United States Court of Appeals

For the First Circuit

No. 22-1547

VIRGINIA CORA WARD, as the administratrix of the estate of 

EDMUND EDWARD WARD,

Plaintiff, Appellant,

v.

ALPHACORE PHARMA, LLC and BRUCE AUERBACH, 

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Rikelman, Selya, and Howard,

Circuit Judges.

Timothy Cornell, with whom Cornell Dolan, P.C. was on brief, 

for appellant.

John M. Allen, with whom McCarter & English LLP was on brief, 

for appellee AlphaCore.

Mark S. Furman, with whom Emily C. Shanahan and Tarlow, Breed, 

Hart & Rodgers, P.C. were on brief, for appellee Auerbach.

December 22, 2023
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SELYA, Circuit Judge. This appeal tests the margins of 

a court's in personam jurisdiction, consistent with the 

constraints of the Due Process Clause, see U.S. Const. amend. XIV, 

§ 1, and the Massachusetts long-arm statute, see Mass. Gen. Laws 

ch. 223A, § 3. Stripping away unsupported assertions, we uphold 

the district court's determination that the appellees, AlphaCore 

Pharma, LLC (ACP) and Bruce Auerbach, lacked sufficient contacts 

with the forum state to permit the exercise of in personam 

jurisdiction.1 Consequently, we affirm the district court's order 

of dismissal. 

I

We briefly rehearse the relevant facts and travel of the 

case. In reviewing a dismissal of a case for lack of personal 

jurisdiction based on a prima facie record, we "take the facts 

from the pleadings and whatever supplemental filings (such as 

affidavits) are contained in the record, giving credence to the 

plaintiff's version of genuinely contested facts" and accounting 

for "undisputed facts put forth by" the parties. Baskin-Robbins

1 Because the appellant's claims against ACP and Auerbach 

raise a discrete set of issues, we will resolve the appellant's 

claims against the remaining appellee in a separate and subsequent 

opinion. See, e.g., Alston v. Town of Brookline, 997 F.3d 23, 29 

n.1 (1st Cir. 2021); United States v. Santiago-Rivera, 744 F.3d 

229, 231 n.1 (1st Cir. 2014). Relatedly, we note that this 

opinion, which is based upon review of a prima facie record, does 

not contain the factual details that will appear in the subsequent 

opinion (which deals with claims based on a full trial record).
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Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st 

Cir. 2016). Withal, we do not rely on any "unsupported 

allegations." Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 

6 (1st Cir. 2018).

ACP is a limited liability company, which has its 

principal place of business in Ann Arbor, Michigan. In 2013, ACP 

was acquired by MedImmune, a subsidiary of AstraZeneca 

Biopharmaceuticals, Inc. (AstraZeneca). As of 2012, ACP was the 

sole patent licensee of a form of recombinant human 

lecithin-cholesterol acyltransferase known as ACP-501.

Auerbach is a citizen and resident of Michigan. He was 

a principal of ACP, as well as a corporate officer, until ACP was 

acquired by MedImmune. 

The decedent, Edmund Edward Ward, was a citizen and 

resident of Massachusetts. Ward was born with an extremely rare 

genetic deficiency that inhibited him from being able to produce 

virtually any cholesterol. As a result, Ward eventually came to 

suffer from stage-5 kidney failure.

In 2012, Dr. Ernst Schaefer — Ward's treating physician

in Massachusetts — introduced Ward to Auerbach and to Drs. Robert 

Shamburek and Alan Remaley as a potential candidate for ACP-501. 

Ward later agreed to participate as the only subject in a long-term 

trial of ACP-501. ACP donated the ACP-501 needed for the trial to 

the National Institutes of Health (NIH). Despite being diagnosed 
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as suffering from kidney failure, Ward postponed dialysis 

treatment in order to participate in the trial.

