United States Court of Appeals 

For the First Circuit 

No. 17-1968 

SCOTTSDALE CAPITAL ADVISORS CORP.; JOHN HURRY, 

Plaintiffs, Appellants, 

v. 

THE DEAL, LLC; WILLIAM MEAGHER, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Joseph Laplante, Chief U.S. District Judge] 

Before 

Lynch, Circuit Judge, 

Souter, Associate Justice,*

and Kayatta, Circuit Judge. 

Dilan Esper, with whom Douglas E. Mirell, Jordan D. Susman, 

Harder Mirell & Abrams, LLP, Christopher D. Hawkins, and Devine, 

Millimet & Branch, P.A., were on brief, for appellants. 

 Elizabeth A. McNamara, with whom John M. Browning and Davis 

Wright Tremaine LLP were on brief, for appellees. 

April 3, 2018 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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KAYATTA, Circuit Judge. Defendant The Deal, LLC posted 

to a subscriber-only website and attached to email newsletters 

three articles written by defendant William Meagher that allegedly 

defamed plaintiffs Scottsdale Capital Advisors Corporation and 

John Hurry. Plaintiffs eventually filed suit in New Hampshire. 

None of the four parties has anything to do with New Hampshire 

except that one of The Deal's institutional subscribers, Dartmouth 

College, is located there. After discovery indicated that 

plaintiffs would have no reasonable basis upon which to establish 

that anyone in New Hampshire ever saw any of the three articles as 

a result of the Dartmouth subscription, the district court 

dismissed the complaint for lack of personal jurisdiction. For 

the following reasons, we affirm. 

I. Background 

The Deal is a Delaware limited liability company with 

its principal place of business in New York. It reports primarily 

on financial matters relevant to small cap and microcap securities 

markets. It has approximately 700 subscribers. While this number 

may seem small in absolute terms, virtually all of these 

subscribers are large institutions, many of which apparently pay 

substantial amounts for a subscription. Individuals affiliated 

with the subscribing institution gain the ability to access The 

Deal's web portal, on which The Deal posts its articles. These 
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individuals can also sign up to receive email newsletters from The 

Deal containing PDF copies of The Deal's articles. 

In late 2013 and early 2014 The Deal posted on its 

subscriber-only web portal three articles written by Meagher 

concerning plaintiffs. The Deal also sent each article as a PDF 

attachment by email to newsletter subscribers. The articles stated 

-- falsely, allege plaintiffs -- that plaintiffs were under 

investigation by law enforcement and securities regulators.

Plaintiff Scottsdale is an Arizona corporation with its 

principal place of business in Arizona. Plaintiff Hurry is an 

executive officer of Scottsdale and a citizen of Nevada. Neither 

plaintiff had any particular connection to New Hampshire before 

they decided to file this suit in New Hampshire state court, from 

which defendants removed it to federal court. The parties devote 

some effort to debating plaintiffs' motives for choosing to file 

this case in New Hampshire, but we find no need to get to issues 

of motive in order to decide this appeal. 

Defendants moved to dismiss the claims under Federal 

Rule of Civil Procedure 12(b)(2) for lack of personal 

jurisdiction. Plaintiffs requested that should the district court 

be inclined to grant the motion, it first allow for jurisdictional 

discovery. In May 2017, the district court did as plaintiffs 

asked, issuing an order permitting jurisdictional discovery. The 

order limited the forms of discovery to interrogatories and 
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requests for production. Plaintiffs never suggested that they 

needed any other forms of discovery. 

