  a  level of  analysis, that  might usefully  be          employed when  a trial  court comes  to  grips with  a motion  to          dismiss for want of personal jurisdiction.                    The  most  conventional of  these  methods  permits the          district  court  "to  consider  only whether  the  plaintiff  has          proffered  evidence  that,  if  credited, is  enough  to  support          findings of all facts essential to personal jurisdiction."  Boit,                                                                      ____          967 F.2d at 675.  To make a prima  facie showing of this calibre,          the  plaintiff ordinarily cannot rest  upon the pleadings, but is          obliged to adduce  evidence of specific facts.   See id.  Withal,                                                           ___ ___          the  district  court acts  not as  a  factfinder, but  as  a data          collector.  That is to say, the court, in a manner reminiscent of          its role  when a motion for summary judgment is on the table, see                                                                        ___                                          12          Fed. R.  Civ. P.  56(c),  must accept  the plaintiff's  (properly          documented)  evidentiary  proffers as  true  for  the purpose  of          determining  the  adequacy  of  the  prima  facie  jurisdictional          showing.   Despite  the  lack of  differential factfinding,  this          device is a useful means of screening out cases in which personal          jurisdiction  is  obviously  lacking,  and  those  in  which  the          jurisdictional  challenge   is  patently  bogus.    However,  the          approach  offers  little  assistance  in  closer,  harder-to-call          cases, particularly  those that  feature conflicting  versions of          the  facts.   See,  e.g., General  Contracting  & Trading  Co. v.                        ___   ____  ____________________________________          Interpole, Inc., 899 F.2d 109 (1st Cir. 1990).          _______________                    A  second option open  to the court  is to embark  on a          factfinding mission  in the traditional way,  taking evidence and          measuring  the  plaintiff's  jurisdictional  showing   against  a          preponderance-of-the-evidence standard.  In  Boit, we stated that                                                       ____          this standard may appropriately be invoked when a court                    determine[s]  that in the  circumstances of a                    particular case it is unfair to force an out-                    of-state defendant  to incur the  expense and                    burden of a trial on the merits  in the local                    forum  without  first requiring  more  of the                    plaintiff than a prima facie showing of facts                                     ___________                    essential to  in  personam jurisdiction.    A                                  __  ________                    court may so determine, for example, when the                    proffered  evidence  is  conflicting and  the                    record is rife with contradictions, or when a                    plaintiff's    affidavits    are    "patently                    incredible . . . ."          Boit,  967  F.2d  at  676  (offering  examples).    Virtually  by          ____          definition, the preponderance standard necessitates  a full-blown          evidentiary  hearing  at  which  the court  will  adjudicate  the                                          13          jurisdictional  issue  definitively   before  the  case   reaches          trial.4   In that mode,  the court will  "consider[] all relevant          evidence proffered by the parties and mak[e] all factual findings          essential  to disposition of the  motion."  Id.   But this method                                                      ___          must  be used discreetly.   For  one thing,  pretrial evidentiary          hearings  are  relatively  cumbersome  creatures,  and,  if  used          routinely, can  squander judicial resources.   For another thing,          since  this  method  contemplates  a  binding  adjudication,  the          court's  factual determinations  ordinarily will  have preclusive          effect,  and, thus,  at least  in situations  in which  the facts          pertinent to jurisdiction  and the facts pertinent  to the merits          are identical, or nearly so, profligate use of  the preponderance          method can all too easily verge on a deprivation of  the right to          trial by jury.                    In  Boit, we  recognized these  difficulties.   We also                        ____          recognized that the prima facie and preponderance-of-the-evidence          standards are  merely two  of several possible  models, and  that          trial  courts need  not  confine themselves  to choosing  between          these two  levels of evidentiary scrutiny.   See id. at  677.  