Of the District of Rhode Island, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1832

PAUL E. PLATTEN; THOMAS P. FLANNERY; BRUCE N. PFAU,

Plaintiffs, Appellants,

v.

HG BERMUDA EXEMPTED LIMITED; HG (BERMUDA) EXEMPTED

PARTNERSHIP; HAY GROUP INVESTMENT HOLDING B.V.; 

HAY ACQUISITION COMPANY I, INC.; HAY GROUP, INC.,

Defendants, Appellees,

CHRIS R. MATTHEWS,

Defendant,

PNC BANK, N.A.,

Trustee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Selya and Lynch, Circuit Judges,

and Smith, District Judge. *

Robert D. Cohan, with whom Cohan Rasnick Myerson LLP was on

brief, for appellants.

Michael I. Verde, with whom Ruth Dowling, Palmer & Dodge LLP,
Michael F. Gallagher, and Katten Muchin Rosenman LLP were on brief,

for appellees HG Bermuda Exempted Limited, HG (Bermuda) Exempted

Partnership, and Hay Group Investment Holding B.V.

W. Allen Woolley, with whom Foley Hoag LLP, Michael P.

Boudett, P. Renée Wicklund, and Kirkland & Ellis LLP were on brief,

for appellees Hay Acquisition Company I, Inc. and Hay Group Inc.

February 6, 2006
The Partnership dissolved and was reconstituted in 2000 1

as HG Limited, which plaintiffs incorrectly identify in their

complaint as "HG Bermuda Exempted Limited." The parties agree that

the Partnership no longer exists, so we treat it as the same entity

as HG Limited for the purpose of this litigation.

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LYNCH, Circuit Judge. This multi-issue appeal arose out

of what ought to have been a straightforward contract dispute

brought in a court of appropriate jurisdiction.

Plaintiffs Paul Platten, Thomas Flannery, and Bruce Pfau,

who are former partners of HG (Bermuda) Exempted Partnership

("Partnership"), allege that the Partnership illegitimately

withheld termination distributions the three men believed they were

owed by falsely claiming that they had violated their noncompetition obligations. In seeking redress for this alleged

wrong, plaintiffs could have brought their contract claims against

the Partnership's successor-in-interest, HG (Bermuda) Limited ("HG

Limited"), in Bermuda, where HG Limited was organized and has its 1

usual place of business and in accordance with whose laws the

parties agreed to settle their contract disputes. Instead, they

sought to reach HG Limited in Massachusetts. To do so, they had to

bring in a number of other defendants -- who were not parties to

the agreement -- under close to a dozen tenuous legal theories. As

a result, we discuss the Massachusetts law of breach of contract,

civil conspiracy, and negligent misrepresentation, as well as seven

other state and federal claims.
-4-

The district court dismissed plaintiffs' action on

various grounds: for some claims, failure to establish personal

jurisdiction, see Fed. R. Civ. P. 12(b)(2), and for others, failure

to state a claim upon which relief can be granted, see Fed. R. Civ.

P. 12(b)(6). We affirm, concluding that plaintiffs have stated no

claims against the corporate parties as to whom there may be

personal jurisdiction in Massachusetts. As to the one other entity

against which plaintiffs do state claims, plaintiffs did not meet

their burden of proving that there is personal jurisdiction over

the relevant defendant in Massachusetts, as there would have been

in Bermuda.

I.

We recite the facts as they appear in plaintiffs'

original verified complaint and in their subsequent affidavits that

were admitted into the record by the district court. See Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,

45 (1st Cir. 2002); Mass. Sch. of Law at Andover, Inc. v. Am. Bar

Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). We also describe briefly,

where relevant, defendants' competing factual allegations, but rely

on them only to the extent that they are uncontradicted. Mass.

Sch. of Law, 142 F.3d at 34. 

A. Background

Plaintiffs Platten, Flannery, and Pfau are former

employees of Hay Group Inc. ("HGI"), an international consulting
Defendants Hay Acquisition and HGI allege that HGI is 2

actually a Delaware corporation.

-5-

business incorporated in Pennsylvania. HGI is a wholly owned 2

subsidiary of Hay Acquisition Company I, Inc. ("Hay Acquisition"),

a Delaware corporation. In turn, Hay Acquisition is a wholly owned

subsidiary of Hay Group Investment Holding B.V. ("Hay BV"), a

Netherlands corporation, which itself is a wholly owned subsidiary

of HG Limited, a Bermudan corporation. 

Plaintiffs allege that the five corporations, together

with Chris Matthews, operated as an "association-in-fact" known as

the "Hay Group," in which the operations of the corporations and

the Partnership were intermingled and controlled by Matthews.

Matthews was the Chief Executive Partner of the Partnership and

became the Chief Executive Officer of HG Limited when the

Partnership was reconstituted as such in 2000. At all times

relevant to the litigation, Matthews was also the sole stockholder

of Hay BV, the Chairman of the Board and President of HGI, and the

Chairman of the Board and Chief Executive Officer of Hay

Acquisition. 

Platten was hired in 1989 as a Senior Executive

Compensation Consultant in HGI's Boston office. He was promoted in

1990 to Manager of that office and in 1998 to East Operations

Director, a position that he held until it was eliminated, and his

employment with HGI terminated, in 1999. In 1997, Platten also

became a member of the Partnership Management Committee. During
-6-

the entirety of his tenure at HGI, Platten worked out of the Boston

office, where he received, often by phone and at least twice in

person, directions from Matthews about both HGI and Partnership

business. 

Co-plaintiff Flannery was hired in 1981 as an Associate

in the Chicago office of HGI. He subsequently transferred to other

HGI offices, including those in Kansas City, St. Louis, and

Singapore, where he served in various capacities, including as

General Manager. He was based in HGI's Dallas office at the time

he left the consulting practice voluntarily in 1999. 

The third plaintiff, Pfau, was hired in 1990 as a Senior

Consultant in HGI's New York office and was eventually promoted to

Managing Director of the Research for Management division. His

employment with HGI, which was based solely in New York, terminated

voluntarily by agreement in 1999. 

During the course of their employment with HGI,

plaintiffs were each required to enter into a partnership agreement

("Agreement") with the Partnership. Neither HGI nor Hay

Acquisition was a party to the Agreement; the Agreement itself says

that it was made "by and among" the initial and continuing partners

of the Partnership. The Agreement specifies that Bermuda law

governs its interpretation and enforcement. 

By the terms of the Agreement, all partners, including

the plaintiffs, were required to make periodic capital
-7-

contributions to the Partnership. Upon termination of employment

and absent some other agreement between the parties, a partner was

entitled, on the third anniversary of withdrawal from the

Partnership, to a termination distribution comprised of the sum of

the partner's capital contributions and his share of Partnership

assets. The distribution did not have to be paid in full, however,

if Matthews and the Partnership Management Committee determined

that the partner had been terminated for cause or (most relevant

here) that the partner's termination was "accompanied by" the

violation of the Agreement's non-competition clause. In that

event, the partner's termination distribution could be reduced to

the amount of his capital contributions and paid out over a fiveyear period from the date of termination. It is this provision of

the Agreement that is at the center of this dispute.