The jurisdictional discovery revealed that for at least 

five years (including the years at issue here) The Deal 

successfully recruited and retained Dartmouth's business by 

sending targeted communications to school officials explaining why 

Dartmouth should pay the substantial costs of becoming a 

subscriber. The Deal also telephoned Dartmouth directly in the 

course of actively soliciting Dartmouth's renewal of its 

subscription. The Dartmouth subscription granted to Dartmouth's 

7,000 students and faculty members the ability to sign up for 

access to the web portal on which one could read The Deal's 

articles. Dartmouth bore the cost of the subscription and did not 

charge its users for access. The Deal affirmatively contacted 

thirty to forty individuals on campus to elicit interest in The 

Deal. Thirty members of the Dartmouth community signed up for 

access to the web portal, and two members also signed up to receive 

the emailed newsletter during the relevant period. The Deal had 

no other New Hampshire subscribers or contacts. Meagher has never 

set foot in the state, nor did he have any other relevant contact 

to which plaintiffs point.

The additional information produced in jurisdictional 

discovery trained on whether anyone actually looked at any of the 

three articles at issue here. Analytic tools, the accuracy of 
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which the parties do not dispute,1 revealed that no one at Dartmouth 

(or elsewhere in New Hampshire) accessed the allegedly defamatory 

articles available on The Deal's web portal. The parties also 

learned that the second and third articles sent in PDF format were 

never opened, but because The Deal was not set up to collect the 

necessary data when the first article was sent in 2013, discovery 

did not reveal whether either recipient opened the PDF file 

containing the first article. 

Discovery also showed that twenty-one individuals in New 

Hampshire viewed one of the articles on a free, unrestricted 

website operated by The Deal's parent corporation. Plaintiffs did 

not sue the parent company, and they make no effort to ground 

jurisdiction on those viewings of the parent's website, so neither 

shall we. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) (restating the "settled appellate rule" that issues not 

properly raised are waived). 

 1 At oral argument, plaintiffs' counsel stated in passing 

that: "I am not entirely sure of how the process of determining 

whether someone opened an email attachment works." To the extent 

that one could read this as an argument questioning the facts found 

in jurisdictional discovery, such an argument comes too late. Of 

course, a plaintiff need not blindly accept all of a defendant's 

claims concerning what the evidence shows. But the proper time 

and place for plaintiffs to argue about what factual conclusions 

should be drawn from information revealed in discovery was in the 

district court prior to its ruling, or, at the very least, in their 

opening brief to this court. See Remington v. United States, 872 

F.3d 72, 77–78 (1st Cir. 2017). 
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Based upon the information revealed through discovery 

and post-discovery supplemental briefing, the district court 

granted defendants' motion to dismiss. First, it concluded that 

because plaintiffs had not proffered evidence that the articles in 

suit were ever read by anyone via the Dartmouth subscription, 

plaintiffs' claim could not be said to "arise out of, or relate 

to" defendants' New Hampshire contacts. Scottsdale Capital 

Advisors Corp. v. The Deal, LLC, 2017 WL 3981243, at *5 (D.N.H. 

Sept. 8, 2017). Second, it determined that because the evidence 

of circulation in the forum was "negligible," defendants could not 

be said to have purposefully availed themselves of the privilege 

of doing business in New Hampshire. Id. at *6. Finally, the 

district court found that under the so-called "gestalt" factors, 

the exercise of jurisdiction over defendants in New Hampshire would 

not be reasonable. Id. at *7–8. This appeal followed. 

II. Analysis 

Because neither party requested an evidentiary hearing 

and the district court did not conduct one, the district court 

used the prima facie method to assess the jurisdictional question. 

See Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 

145–48 (1st Cir. 1995). Under this method, a plaintiff must 

"proffer[] evidence which, if credited, is sufficient to support 

findings of all facts essential to personal jurisdiction" and may 

not "rely on unsupported allegations." A Corp. v. All Am. 
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Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). We review de 

novo the district court's conclusion that plaintiffs failed to 

meet this burden. See Foster-Miller, Inc., 46 F.3d at 147. 

