Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2579

EVANS CABINET CORPORATION,

Plaintiff, Appellant,

v.

KITCHEN INTERNATIONAL, INC.,

Defendant, Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

 

Before

Lynch, Chief Judge, 

Torruella and Ripple, Circuit Judges. *

 

Charles K. Reed, with whom P. Michael Freed, McKenna Long &

Aldridge, LLP, Alex C. Gianacoplos, and Duggan & Caccavaro, were on

brief, for appellant. 

Edward J. Fallman, for appellee.

February 3, 2010
 The district court had diversity jurisdiction over this 1

contract dispute pursuant to 28 U.S.C. § 1332. Evans is a Georgia

corporation with its principal place of business in Dublin,

Georgia. Kitchen International is a Louisiana corporation with its

principal place of business in Montreal, Québec. 

This court has jurisdiction over the final decision of the 2

district court pursuant to 28 U.S.C. § 1291.

-2-

RIPPLE, Circuit Judge. Evans Cabinet Corporation

(“Evans”) instituted this diversity action in the United States

District Court for the District of Massachusetts against Kitchen

International, Inc. for breach of contract and quantum meruit.1

Kitchen International filed a motion to dismiss based on res

judicata. It claimed that the action was foreclosed because of an

earlier judgment entered by the Superior Court of Québec. After a

hearing on the motion to dismiss, the district court determined

that the arguments went beyond the pleadings. After allowing

limited discovery and converting the motion to one for summary

judgment, the court entered judgment for Kitchen International.

Evans filed a timely appeal to this court.2

For the reasons set forth in the following opinion, we

reverse the judgment of the district court and remand for

proceedings consistent with this opinion.
 The record does not include a copy of this contract or any 3

information about the circumstances surrounding its formation.

-3-

I

BACKGROUND

According to the allegations of the complaint, Kitchen

International and Evans entered into a contract in 2004. Evans 3

agreed to supply Kitchen International with manufactured cabinetry

for several residential construction sites on the East Coast of the

United States. Kitchen International placed these orders from its

headquarters in Montreal with the Georgia offices of Evans. The

materials were shipped directly to the construction sites.

According to Kitchen International, in 2004, the two

parties also agreed that they would create a products showroom at

Kitchen International’s office in Montreal. Kitchen International

claims that Paul Gatti of Evans approved the design and layout of

the showroom. According to Kitchen International, later that year,

Evans manufactured and shipped cabinetry, related products and

sales and promotional materials to Québec for use in the showroom.

Evans denies the existence of such an agreement; it claims that it

never authorized Kitchen International to build a showroom and that

it did not supply products to Kitchen International for that

purpose.

Various issues arose about the quality and conformity of

the products that Evans had shipped to the East Coast projects.
-4-

Consequently, in May 2006, Kitchen International engaged a Canadian

attorney to file suit against Evans in the Superior Court of Québec

for breach of contract arising from the materials supplied by

Evans. Evans was served with process and given notice of this

proceeding. Evans did not answer or otherwise respond to the

action, and, consequently, on May 31, 2007, the Superior Court of

Québec entered a default judgment against Evans in the amount of

$149,354.74.

On April 23, 2007, Evans instituted this action for

breach of contract and quantum meruit in the United States District

Court for the District of Massachusetts. Kitchen International

filed a motion to dismiss on the ground that the action was barred

by res judicata by virtue of the Canadian judgment against Evans.

Evans opposed the motion on the ground that the Superior Court of

Québec had lacked jurisdiction over it, and, therefore, the Québec

judgment could not be recognized by the district court.

During a hearing on Kitchen International’s motion to

dismiss, the district court realized that the issues being argued

went beyond the pleadings. It therefore stated that the motion

should be converted to one for summary judgment and allowed the

parties ninety days to conduct limited discovery on the issue of

the Superior Court of Québec’s jurisdiction over Evans. On March

4, 2008, the district court resumed the hearing. The only

additional documents supplied by either party were affidavits from
 Massachusetts’s version of the Recognition Act is codified 4

at Massachusetts General Laws chapter 235, § 23A. The statute is

reprinted in the attached appendix.

-5-

their principals. On November 4, 2008, the district court

converted Kitchen International’s motion to a motion for summary

judgment and dismissed the case. The court first determined that,

because it was sitting in diversity, it should apply

Massachusetts’s version of the Uniform Foreign Money-Judgments

Recognition Act (“Recognition Act”) to determine whether it should

enforce the Québec judgment. In order to enforce a judgment under 4

the Recognition Act, the court continued, the Québec court must

have been able to exercise personal jurisdiction over Evans. 

At the beginning of its analysis, the district court

observed that “jurisdictions have split over whether to apply the

personal jurisdiction law of the rendering country, the forum

state, or both.” Evans Cabinet Corp. v. Kitchen Int’l, Inc., 584

F. Supp. 2d 410, 414 (D. Mass. 2008). Because the Supreme Judicial

Court of Massachusetts had not chosen between these views, the

district court decided that it would scrutinize the jurisdiction of

the Québec court under both the law of Québec and the law of

Massachusetts. Turning first to the law of Québec, the district

court noted that Kitchen International had attached the affidavit

of its Canadian attorney to establish that Québec’s exercise of

jurisdiction was appropriate. The district court determined that

the affidavit clearly established that Kitchen International had
-6-

the right to institute a lawsuit in Québec. However, it found the

affidavit deficient on the issue of “whether the Quebec Superior

Court properly exercised personal jurisdiction over [Evans]

pursuant to article 3136 of the Civil Code of Quebec.” Id. at 415.

