Of the Sixth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2469

CHRISTOPHER PHILLIPS,

Plaintiff, Appellant,

v.

PRAIRIE EYE CENTER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Merritt, Senior Circuit Judge, *

and Howard, Circuit Judge.

Pamela A. Smith with whom Law Office of Pamela A. Smith was on

brief for appellant.

Marissa I. Delinks with whom CharCretia V. Di Bartolo, William

P. Hardy, and Hinshaw & Culbertson LLP were on brief for appellee.

June 12, 2008
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LYNCH, Circuit Judge. This dispute arises from an

employment negotiation gone awry. Christopher Phillips, an

ophthalmologist who lived at the time in Massachusetts, interviewed

in Illinois for a job with Prairie Eye Center, a full service

ophthalmology practice. After both parties signed an employment

contract for Phillips to go work for Prairie Eye in Illinois, the

relationship between the two deteriorated. Phillips never went to

work for Prairie Eye.

He filed suit against Prairie Eye in Massachusetts state

court asserting personal jurisdiction over the defendant pursuant

to the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A,

§ 3. After Prairie Eye removed the case to federal court, the

district court found that Prairie Eye lacked the requisite minimum

contacts with Massachusetts and dismissed the case. We agree and

affirm the dismissal.

I.

We accept the allegations in the complaint as true and

construe the facts in the light most favorable to the plaintiff, as

we are reviewing a dismissal for lack of personal jurisdiction.

Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290

F.3d 42, 51 (1st Cir. 2002). The facts relevant to determining

personal jurisdiction are not in dispute. 

Phillips resided in Massachusetts until 2007. In June

2006, Phillips, who was seeking a new job, posted his résumé on the
We describe the case in terms of the plaintiff's 1

submissions because the plaintiff bears the burden of establishing

jurisdiction. Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007).

In its Motion To Dismiss for Lack of Personal Jurisdiction, Prairie

Eye attached seven additional e-mails from Yeh to Phillips, most of

them dealing with the scheduling of Phillips's August 11 interview.

Even if we were to consider the defendant's submissions, they do

not create sufficient contacts to satisfy jurisdictional due

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job placement section of the American Academy of Ophthalmology

website. Soon thereafter, he received an e-mail invitation for an

interview from Sandra Yeh, the owner and president of Prairie Eye

Center, located in Springfield, Illinois.

On August 11, 2006, Phillips flew to Springfield to

interview with Yeh and other doctors at Prairie Eye. Afterwards,

Prairie Eye sent an unsigned employment contract via first class

mail to Phillips in Massachusetts. The contract specifically

detailed the terms of employment, including duration, compensation,

and duties. The parties dispute how much negotiation of the

contract occurred while Phillips was in Illinois, but plaintiff

does not contest that the unsigned contract he received contained

enough material terms that it could be accepted. 

On August 20, Yeh sent Phillips an e-mail, which Phillips

received in Massachusetts, asking whether Phillips had received the

employment contract and asking him if there was anything she could

do to help his decisionmaking process. This is the first of Yeh's

three e-mail contacts with Massachusetts that Phillips put in the

record. A few hours later, Phillips sent Yeh an e-mail, which Yeh 1
process requirements.

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received in Illinois, noting that "[n]early everything [in the

contract] looks great, but I [have] just a couple of minor requests

to ask of you." Yeh, via an e-mail later that day (and the second

of the proffered e-mail contacts), agreed in principle to

Phillips's proposed changes and asked him to modify the contract

with his changes and mail the contract back to Yeh. Phillips then

typed his changes into an addendum, signed the contract and

addendum, and the following day, mailed the signed contract and

addendum to Yeh in Illinois.

A couple of weeks later, on September 10, Yeh e-mailed

Phillips again, in the third and last of the proffered e-mail

contacts. Yeh noted that she had made a change to the addendum

(specifically with regards to the timing of the partnership offer),

and needed Phillips to initial the change and send it back to her.