Plaintiffs understandably make no claim that either 

defendant is subject to general personal jurisdiction. See, e.g., 

Daimler AG v. Bauman, 134 S. Ct. 746, 754–56 (2014). Rather, they 

assert specific personal jurisdiction, i.e., jurisdiction over 

these defendants for the purpose of this specific lawsuit. Id. at 

754 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) 

and distinguishing between specific and general personal 

jurisdiction). As we recently explained in A Corp., plaintiffs 

seeking to establish that a court has specific personal 

jurisdiction over a defendant must show that: (1) their claim 

directly arises out of or relates to the defendant's forum-state 

activities; (2) the defendant's contacts with the forum state 

represent a purposeful availment of the privilege of conducting 

activities in that state, thus invoking the benefits and 

protections of that state's laws and rendering the defendant's 

involuntary presence in that state's courts foreseeable; and 

(3) the exercise of jurisdiction is ultimately reasonable. 812 

F.3d at 59. Failure to make any one of these showings dooms any 

effort to establish specific personal jurisdiction. See id. 
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A. 

We begin (and ultimately end) by analyzing whether 

plaintiffs have proffered evidence that would support a finding 

that their claims arise out of or relate to defendants' forumstate activities. See id. Here, plaintiffs' claims all sound in 

tort, so to assess relatedness we "look to whether the plaintiff 

has established cause in fact (i.e., the injury would not have 

occurred 'but for' the defendant's forum-state activity) and legal 

cause (i.e., the defendant's in-state conduct gave birth to the 

cause of action)." Mass. School of Law at Andover, Inc. v. Am. 

Bar Ass'n, 142 F.3d 26, 35 (1st Cir. 1998) (internal quotation 

marks omitted) (quoting United Elec., Radio & Mach. Workers of Am. 

v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992)). 

Each tort as alleged in this case relies on the 

allegation that defendants published defamatory material, so for 

the purpose of defining plaintiffs' injury, we can simply describe 

the cause of action as one for defamation. In defining the 

elements of defamation, New Hampshire courts look to the 

Restatement (Second) of Torts. See Duchesnaye v. Munro Enter., 

Inc., 480 A.2d 123, 127–28 (N.H. 1984). The elements of defamation 

as enumerated in the Restatement are: 

(a) a false and defamatory statement 

concerning another; (b) an unprivileged 

publication to a third party; (c) fault 

amounting to at least negligence on the part 

of the publisher; and (d) either actionability 
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of the statement irrespective of special harm 

or the existence of special harm caused by the 

publication. 

Restatement (Second) of Torts § 558. The second element, 

publication, does not mean merely uttering or writing. Rather, 

"publication" as used in this context means to communicate the 

defamatory material to a third party (that is, a party who is not 

the subject of the defamatory material) where that third party 

understands the defamatory significance of the material. See id. 

§ 558 cmt. c ("Since publication requires that the defamatory 

matter be communicated to a third person, it is necessary . . . 

that the defamatory matter be brought to the attention of a third 

person [and] that [this third person] understand its defamatory 

significance."). Logically, then, when the only third party 

exposed to a defamatory writing does not read that writing, a 

defendant is not liable for defamation. See Walden v. Fiore, 134 

S. Ct. 1115, 1124 (2014) (noting, in the context of an inquiry 

into specific personal jurisdiction, that "[h]owever scandalous a 

newspaper article might be, it can lead to a loss of reputation 

only if communicated to (and read and understood by) third persons" 

(emphasis added) (citing Restatement (Second) of Torts § 577 cmt. 

b)); Griffin v. Pinkerton's, Inc., 173 F.3d 661, 665 (8th Cir. 

1999) (holding the publication requirement unmet because no third 

party had read the allegedly defamatory material). 
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The record reflects that this is what happened (or, to 

be more precise, did not happen) here, at least as far as the web 

portal and the second and third emails. The Deal made the articles 

available through the subscriber portal and by email, but no one 

looked. Notionally, a tree fell in New York but no one heard it 

in New Hampshire. 