It noted, however, that the United States District Court for the

Southern District of New York had determined that the Québec court

could exercise personal jurisdiction over a defendant if the

contract at issue had been “‘concluded in Quebec or if the cause of

action arose in Quebec.’” Id. (quoting Canadian Imperial Bank of

Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1253 (S.D.N.Y.

1995) (emphasis in original)). Based on that authority, the

district court concluded that the Superior Court of Québec properly

had exercised personal jurisdiction over Evans pursuant to the law

of Québec.

The district court then turned to the law of

Massachusetts. The court first noted that Massachusetts courts had

interpreted the Commonwealth’s long-arm statute “as an assertion of

jurisdiction over the person to the limits allowed by the

Constitution of the United States.” Id. (internal quotation marks

omitted). The district court then held:

The Quebec Superior Court’s exercise of

personal jurisdiction over Plaintiff did not

contravene traditional notions of fair play

and substantial justice. Plaintiff had

several contacts with Quebec. All the orders,

communications, payments, correspondence and

dealings between [the] Parties occurred

through Defendant’s Montreal office.
-7-

Moreover, Parties agreed to create a product

showroom at Defendant’s Montreal office, which

was ultimately constructed. The purpose of

this showroom was to display Plaintiff’s

products to potential customers and sales

agents from Canada and New England. Because

under either Quebec or Massachusetts law the

Quebec Superior Court properly exercised

personal jurisdiction over Plaintiff,

Plaintiff’s argument that the Quebec default

judgment is not conclusive fails.

Id. at 416 (internal quotation marks omitted).

The court then turned to the question of whether Evans’s

claims were barred by the Québec judgment. The district court

determined that, although Massachusetts supplies the applicable res

judicata law, “a Massachusetts court must give a prior judgment the

same finality it would receive in the rendering jurisdiction.” Id.

at 417. Consequently, the court employed Québec rules of res

judicata to determine whether the default judgment should be given

preclusive effect. Id. (citing Québec civil code and a Supreme

Court of Canada decision). The court then concluded that Evans’s

suit was barred by these rules:

Here, the Quebec default judgment

precludes the relitigation of Plaintiff’s

claim. Because a default judgment is a final

judgment under the Recognition Act, the Quebec

default judgment qualifies for res judicata

treatment. First, this action involves the

same cause of action--breach of contract--as

the Quebec proceeding. Second, as both

Parties stipulated in open court, this action

involves the same construction projects as

were at issue in the Quebec proceeding.

Third, the parties to this action were the

same parties to the Quebec proceeding, with
-8-

the only difference being that Plaintiff here

was the defendant in Quebec.

Id. The district court, therefore, held that res judicata

precluded the present action and entered summary judgment for

Kitchen International.

II

DISCUSSION

A. Contentions of the Parties

Evans submits that the district court erred in holding

that its claim for damages for breach of contract or in quantum

meruit were barred because of the prior default judgment entered

against it by the Superior Court of Québec. In Evans’s view, the

Superior Court of Québec lacked personal jurisdiction over it, and,

consequently, the default judgment was unenforceable and not

subject to recognition by the district court. Noting that the

district court applied a summary judgment standard in determining

whether the Québec court properly exercised jurisdiction, Evans

submits that there are significant unresolved factual questions

concerning the nature of Evans’s relevant contacts with the

Province of Québec. Evans contends that, if the district court had

taken the facts in the light most favorable to its position, as the

district court must do in the context of summary judgment, there

would be no basis for concluding that the Québec court could

exercise personal jurisdiction over it.
-9-

Kitchen International takes a decidedly different view.

It submits that the Québec judgment must be recognized and

precludes the present suit. Focusing on the summary judgment

motion, it notes that the district court characterized its evidence

that Evans had purposeful contacts with Québec as “overwhelming.”

See Evans Cabinet, 584 F. Supp. 2d at 416. By contrast, Evans

submitted only the affidavits of Mark Trexler, Evans’s CEO, who, in

Kitchen International’s view, could show no involvement in the

parties’ agreements.

B. Threshold Matters

We review de novo a grant of summary judgment. Summary

judgment is appropriate only when there is no genuine issue of any

material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). In assessing the merits of

such a motion, the court must consider the record in the light most

favorable to the party opposing the motion and must indulge in all

inferences favorable to that party. Kunelius v. Town of Stow, 588

F.3d 1, 8-9 (1st Cir. 2009). We also must keep in mind, however,

that the role of summary judgment is to “pierce the pleadings” and

to determine whether there is a genuine need for trial. Garside v.

Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). The moving party

must “put the ball in play” by averring the absence of any genuine

issue of fact. Id. at 48. Once the ball is in play, however, the

non-moving party must come forward with competent evidence to rebut
Evans notes that, in determining the jurisdiction of the 5

Québec court, the district court did not employ any of the

methodologies set out in Boit v. Gar-Tec Products, Inc., 967 F.2d

671, 674-78 (1st Cir. 1992). See also Foster-Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138, 144-49 (1st Cir. 1995). We

agree with Evans that the district court correctly proceeded in

this regard. The approaches set forth in Foster-Miller and in Boit

are designed to assist the district court in investigating the

basis of its own jurisdiction in the suit before it. They are

designed to reconcile the sometimes competing interests of fairness

to the parties and considerations of judicial economy that often

arise in that context. 