After leaving HGI, plaintiffs accepted employment with

other consulting groups -- Platten with the Boston office of

PricewaterhouseCoopers, LLC, and then with the Boston office of

Watson Wyatt & Company; Flannery with the Boston office of Arthur

Anderson, LLP; and Pfau with the New York office of Watson Wyatt &

Company. Each plaintiff maintains that his actions after leaving

HGI were consistent with the Agreement's non-competition

obligations. 

In 2002, each plaintiff made written inquiries to HG

Limited, the Partnership's successor, about his termination
-8-

distribution. In turn, each received, among other correspondence

from HG Limited, a September 4, 2002 letter signed by Matthews.

The letter stated that a former partner's termination distribution

was tethered to his non-competition obligations and asked each

recipient to prove that he was not in violation of those

obligations. Each plaintiff responded by letter that he had not

broken the non-competition clause. On September 26, 2002, counsel

for HG Limited informed each plaintiff in writing that he was not

entitled to the immediate and full payment of his termination

distribution because he had failed to respect the non-competition

clause. 

Plaintiffs allege that except with regard to termination

distributions, merely working for another consulting group was

generally not considered by the "Hay Group" to be a violation of a

partner's non-competition agreement. They further allege that

accusing them of violating their non-competition obligations was

merely a tactic the Partnership used to wrongfully deny them their

termination distributions. Matthews, they maintain, orchestrated

this scheme to the benefit of the existing partners, whose

partnership bonuses would increase as less money was being paid out

to their former colleagues. Plaintiffs allege that the benefits

would also trickle down to the "Hay Group" entities, including HGI

and Hay Acquisition, which would have more available cash and a

reduced need for borrowing to fund their operations. 
-9-

B. Relevant Procedural History

Plaintiffs brought suit in the Superior Court for Suffolk

County, Massachusetts, on June 19, 2003. In addition to the

Partnership and its successor-in-interest, HG Limited, plaintiffs

named three other corporate defendants -- Hay BV, Hay Acquisition,

and HGI -- and one individual defendant, Chris Matthews. 

Plaintiffs asserted a total of eleven counts in their

complaint. Against all defendants, plaintiffs claimed breach of

contract, breach of implied covenant of good faith and fair

dealing, fraud, negligent misrepresentation, negligence, breach of

fiduciary duty, unjust enrichment, unfair and deceptive practices,

civil conspiracy, and violation of the Racketeer Influenced and

Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-68. Plaintiffs

also asserted a claim of interference with contractual relations

against Hay BV, Hay Acquisition, and HGI. 

Along with their verified complaint, plaintiffs filed an

ex parte motion for an attachment on trustee process of the goods,

effects, or credits of the defendants in the amount of $843,329,

the sum of the termination distributions that plaintiffs claimed

were due. Finding "a reasonable lik[e]lihood that the plaintiff[s]

will recover judgment," the superior court granted the motion and

issued an ex parte order of attachment. Plaintiffs subsequently

moved for a preliminary injunction, requesting an additional double

of that amount because of the mandatory treble damages provided
-10-

under the RICO statute. This motion was denied by the court on

June 25, 2003. 

The defendants removed the action on July 15, 2003 to the

Massachusetts federal district court on the basis of complete

diversity of the parties and, as to the RICO Act claim, federal

question jurisdiction. On August 8, 2003, Hay Acquisition and HGI

("Domestic Defendants") filed a motion to dismiss pursuant to Fed.

R. Civ. P. 12(b)(6). The district court on June 16, 2004 granted

the motion with respect to all claims against the Domestic

Defendants except for three: breach of contract, breach of implied

covenant of good faith and fair dealing, and unjust enrichment. On

the first two claims, the court held that, because of the choice of

law provision in the partnership Agreement, the Domestic Defendants

needed to have shown that the claims would have been meritless

under Bermuda, not Massachusetts, law. 

On June 25, 2004, plaintiffs moved to amend their

complaint, seeking to restore the dismissed counts by adding

allegations of fraudulent inducement that they argued would cure

the defects in their claims for fraud, negligent misrepresentation,

and RICO Act violation. Their amended complaint further sought to

clarify that the claims for interference with contractual relations

and conspiracy were pleadings in the alternative, to be considered

only in the event that Hay Acquisition and HGI were found to be

separate entities from the Partnership. This motion was denied as
-11-

futile by the district court on November 23, 2004. Plaintiffs

moved for reconsideration, which was denied on January 14, 2005.

On July 8, 2004, the Domestic Defendants moved for the

court to reconsider its denial of the motion to dismiss with

respect to the remaining three contract claims against them. On

December 21, 2004, the district court, holding that Massachusetts

law applied after all, granted the motion for reconsideration and

dismissed the breach of contract, breach of implied covenant of

good faith and fair dealing, and unjust enrichment claims against

Hay Acquisition and HGI. On December 29, 2004, the plaintiffs

filed a motion for reconsideration of the dismissal of the

contractual relations, negligence, and civil conspiracy claims

against Hay Acquisition and HGI, which the court denied on January

13, 2005. This left plaintiffs with no surviving claims against

the Domestic Defendants.

Meanwhile, on August 21, 2003, the Partnership, HG

Limited, and Hay B.V. ("Offshore Defendants") filed a separate

motion to dismiss for lack of personal jurisdiction and

insufficient service of process. See Fed. R. Civ. P. 12(b)(2),

(5). Plaintiffs filed their opposition to the motion on October 6,

2003, and, after defendants filed their reply, plaintiffs moved on

December 10, 2003 for leave to file a response and a second

affidavit of Platten ("Platten Affidavit II"). The district court

denied plaintiffs' motion on December 23, 2003. On January 23,
Plaintiffs did not seek reconsideration of the court's 3

dismissal of Hay B.V. for lack of jurisdiction.

Plaintiffs do not challenge the district court's 4

dismissal of their negligence claim. 

-12-

2004, plaintiffs moved for the court to reconsider its denial of

their motion to file Platten Affidavit II; the court denied that

motion on February 18, 2004. 

The district court granted the Offshore Defendants'

motion to dismiss for lack of jurisdiction on June 15, 2004. In

response, plaintiffs moved on June 25, 2004 for the court to

reconsider its dismissal of HG Limited or, in the alternative, to

defer ruling pending jurisdictional discovery. That motion was 3

denied on November 18, 2004. 

On April 28, 2005, plaintiffs voluntarily dismissed, with

prejudice, all of their claims against Chris Matthews, the sole

individual defendant. 

Plaintiffs then initiated this appeal. 

II.

Plaintiffs challenge a number of district court rulings,

including the following: (1) its dismissal of ten of the

plaintiffs' claims against the Domestic Defendants, Hay Acquisition

and HGI, for failure to state a claim upon which relief can be

granted; (2) its refusal to admit into evidence Platten Affidavit 4

II; (3) its dismissal of the claims against HG Limited for lack of
-13-

personal jurisdiction; and (4) its denial of plaintiffs' request

for jurisdictional discovery.

A. Rulings Pertaining to the Dismissal of Claims Against HGI

and Hay Acquisition

Plaintiffs first claim error in the district court's

dismissal of their claims against the Domestic Defendants pursuant

to Fed. R. Civ. P. 12(b)(6). The crux of all the claims is that HG

Limited wrongfully failed to pay plaintiffs the full amount of

their termination distributions and that, as a result, liability

can be imposed upon Hay Acquisition and HGI, which are its thirdand fourth-tier subsidiaries, respectively.