In January of 2013, Ward traveled from his home in 

Massachusetts to the NIH facility in Bethesda, Maryland, to begin 

treatment. During this initial visit, Ward met with Auerbach, who 

allegedly told him that the process would take a long time but 

urged him to undergo the full course of the treatment, explaining 

that "you will get out of it what you put into it." Auerbach 

allegedly boasted that ACP-501 was "most certainly the solution" 

to reverse Ward's kidney failure.

Until June of 2013, Ward traveled on a weekly basis from 

his home in Massachusetts to the NIH facility in Maryland to 

receive injections of ACP-501 and undergo testing (including 

multiple blood draws). Beginning in July and continuing through 

September of 2013, he journeyed every other week. 

As part of the trial, NIH created a clinical protocol 

for Ward's treatment. ACP and Auerbach each had a hand in drafting 

this protocol, though the record lacks clarity as to the roles 

that they played. An early draft of the protocol dated November 

20, 2012, provided that, during the first phase of the trial, Ward 

would receive ACP-501 injections at the NIH and then, during a 

second phase, would receive them in both Maryland and 

Massachusetts. The parties dispute whether this iteration of the 

protocol became the final operative draft or whether a different 
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draft, dated December 3, 2012, superseded it. The later draft did 

not provide for any injections of ACP-501 in Massachusetts.2 In 

any event, the record makes manifest — and the appellant does not 

contest the fact — that all of the ACP-501 injections that Ward 

received were administered at the NIH facility in Maryland.

In September of 2013, Ward withdrew from the clinical 

trial. His decision to end his participation came after he was 

informed that his kidney function was rapidly deteriorating and 

that he was in urgent need of dialysis.

We fast-forward to July of 2016. At that time, Ward 

filed a complaint against ACP, Auerbach, Schaefer, Shamburek, 

Remaley, MedImmune, and AstraZeneca in a Massachusetts state 

court. The complaint alleged that Ward had been fraudulently 

induced to participate in the clinical trial in order to set the 

table for a sale of ACP to MedImmune — a sale that was "based 

principally" on the results of his trial. The complaint further 

alleged that "the individual defendants, acting in concert, were 

ACP shareholders, owned ACP options or warrants, or otherwise 

benefited materially from the sale of ACP to [MedImmune, an 

AstraZeneca subsidiary] in secret."

2 It is undisputed that both drafts of the protocol stipulated 

that, during the periods in which Ward was at his home in 

Massachusetts, he would be monitored by Dr. Schaefer.
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Ward's state-court action contained a gallimaufry of 

claims. One count sounded in fraud, another in lack of informed 

consent, and a third in unjust enrichment. Three other counts 

alleged an assortment of constitutional, civil rights, and 

conspiracy claims. 

In short order, the case was removed to the United States 

District Court for the District of Massachusetts. See 28 U.S.C. 

§ 2679(d)(2). As relevant here, ACP and Auerbach moved to dismiss 

their claims for want of in personam jurisdiction. See Fed. R. 

Civ. P. 12(b)(2). In support, Auerbach submitted two affidavits 

in which he attested that neither he nor ACP had any relevant 

contacts with the Commonwealth of Massachusetts. Nor had either 

of them — these affidavits declared — supplied any good or service 

within the state. Auerbach further attested that all of his and 

ACP's activities and communications concerning Ward — including 

ACP's involvement in helping the NIH prepare an investigational 

new drug application, ACP's donation of ACP-501 to the NIH, his 

two meetings with Ward at the NIH in January of 2013, and a brief 

telephone call with Ward in September of 2014 — occurred outside 

of Massachusetts. Ward neither submitted any counter-affidavits 

nor otherwise refuted Auerbach's representations. 

The district court granted ACP's and Auerbach's joint

motion to dismiss over Ward's objection. See Ward v. Auerbach, 

No. 16-12543, 2017 WL 2724938, at *13 (D. Mass. June 23, 2017). 
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First, the court concluded that neither ACP nor Auerbach was 

subject to personal jurisdiction in Massachusetts premised on 

"their own in-forum contacts." Id. at *10. Next, the court 

determined that neither ACP nor Auerbach "regularly transacted or 

solicited business, or engaged in any other persistent course of 

conduct, or derived substantial revenue from goods used or consumed 

or services rendered in Massachusetts." Id. The court further 

determined that neither ACP nor Auerbach caused tortious injury

through any alleged act or omission in Massachusetts. See id. 