Here, the jurisdictional issue is raised in a very different

context. Kitchen International’s motion to dismiss the

Massachusetts action did not attempt simply to bar the prosecution

of the current action in Massachusetts on the ground that the

district court lacked authority to adjudicate Evans’s present

contract claim there. Rather, it was a motion addressed to the

merits of the Massachusetts action. It sought a ruling that Evans

was precluded from obtaining the substantive relief that it sought

in the Massachusetts action because an earlier judgment obtained in

another court precluded any further litigation of the matter. As

part of that assertion, Kitchen International submits that the

earlier judgment was rendered by a court that had personal

jurisdiction over the defendant in that action, Evans. Evans takes

the opposite view. This is a merits dispute properly analyzed at

this stage of the proceedings by conventional summary judgment

analysis. 

-10-

the assertion of the moving party. Id.; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986). Not every factual

discrepancy is sufficient to defeat a motion for summary judgment.

“[E]vidence that ‘is merely colorable or is not significantly

probative’” cannot defeat the motion. Mesnick v. Gen. Elec. Co.,

950 F.2d 816, 822 (1st Cir. 1991) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986)).5

When sitting in diversity and asked to recognize and

enforce a foreign country judgment, federal courts tend to apply
 See, e.g., Sarl Louis Feraud Int’l v. Viewfinder, Inc., 489 6

F.3d 474, 477-78 (2d Cir. 2007); Soc’y of Lloyd’s v. Siemon-Netto,

457 F.3d 94, 98-99 (D.C. Cir. 2006); Sw. Livestock & Trucking Co.

v. Ramon, 169 F.3d 317, 320 (5th Cir. 1999); Phillips USA, Inc. v.

Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir. 1996); Andes v.

Versant Corp., 878 F.2d 147, 149-50 (4th Cir. 1989); Ingersoll

Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir. 1987);

Bank of Montreal v. Kough, 612 F.2d 467, 469-72 (9th Cir. 1980);

Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440

(3d Cir. 1971); see also McCord v. Jet Spray Int’l Corp., 874 F.

Supp. 436, 437-38 (D. Mass. 1994); Restatement (Second) of Conflict

of Laws § 98 & cmt. c (rev. 1988).

 See, e.g., Wilson v. Marchington, 127 F.3d 805, 813 (9th 7

Cir. 1997) (“We apply federal common law when a federal rule of

decision is necessary to protect uniquely federal interests.”

(internal quotation marks omitted)); Banque Libanaise Pour Le

Commerce v. Khreich, 915 F.2d 1000, 1003 n.1 (5th Cir. 1990)

(“Commentators have argued that the enforceability of a foreign

judgment in United States’ courts should [] be governed by

reference to a general rule of federal law.”); Tahan v. Hodgson,

662 F.2d 862, 868 (D.C. Cir. 1981) (“[N]otwithstanding Erie

Railroad Co. v. Tompkins, the issue seems to be national rather

than state.”); see also Restatement (Second) of Conflict of Laws

§ 98 cmt. c (“[I]t seems probable that federal law would be applied

to prevent application of a State rule on the recognition of

foreign nation judgments if such application would result in the

disruption or embarrassment of the foreign relations of the United

States.” (citing Zschernig v. Miller, 389 U.S. 429 (1968))); Ronald

A. Brand, Enforcement of Foreign Money-Judgments in the United

States: In Search of Uniformity and International Acceptance, 67

Notre Dame L. Rev. 253, 301-18 (1991) (suggesting that federal

common law may supplant state laws on the recognition and

-11-

the law of recognition and enforcement of the state in which they

sit, as required by Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938). However, some courts and commentators have suggested that 6

recognition and enforcement of foreign country judgments deserves

application of a uniform federal body of law because suits of this

nature necessarily implicate the foreign relations of the United

States. This question has not been decided definitively in this 7
enforcement of foreign country judgments).

Proponents of this view note that a federal rule of

recognition and enforcement of foreign country judgments may

already exist, as established by the Supreme Court in Hilton v.

Guyot, 159 U.S. 113 (1895). When a federal court is asked to

recognize and enforce a foreign country judgment in an action where

the court’s subject matter jurisdiction is based not on diversity,

but on 28 U.S.C. § 1331 or some other source of federal

jurisdiction, the federal rule of recognition and enforcement would

govern. See, e.g., Gordon & Breach Sci. Publishers S.A. v. Am.

Inst. of Physics, 905 F. Supp. 169, 178-79 (S.D.N.Y. 1995)

(applying the federal rule in a Lanham Act case). See generally

Brand, supra, at 262 n.32 (discussing non-diversity cases applying

federal rules).

According to Hilton, a diversity case from the pre-Erie era,

foreign judgments shall be recognized so long as the rendering

court afforded an opportunity for full and fair proceedings; the

court was of competent jurisdiction over the persons and subject

matter; the court conducted regular proceedings, which afforded due

notice of appearance to adversary parties; and the court afforded

a system of jurisprudence likely to secure an impartial

administration of justice between the citizens of its own country

and those of other countries. See 159 U.S. at 202-03. The Hilton

rule also requires reciprocity in the recognition and enforcement

of United States judgments from the jurisdiction of the rendering

court. Id. at 210, 226-27.