In                                                       ___ ___          the special  circumstance in which the  assertion of jurisdiction          is  bound up  with the  claim on  the merits, the  possibility of          preclusion renders  use of the preponderance  standard troubling,                                        ____________________               4Such hearings  frequently are  convened under the  aegis of          Fed.  R. Civ.  P. 12(d),  which provides  in pertinent  part that          certain defenses, including  the defense of  lack of in  personam                                                               __  ________          jurisdiction,  "shall be  heard  and determined  before trial  on          application of  any party,"  unless the court  orders a  deferral          until time of trial.                                          14          while  the possibility  of permitting a  dubious case  to proceed          beyond  the pleading stage, and  even to trial,  though the court          eventually will be found to lack jurisdiction, renders use of the          prima facie standard undesirable.                    The  Boit panel  anticipated  that, when  this  special                         ____          circumstance arose, trial courts  might steer a middle course  by          engaging in  some differential  factfinding, limited to  probable          outcomes  as  opposed to  definitive  findings  of fact,  thereby          skirting potential preclusionary problems  while at the same time          enhancing  the courts'  ability to weed  out unfounded  claims of          jurisdiction.   Utilizing this  intermediate standard, a district          court, "even though allowing  an evidentiary hearing and weighing          evidence  to make  findings .  . .  may merely  find  whether the          plaintiff  has shown a likelihood  of the existence  of each fact          necessary to support personal  jurisdiction."  Id.  This  showing                                                         ___          constitutes an assurance that  the circumstances justify imposing          on  a foreign defendant the burdens  of trial in a strange forum,          but  leaves to  the time  of trial  a  binding resolution  of the          factual disputes common to both the jurisdictional issue and  the          merits of the claim.  See id. at 678.                                ___ ___                    Unlike  the   prima  facie   standard,  and  like   the          preponderance  standard, this  third method,  which we  sometimes          call the "likelihood standard,"                    involves   factfinding  rather   than  merely                    making a ruling of law  regarding sufficiency                    of  the evidence to  present a fact question.                    Like the first and  unlike the second method,                    however, the third method  avoids potentially                    troubling  issues  of  "issue preclusion"  or                                          15                    "law of  the case"  (at least when  the court                    denies the motion) because a determination by                    such an intermediate standard  . . . does not                    purport to be a  finding by the same standard                    on  the  same issue  as  will  be decided  at                    trial.          Id.          ___                    We acknowledge that having an array of standards at the          ready  may be thought  too much of  a good thing.   However, even          though  an intermediate  standard  will not  be  used with  great          frequency,  the need for  one is  manifest.   We can  postulate a          variety of "common facts" scenarios in which  the facts necessary          to  sustain personal  jurisdiction are  intimately bound  up with          facts necessary to establish the merits  of the underlying claim.          See,  e.g.,  Ann  Althouse,  The  Use  of  Conspiracy  Theory  to          ___   ____                   ____________________________________          Establish In Personam  Jurisdiction:  A Due  Process Analysis, 52          ___________________________________   _______________________          Fordham L. Rev. 234, 247-51 (1983) (noting, though not adequately          resolving, the  problem created  in situations where  proving the          facts "upon which jurisdiction  depends is viewed as inextricably          tied to the substantive  merits of the  case").  It is  precisely          because of  the  incidence of  these situations    situations  in          which the  issue of jurisdiction  is factually enmeshed  with the          merits  of the suit   that we  recognized in Boit the need for an                                                       ____          intermediate  standard   of   proof  and,   correspondingly,   an          intermediate standard of judicial analysis.                               B.  Standards of Review.                               B.  Standards of Review.                                   ___________________                    We are reluctant  to end our discussion  of the methods          available to  district courts  for testing  jurisdictional waters          without mentioning appellate  review.  As a practical matter, the                                          16          standard of review will  depend in the first instance  on whether          the  court of appeals is reviewing the district court's choice of          an analytic method  or its application of such a  method.  