We review de novo and may affirm on any ground supported

by the record. See Diva's Inc. v. City of Bangor, 411 F.3d 30, 40,

43 (1st Cir. 2005). We accept as true all well-pleaded facts

alleged by plaintiffs in their complaint and draw in their favor

all reasonable inferences fitting their stated theories of

liability. See Morales-Villalobos v. Garcia-Llorens, 316 F.3d 51,

52-53 (1st Cir. 2003). "[T]he threshold [for stating a claim] may

be low, but it is real." Gooley v. Mobil Oil Corp., 851 F.2d 513,

514 (1st Cir. 1988). Thus, plaintiffs are obliged to set forth in

their complaint "factual allegations, either direct or inferential,

regarding each material element necessary to sustain recovery under

some actionable legal theory." Id. at 515.
The district court initially denied the Domestic 5

Defendants' motion to dismiss the breach of contract and breach of

implied covenant claims, on the ground that defendants neglected to

show that plaintiffs failed to state a claim under Bermuda law. It

also initially denied defendants' motion to dismiss the unjust

enrichment claim. Subsequently, on defendants' motion, the court

reconsidered its rulings and dismissed the three claims, concluding

that "the viability of [all three] claims . . . is dependent on"

plaintiffs' corporate disregard theory, and that under

Massachusetts law, plaintiffs' allegations "are insufficient to

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1. Dismissal of Breach of Contract, Breach of

Implied Covenant of Good Faith and Fair Dealing,

and Unjust Enrichment Claims

Plaintiffs asserted claims of breach of contract (i.e.

the Agreement), breach of an implied covenant of good faith and

fair dealing, and unjust enrichment against the Domestic

Defendants. 

Plaintiffs concede that neither HGI nor Hay Acquisition

is a signatory to the Agreement. They allege, however, that

Offshore Defendant HG Limited, as the Partnership's successor, is

bound by the Agreement; that the Domestic and Offshore Defendants

comprise a single enterprise, known as the "Hay Group"; that all

the organizations in the enterprise have intermingled operations

and finances; and that the entire enterprise is pervasively

controlled by Chris Matthews and the Partnership. They thus argue

that the corporate form should be disregarded so as to allow them

to hold the Domestic Defendants liable for the Partnership's, now

HG Limited's, alleged misdeeds.

We apply, as did the district court and the parties,

Massachusetts law. "Under Massachusetts common law, disregarding 5
show that the corporate form of the defendants should be

disregarded . . . , particularly where there is no allegation as to

confusion as to the identity of contracting parties." Plaintiffs

do not appeal the court's choice-of-law determination.

"Where 'there is at least a reasonable relation between the

dispute and the forum whose law has been selected by the parties,

we will forego an independent analysis of the choice-of-law issue

and apply' the state substantive law selected by the parties."

Fed. Ins. Co. v. Raytheon Co., 426 F.3d 491, 496 n.2 (1st Cir.

2005) (quoting Merchs. Ins. Co. of N.H. v. U.S. Fid. & Guar. Co.,

143 F.3d 5, 8 (1st Cir. 1998)) (internal quotation marks omitted).

-15-

the corporate form is permissible only in rare situations." United

Elec., Radio and Mach. Workers v. 163 Pleasant St. Corp. (Pleasant

St. I), 960 F.2d 1080, 1091 (1st Cir. 1992) (citing Pepsi-Cola

Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 15-16 (1st Cir.

1985)). In fact, "Massachusetts has been somewhat more 'strict'

than other jurisdictions in respecting the separate entities of

different corporations." Birbara v. Locke, 99 F.3d 1233, 1238 (1st

Cir. 1996) (quoting My Bread Baking Co. v. Cumberland Farms, Inc.,

233 N.E.2d 748, 752 (Mass. 1968)) (internal quotation marks

omitted). 

My Bread, the seminal Massachusetts case on the corporate

disregard doctrine, holds that the presumption of corporate

separateness may be overcome only "in rare particular situations in

order to prevent gross inequity." 233 N.E.2d at 752. In

determining whether circumstances warrant the use of this "rare"

measure, we undertake an inquiry into the actual nature of the

corporate interrelationship to evaluate whether the "Pepsi-Cola
-16-

factors" militate in favor of disregarding the corporate form.

These factors are: 

(1) common ownership; (2) pervasive control;

(3) confused intermingling of business assets;

(4) thin capitalization; (5) nonobservance of

corporate formalities; (6) absence of

corporate records; (7) no payment of

dividends; (8) insolvency at the time of the

litigated transaction; (9) siphoning away of

corporation's funds by dominant shareholder;

(10) nonfunctioning of officers and directors;

(11) use of the corporation for transactions

of the dominant shareholders; and (12) use of

the corporation in promoting fraud. 

Attorney Gen. v. M.C.K., Inc., 736 N.E.2d 373, 380 n.19 (Mass.

2000) (citing Pepsi-Cola, 754 F.2d at 14-16).

In support of their corporate disregard theory,

plaintiffs allege the following in their complaint: (1) Matthews

served in multiple roles, including as Chief Executive Partner of

the Partnership, Chairman of the Board and President of HGI, and

Chairman of the Board and CEO of Hay Acquisition; (2) surplus

profits earned by HGI "are siphoned upward to the Partnership for

distribution to the partners as bonuses"; (3) the partnership

Agreement prevented partners from competing with any of the "Hay

Group" entities, and HGI has sought to enforce the non-compete

obligation; and (4) the "Hay Group" held itself out as one

"professional services firm" on its website. They further allege:

All managerial decisions, even extending to

the local level, were made by Matthews and the

Partnership Management Committee. From time

to time, at least twice, Matthews came to the

Boston office to review local financial
6 Plaintiffs make a few other allegations that go to

Matthews' "pervasive control" of the "Hay Group." But, as the

district court stated, "plaintiffs' insistence upon referring to

each and all of the corporate defendants by the broad collective

term 'Hay Group' . . . makes it difficult . . . to decipher who did

what and how, for the purpose of determining whether there is a

relationship of control, and not simply of cooperation, among the

Hay entities." 

-17-

performance and to review progress on product

development. He frequently supervised

performance and profitability of the Boston

office and other local offices acting as head

of U.S. operations. Matthews also regularly

placed telephone calls to Platten in Boston

wherein he would give [Platten] instructions

on management matters relating to the Boston

office and they would discuss the Boston

office's monthly performance, staffing issues

and collection efforts. The Boston office had

at least 100 clients located in Massachusetts.

Taken as true, these allegations do not meet the standard for

disregarding the corporate form. 