-12-

circuit. In John Sanderson (Wool) Pty. Ltd. v. Ludlow Jute Co.,

569 F.2d 696, 697 n.1 (1st Cir. 1978), we left the question open,

noting that there was no reason to decide the matter under the

facts of that case because there was no appreciable difference

between the federal and the state rules. We shall follow the same

course in this case because we need not resolve the matter here.

Neither party has suggested that the district court ought to have

followed a rule other than that of Massachusetts. In any event,

even if the reciprocity rule of Hilton v. Guyot were applicable

under the facts of this case, the Massachusetts rule of recognition
 The parties do not question that the Recognition Act 8

applies not only to enforcement actions but also to the recognition

of the foreign judgments to preclude further litigation. See 18B

C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 

§ 4473 n.7 (“The inclusion of at least the core of claim preclusion

in Section 3 [of the Recognition Act] is noted [by

commentators].”); see also Brand, supra, at 265-66 & n.43

(“‘Whether a foreign judgment should be recognized, may be in

issue, however, not only in enforcement . . . but in other

contexts, for example where the defendant seeks to rely on a prior

adjudication of a controversy (res judicata).’” (quoting

Restatement (Third) of Foreign Relations Law § 481 cmt. b (1986))).

Of course, in the case of recognition to preclude further

litigation, once the foreign judgment is deemed entitled to

recognition under the Recognition Act, the extent of the foreign

judgment’s preclusive effect still must be determined. See

generally Restatement (Second) of Conflicts of Laws § 98 cmt. g

(rev. 1988). In this case, we need not address that issue because

Evans has waived any argument that the Québec judgment is entitled

to less res judicata effect than what the district court gave it.

See infra note 18.

 See the statutory appendix to this opinion. 9

-13-

and enforcement also contains a reciprocity requirement. See Mass.

Gen. Laws ch. 235, § 235A (subsection (7) of third paragraph); see

also John Sanderson, 569 F.2d at 697.

C. Massachusetts Law on the Recognition of Foreign Country 

 Judgments 

With respect to the recognition of foreign country

judgments, Massachusetts, like many other states of the Union, has

enacted a version of the Recognition Act. The Massachusetts 8

version of that Act is codified at Massachusetts General Laws

chapter 235 § 23A. This section clearly requires that the 9

rendering court have personal jurisdiction over the defendant in

order for the resulting judgment to be recognized in Massachusetts.
 Some states have concluded that the relevant question is 10

only whether personal jurisdiction would have been present had the

rendering court applied the law of the enforcing state. See, e.g.,

Genujo Lok Beteiligungs GmbH v. Zorn, 943 A.2d 573, 580 (Me. 2008)

(looking only to whether the foreign jurisdiction could have

established personal jurisdiction under Maine law); Sung Hwan Co.

v. Rite Aid Corp., 850 N.E.2d 647, 650-51 (N.Y. 2006) (interpreting

the term “personal jurisdiction” as used in an analogous New York

statute to mean “whether exercise of jurisdiction by the foreign

court comports with New York’s concept of personal jurisdiction”

and omitting any analysis of foreign law).

Other state courts instead have concluded that the proper

interpretation is to ascertain first whether the rendering court

could exercise personal jurisdiction over the defendant under its

own laws. They then look to whether the rendering court could have

exercised personal jurisdiction under the law of the forum state.

The purpose of this second step is to ensure that the rendering

court not only possessed jurisdiction at the time of judgment but

also that the rendering court’s procedures comported with United

States due process standards. Under this approach, both of these

requirements are necessary for a rendering court to have personal

jurisdiction over the defendant within the meaning of the

Recognition Act. See, e.g., Monks Own, Ltd. v. Monastery of Christ

in the Desert, 168 P.3d 121, 124-27 (N.M. 2007) (adopting the

approach of first ascertaining whether personal jurisdiction was

satisfied under the law of the rendering foreign jurisdiction and

then determining whether the judgment debtor’s applicable contacts

with the rendering jurisdiction satisfy the United States

constitutional due process minimum); Vrozos v. Sarantopoulos, 552

N.E.2d 1093, 1099-1100 (Ill. App. Ct. 1990) (reviewing a trial

court decision concluding that a Canadian court had personal

jurisdiction over the judgment debtor pursuant to United States

principles of due process and remanding for consideration of

whether the Canadian court also had personal jurisdiction pursuant

to Canadian law of service of summons). Federal courts applying

-14-

The statute does not state explicitly, however, whether the

correctness of that exercise of jurisdiction by the rendering court

ought to be determined according to the law of the rendering or the

enforcing jurisdiction. The district court suggested that there is

currently a division of authority on this question among the states

that have enacted a form of the Recognition Act. The district 10
analogous state recognition acts also have adopted this approach.

See K & R Robinson Enters. Ltd. v. Asian Exp. Material Supply Co.,

178 F.R.D. 332, 339-42 (D. Mass. 1998). See generally Royal Bank

of Canada v. Trentham Corp., 491 F. Supp. 404, 408-10 (S.D. Tex.