As for          the court's initial choice from among the three standards we have          discussed   prima facie, likelihood, or preponderance   appellate          review is de novo.  This accords with the  general principle that          a  trial court's determinations as to the legal rules that govern          a party's  proof, including  those that dictate  what quantum  of          proof  the law  requires, are  subject to  plenary review.   See,                                                                       ___          e.g.,  Putnam Resources v. Pateman,  958 F.2d 448,  471 (1st Cir.          ____   ________________    _______          1992); see also Soto v.  United States, 11 F.3d 15, 17  (1st Cir.                 ___ ____ ____     _____________          1993)  (holding that "if a district  court applie[s] an erroneous          legal standard to the facts," de novo review obtains).                    As for the district  court's subsequent application  of          the method that it chooses, the standard of review will vary from          method to method.  If the  district court employs the prima facie          standard, then appellate  review is  de novo.   See United  Elec.                                                          ___ _____________          Workers v.  163 Pleasant  St. Corp.,  987 F.2d 39,  44 (1st  Cir.          _______     _______________________          1993) (Pleasant St.  II); Boit, 967 F.2d at 675;  see also Garita                 ________________   ____                    ___ ____ ______          Hotel Ltd.  Partnership v. Ponce Fed. Bank,  958 F.2d 15, 17 (1st          _______________________    _______________          Cir. 1992) (explaining that appellate courts traditionally review          rulings  on  motions to  dismiss  de  novo,  "applying  the  same          criteria that obtained  in the  court below").   If the  district          court  departs  from  the  conventional  method  of  adjudicating          motions to  dismiss  and relies  upon  the  preponderance-of-the-          evidence  standard to determine the existence vel non of personal                                                        ___ ___                                          17          jurisdiction, then  appellate review  is  for clear  error.   See                                                                        ___          CutCo Indus., Inc.  v. Naughton,  806 F.2d 361,  364-65 (2d  Cir.          __________________     ________          1986); see also Fed. R. Civ. P. 52(a).                 ___ ____                    If   the  district   court  employs   the  intermediate          standard,  then appellate review is for abuse of discretion.  Cf.                                                                        ___          Boit,  967 F.2d  at  678 (suggesting  a  deferential standard  of          ____          appellate review).  Two considerations point to the applicability          of this deferential mode of review in this situation.  First, the          nature of a likelihood  analysis is such that it  falls naturally          within the realm of discretionary decisionmaking.  Second, from a          practical standpoint, a likelihood  analysis simply does not seem          amenable  to either of the  other standards.   Unlike the classic          motion  to  dismiss,  in  which the  plaintiff's  assertions  are          accepted  as true, a  likelihood analysis  requires the  judge to          pass  upon   the  accuracy  and  integrity   of  the  plaintiff's          assertions.  Yet, in  contrast to a preponderance-of-the-evidence          analysis, these determinations are not true findings of fact, for          they lack definiteness  to some  degree, and they  also lack  the          preclusive   quality  that   would  otherwise   normally  attach.          Consequently, we believe  that abuse of discretion  is the proper          standard of review.   In practical terms, this means that we will          set aside the challenged  ruling only if we descry  "a meaningful          error in judgment."  Anderson v. Cryovac, Inc., 862 F.2d 910, 923                               ________    _____________          (1st Cir. 1988);  accord Rosario-Torres  v. Hernandez-Colon,  889                            ______ ______________     _______________          F.2d 314, 323 (1st Cir. 1989) (en banc).                    Of course, whatever method is chosen and however it may                                          18          be  applied,   appellate  review  of  the   trial  court's  legal          conclusions  about whether its findings do    or do not   support          the exercise of in personam jurisdiction is always nondeferential                          __ ________          and plenary.  See Boit, 967 F.2d at 678.                        ___ ____                        C.  Applying the Likelihood Standard.                        C.  Applying the Likelihood Standard.                            ________________________________                    After convening an evidentiary hearing and bringing the          likelihood  standard to  bear,  Judge Stearns  found it  unlikely          either that  FMI disclosed  legally protected information  at the          Waltham meeting or that BWC obtained confidences as a consequence          of the meeting.  See Foster-Miller, 848 F. Supp. at  276-77.  FMI                           ___ _____________          assigns error.  Its appeal raises potentially difficult questions          about the  application of  Boit's likelihood standard  in certain                                     ____          types of cases.                    We  hasten to note  that the paradigm  case   involving          the use of Boit's intermediate standard as a basis for exercising                     ____                                        __________          jurisdiction, i.e., as a basis for  denying a motion to dismiss                          ____                  _______          hardly seems problematic.   In such a scenario, the  plaintiff is          permitted  to proceed in its  forum of choice,  yet the defendant          has  the   consolation  of   having  been  afforded   a  detailed          demonstration,  beyond a  mere prima  facie showing,  of why  the          court  deems   it  fair   to  exercise  jurisdiction,   at  least          provisionally.   It is only  when Boit's intermediate standard is                                            ____          used as a basis for declining the exercise of jurisdiction, i.e.,                              _________                               ____          as a basis for granting a motion to dismiss, that the prospect of                         ________          mischief  looms.   One  can easily  imagine  cases in  which  the          likelihood standard might be applied to adjudicate facts that are                                          19          only  marginally related  to  jurisdiction, or  are very  closely          related to the merits of the plaintiff's substantive claims, thus          prematurely extinguishing a  plaintiff's ability  to present  its          case in a full and fair manner.5                    The short of  it is  that, whatever its  merits in  the          abstract,  Boit's intermediate  standard requires caution  in its                     ____          application,  especially when  it  appears that  a dismissal  may          result.  Indeed, although Boit does,  in dictum, 967 F.2d at 677-                                    ____          78, propose to authorize such  dismissals, it is noteworthy that,          apart  from the  opinion of  the court  below, there is  no other          reported  case, Boit  included, that  has sanctioned  a dismissal                          ____          pursuant to a district court's use of the likelihood standard.                    In general, this is  as it should be.   To the  limited          extent  that dismissals  under Boit's  intermediate  standard are                                         ____          justified at all, they  will happen only rarely.   Even then, the          exact  bounds  of  permissible  application  may  not  always  be          evident.   Nonetheless, we believe  it is better  to tolerate the          inconvenience of mild doctrinal  uncertainty rather than to forgo          altogether the utility of an intermediate standard and method  of          analysis.    See  generally  Stephen  L.  Carter,  Constitutional                       ___  _________                        ______________          Adjudication and  the Indeterminate Text:   A Preliminary Defense          _________________________________________________________________                                        ____________________               5Conceivably, such an adjudication  may also serve to thrust          the  judge into a  role that,  depending upon  the circumstances,          more appropriately belongs to the jury.  See, e.g., Jacob v. City                                                   ___  ____  _____    ____          of New York,  315 U.S.  752, 756 (1942)  (noting basic  principle          ___________          that merely because a "case is close and a jury might find either          way . . . is  no reason for a court to usurp the  function of the          jury"); Nunes v. Farrell  Lines, Inc., 227 F.2d 619,  621-22 (1st                  _____    ____________________          Cir.  1955) (applying  principle of  Jacob and  vacating directed                                               _____          verdict).                                          20          of  an Imperfect Muddle, 94 Yale L.J. 821 (1985) (recognizing the          _______________________          impossibility of  removing all uncertainty from  legal doctrine);          Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev.                                      ___________________          457, 465 (1897)  (warning that, in respect to judicial decisions,          "certainty generally is illusion, and  repose is not the  destiny          of man").  The bottom  line, clearly,  is  that judges  employing          Boit's intermediate standard should proceed with great care.          ____                    In   any  event,   these  potential   difficulties  are          peripheral to the instant appeal.  