Two days later, Phillips e-mailed Yeh saying, "I will initial the

contract and get the original right out to you." He then e-mailed

a scanned copy of the initialed contract back to Yeh. 

A copy of the contract, executed by both parties, is in

the record. The contract, however, was never performed. Soon

after the Phillips e-mailed the contract back to Yeh, the

relationship between the two fell apart, and Phillips never went to

work for Yeh at Prairie Eye Center. How and why the relationship
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soured is not relevant to the jurisdictional question presented to

us.

About a month later, on October 20, 2006, Phillips filed

suit against Prairie Eye Center in state court in Massachusetts

asserting breach of fiduciary duty and breach of the implied

covenant of good faith and fair dealing and seeking a declaratory

judgment that the contract was null and void. The defendant

removed the action to federal court and filed a motion to dismiss

for lack of personal jurisdiction. After allowing extensive

briefing and holding a motion hearing, the district court dismissed

the case for lack of personal jurisdiction by a docket notation. 

While this case was on appeal, the defendant, Prairie Eye

Center, filed a breach of contract action against Phillips in U.S.

District Court for the Central District of Illinois seeking damages

and declaratory relief. Phillips, who has since moved to the state

of Washington, moved for a stay of that proceeding because of the

pending appeal in this case. The federal district court in

Illinois denied the stay, and Phillips has asserted the claims he

makes here as counterclaims in that case. 

II.

A. Standard of Review and Burden of Proof
The other two methods, the preponderance method and the 2

likelihood method, usually require an evidentiary hearing. See

Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 146

(1st Cir. 1995).

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We review de novo a district court's decision to dismiss

for lack of personal jurisdiction. Adelson v. Hananel, 510 F.3d

43, 48 (1st Cir. 2007).

The district court "may choose from among several methods

for determining whether the plaintiff has met [its] burden." Id.

(quoting Daynard, 290 F.3d at 50-51) (internal quotation marks

omitted). Because the district court did not hold an evidentiary

hearing but credited the plaintiff's evidentiary submissions, we

construe the court's ruling as employing the prima facie method.2

This is "the least taxing of these standards from a plaintiff's

standpoint." Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83-

84 (1st Cir. 1997).

Under the prima facie standard, the inquiry is whether

the plaintiff has proffered evidence which, if credited, is

sufficient to support findings of all facts essential to personal

jurisdiction. Daynard, 290 F.3d at 51. In order to make a prima

facie showing of jurisdiction, "the plaintiff ordinarily cannot

rest upon the pleadings but is obliged to adduce evidence of

specific facts." Foster-Miller, Inc. v. Babcock & Wilcox Canada,

46 F.3d 138, 145 (1st Cir. 1995). The court "must accept the

plaintiff's (properly documented) evidentiary proffers as true for
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the purpose of determining the adequacy of the prima facie

jurisdictional showing," Daynard, 290 F.3d at 51 (quoting

Foster-Miller, 46 F.3d at 145) (internal quotation marks omitted),

and "construe them in the light most congenial to the plaintiff's

jurisdictional claim," id. (quoting Mass. Sch. of Law at Andover,

Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998)) (internal

quotation mark omitted).

B. Jurisdictional Analysis

There is no claim here of general jurisdiction. See

Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st Cir. 2005)

(describing the difference between general jurisdiction, which

requires that the defendant have continuous and systematic contacts

with the state, and specific jurisdiction, where the claim must be

related to the defendant's contacts). Phillips bases his claim of

specific personal jurisdiction over Prairie Eye on the

Massachusetts long-arm statute. We 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, 290 F.3d at 52

(quoting 'Automatic' Sprinkler Corp. of Am. v. Seneca Foods Corp.,

280 N.E.2d 423, 424 (Mass. 1972)). 

The Due Process Clause requires that "in order to subject

a defendant to a judgment in personam, if he be not present within
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the territory of the forum, he have certain minimum contacts with

it 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, 319 (1945) (quoting Milliken v. Meyer,

311 U.S. 457, 463 (1940)). For specific jurisdiction, the

constitutional analysis is divided into three categories:

relatedness, purposeful availment, and reasonableness.