That leaves only the first article emailed to the two 

newsletter subscribers. The record is silent as to whether either 

of those subscribers opened the attached article. This silence 

leaves a hole in plaintiffs' prima facie case for maintaining 

jurisdiction. Plaintiffs do not claim that they were refused any 

further discovery that might have helped them fill this hole. They 

also do not suggest that the litigation is likely to produce any 

evidence that either subscriber opened the attachment emailed over 

four years ago. Nor do plaintiffs advance any principle of law 

that might generate a presumption that the email attachments were 

opened. Individuals often receive many emails every day, 

attachments to which may well go unopened. And while in other 

cases circumstantial evidence -- such as a higher number of email 

recipients -- might be sufficient to create a presumption of 

publication, no such circumstantial evidence is present here. The 

number of recipients in this case -- two -- is too small to generate 

on its own a reasonable assumption that at least one recipient 

must have opened the attachment. 
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All of this means that even on a prima facie basis, 

plaintiffs have not established either "cause in fact (i.e., the 

injury would not have occurred 'but for' the defendant's forumstate activity) [or] legal cause (i.e., the defendant's in-state 

conduct gave birth to the cause of action)." Mass. School of Law 

at Andover, 142 F.3d at 35 (quoting United Elec. Radio & Mach 

Workers, 960 F.2d at 1089). Put another way, plaintiffs' 

reputation would not differ had Dartmouth never subscribed to The 

Deal. There is thus no nexus between the claims and defendants' 

forum-based activities, as the relatedness prong of the 

jurisdictional analysis requires. A. Corp., 812 F.3d at 59. 

Plaintiffs' only rejoinder to this conclusion is to 

point to the Supreme Court's opinion in Keeton v. Hustler Magazine, 

Inc., 465 U.S. 770 (1984). As plaintiffs correctly observe, the 

Court in Keeton found personal jurisdiction over a defamation claim 

by a non-New Hampshire plaintiff against a non-New Hampshire 

defendant based on the circulation of the allegedly defamatory 

article in the state, without mentioning whether anyone within the 

state actually read the article. Therefore, argue plaintiffs, 

proof of circulation within the state is enough to establish 

relatedness. 

In Keeton, though, the "circulation" consisted of copies 

of a paper magazine delivered to over 10,000 paying customers. 

Id. at 772. One can reasonably presume that some of those 10,000-
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plus persons read the article. Plaintiffs sheepishly suggest that 

it is "well known" that the articles in a magazine like that at 

issue in Keeton ("Hustler") are less likely to be read because 

people buy the magazine for the photographs. We venture no opinion 

concerning this speculation beyond saying that it seems quite 

certain that at least some of the 10,000-plus purchasers read the 

articles that were central to Keeton. We therefore decline to 

infer from Keeton any suggestion that proving defamation does not 

require evidence that a third party apprehended the defamatory 

communication, or that relatedness does not require at least some 

actionable defamation within the state. 

B. 

In finding that plaintiffs failed to establish specific 

personal jurisdiction over defendants, the district court 

helpfully analyzed all three requirements for establishing such 

jurisdiction, thereby finding three reasons for declining to 

assert jurisdiction. Because we find compelling reasons to agree 

with the district court's cogent conclusion as to the lack of 

relatedness, and because we have reservations about its view that 

the intentional and ongoing recruitment of Dartmouth as an 

institutional subscriber did not constitute purposeful availment, 

we restrict our analysis to the issue of relatedness. We express 

no impressions concerning the district court's analysis of the 

gestalt factors. 
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III. Conclusion 

In this case, plaintiffs' only injury was reputational 

harm allegedly suffered as a result of the publication of certain 

articles. However, nothing in the record indicates that this 

injury arose in any way from defendants' only contacts with 

plaintiffs' chosen forum. The offending articles appear to have 

never been read by anyone using the Dartmouth subscription, and to 

the extent that there is any doubt concerning that conclusion, 

plaintiffs have given us no reason to find within that doubt a 

prima facie basis for ruling in their favor. The judgment of the 

district court is affirmed.