In this instance, the  flaw is          less  Judge  Stearns'  initial  decision to  switch  the  signals          previously  given   by  Judge   Keeton  and  instead   apply  the          intermediate  standard,  but  more  his failure  to  apprise  FMI          squarely  of this change of plan    a failure that was aggravated          by FMI's inability to engage in appropriate discovery and then to          present  the totality  of its  evidence within  the context  of a          likelihood analysis.                    When  judges  elect  on  their own  initiative  to  use          innovative methods in an  effort to accelerate the progress  of a          case,  they  must take  pains to  ensure  that parties  are given          satisfactory  notice,  reasonable  access  to  discovery,  and  a          meaningful opportunity to present evidence.  See, e.g., Stella v.                                                       ___  ____  ______          Town  of Tewksbury,  4 F.3d  53, 55-56  (1st Cir.  1993) (stating          __________________          these principles in the context of sua  sponte summary judgment);                                             ___  ______          Jardines  Bacata, Ltd.  v. Diaz-Marquez,  878 F.2d  1555, 1560-61          ______________________     ____________          (1st Cir. 1989)  (similar).   While the  likelihood standard  has          value,   the  latent  risks  associated  with  its  use  are  not                                          21          insignificant,  and  they should  be  ameliorated  to the  extent          practicable.                    Here, the  lower court did  not afford FMI  the process          that was due.   To be  sure, Judge Stearns  advised counsel at  a          status  conference on January 20, 1994, that he was pondering the          use of the likelihood standard, but he neither eased the existing          restriction  on  discovery  nor superseded  Judge  Keeton's prior          directives.    The  prima  facie standard  remained  the  default          setting,  and   Judge  Stearns'   intentions  remained   open  to          conjecture until the day of the hearing.  Indeed, while the court          transmitted mixed signals  to some degree, it  closed the January          20  conference by  specifically announcing  that the  question of          misappropriation would  not be subject to  anything more rigorous                                  ___          than scrutiny under a prima facie standard.  On this point, Judge          Stearns'  intention could not have  been more explicit.   He told          the lawyers:  "I am going to, for purposes of this hearing, . . .          basically  accept whatever [FMI] allege[s] to be true in terms of          the misappropriation."                    Following this pronouncement, the court never gave  the          litigants  suitable forewarning of a  change of heart,  or of the          extent  to  which it  would apply  the  likelihood standard.   To          understand  the  gravity of  this  omission, it  is  important to          understand the restriction imposed  on discovery by Judge Keeton,          and how that restriction  arose.  On December 15, 1993, FMI moved          "to examine the documents  and other materials maintained  by BWC          which  would be relevant to  statements in the  affidavits of Mr.                                          22          St. Louis  and others  concerning contacts with,  statements made          by,  and other information received  from Foster-Miller .  . . ."          BWC  objected.   The  next day  Judge  Keeton, ruling  ore tenus,                                                                 ___ _____          restricted  FMI's  discovery  to  matters  "bear[ing]   upon  the          jurisdictional issue."  All other  discovery, he ruled, was  "out          of bounds"  for the time  being.  We think  that this limitation,          coupled with  the judge's  simultaneous indication that  he would          evaluate  the motion to  dismiss under the  prima facie standard,          effectively  prevented   FMI  from  engaging   in  merits-related          discovery.  And when Judge Stearns then shifted abruptly from the          forecasted prima facie standard  to the more intrusive likelihood          standard, the preexisting restriction    which remained intact on          Judge Stearns' watch   hamstrung FMI.6                      Since   this    imperfect   communication   obviously          prejudiced  FMI's  ability  fairly to  meet  the  rigors  that an          across-the-board use  of the  likelihood standard imposed  in the          circumstances of  this  case,  we  must  set  aside  the  court's          conclusion that FMI's suit did  not "arise from" BWC's activities          in the  forum state.  To  that extent, then, the  dismissal order                                        ____________________               6This  is  because  the   two  standards  involve   markedly          different quanta  of proof.   So long  as a prima  facie standard          obtained, FMI had neither a right nor a reason, in  the course of          "jurisdictional  discovery," to  ferret  out all  the  supporting          evidence  regarding  the confidential  nature  of  what had  been          discussed in Waltham.  