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.

Adelson, 510 F.3d at 49 (quoting Daynard, 290 F.3d at 60). The

plaintiff must demonstrate that each of these three requirements is

satisfied.

1. Relatedness

"The 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." Harlow,

432 F.3d at 60-61 (1st Cir. 2005); see also Adelson, 510 F.3d at

49. There must be more than just an attenuated connection between

the contacts and the claim; "the defendant's in-state conduct must

form an 'important, or [at least] material, element of proof' in
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the plaintiff's case." Harlow, 432 F.3d at 61 (quoting United

Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d

1080, 1089 (1st Cir. 1992)) (internal quotation marks omitted).

Phillips brings both a contract claim, breach of the

implied covenant of good faith and fair dealing, and a tort claim,

breach of fiduciary duty. Although the standard for relatedness

for a tort claim is typically different from that of a contract

claim, Jet Wine & Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 10

(1st Cir. 2002), here the two claims are sufficiently connected

that the difference is of no concern. Phillips's claim for breach

of fiduciary duty concerns the formation of his employment

contract. See, e.g., id. (noting that when "the tort is

intentional interference with a contractual . . . relationship, the

two inquiries begin to resemble each other"). Thus, here, we look

to whether "the defendant's activity in the forum state was

'instrumental either in the formation of the contract or its

breach.'" Adelson, 510 F.3d at 49 (quoting Phillips Exeter Acad.

v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999)).

Phillips's case does not contain the typical factors

which have led us to conclude there is sufficient relatedness.

This is unlike cases where the specific terms of an employment

contract were "formalized and entered into" in the forum state, and

where the employee was subject to "substantial control and ongoing

connection to [the forum state] in the performance of this
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contract." Id. Here, Phillips provided no evidence that any

negotiations took place in Massachusetts. In fact, the unsigned

employment contract sent to Phillips shortly after his interview in

Illinois is both definite and detailed, and it precedes the three

e-mails from Yeh to Phillips. Still, Phillips's claim does arise

out of his contractual relationship with Prairie Eye Center and,

accepting his allegations as true, Yeh's communications to

Phillips, which he received in Massachusetts, were in bad faith.

See Daynard, 290 F.3d at 61. That said, we will assume arguendo

that the plaintiff established sufficient relatedness. 

2. Purposeful Availment

Phillips must also show that Prairie Eye purposefully

availed itself 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." Id. (quoting Foster-Miller, 46

F.3d at 144) (internal quotation mark omitted). As the formulation

suggests, purposeful availment involves both voluntariness and

foreseeability. Id.; see also Adelson, 510 F.3d at 50.

Voluntariness requires that the defendant's contacts with the forum

state "proximately result from actions by the defendant himself."

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The

contacts must be deliberate, and "not based on the unilateral

actions of another party." Adelson, 510 F.3d at 50 (citing Burger
At oral argument, we raised the question as to whether 3

the voluntariness inquiry should be different for an e-mail contact

than for a landline telephone, postal, or face-to-face contact.

For the latter types of contacts, voluntariness is clear as the

originator of the communication must know its destination before

initiating the communication. For example, someone mailing a

letter must write a physical address, which exists in some

jurisdiction, on the envelope. With an e-mail, however, the

originator sends a message to an e-mail address, which does not

signal the physical location of the recipient. Generally, the

recipient can open the e-mail anywhere in the world. In this case,

voluntariness may be ambiguous because the originator of the

communication may not know in which jurisdiction the communication

will be received. This case does not turn on these issues, though.

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King, 471 U.S. at 475). Foreseeability requires that the contacts

also must be of a nature that the defendant could "reasonably

anticipate being haled into court there." Id. (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)) (internal

quotation marks omitted).