6

The circumstances here closely track those in Birbara, 99

F.3d 1233, in which we vacated a jury verdict on the ground that

the evidence was insufficient to justify piercing the corporate

veil. Here, as in Birbara, there is insufficient showing of

confused intermingling or pervasive control. That Matthews (and

Platten) sometimes acted on behalf of the Partnership and other

times on behalf of its subsidiaries "is to be expected when

individuals serve as directors for both a parent and its

subsidiary." Id. at 1239-40. Plaintiffs themselves acknowledge

that Matthews was "acting as head of U.S. operations" when he

supervised the Boston office's performance. "It is also to be
Defendants argue that Massachusetts courts do not pierce 7

the corporate veil in contract cases, "because the parties to

contractual relationships choose with whom to deal and can protect

themselves through bargaining." See Birbara, 99 F.3d at 1238

(noting that "[w]e have found no Massachusetts Supreme Judicial

Court case applying the veil piercing doctrine in a contract case"

and that some courts and commentators have declined to apply the

corporate disregard doctrine in contract cases, but declining

ultimately to resolve the issue). To resolve this case, we need

not decide the availability of the corporate disregard doctrine in

Massachusetts contract cases.

-18-

expected that when a subsidiary company profits, the parent

company" -- in this case, the Partnership and its partners -- "will

as well." Id. at 1240. 

Despite their allegations of intermingling, plaintiffs

have never alleged that they were confused about the identity of

the legal entity with which they were contracting. Indeed, the 7

allegations are insufficient to show any "fraudulent or injurious

consequence of the intercorporate relationship." Id. at 1238

(quoting My Bread, 233 N.E.2d at 752). "Plaintiffs were never

misled about which corporate entity . . . was obligated to them or

was dealing with them." Id. at 1240. They acknowledged that their

Agreement was with the Partnership and clearly understood that the

Partnership was responsible for the payment of the distributions.

In fact, Platten was once a member of the Partnership Management

Committee that oversaw the distribution payment scheme. 

Ultimately, plaintiffs do not allege, and the

circumstances do not lead to an inference of, any gross inequity

that would argue in favor of overriding the presumption of
Plaintiffs also argue that the district court erred in 8

failing to follow the law of the case as established by the

Massachusetts Superior Court, which had determined, in granting

plaintiffs' ex parte order of attachment, that there was "a

reasonable lik[e]lihood that the plaintiff[s] will recover

judgment" on their breach of contract claim. The law of the case

doctrine, however, does not apply to tentative or preliminary

rulings. See Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st Cir.

2005) (noting that interlocutory orders do not constitute law of

the case).

-19-

corporate separateness. See Commonwealth v. Beneficial Fin. Co.,

275 N.E.2d 33, 91 (Mass. 1971) (courts will only look through the

corporate veil to "accomplish . . . essential justice"); My Bread,

233 N.E.2d at 752 (limiting the application of the corporate

disregard doctrine only to "rare particular situations in order to

prevent gross inequity"); see also Birbara, 99 F.3d at 1239

(collecting sources). Plaintiffs would not have been in the

position they are in now if they had sought relief directly from HG

Limited by suing it in Bermuda. Mere inconvenience is simply not

a sufficient ground for disregarding the corporate form. 

Since Hay Acquisition and HGI are entities separate from

HG Limited and are not parties to the Agreement, they cannot be

held liable for breach of contract. "Having concluded that no 8

contract exists, there can be no derivative implied covenant of

good faith and fair dealing applicable to these parties." Mass.

Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215,

229 (1st Cir. 2005). Also, because the allegations are not

sufficient to show that they were beneficiaries to the contract,

the Domestic Defendants cannot be held liable for unjust
-20-

enrichment. In any event, Massachusetts law does not allow

litigants to override an express contract by arguing unjust

enrichment. See, e.g., Zarum v. Brass Mill Materials Corp., 134

N.E.2d 141, 143 (Mass. 1956) ("The law will not imply a contract

where there is an existing express contract covering the same

subject matter."). We affirm the district court's dismissal of

these three claims against the Domestic Defendants.

2. Dismissal of Interference with Contractual

Relations and Civil Conspiracy Claims

Plaintiffs next contest the district court's dismissal of

their claims against HGI and Hay Acquisition for interference with

contractual relations and civil conspiracy. 

We dispose first of plaintiffs' tortious interference

claim. Under Massachusetts common law, "[i]n an action for

intentional interference with contractual relations, the plaintiff

must prove that: (1) he had a contract with a third party; (2) the

defendant knowingly induced the third party to break that contract;

(3) the defendant's interference, in addition to being intentional,

was improper in motive or means; and (4) the plaintiff was harmed

by the defendant's actions." G.S. Enters., Inc. v. Falmouth

Marine, Inc., 571 N.E.2d 1363, 1369-70 (Mass. 1991) (citing United

Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 21 (Mass. 1990)).

Plaintiffs' principal argument on appeal is that the

Domestic Defendants, "by and through Matthews, took actions which

induced the Partnership to break the Agreement." In support of
-21-

this theory, they rely on nothing more than conclusory allegations

that Matthews controlled the various "Hay Group" entities, that he

acted with improper motives to retain income for himself and the

"Hay Group," and that he knew, or should have known, that the

plaintiffs' termination distributions could not be rightfully

withheld. Taking these allegations as true, plaintiffs still

cannot make out a claim for interference of contract against the

Domestic Defendants based on their theory of liability.

Under Massachusetts law, in evaluating "whether the acts

and intent of natural persons, be they officers, directors or

employees, can be treated as the acts and intent of the corporation

itself," Beneficial Fin., 275 N.E.2d at 77, a court must examine

whether those natural persons have "been vested with the authority

to act on behalf of the corporation in the sphere of corporate

business in which he commits the [alleged wrongful] act," id. at 80

(applying this test to a question of criminal liability, but

deriving the test from civil and criminal cases). The record lacks

any allegation or fact by which a reasonable inference can be drawn

that Matthews was acting in the capacity and within the authority

of his positions at Hay Acquisition and HGI when he allegedly

"interfered" with the Partnership's contractual relationship with

the plaintiffs. See, e.g., Stoneman v. Fox Film Corp., 4 N.E.2d

63, 66 (Mass. 1936) (noting that the president of a corporation

"has not unlimited power but is restricted to doing those things
Plaintiffs argue that the court cannot decide that the 9

defendants constitute one entity in dismissing plaintiffs'

interference and conspiracy claims, while refusing to treat them as

one entity in dismissing plaintiffs' contract claims. But there is

nothing inconsistent about the court's reasoning: the court

evaluated the pleading requirements particular to each claim,

including the heightened pleading requirements attendant to the

corporate disregard doctrine, and concluded that plaintiffs failed

to meet them.

-22-

which are usual and necessary in the ordinary course of the

corporate business," and holding that, where the president

committed wrongs while acting beyond the scope of his authority,

the corporation is not civilly liable for resulting injuries).

Moreover, as the district court intimated, plaintiffs essentially

were hoisted by their own petard: crediting their allegation that

all the "Hay Group" entities constituted one enterprise, "it seems

that the plaintiffs seek to hold the defendants liable for

interfering with their own contract"; "[t]here is no such tort."9

Similar problems beleaguer plaintiffs' civil conspiracy

claim. They allege that Matthews "organized and orchestrated" a

scheme by which employees of HGI would be invited to join the

Partnership, required to make substantial capital contributions

with promises of payment of termination distributions, and

subsequently denied their distributions by false claims of

violations of the non-competition obligations. 