By the same token, it had  neither a right          nor a reason  to document  fully the allegedly  improper uses  of          such  confidences by  BWC.    But once  the  court  shifted to  a          likelihood  standard,   the  scope,  tenor  and   degree  of  the          prospective inquiry changed, and  FMI was caught, like a  fawn in          the headlights of a speeding van, without the discovery it needed          to prove its point.                                          23          succumbs.          V.  ASSESSING REASONABLENESS          V.  ASSESSING REASONABLENESS                    Our odyssey  is  not yet  at an  end.   In addition  to          holding that  FMI's  claim  did not  arise  from  BWC's  in-forum          contacts, the  district court held, alternatively,  that it would          be unreasonable to exercise  jurisdiction over BWC.  See  Foster-                                                               ___  _______          Miller, 848 F. Supp. at 277; see generally Asahi Metal Indus. Co.          ______                       ___ _________ ______________________          v.  Superior  Court, 480  U.S.  102,  113-16 (1987)  (undertaking              _______________          reasonableness inquiry); Burger King Corp. v. Rudzewicz, 471 U.S.                                   _________________    _________          462, 476-78, 482-85 (1985) (similar).  Since the rapid-fire shift          of standards probably  tainted this conclusion as  well, we could          simply  vacate the  alternative  holding.   We choose  instead to          dissect  it for three reasons:  the district court's rationale is          troubling, it has been  reported in a published opinion,  and the          underlying issue may arise on remand.                    The  hallmark  of  reasonableness  in  the  context  of          personal  jurisdiction  is "fair  play and  substantial justice."          International  Shoe Co. v. State of Washington, 326 U.S. 310, 320          _______________________    ___________________          (1945).  We have tended to  channel the quest for that imperative          through a  template that  highlights five  factors.   The factors          include:                    (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.                                          24          Pleasant St. I, 960 F.2d at 1088.  We have called the points that          ______________          compose this template "the gestalt factors" because, in any given          case, they may neither be amenable to mechanical  application nor          be  capable of producing an  open-and-shut result.  Their primary          function  is simply to  illuminate the equitable  dimensions of a          specific situation,  thereby "put[ting] into  sharper perspective          the  reasonableness  and   fundamental  fairness  of   exercising          jurisdiction" in that situation.  Pritzker, ___ F.3d at ___ [slip                                            ________          op. at 19].                    In  the case  at bar,  the trial  court found  that the          first, fourth, and fifth  factors did not favor one  outcome over          the other,  but that the  remaining two  factors discouraged  the          exercise of  jurisdiction.   See Foster-Miller,  848 F. Supp.  at                                       ___ _____________          277.  The court  then invoked a sixth  factor   the ability of  a          Canadian  court  to  apply   Massachusetts  law  competently  and          impartially   and concluded that even if "some harm had flowed to          Foster-Miller  from  the Waltham  meeting,"  the  suit should  be          dismissed based on "considerations of due process."  Id.                                                               ___                    The  district court's  analysis is  flawed.   First and          foremost, the  court's added consideration    the absence  of any          reason to believe  that a  Canadian court would  display bias  or          prove incapable of applying  Massachusetts law   has no  place in          the minimum contacts calculus.   Though the five gestalt  factors          should not necessarily  be deemed  collectively exhaustive,  see,                                                                       ___          e.g., FDIC v. British-American Ins. Co., 828 F.2d 1439, 1442 (9th          ____  ____    _________________________          Cir. 1987)  (recognizing additional factors),  the element seized                                          25          upon by the court below is of no relevance here.  Moreover, it is          already committed to the  doctrine of forum non conveniens.   See                                                _____ ___ __________    ___          Gulf  Oil Corp. v.  Gilbert, 330 U.S.  501, 509  (1947); see also          _______________     _______                              ___ ____          Burger King, 471  U.S. at 477 & n.20 (specifically distinguishing          ___________          between  the primary role  of the enumerated  gestalt factors and          the  secondary  role  of  considerations relevant  to  forum  non                                                                 _____  ___          conveniens).   