1980), vacated by, 665 F.2d 515 (5th Cir. 1981). The American Law

Institute adopts this approach in its model federal statute on the

recognition of foreign money judgments. See American Law

Institute, Recognition and Enforcement of Foreign Judgments:

Analysis and Proposed Federal Statute § 3 & cmt. c (2006).

 In Manches & Co. v. Gilbey, 646 N.E.2d 86 (Mass. 1995), the 11

Supreme Judicial Court decided that an English default judgment was

worthy of recognition in Massachusetts. It reviewed the English

judgment employing the criteria stated in the Massachusetts version

of the Recognition Act. However the court did not rule on the

question of whether the actual exercise of jurisdiction by the

English court ought to be measured solely by the law of England or

Massachusetts or both. 

-15-

court also noted that the Supreme Judicial Court of Massachusetts

has not yet spoken squarely on the matter.11

The district court, faced with the ambiguity about the

prevailing rule in Massachusetts with respect to the law governing

personal jurisdiction in the rendering court, explicitly declined

to resolve the matter and instead applied the governing rule of

both jurisdictions. On appeal, neither party has contended that

the district court erred in this regard. Nor has either party

argued that Massachusetts would apply any other rule. Under these

circumstances, we must conclude that the parties have waived any

reliance on another rule and that we must decide this case by

assessing the facts in light of the personal jurisdiction law of

both the Province of Québec and the Commonwealth of Massachusetts.
 The Superior Court of Québec is the court of general trial 12

jurisdiction in the Province of Québec. See F. Pearl Eliadis &

France Allard, The Legal System in Quebec, in Gerald Gall, The

Canadian Legal System 277 (5th ed. 2004). 

-16-

1. The Jurisdiction of the Superior Court of Québec under the

 Law of Québec

We turn, then, to the question of whether Kitchen

International established that the Superior Court of Québec

properly exercised personal jurisdiction over Evans. In the 12

district court, Kitchen International submitted the affidavit of a

Canadian attorney and argued that the Québec court properly

exercised jurisdiction under Article 3136 of the Québec Civil Code.

That provision states:

Even though a Québec authority has no

jurisdiction to hear a dispute, it may hear

it, if the dispute has a sufficient connection

with Québec, where proceedings cannot possibly

be instituted outside Québec or where the

institution of such proceedings outside Québec

cannot reasonably be required.

Civil Code of Québec, R.S.Q., ch. 64, art. 3136. From an

examination of the record in its entirety, it does not appear that

Kitchen International relied upon any other particular provision of

the Code. Moreover, the opinion of the district court appears to

have interpreted Kitchen International’s position as relying

entirely on this provision. The district court took the view,

albeit in conclusory fashion, that this provision applied because

“‘the contract [at issue] was concluded in Quebec or [] the cause

of action arose in Quebec.’” Evans Cabinet, 584 F. Supp. 2d at 415
 Other provisions of the code, however, would have been 13

invoked more appropriately. See the statutory appendix to this

opinion.

-17-

(quoting Canadian Imperial Bank, 899 F. Supp. at 1253 (emphasis and

first alteration in original)).

There are two problems with this analysis. First, the

Québec provision relied upon by Kitchen International, Article

3136, is clearly a provision that permits Québec courts to assume

personal jurisdiction over parties in exceptional cases when there

is no other available jurisdiction to which the parties may

litigate their dispute. See GreCon Dimter, Inc. v. J.R. Normand,

Inc., [2005] 2 S.C.R. 401 para 33. Such a situation is clearly 13

not the case here. The litigants are American corporations which

are amenable to suit in the state of their corporate domicile and,

with respect to particular transactions, in the states where they

have the requisite minimum contacts with the other party and with

the transaction at issue in the lawsuit. Because there obviously

are other forums quite able to assume jurisdiction over the

parties, we must conclude that Kitchen International has not

carried its burden of establishing that this provision can serve as

an adequate basis for jurisdiction over Evans in the courts of that

province. Cf. Bouchard v. Ventes de Vehicules Mitsubishi du Canada

Inc., [2008] Q.J. No. 13487, 2008 QCCS 6033 para. 22 (holding that

the statute does not apply because “all Respondents are domiciled

in countries with sophisticated court systems which apply the rule
-18-

of law”). The second infirmity with the district court’s reliance

on Article 3136 is that Canadian Imperial Bank does not indicate

that the parties in that case, or the district court in that case,

were relying on this provision of Québec law. Nor does Canadian

Imperial Bank identify what provision of Québec law the court

believed supported an exercise of personal jurisdiction in that

case. 899 F. Supp. at 1253. Thus, simply invoking Canadian

Imperial Bank does not prove that the Superior Court of Québec

properly exercised personal jurisdiction over Evans pursuant to

Québec law.

Under these circumstances, we normally would have little

difficulty in concluding that Kitchen International had not met its

burden of establishing that the Québec court had personal

jurisdiction over Evans on the basis of Article 3136 and, moreover,

that Kitchen International had waived reliance on any other

provision of Québec law by its failure to raise any other provision

in the district court. However, several considerations make a

determination of waiver inappropriate under the circumstances of

this case. First, although relying on the wrong section of the

Code, the district court indicated to the parties that it believed

Québec’s Code authorized jurisdiction if the contract had been made

in Québec or if the cause of action had arisen there.