"For liability to attach on this basis, there must be,

first, a common design or an agreement, although not necessarily

express, between two or more persons to do a wrongful act and,
-23-

second, proof of some tortious act in furtherance of the

agreement." Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546,

1564 (1st Cir. 1994). Plaintiffs make no factual allegations

supporting the conclusion that the Domestic Defendants engaged in

a common design or agreement with the Partnership to do a wrongful

act; to the contrary, plaintiffs' allegation is that all the

defendants comprise a single corporate enterprise. No civil

conspiracy claim can lie under plaintiffs' theory because an entity

cannot conspire with itself. There is also a risk in plaintiffs'

argument of confusing a family relationship among corporations with

a conspiracy; all that is shown here is a family relationship, and

that is insufficient on its own to support a conspiracy claim. Cf.

Gilbuilt Homes, Inc. v. Cont'l Homes of New Eng., 667 F.2d 209, 210

(1st Cir. 1981) (holding that "a vague reference to 'inter-family

relationships'" was not enough to state a claim for conspiracy

under Section 1 of the Sherman Act, 15 U.S.C. § 1). The district

court properly dismissed the civil conspiracy claim.

3. Dismissal of Fraud, Negligent Misrepresentation,

and RICO Act Claims

Plaintiffs contest the district court's dismissal of

their fraud, negligent misrepresentation, and civil RICO Act claims

against the Domestic Defendants.

The district court dismissed the three claims on the

ground that plaintiffs failed to allege that they relied on the

fraudulent misrepresentation or that their injuries stemmed from
-24-

such reliance. On appeal, plaintiffs essentially concede that at

the time the district court considered the claims, they had not

made allegations sufficient to support them. They suggest that

their success on appeal turns on the outcome of our review of the

district court's November 23, 2004 denial of plaintiffs' motion to

amend their complaint to cure acknowledged deficiencies in their

original pleadings. Plaintiffs attached a copy of their proposed

amended complaint to that motion; the court determined the motion

was futile.

We review the denial of a motion to amend for abuse of

discretion. See Hatch v. Dep't for Children, Youth, & Their

Families, 274 F.3d 12, 19 (1st Cir. 2001). Within that standard,

pure questions of law are reviewed de novo. Since denial of

plaintiffs' motion as futile would be appropriate if the amended

complaint still failed to state a claim sufficient to survive a

motion to dismiss, our review in this instance is, for practical

purposes, identical to review of a Rule 12(b)(6) dismissal based on

the allegations in the amended complaint. See id.

Under Massachusetts law, to make out a claim for fraud,

plaintiffs must show that the Domestic Defendants made a false

representation of a material fact with knowledge of its falsity for

purposes of inducing the plaintiff to act thereon, and that the

plaintiff actually relied on the representation. See Slaney v.

Westwood Auto, Inc., 322 N.E.2d 768, 779 (Mass. 1975). For a claim
-25-

for misrepresentation, plaintiffs must demonstrate that the

Domestic Defendants (1) made false statements of material fact (2)

to induce plaintiffs to enter into the Agreement, and (3) that they

reasonably relied on those statements to their detriment. See

Rodowicz v. Mass. Mut. Life Ins. Co., 192 F.3d 162, 175 (1st Cir.

1999) (citing Zimmerman v. Kent, 575 N.E.2d 70, 74 (Mass. App. Ct.

1991)). Both causes of action, then, require plaintiffs' reliance

on defendants' representations.

In their proposed amended complaint, plaintiffs alleged

that they were "induced to enter into the Agreement by [certain]

representations made in the Agreement," and that two individuals,

Ken Martin and Jim Williams -- each of whom was a partner in the

Partnership -- made "representations" in person or by phone as to

the meaning of the non-competition provision of the Agreement. 

These allegations do not suffice to hold Hay Acquisition

and HGI liable for the fraud and misrepresentation claims. After

all, plaintiffs did not allege any justified reliance on the

misrepresentations. In fact, they stated that they entered into

the Agreement because it was "a condition of employment with the

Hay Group." And, as the district court pointed out, their

complaint states that they continued to demand their termination

distributions even after some of the alleged misrepresentations

were made.
-26-

As to the civil RICO Act claim, it fails because

plaintiffs never alleged proximate cause between defendants'

wrongful conduct and plaintiffs' injuries. As the district court

observed, even if the Domestic Defendants can be held responsible

for misrepresentations by mail or wire, plaintiffs did not rely on

those misrepresentations. Therefore, their injuries, if proven,

come not from those misrepresentations, but from HG Limited's

alleged breach of the Agreement by failing to pay the three men

their termination distributions. See George Lussier Enters., Inc.

v. Subaru of New Eng., Inc., 393 F.3d 36, 51 (1st Cir. 2004)

("Section 1964(c) of [18 U.S.C.] requires that the defendant's

specified acts of racketeering were the proximate cause of the

plaintiffs' injuries."). 

Because the allegations in plaintiffs' proposed amended

complaint would have been insufficient to make out fraud, negligent

misrepresentation, and RICO Act claims against the Domestic

Defendants, the district court did not abuse its discretion in

denying the motion to amend the complaint as futile. Nor did the

district court err in dismissing the underlying substantive claims

under Fed. R. Civ. P. 12(b)(6).

4. Dismissal of Plaintiffs' Remaining Claims Against

the Domestic Defendants

The remainder of plaintiffs' claims against the Domestic

Defendants are plainly meritless, and we quickly dispose of them.
-27-

Plaintiffs argue that the district court erred in

dismissing the plaintiffs' breach of fiduciary duty claims against

the Domestic Defendants. They suggest that the Partnership's

fiduciary duty should be extended to HGI and Hay Acquisition, "on

whose behalf Matthews acted." This agency theory fails for the

reasons articulated above. The district court correctly determined

that "plaintiffs have alleged no [independent] source of a

fiduciary duty as to these defendants" and the claim thus fails as

a matter of pleading.

Plaintiffs also contest the district court's dismissal of

their claim under Mass. Gen. Laws ch. 93A, § 11, which provides for

a cause of action against any "unfair method of competition or

. . . unfair or deceptive act or practice" in the conduct of "any

trade or commerce." The theory of liability for this claim is the

same as that underlying plaintiffs' misrepresentation claim, and

the theory fails for the same reason the misrepresentation claim

fails. Additionally, as the district court concluded, the alleged

misrepresentations made by defendants did not arise out of any

"trade or commerce" and thus do not fall within the purview of the

statute. See Linkage Corp. v. Trs. of Boston Univ., 679 N.E.2d

191, 207 n.33 (Mass. 1997) (noting that the statute does not extend

to "intra-enterprise disputes," such as "disputes between

individual members of a partnership arising from partnership

business," "because they are more similar to purely private
-28-

disputes and are not 'commercial transaction[s]'" (alteration in

original) (quoting Szalla v. Locke, 657 N.E.2d 1267, 1269 (Mass.

1995))).

B. Rulings Relating to Lack of Personal Jurisdiction over HG

Limited

We also affirm the court's rulings with respect to HG

Limited, the sole Offshore Defendant remaining in the case.

1. Exclusion of Platten Affidavit II

Plaintiffs argue that the district court erred in

refusing to admit into evidence Platten Affidavit II. The

plaintiffs had argued to the court that Platten Affidavit II, which

supplemented Platten's initial affidavit, should be admitted to

counter certain "misrepresentations of fact" purportedly made by

the Offshore Defendants in their motion to dismiss for lack of

personal jurisdiction. 