And finally, the court rejected as unsubstantiated joint-venture 

and conspiracy theories promulgated by Ward. See id. at *10-13.

After the court entered the order dismissing the case as 

to ACP and Auerbach, Ward moved to reconsider. He reiterated his 

claim that the district court had personal jurisdiction over ACP 

and Auerbach because those defendants had "purposeful, specific, 

and directed contacts" with Massachusetts. He alleged for the 

first time — in a lawyer's memorandum — that ACP and Auerbach 

supplied "a steady stream of ACP-501 to . . . [him] both in 

Maryland and in Massachusetts" and provided "consulting services 

[to] the medical teams in both Massachusetts and Maryland." Ward 

also newly alleged that ACP and Auerbach availed themselves of 

Massachusetts when they "deployed Massachusetts medical facilities 

as injection and monitoring sites for ACP-501, and thus,

necessarily relied on the involvement and supervision of 
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Massachusetts medical personnel as well as the utilization of 

Massachusetts medical expertise and facilities." Unmoved by these 

allegations, the district court denied the motion for 

reconsideration. 

Not all of the defendants succeeded in obtaining 

pretrial relief. The last remaining defendant was Dr. Schaefer, 

and the jury rendered a take-nothing verdict in his favor. This 

timely appeal followed.3

II

It is apodictic that the burden of proving that personal 

jurisdiction may be exercised in the forum state rests with the 

party seeking to invoke that jurisdiction. See Motus, LLC v.

CarData Consultants, Inc., 23 F.4th 115, 121 (1st Cir. 2022). The 

jurisdictional determination in this case was made at the inception 

of the litigation, without the benefit of either pretrial discovery 

or an evidentiary hearing. Thus, the familiar prima facie approach

holds sway. See Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 

F.3d 138, 145 (1st Cir. 1995); Boit v. Gar-Tec Prod., Inc., 967 

F.2d 671, 675 (1st Cir. 1992).

"Where, as here, a district court dismisses a case for 

lack of personal jurisdiction based on the prima facie record, 

3 Ward died during the pendency of this appeal. Virginia Cora

Ward, who is his sister and the administratrix of his estate, has 

been substituted in his place and stead. See Fed. R. App. P.

43(a). We refer to her throughout as the appellant.
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rather than after an evidentiary hearing or factual findings, our 

review is de novo." Baskin-Robbins, 825 F.3d at 34 (quoting C.W.

Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st 

Cir. 2014)). We are not bound by the district court's reasoning, 

though, and we are free to uphold the judgment on any ground

supported by the record. See id.

Under the prima facie approach, an inquiring court 

"ask[s] only whether the plaintiff has proffered facts that, if 

credited, would support all findings 'essential to personal 

jurisdiction.'" Chen v. U.S. Sports Acad., Inc., 956 F.3d 45, 51 

(1st Cir. 2020) (quoting Foster-Miller, 46 F.3d at 145). We draw 

the relevant facts from "the pleadings and whatever supplemental 

filings (such as affidavits) are contained in the record, giving 

credence to the plaintiff's version of genuinely contested facts." 

Baskin-Robbins, 825 F.3d at 34. Even so, we do not "credit 

conclusory allegations or draw farfetched inferences." 

Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 

1994). Instead, the inquiry must be governed by "evidence of 

specific facts set forth in the record" — not simply predicated 

upon a plaintiff's "unsupported allegations in their pleadings." 

Boit, 967 F.2d at 675. Ordinarily, such evidence will be contained 

in affidavits, authenticated documents, and the like, submitted by 

one or more of the parties. See Ticketmaster-N.Y., 26 F.3d at 

203.
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The appellant must show that our exercise of 

jurisdiction over the defendants satisfies both the requirements 

of the Due Process Clause, see U.S. Const. amend. XIV, § 1, and 

the strictures of the Massachusetts long-arm statute, see Mass. 