The doctrines  of personal jurisdiction  and forum          __________                                                  _____          non  conveniens  share  certain  similarities,  but  they  embody          ___  __________          distinct concepts and should not  casually be conflated.  Compare                                                                    _______          Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-                          _________________________________________________          Access  Doctrine,  133   U.  Pa.  L.  Rev.   781,  788-89  (1985)          ________________          (distinguishing the  doctrines) with Margaret  G. Stewart,  Forum                                          ____                        _____          Non Conveniens:  A Doctrine in Search  of a Role, 74 Cal. L. Rev.          ______________   _______________________________          1259 (1986)  (arguing that  certain factors currently  considered          under  forum non  conveniens  doctrine should  be subsumed  under                 _____________________          personal  jurisdiction analysis).    Consequently,  the  district          court's self-proclaimed  sixth factor adds nothing  useful to the          jurisdictional mix.7                    The  court  also  adopted  several  other  questionable                                        ____________________               7To drive this conclusion home, we note two  related points.          First,  the very  case  on which  the  district court  relied  in          assigning weight  to the  added factor,  Howe v. Goldcorp  Invs.,                                                   ____    ________________          Ltd., 946 F.2d 944 (1st Cir. 1991), cert. denied, 112 S. Ct. 1172          ____                                _____ ______          (1992),  is  a  forum  non   conveniens  case,  not  a   personal                          _____  ___   __________          jurisdiction  case.   Second,  we are  unable  to discern  a link          between the judge's hosannas to the Canadian court system and his          conclusion that a federal district court sitting in Massachusetts          lacks jurisdiction.  Assuming that neither of two courts poses an          undue  risk  of  biased  or incompetent  adjudication,  there  is          nothing  to  be counted  against either  of  them in  working the          jurisdictional calculus.                                          26          positions,  likely influenced  by  its mistaken  blending of  the          theories of  personal jurisdiction  and forum non  conveniens, in                                                  _____ ___  __________          the  course of  ascertaining  that the  second and  third gestalt          factors  militated against  the  exercise of  jurisdiction.   For          example,  the court deviated from the thrust of the second factor          by  centering much of its discussion on "the implications of this          litigation  for  a Canadian  industry upon  whom [sic]  an entire          population depends for electric power" and on the extent to which          Canada's  interests  "dwarf"  those of  Massachusetts.    Foster-                                                                    _______          Miller,  848 F.  Supp.  at  277.    This  emphasis  distorts  the          ______          directive that a court pondering the second factor must mull "the          forum state's interest in adjudicating the dispute," Pleasant St.                                                               ____________          I,  960 F.2d  at 1088.   The  purpose of  the inquiry  is not  to          _          compare the forum's interest to that of  some other jurisdiction,          _______          but to determine the  extent to which the forum  has an interest.                                                           ___          See, e.g., Burger King, 471 U.S.  at 483 & n.26 (flatly rejecting          ___  ____  ___________          the notion that a  non-forum state's "acknowledged interest might          possibly render jurisdiction in [the forum] unconstitutional" and                                                      ________________          observing that "minimum-contacts analysis presupposes that two or          more States may be interested in the outcome of a dispute").                    The district  court's analysis  is equally awry  in its          treatment  of  the  third   gestalt  factor  (which  requires  an          assessment of  "the plaintiff's interest in  obtaining convenient          and  effective relief,"  Pleasant  St.  I,  960  F.2d  at  1088).                                   ________________          Although finding that "it is more convenient for the plaintiff to          litigate this matter in  domestic comfort," Foster-Miller, 848 F.                                                      _____________                                          27          Supp.  at 277, the court  offset this finding  by invoking, inter                                                                      _____          alia, a presumed  inability "to award plaintiff  the full measure          ____          of  relief that it seeks"  because of doubts  concerning both the          propriety and the  efficacy of enjoining a foreign national whose          presence in Massachusetts had  been fleeting.  Id.   This concern                                                         ___          is  beside any  relevant point  where a plaintiff's  inability to          obtain  certain kinds  of relief is  wholly a product  of her own          choice  of forum.   At  any rate,  the plaintiff  here explicitly          informed the court of its  willingness to forgo injunctive relief          if necessary to salvage jurisdiction.                    We  have  another  problem  with  the district  court's          assessment of  the third gestalt  factor.   The court  downplayed          FMI's convenience  because the  company "does business  in Canada          and  is represented  by presumably  capable  Canadian attorneys."          Id.   Putting this  spin on  the  matter    emphasizing that  the          ___          plaintiff could just  as easily  litigate in a  Canadian court             effectively nullifies the plaintiff's choice to litigate its suit          not in Canada but in Massachusetts.  Though such judicial second-          ___          guessing may  be proper in deciding  transfer-of-venue motions or          when the plaintiff's  supposed convenience "seems  to be . .  . a          makeweight,"  contrived purely  for  strategic advantage,  courts          considering  jurisdictional  issues   generally  should   "accord          plaintiff's choice of forum  a degree of deference in  respect to          the issue of its own convenience . . . ."   Ticketmaster, 26 F.3d                                                      ____________          at 211.  So it is here.                    We  will not comment on the lower court's assessment of                                          28          the first, fourth, and fifth gestalt factors.  It is evident from          what we have written  to this point that  the order of  dismissal          cannot   plausibly   rest   on   the   existing   assessment   of          reasonableness.          VI.  CONCLUSION          VI.  CONCLUSION                    We  have come full circle, back to our beginnings.  The          Boit framework is an expression of  pragmatism   an authoritative          ____          recognition,  informed  both by  experience  and  by the  demands          placed  on  the federal  bench, that  it  is desirable  for trial          judges,  when  feasible,  to  give  meaningful,  yet  not  unduly          burdensome, scrutiny to the question of jurisdiction at the early          stages of particular types of cases.  The pragmatic nature of the          framework requires courts to proceed with caution, mindful of the          risks  of overapplication and of  the need to  give parties ample          notice and opportunity to demonstrate that jurisdiction is, or is          not,  proper.  In the case at  hand, the district court failed to          provide  these  latter  necessities  to  FMI.    The  court  then          compounded   its  error  by   weighing  extraneous   elements  in          attempting  to strike a balance on reasonableness.  Thus, we find          merit in FMI's appeal.                    We  need go  no  further.    We  vacate  the  order  of          dismissal.   On  remand,  the district  court  should  alert  the          parties in advance to the level of scrutiny that it will apply to          the  pending motion  and  the  factual  questions  to  which  the          standard  will pertain.  The court should also allow such further          discovery,   if  any,  as  may  be  desirable  in  light  of  its                                          29          intentions.  At  the appropriate juncture,  the court may  accept          submissions  in such  form  as  it  deems  proper  and  make  its          determination  on relatedness.    If the  court  deems the  basic          jurisdictional  tests  satisfied,  it  should  then  undertake  a          reasonableness analysis  that comports with our  precedents.8  We          take  no view  on  the ultimate  resolution of  the issues  to be          addressed on remand,  or on  the proper weighing  of the  gestalt          factors.  Our concern at this stage is primarily with the court's          methodology.                    Vacated and remanded.  Costs in favor of appellant.                    Vacated and remanded.  Costs in favor of appellant.                    ____________________   ___________________________                                        ____________________               8We note that BWC's  Rule 12(b) motion raised the  matter of          forum  non conveniens as an independent basis for dismissal.  The          _____  ___ __________          district court declined to reach that issue.   See Foster-Miller,                                                         ___ _____________          848 F.  Supp. at 277  n.4.  On remand,  this issue may  be raised          again.                                          30