We review district court rulings pertaining to motions

for reconsideration for abuse of discretion, see United States v.

One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1050 (1st Cir.

1997), and find none here. Plaintiffs sought leave to file Platten

Affidavit II on December 10, 2003, nearly two months after they

filed their opposition to the Offshore Defendants' motion to

dismiss for lack of jurisdiction. By that time, they had already

asked for leave to submit a second affidavit of Bruce Pfau, which

the district court subsequently granted. The court was under no
Plaintiffs eventually submitted to the district court, in 10

conjunction with their June 25, 2004 motion for reconsideration of

the court's dismissal of HG Limited for want of personal

jurisdiction, a third, and more comprehensive, Platten affidavit

("Platten Affidavit III"). This affidavit was belatedly filed, and

it was the district court's prerogative whether to consider it.

The district court made no reference to it when it summarily denied

the motion for reconsideration. Given the court's silence and its

earlier refusal to consider Platten Affidavit II, we believe the

court did not allow Platten's third affidavit. See One Lot of U.S.

Currency, 103 F.3d at 1050. Plaintiffs concede as much in their

reply brief. We do not consider it. 

-29-

obligation to continue to allow plaintiffs to make piecemeal

corrections to their pleadings.

Plaintiffs argue that, in light of an intervening

Illinois decision, see Joy v. Hay Group, Inc., No. 02-C-4989, 2003

WL 22118930 (N.D. Ill. Sept. 11, 2003), which they claim is

favorable to them, the district court should have given them the

opportunity, through the affidavit, to revise their pleadings to

include additional factual allegations. But they admit that the

facts they sought to add were in existence at the time they filed

their original opposition. That they did not see the need for a

fuller factual presentation when they were required to respond does

not rescue their case. The district court was more than fair in

its handling of the case.10

2. Lack of Personal Jurisdiction over HG Limited

Plaintiffs also claim error in the district court's

dismissal of HG Limited, the Partnership's successor-in-interest,

for lack of personal jurisdiction. 
-30-

Plaintiffs assert two bases for exercising personal

jurisdiction over HG Limited. Their first argument is that the

court may exercise specific jurisdiction based on HG Limited's

assumption of the Partnership's obligations under the Agreement.

Plaintiffs argue that specific jurisdiction over HG Limited exists

under subsections (a), (c), and (d) of the Massachusetts long-arm

statute. Mass. Gen. Laws ch. 223A, § 3. The state long-arm

statute states, in relevant part:

A court may exercise personal jurisdiction over a

person, who acts directly or by an agent, as to a

cause of action in law or equity arising from the

person's

(a) transacting any business in this

commonwealth;

. . . .

(c) causing tortious injury by an act or

omission in this commonwealth;

(d) causing tortious injury in this

commonwealth by an act or omission outside

this commonwealth if he regularly does or

solicits business, or engages in any other

persistent course of conduct, or derives

substantial revenue from goods used or

consumed or services rendered, in this

commonwealth . . . .

Id. Plaintiffs' second argument is that there is general

jurisdiction over HG Limited by virtue of its relationship with

HGI, which itself has sufficient contacts in Massachusetts to be

hailed into federal court in this state.

The district court found that neither jurisdictional

theory had sufficient factual support to carry the day. We review
-31-

those conclusions of law de novo, see Harlow v. Children's Hosp.,

432 F.3d 50, 57 (1st Cir. 2005), and affirm.

The district court analyzed plaintiffs' jurisdictional

claim under the prima facie standard of Boit v. Gar-Tec Products,

Inc., 967 F.2d 671 (1st Cir. 1992). See id. at 675. Under that

standard, "plaintiff[s] ultimately bear[] the burden of persuading

the court that jurisdiction exists." Mass. Sch. of Law, 142 F.3d

at 34. "[P]laintiffs may not rely on unsupported allegations in

their pleadings," Boit, 967 F.2d at 675, but are "obliged to adduce

evidence of specific facts," Foster-Miller, Inc. v. Babcock &

Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995). We, in turn, take

those "specific facts affirmatively alleged by the plaintiff[s] as

true . . . and construe them in the light most congenial to the

plaintiff[s'] jurisdictional claim." Mass. Sch. of Law, 142 F.3d

at 34. We also "add to the mix facts put forward by the

defendants, to the extent that they are uncontradicted." Id.

To establish personal jurisdiction, plaintiffs must show

that jurisdiction is both statutorily authorized and consistent

with the Constitution. See Daynard, 290 F.3d at 52. The Supreme

Judicial Court of Massachusetts has interpreted the state's longarm statute as coextensive with the outer limits of the

Constitution, id. (citing "Automatic" Sprinkler Corp. of Am. v.

Seneca Foods Corp., 280 N.E. 2d 423, 424 (Mass. 1972)); thus, the

only inquiry that remains is the constitutional one, see Sawtelle
-32-

v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995). Specifically, the

question here is whether the Due Process Clause of the Fourteenth

Amendment allows Massachusetts to exercise personal jurisdiction

over HG Limited. 

For the answer to this question to be yes, a defendant

must have sufficient minimum contacts with the forum state "such

that maintenance of the suit does not offend 'traditional notions

of fair play and substantial justice.'" Int'l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,

311 U.S. 457, 463 (1940)). The "minimum contacts" standard has

three requirements:

For specific jurisdiction, the plaintiff's

claim must be related to the defendant's

contacts. For general jurisdiction, in which

the cause of action may be unrelated to the

defendant's contacts, the defendant must have

continuous and systematic contacts with the

state. Second, for either type of

jurisdiction, the defendant's contacts with

the state must be purposeful. And third, the

exercise of jurisdiction must be reasonable

under the circumstances.

Harlow, 432 F.3d at 57; see also Cambridge Literary Props. Ltd. v.

W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d 59, 63 (1st

Cir. 2002); Noonan v. Winston Co., 135 F.3d 85, 89 (1st Cir. 1998).

a. Plaintiffs' Claims of Specific Jurisdiction

Plaintiffs argue that specific jurisdiction over HG

Limited exists with respect to both their contract and tort claims.

"For specific jurisdiction, this circuit divides the
-33-

constitutional analysis into three categories: relatedness,

purposeful availment, and reasonableness." Daynard, 290 F.3d at

60. "For its contract claim[s], . . . [plaintiffs] may ask the

court to draw inferences from the parties' 'prior negotiations and

contemplated future consequences, along with the terms of the

contract and the parties' actual course of dealing.'" Jet Wine &

Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 7 (1st Cir. 2002)

(quoting Daynard, 290 F.3d at 52). "For its tort claims,

[plaintiffs] must show a sufficient 'causal nexus' between [HG

Limited's] contacts with [Massachusetts] and [plaintiffs'] causes

of action." Id. (quoting Phillips Exeter Acad. v. Howard Phillips

Fund, 196 F.3d 284, 289 (1st Cir.1999)).

i. Specific Jurisdiction over Contract Claims

Plaintiffs' primary theory of specific jurisdiction is

that their breach of contract claim arises from HG Limited's

assumption of the Partnership's obligations under the Agreement,

which one of the plaintiffs entered into in Massachusetts.