Additionally, Evans, far from relying on a waiver on the part of

Kitchen International, explicitly admits in its brief before this
 Read in context, it is clear that Evans makes this 14

statement in reference to the district court’s reading of Article

3136. However, there is no indication that Evans disagrees with

that reading or that it believes that Article 3136 is limited to

the extraordinary circumstance when there is no other viable forum.

 See the statutory appendix to this opinion. 15

-19-

court that the Québec court could have had jurisdiction if the

contract had been concluded in Québec or if the cause of action

arose in Québec. Appellant’s Br. 16 (citing Canadian Imperial

Bank). Under these circumstances, we must conclude that Kitchen 14

International may be able to demonstrate that the Québec court was

authorized to exercise jurisdiction if it can demonstrate that a

contractual relationship was established with Evans in Québec or

that there was a breach of that agreement in Québec or that one of

the obligations arising from the contract was to be performed in

the Province. A provision of the Civil Code of Québec authorizes

the exercise of jurisdiction on these bases. See Civil Code of

Québec, R.S.Q., ch. 64, art. 3148. Under that provision, a Québec 15

court can exercise personal jurisdiction over a foreign defendant

if, inter alia, “a fault was committed in Québec, damage was

suffered in Québec, an injurious act occurred in Québec or one of

the obligations arising from a contract was to be performed in

Québec.” Id.

Relying on the affidavit of Ms. Shiell, an officer and

owner of Kitchen International, the district court took the view

that the authority of Québec to exercise jurisdiction over Evans
-20-

had been established because all of the “‘orders, communications,

payments, correspondence and dealings’” between the parties had

taken place through Kitchen International’s Montreal office. Evans

Cabinet, 584 F. Supp. 2d at 416 (quoting Shiell Aff. at 3). The

district court also concluded that the parties had agreed to create

a product showroom to display Evans’s products to potential

customers and sales agents from New England and Canada. Id. 

An examination of the record makes clear, however, that

the district court’s factual conclusions were not undisputed.

Through the affidavit and supplemental affidavit of its CEO, Mark

Trexler, Evans disputed that it had accepted in Québec any

contractual obligation with Kitchen International or had engaged,

through its representatives, in any business in Québec. Indeed, it

denied the existence of any agreement with Kitchen International

other than various agreements to sell the allegedly defective

material. Evans denied, explicitly, any joint venture to establish

a showroom in Montreal. Indeed, none of the affidavits make

explicit the precise relationship between the alleged showroom and

the specific sales of allegedly defective products by Evans. Under

these circumstances, it is clear that genuine issues of fact remain

to be resolved before the authority of Québec to exercise personal

jurisdiction over Evans can be established.
 The district court understood Kitchen International to be 16

arguing that Evans had a specifically affiliating nexus with

Québec. Evans Cabinet, 584 F. Supp. 2d at 415. Kitchen

International does not dispute that understanding on appeal, and,

indeed, argues the case on that basis. Appellee’s Br. 13.

-21-

2. The Application of Massachusetts Standards to the Superior

 Court of Québec’s Exercise of Jurisdiction 

At the outset, we pause to emphasize that the parties do

not dispute that the district court had personal jurisdiction over

them in this case. Here we review its determination of whether the

exercise of personal jurisdiction by the Superior Court of Québec

comported with Massachusetts and federal standards. 

The exercise of personal jurisdiction over a defendant

such as Evans is governed by the Commonwealth’s long-arm statute

insofar as the exercise of jurisdiction also comports with the

requirements of the federal Due Process Clause. Caplan v. Donovan,

879 N.E.2d 117, 120 (Mass. 2008); see also Ticketmaster-New York,

Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994). The

Massachusetts long-arm statute permits the exercise of personal

jurisdiction when a person has transacted business within the

Commonwealth or when the person has contracted to supply services

or things within the Commonwealth. This conferral of jurisdiction

creates a specifically affiliating jurisdictional nexus; the 16

personal jurisdiction conferred is only with respect to litigation

arising out of the transaction within the Commonwealth, not with

respect to the defendant’s transactions that did not take place in
-22-

the Commonwealth. Here, “[w]e may sidestep the statutory inquiry

and proceed directly to the constitutional analysis . . . because

the Supreme Judicial Court of Massachusetts has interpreted the

state’s long-arm statute as an assertion of jurisdiction over the

person to the limits allowed by the Constitution of the United

States.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole,

290 F.3d 42, 52 (1st Cir. 2002) (internal quotation marks omitted).

We have described in earlier cases these constitutional

requirements:

“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.”

Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144

(1st Cir. 1995) (quoting United Elec., Radio and Mach. Workers of

Am. v. 163 Pleasant Street Corp., 960 F.2d 1080, 1089 (1st Cir.

1992)). With respect to the “Gestalt factors,” we have observed

that,

In constitutional terms, the jurisdictional

inquiry is not a mechanical exercise. The

Court has long insisted that concepts of

reasonableness must inform a properly

performed minimum contacts analysis. This

means that, even where purposefully generated

contacts exist, courts must consider a panoply
-23-

of other factors which bear upon the fairness

of subjecting a nonresident to the authority

of a foreign tribunal. 

Ticketmaster-New York, 26 F.3d at 209 (internal quotation marks and

citations omitted). The Gestalt factors that a court will consider

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.” Id. 