Gen. Laws ch. 223A, § 3. Even though the reach of the 

Massachusetts statute is not congruent with the reach of the Due 

Process Clause, see Copia Commc'ns, LLC v. AMResorts, L.P., 812 

F.3d 1, 4 (1st Cir. 2016), we do not need to inquire into any such 

distinctions here: the appellant's attempted assertion of 

jurisdiction over ACP and Auerbach plainly does not satisfy even 

the constitutional minimum required by the Due Process Clause, see

A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 59 (1st Cir. 2016).

Under the Due Process Clause, a court may exercise either 

general or specific in personam jurisdiction over an out-of-state 

defendant only if that defendant has "certain minimum contacts 

with [the forum] such that the 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)). A state 

holds general jurisdiction over a defendant when the defendant 

maintains contacts that are "so 'continuous and systematic' as to 

render [the defendant] essentially at home in the forum State." 

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 

(2011) (quoting Int'l Shoe, 326 U.S. at 317). The appellant has 
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not proffered a claim of general jurisdiction regarding either ACP 

or Auerbach and, thus, any such claim has been waived. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

To fill this jurisdictional void, the appellant has 

advanced a singular claim of specific jurisdiction. A litigant 

seeking to establish that a court has specific jurisdiction over 

a defendant must satisfy three criteria. "First, the plaintiff's 

claim must directly arise from or relate to the defendant's 

activities in the forum." Chen, 956 F.3d at 59. "Second, the 

defendant's forum-state contacts must 'represent a purposeful 

availment of the privilege of conducting activities in that 

state.'" Id. (quoting Scottsdale Cap. Advisors Corp. v. The Deal,

LLC, 887 F.3d 17, 20 (1st Cir. 2018)). Third, "the exercise of 

specific jurisdiction in the forum must be reasonable under the 

circumstances." Id. All three criteria must be satisfied to 

establish specific jurisdiction. See id.

III

With this framework in place, we turn to the particulars 

of the case at hand. The appellant argues that ACP and Auerbach 

had sufficient related and purposeful contacts in and with 

Massachusetts to satisfy the criteria needed for a finding of 

specific jurisdiction. In support, she identifies four alleged 

points of contact:
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• that ACP and Auerbach "contacted Dr. Schaefer in 

the state."

• that they "sent drugs to the state."

• that they "oversaw the NIH protocol that delivered 

the drug to Mr. Ward" and, in the process, 

"obtained data and communications from the state 

regarding Mr. Ward's condition."

• that they reimbursed Ward "for travel to and from 

the state."

In the appellant's view, these points of contact afford "ample 

grounds for personal jurisdiction."

We do not agree. On this nearly empty record, it is 

luminously clear that neither ACP nor Auerbach may be subjected to 

personal jurisdiction in Massachusetts. We explain briefly.

To begin, we do not take into consideration the 

appellant's unsupported claim that ACP and Auerbach reimbursed

Ward for his travel between Massachusetts and Maryland. This claim 

is not part of Ward's complaint; it appears for the first time in 

his lawyer's memorandum opposing the motion to dismiss.4 Such a 

source is insufficient to bring the allegation into the 

4 The lawyer's memorandum does contain an attachment, in the 

form of an email from Dr. Schaefer to Auerbach. That email, 

however, merely discusses travel expenses and goes on to say "if 

you could reimburse us that would be great." It is unclear from 

this email who "us" is, and the appellant offers no clarification.
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jurisdictional calculus. After all, "allegations in a lawyer's 

brief or legal memorandum are insufficient, even under the 

relatively relaxed prima facie standard, to establish 

jurisdictional facts." Barrett v. Lombardi, 239 F.3d 23, 27 (1st 

Cir. 2001); cf. Kelly v. United States, 924 F.2d 355, 357 (1st 

Cir. 1991) (explaining that "mere allegations in, say, an 

unverified complaint or lawyer's brief" are insufficient to fend 

off summary judgment).