Specifically, plaintiffs contend that there is sufficient evidence

in the record to support the propositions that the Partnership

solicited Platten to become a partner in Massachusetts, that the

Agreement was executed in Massachusetts, and that Platten's

performance under the Agreement occurred primarily in

Massachusetts. 
-34-

HG Limited, in turn, counters that it has its principal

place of business in Bermuda; maintains its books, records, and

accounts in Bermuda; and pays taxes in Bermuda. Moreover, it

maintains that it has never attempted to solicit or service

customers in Massachusetts or to derive substantial revenue from

services rendered in the state. As a holding company, it exercises

only limited control over HGI, "a fourth-tier subsidiary," which

has an office in, among other places, Massachusetts. 

We assume for present purposes that HG Limited fully

assumed the Partnership's obligations under the Agreement.

Nonetheless, we hold, as did the district court, that the record

lacks support for plaintiffs' allegations that the Partnership

established sufficient minimum contacts in Massachusetts to be

subject to suit by plaintiffs in this state. Our inquiry begins

and ends with the first prong of the constitutional inquiry, that

of relatedness. 

In support of specific jurisdiction over their contract

claims, plaintiffs rely almost solely on the affidavits of Paul

Platten. The first of those affidavits, and the only Platten

affidavit admitted into the record, makes the following relevant

allegations:

2. In February, 1989, I was hired by the

defendant [HGI] with the Boston Office . . . .

7. As a condition of employment with the Hay

Group, I was required to become a partner in

the Partnership and, in or about 1992, in
-35-

Massachusetts, I entered into an Agreement

. . . with the Partnership . . . .

Aside from these allegations, plaintiffs provide no

additional details about the place and circumstances of

contracting. Flannery and Pfau's affidavits are silent with

respect to the place of contracting, and neither of the two has

ever claimed that their agreements with the Partnership were signed

or executed in Massachusetts.

The Supreme Court has held that "parties who 'reach out

beyond one state and create continuing relationships and

obligations with citizens of another state' are subject to

regulation and sanctions in the other [s]tate for the consequences

of their activities." Burger King Corp. v. Rudzewicz, 471 U.S.

462, 473 (1985) (quoting Travelers Health Ass'n v. Virginia, 339

U.S. 643, 647 (1950)). Evidence of a defendant's entry into a

contractual relationship with a plaintiff in another state is

relevant to whether the defendant "reached out" to that state. But

the mere fact that a plaintiff entered into a contract with a

defendant in the forum state is not in and of itself dispositive of

the personal jurisdiction question. "The [Supreme] Court long ago

rejected the notion that personal jurisdiction might turn on

'mechanical' tests or on 'conceptualistic . . . theories of the

place of contracting or of performance.'" Burger King, 471 U.S. at

478 (omission in original) (quoting Int'l Shoe, 326 U.S. at 319;

Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316 (1943)).
-36-

"Instead, [the Court has] emphasized the need for a 'highly

realistic' approach that recognizes that a 'contract' is

'ordinarily but an intermediate step serving to tie up prior

business negotiations with future consequences which themselves are

the real object of the business transaction.'" Id. at 479 (quoting

Hoopeston, 318 U.S. at 316-17).

As the district court points out, plaintiffs' affidavits

are "silent as to details regarding where negotiations took place,

where the agreement was presented for signatures, where it was

signed, where it was to be performed, and who represented the

Partnership at the time of the negotiations." Aside from Platten's

conclusory allegations that he performed Partnership business in

Massachusetts, none of the plaintiffs offer additional information

on whether the Partnership or HG Limited directed an out-of-state

activity at the forum state, see Phillips Exeter Acad., 196 F.3d at

289, whether the parties' Agreement contemplated ongoing

interaction between Platten in Massachusetts and the Partnership or

HG Limited in Bermuda, see Daynard, 290 F.3d at 61, or whether the

two other plaintiffs' claims are at all related to the

Partnership's and HG Limited's contacts in Massachusetts.

Plaintiffs fail to make out a prima facie case for specific

jurisdiction on the contract theory.
-37-

ii. Specific Jurisdiction Based on 

Misrepresentation and Breach of Fiduciary

Duty Claims

Also unsuccessful is plaintiffs' argument that specific

jurisdiction over HG Limited exists on account of the Partnership's

alleged misrepresentation and breach of fiduciary duty.

To satisfy the relatedness prong of the constitutional

inquiry in a tort case, 

[t]he evidence produced to support specific

jurisdiction must show that the cause of

action either arises directly out of, or is

related to, the defendant's forum-based

contacts. The relatedness requirement is not

an open door; it is closely read, and it

requires a showing of a material connection.

This court "steadfastly reject[s] the exercise

of personal jurisdiction whenever the

connection between the cause of action and the

defendant's forum-state contacts seems

attenuated and indirect." "Instead, the

defendant's in-state conduct must form an

'important, or [at least] material, element of

proof' in the plaintiff's case." A broad

"but-for" argument is generally insufficient.

. . . "[D]ue process demands something like a

'proximate cause' nexus."

Harlow, 432 F.3d at 60-61 (citations omitted) (quoting Pleasant St.

I, 960 F.2d at 1089; Cambridge Literary Props., 295 F.3d at 65);

see also Phillips Exeter Acad., 196 F.3d at 289. None of

plaintiffs' claims is sufficiently related to HG Limited's

Massachusetts contacts. 

Plaintiffs allege that Platten was induced to enter into

the Agreement by misrepresentations that were made by an agent of

the Partnership in Massachusetts and that "[t]he scheme to defraud
Plaintiffs do not allege that any of the "Hay Group" 11

entities or their representatives directed any correspondence to

Pfau in Massachusetts. The record shows that Pfau did not live or

work in Massachusetts during the time period relevant to the

litigation.

The two letters that each plaintiff received were a 12

September 4, 2002 letter from Matthews, which stated, among other

things, that "[t]he Partnership Agreement provides that your

termination distribution may be reduced in amount if you are in

breach of the [non-competition obligations]," and a September 26,

2002 letter from HG Limited's counsel, which gave notice that

"[y]our eligibility [for distributions] is . . . deferred" because

of violation of the non-competition clause.

-38-

and mislead Platten was furthered by four letters sent to him in

Massachusetts from the Partnership's New York lawyers and Matthews

himself." They further allege that "[t]wo similar letters were

sent by Matthews and the Partnership's New York counsel to Flannery

in Massachusetts." These letters all dealt with the non- 11

competition and termination distribution clauses of the Agreement,

and the plaintiffs' rights and responsibilities thereunder.12

Again, plaintiffs failed to provide any details in their

complaint or affidavits about the circumstances surrounding the

parties' entry into the Agreement, including any misrepresentations

that were made at that time, who may have made them, and in what

capacity. Thus, any alleged misrepresentations made by the

Partnership at the time of contracting cannot be the basis of

specific jurisdiction over HG Limited.