In applying these standards, the district court held:

The Quebec Superior Court’s exercise of

personal jurisdiction over Plaintiff did not

contravene traditional notions of fair play

and substantial justice. Plaintiff had

several contacts with Quebec. All the orders,

communications, payments, correspondence and

dealings between Parties occurred through

Defendant’s Montreal office. Moreover,

Parties agreed to create a product showroom at

Defendant’s Montreal office, which was

ultimately constructed. The purpose of this

showroom was to display Plaintiff’s products

to potential customers and sales agents from

Canada and New England. 

Evans Cabinet, 584 F. Supp. 2d at 416 (internal quotation marks

omitted). However, as we have noted in our earlier discussion of

the Québec jurisdictional statute, the affidavits supplied by the

parties were in conflict. Evans, through the affidavits of Mr.

Trexler, maintains that there were various contracts for the

purchase of the allegedly defective material, that they were all
 Who Paul Gatti is, and what his position is/was at Evans, 17

never was explained by either party in their submissions.

 If the district court were to find that there was no 18

connection between the alleged agreement to establish a showroom in

Montreal and the agreements to supply the allegedly defective

material, Kitchen International’s argument for maintaining that the

-24-

entered into by Evans at its Georgia plant and that Evans did no

business in Québec. It further claims that it had no agreement

with Kitchen International with respect to a showroom in Montreal

and therefore, at least implicitly, denies any connection between

such a showroom and its contracts to supply the allegedly defective

goods. Mark Trexler further stated in his affidavit that, in his

position as CEO of Evans, he had personal knowledge of Evans’s

contractual relationships and that he was unaware of any agreement

with Kitchen International to develop or construct a showroom.

Janet Shiell, one of the principals of Kitchen International, by

contrast, stated in her affidavit that there was an agreement with

Evans to create a showroom, and she produced paperwork purportedly

related to that agreement (but no document embodying the agreement

itself). Furthermore, she stated in a rebuttal affidavit that

there was no reason for Trexler to know about the agreement because

she (and others at Kitchen International) had dealings only with

Gatti, another employee of Evans. Kitchen International never 17

makes clear the exact relationship between the alleged joint

venture to create a showroom and the agreements to sell the

allegedly defective material.18
Québec court had jurisdiction over the contracts to supply the

allegedly defective material would be weakened substantially. See

Lyle Richards Int’l v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir.

1997) (discussing application of the “arising from” clause in the

Commonwealth’s long-arm statute).

 Absent the “showroom evidence,” Evans’s contacts with 19

Canada are limited to its contractual relationship with Kitchen

International for the supply of cabinetry to various business sites

in the United States. In Burger King Corp. v. Rudzewicz, 471 U.S.

462 (1985), the Court explained the “purposeful availment”

requirement as it applies to a contractual relationship. It

stated:

This purposeful availment requirement ensures that

a defendant will not be haled into a jurisdiction solely

as a result of random, fortuitous, or attenuated

contacts, or of the unilateral activity of another party

or a third person. Jurisdiction is proper, however,

where the contacts proximately result from actions by the

defendant himself that create a substantial connection

with the forum State. Thus where the defendant

deliberately has engaged in significant activities within

a State, or has created continuing obligations between

himself and residents of the forum, he manifestly has

availed himself of the privilege of conducting business

there, and because his activities are shielded by the

benefits and protections of the forum’s laws it is

presumptively not unreasonable to require him to submit

to the burdens of litigation in that forum as well.

Jurisdiction in these circumstances may not be

avoided merely because the defendant did not physically

enter the forum State. Although territorial presence

frequently will enhance a potential defendant’s

affiliation with a State and reinforce the reasonable

foreseeability of suit there, it is an inescapable fact

of modern commercial life that a substantial amount of

business is transacted solely by mail and wire

communications across state lines, thus obviating the

need for physical presence within a State in which

business is conducted. So long as a commercial actor’s

efforts are purposefully directed toward residents of

another State, we have consistently rejected the notion

-25-

Furthermore, even if such an argument had been made

successfully, the district court’s analysis of jurisdiction still 19
that an absence of physical contacts can defeat personal

jurisdiction there.

Id. at 475-76 (internal quotation marks, citations and emphasis

omitted). 

In Burger King, although the defendant had no physical ties to

the state of Florida, the Court determined nonetheless that he had

established the necessary minimum contacts with that state to be

hauled into court there. It noted that, in determining that there

was a want of jurisdiction, the appellate court had “overlook[ed]

substantial record evidence indicating that Rudzewicz most

certainly knew that he was affiliating himself with an enterprise

based primarily in Florida.” Id. at 480. It stated:

The contract documents themselves emphasize that Burger

King’s operations are conducted and supervised from the

Miami headquarters, that all relevant notices and

payments must be sent there, and that the agreements were

made in and enforced from Miami. Moreover, the parties’

actual course of dealing repeatedly confirmed that

decisionmaking authority was vested in the Miami

headquarters and that the district office served largely

as an intermediate link between the headquarters and the

franchisees. When problems arose over building design,

site-development fees, rent computation, and the

defaulted payments, Rudzewicz and MacShara learned that

the Michigan office was powerless to resolve their

disputes and could only channel their communications to

Miami. Throughout these disputes, the Miami headquarters

and the Michigan franchisees carried on a continuous

course of direct communications by mail and by telephone,

and it was the Miami headquarters that made the key

negotiating decisions out of which the instant litigation

arose.