The appellant's remaining allegations fare no better. 

The prima facie approach does not require us to "credit conclusory 

allegations or draw farfetched inferences." Ticketmaster-N.Y., 26 

F.3d at 203. Yet, this is precisely what the appellant asks us to 

do: the three remaining data points on which she relies comprise 

a hodge-podge of conclusory and unsupported allegations.

We offer an example. On appeal, the appellant contends 

that ACP and Auerbach contacted Dr. Schaefer in Massachusetts. 

But in the complaint, there is no inkling that this contact 

occurred in Massachusetts. What is more, Auerbach's affidavits 

reveal that it was Dr. Schaefer who initiated contact with Auerbach 

about Ward and the potential use of ACP-501 in a clinical trial. 

Taken together, these facts defenestrate any claim that ACP and 

Auerbach purposefully availed themselves of Massachusetts by 

initiating contact with Dr. Schaefer. See Walden v. Fiore, 571 

U.S. 277, 284 (2014) ("[T]he relationship must arise out of 
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contacts that the 'defendant himself' creates with the forum 

State." (emphasis in original) (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985))). 

Similarly, the appellant's allegation that ACP and 

Auerbach sent ACP-501 to Massachusetts does not withstand 

scrutiny. This allegation appears for the first time in the 

appellant's motion for reconsideration — and "it is settled beyond 

hope of contradiction that, at least in the absence of exceptional 

circumstances, a party may not advance new arguments in a motion 

for reconsideration when such arguments could and should have been 

advanced at an earlier stage of the litigation." Caribbean Mgmt. 

Grp., Inc. v. Erikon LLC, 966 F.3d 35, 45 (1st Cir. 2020). So it 

is here: this allegation could easily have been made at the 

inception of the case, and the appellant has made no showing of 

exceptional circumstances. It follows that we cannot credit the 

belated claim that ACP and Auerbach sent ACP-501 to Massachusetts.

Here, moreover, Ward's complaint and Auerbach's 

affidavits make it pellucid that this claim simply is not true: 

neither he nor ACP ever sent ACP-501 to Massachusetts, and Ward 

was never injected with ACP-501 in that state. The only supplies 

of ACP-501 that the defendants shipped went to Maryland. 

We add that there is no evidence that ACP or Auerbach 

oversaw the NIH clinical trial or that either of them obtained 

data from Massachusetts regarding Ward's condition. Although ACP 
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and Auerbach may have played indeterminate roles in drafting the 

clinical protocol, all of the available evidence indicates that it 

was Drs. Shamburek and Remaley who headed the trial — and they did 

so from Maryland.

To sum up, the appellant appears to have brought her 

suit against ACP and Auerbach on a wing and a prayer. The evidence 

of record is scant, especially since the appellant has not 

buttressed her filings with any affidavits, sworn statements, 

documentary proof, requests for admission, or the like. She has 

not even made a request for jurisdictional discovery. Cf. Motus, 

23 F.4th at 127-28.

That ends this aspect of the matter. The appellant has 

made an argument that requires red meat and strong drink — but she 

has supported it only with the thinnest of gruel. Taking what few 

facts have been established as a whole and viewing those facts in 

the light most congenial to the appellant, see Boit, 967 F.2d at 

675, we discern no basis for concluding that either ACP or Auerbach 

conducted activities that were sufficiently related to 

Massachusetts to satisfy the strictures of the Due Process Clause, 

see Chen, 956 F.3d at 59.5

5 As noted above, the district court entertained and rejected 

joint-venture and conspiracy theories in furtherance of the 

appellant's claim of personal jurisdiction over ACP and Auerbach. 

See Ward, 2017 WL 2724938, at *10-13. Because the appellant fails 

to develop arguments on appeal in support of either theory, we 

deem them waived. See Zannino, 895 F.2d at 17.
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IV

We need go no further. For the reasons elucidated above, 

the judgment of the district court, in so far as it concerns the 

claims asserted against ACP and Auerbach, is 

Affirmed.