As for the correspondence from the Partnership's lawyers

and Matthews to Platten and Flannery, that itself does not suffice

to show relatedness. See Far W. Capital, Inc. v. Towne, 46 F.3d
Plaintiffs rely on Murphy v. Erwin-Wasey, Inc., 460 F.2d 13

661 (1st Cir. 1972), which this court decided before the advent of

the Supreme Court's modern personal jurisdiction cases, see, e.g.,

Burger King, 471 U.S. 462; Calder v. Jones, 465 U.S. 783 (1984),

for the proposition that "there can be no constitutional objection

to Massachusetts asserting jurisdiction over the out-of-state

sender of a fraudulent misrepresentation, for such a sender has

thereby 'purposefully avail[ed] itself of the privilege of

conducting activities within the forum State.'" Murphy, 460 F.2d

at 664 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

Murphy, however, was an intentional tort case in which plaintiff's

alleged injury came directly as a result of defendants' fraudulent

misrepresentations. Id. at 663. Murphy also recognized that where

"it is clear from his allegation that plaintiff was not deceived by

[the allegedly tortious] acts, jurisdiction may not be asserted

under [Mass. Gen. Laws ch. 223A, § 3(c)]." Id. at 665.

-39-

1071, 1077 (10th Cir. 1995) ("It is well-established that phone

calls and letters are not necessarily sufficient in themselves to

establish minimum contacts."); see also Nicholas v. Buchanan, 806

F.2d 305, 307-08 (1st Cir. 1986) (per curiam) (collecting cases).

We are doubtful that the letters even provide a basis for a viable

cause of action. Platten and Flannery did not allege reasonable

reliance on the purported misrepresentations; thus, any harm that

Platten or Flannery suffered did not arise out of those

misrepresentations, but instead out of the Partnership's alleged

breach of the promise to pay them their termination distributions.

In specific jurisdiction terms, plaintiffs have not shown a

"material connection" between their injuries and HG Limited's

contacts in Massachusetts and therefore cannot meet the relatedness

requirement of the due process inquiry. See Harlow, 432 F.3d at 13

61. 
-40-

Nor does HG Limited's alleged breach of fiduciary duty

satisfy the constitutional standard for asserting specific

jurisdiction. "A breach of fiduciary duty occurs [in the state]

where the fiduciary acts disloyally." Phillips Exeter Acad., 196

F.3d at 291. Thus, for minimum contacts analysis, even if the

effects of the alleged breach were felt in Massachusetts, there is

no evidence in the record that the alleged breach itself "occurred"

in this state, see id. (concluding that "an in-forum effect of an

extra-forum breach . . . [was] inadequate to support a finding of

relatedness"), as opposed to, say, Bermuda, where HG Limited has

its usual place of business, or Pennsylvania, from whence Chris

Matthews allegedly controlled the Partnership.

b. General Jurisdiction over HG Limited

Plaintiffs argue that general jurisdiction also exists

over HG Limited by virtue of its parent-subsidiary relationship

with HGI and of Platten's activities, as a partner, in

Massachusetts.

"General jurisdiction [may] exist[] when the defendant

has engaged in 'continuous and systematic activity' in the forum,

even if the activity is unrelated to the suit." Daynard, 290 F.3d

at 51 (quoting Pleasant St. I, 960 F.2d at 1088). "The standard

for evaluating whether [defendants' alleged] contacts satisfy the

constitutional general jurisdiction test 'is considerably more

stringent' than that applied to specific jurisdiction questions."
-41-

Noonan, 135 F.3d at 93 (quoting Glater v. Eli Lilly & Co., 744 F.2d

213, 216 (1st Cir. 1984)). 

The bar is set even higher in a case like this one, in

which plaintiffs seek to disregard the corporate form. "The mere

fact that a subsidiary company does business within a state does

not confer jurisdiction over its nonresident parent, even if the

parent is sole owner of the subsidiary. There is a presumption of

corporate separateness that must be overcome by clear evidence

. . . ." Escude Cruz v. Ortho Pharm. Corp. 619 F.2d 902, 905 (1st

Cir. 1980) (citation omitted); see also Donatelli v. Nat'l Hockey

League, 893 F.2d 459, 465 (1st Cir. 1990); My Bread, 233 N.E.2d at

752 (elaborating the contours of the corporate disregard doctrine).

Relying primarily on Platten's affidavits, plaintiffs

argue that HG Limited engaged in continuous and systematic

activities in Massachusetts "through the Partnership's active

control over HGI's Boston office" and "through Platten, who

routinely engaged in Partnership business in Massachusetts." 

Again, there is no reason to disregard the corporate

form in this case. Ultimately, nothing in the record substantiates

the proposition that HG Limited "plainly made a choice to avail

itself of the forum's benefices." Donatelli, 893 F.2d at 466. No

personal jurisdiction, specific or general, exists over the

defendant.
-42-

3. Denial of Motion for Partial Reconsideration and

for Jurisdictional Discovery

Plaintiffs also claim error in the district court's

summary denial of their motion for partial reconsideration of its

dismissal of HG Limited for lack of personal jurisdiction. With

the exception of allegations based on Platten Affidavit III, which

was not admitted into the record, their motion for reconsideration

merely reiterated the allegations and arguments advanced in their

reply to the Offshore Defendants' dismissal motion. There was no

abuse of discretion in the district court's declining to reconsider

its previous ruling. See Servants of the Paraclete v. Does, 204

F.3d 1005, 1012 (1st Cir. 2000) (holding that "a motion for

reconsideration is appropriate where the court has misapprehended

the facts, a party's position, or the controlling law," but is not

appropriate as a "vehicle[] to reargue an issue previously

addressed by the court when the motion merely advances new

arguments[] or supporting facts which were available at the time of

the original motion").

This leaves plaintiffs' final objection, which is to the

district court's summary denial of their motion to defer ruling on

the Rule 12(b)(2) issue pending jurisdictional discovery, which

they requested as an alternative to their motion for partial

reconsideration. Because "[t]rial management is peculiarly within

the ken of the district court," United States v. Saccoccia, 58 F.3d

754, 770 (1st Cir. 1995), we review only for abuse of discretion,
-43-

and find none here.

"[A] diligent plaintiff who sues an out-of-state

corporation and who makes out a colorable case for the existence of

in personam jurisdiction may well be entitled to a modicum of

jurisdictional discovery if the corporation interposes a

jurisdictional defense.” Sunview Condo. Ass'n v. Flexel Int'l, 116

F.3d 962, 964 (1st Cir. 1997). However, the availability of

jurisdictional discovery is subject to the district court's

discretion. See id.; accord United States v. Swiss Am. Bank, Ltd.,

274 F.3d 610, 625-26 (1st Cir. 2001). 

"If a party needs jurisdictional discovery, that party

has an obligation to request it in a timely manner." Barrett v.

Lombardi, 239 F.3d 23, 28 (1st Cir. 2001). Plaintiffs had ample

opportunity to request jurisdictional discovery in the full year

between when they filed their initial complaint in state court and

when the district court ruled on the Offshore Defendants' motion to

dismiss for lack of personal jurisdiction. Yet, plaintiffs made no

attempt to do so until after the district court ruled in

defendants' favor. That alone suffices to justify the district

court's rejection of their motion. See id. at 28-29 (finding no

abuse of discretion in the district court's denial of discovery

when defendant did not seek discovery at any time prior to the

entry of an adverse judgment). 
-44-

III.

We affirm. Costs are awarded to defendants.