Id. at 480-81 (internal citations omitted).

-26-

is deficient. Absent from the district court’s analysis is any

discussion of the “Gestalt factors,” which, we have made clear, a

court must consider to determine the fairness of subjecting the

defendant to a foreign jurisdiction.
 Evans did not argue, until the reply brief, that, even if 20

the district court correctly had analyzed the jurisdictional issue,

it nevertheless erred in holding that its (Evans’s) claims were

barred by res judicata because the claim before the district court

is different from the claim or cause of action before the Québec

court. Because this argument was not raised in its opening brief,

it is waived. Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st

Cir. 1990) (“[B]ecause the argument was not made to the district

court or in appellant’s opening brief, surfacing only in his reply

brief, it has been waived.”). 

-27-

Because the district court resolved material issues of

fact against Evans, the nonmoving party, the judgment must be

reversed. The controverted issues of fact that Evans has raised

must be resolved. Accordingly, the judgment of the district court

is reversed and the case is remanded for proceedings consistent

with this opinion.20

REVERSED and REMANDED
-28-

Statutory Appendix

Massachusetts General Laws Chapter 235, § 23A

Except as hereinafter provided, any foreign

judgment that is final and conclusive and

enforceable where rendered even though an

appeal therefrom is pending or it is subject

to appeal shall be conclusive between the

parties to the extent that it grants or denies

recovery of a sum of money. The foreign

judgment shall be enforceable in the same

manner as the judgment of a sister state which

is entitled to full faith and credit.

A foreign judgment shall not be conclusive if

(1) it was rendered under a system which does

not provide impartial tribunals or procedures

compatible with the requirements of due

process of law; (2) the foreign court did not

have personal jurisdiction over the defendant;

or (3) the foreign court did not have

jurisdiction over the subject matter.

A foreign judgment shall not be recognized if

(1) the defendant in the proceedings in the

foreign court did not receive notice of the

proceedings in sufficient time to enable him

to defend; (2) the judgment was obtained by

fraud; (3) the cause of action on which the

judgment is based is repugnant to the public

policy of this state; (4) the judgment

conflicts with another final and conclusive

judgment; (5) the proceedings in the foreign

court were contrary to an agreement between

the parties under which the dispute in

question was to be settled otherwise than by

proceedings in that court; (6) in the case of

jurisdiction based only on personal service,

the foreign court was a seriously inconvenient

forum for the trial of the action; or (7)

judgments of this state are not recognized in

the courts of the foreign state.

A foreign judgment shall not be refused

recognition for lack of personal jurisdiction

if (1) the defendant was served personally in

the foreign state; (2) the defendant
-29-

voluntarily appeared in the proceedings, other

than for the purpose of protecting property

seized or threatened with seizure in the

proceedings or of contesting the jurisdiction

of the court over him; (3) the defendant prior

to the commencement of the proceedings had

agreed to submit to the jurisdiction of the

foreign court with respect to the subject

matter involved; (4) the defendant was

domiciled in the foreign state when the

proceedings were instituted, or, being a body

corporate had its principal place of business,

was incorporated, or had otherwise acquired

corporate status, in the foreign state; (5)

the defendant had a business office in the

foreign state and the proceedings in the

foreign court involved a cause of action

arising out of business done by the defendant

through that office in the foreign state; or

(6) the defendant operated a motor vehicle or

airplane in the foreign state and the

proceedings involved a cause of action arising

out of such operation.

The courts of this state may recognize other

bases of jurisdiction.

If the defendant satisfies the court either

that an appeal is pending or that he is

entitled and intends to appeal from the

foreign judgment, the court may stay the

proceedings until the appeal has been

determined or until the expiration of a period

of time sufficient to enable the defendant to

prosecute the appeal.

This section shall not prevent the recognition

of a foreign judgment in situations not

covered by this section and its provisions.

As used in this section (1) “foreign state”

means any governmental unit other than the

United States, or any state, district,

commonwealth, territory, insular possession

thereof, or the Panama Canal Zone, the Trust

Territory of the Pacific Islands, or the

Ryukyu Islands; (2) “foreign judgment” means

any judgment of a foreign state granting or
-30-

denying recovery of a sum of money, other than

a judgment for taxes, a fine or other penalty,

or a judgment for support in matrimonial or

family matters.

Civil Code of Québec, R.S.Q., ch. 64, art. 3148

In personal actions of a patrimonial nature, a Québec

authority has jurisdiction where

(1) the defendant has his domicile or his

residence in Québec;

(2) the defendant is a legal person, is not

domiciled in Québec but has an establishment

in Québec, and the dispute relates to its

activities in Québec;

(3) a fault was committed in Québec, damage

was suffered in Québec, an injurious act

occurred in Québec or one of the obligations

arising from a contract was to be performed in

Québec;

(4) the parties have by agreement submitted to

it all existing or future disputes between

themselves arising out of a specified legal

relationship;

(5) the defendant submits to its jurisdiction.

However, a Québec authority has no

jurisdiction where the parties, by agreement,

have chosen to submit all existing or future

disputes between themselves relating to a

specified legal relationship to a foreign

authority or to an arbitrator, unless the

defendant submits to the jurisdiction of the

Québec authority.