Prairie Eye's contacts with Massachusetts are plainly

voluntary. Prairie Eye knew that Phillips said he was a resident 3

of Massachusetts and mailed the unsigned employment contract to

Phillips in Massachusetts. Prairie Eye does not contest that it

knew Phillips was in Massachusetts when Yeh wrote the e-mails.

Phillips relies on these facts to argue that because he

accepted the contract in Massachusetts, Prairie Eye should have

foreseen that it could be haled into court in Massachusetts. We

have held, however, in a variety of contexts, that the defendant's

awareness of the location of the plaintiff is not, on its own,
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enough to create personal jurisdiction over a defendant. When a

patient argued that jurisdiction in Maine over a Massachusetts

hospital was proper because the defendant knew plaintiff resided in

Maine, we noted: "Jurisdiction cannot be created by and does not

travel with the plaintiff patient wherever she goes." Harlow, 432

F.3d at 63; see also Sawtelle v. Farrell, 70 F.3d 1381, 1392 (1st

Cir. 1995) (finding no purposeful availment when "the [defendants']

only connection with [the forum state] was the [plaintiffs']

residence there"). When a plaintiff tire manufacturer argued that

a defendant rim manufacturer was subject to personal jurisdiction

in Puerto Rico, we noted that even if the defendant had specific

knowledge that the stream of commerce would move its tire rims into

Puerto Rico, "awareness alone would not be enough to constitute the

purposeful availment which is necessary for a showing of minimum

contacts." Rodriguez, 115 F.3d at 85 (citing Asahi Metal Indus.

Co. v. Superior Ct., 480 U.S. 102, 112 (1987) (plurality opinion)).

There is little besides awareness here. It stretches too

far to say that Prairie Eye, by mailing a contract with full terms

to Massachusetts for signature and following up with three e-mails

concerning the logistics of signing the contract, should have known

that it was rendering itself liable to suit in Massachusetts. The

Massachusetts Supreme Judicial Court recently found personal

jurisdiction over nonresident plaintiffs did not comport with due

process where the only contacts consisted of a purchase of an
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insurance policy from a Massachusetts insurer and the mailing of

premium payments to Massachusetts. Moelis v. Berkshire Life Ins.

Co., ___ N.E.2d ___, 2008 WL 2122417, at *3 (Mass. May 22, 2008);

see also N.H. Ins. Guar. Ass'n v. Markem Corp., 676 N.E.2d 809, 812

(Mass. 1997) (no personal jurisdiction over policyholder defendants

where insurance contracts were drafted in New Hampshire, insured

activity did not occur in Massachusetts, and only relevant contacts

were plaintiff's mailing of policy from Massachusetts to defendant,

defendant's mailing of payment to insurer in Massachusetts, and

defendant's submission of claims to Massachusetts); 'Automatic'

Sprinkler Corp., 280 N.E.2d at 425 (no personal jurisdiction over

New York defendant that signed purchase order to buy goods from

Massachusetts seller, mailed purchase order to Massachusetts,

received invoice from Massachusetts, and sent check to

Massachusetts).

The contract was for Phillips to be employed in Illinois,

and never for him to be employed in Massachusetts. See, e.g.,

Harlow, 432 F.3d at 63 ("In the case of personal services focus

must be on the place where the services are rendered, since this is

the place of the receiver's . . . need." (quoting Wright v.

Yackley, 459 F.2d 287, 289 (9th Cir. 1972)) (block quotation)). 

Defendant did not initiate the contact with plaintiff in

Massachusetts; rather, it was the other way around. Phillips

posted his résumé on a national website, and was actively seeking
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employment outside of Massachusetts. Yeh never entered

Massachusetts herself: it was the plaintiff who physically went to

Illinois to be interviewed and to discuss a job.

A purpose of the foreseeability requirement is that

"personal jurisdiction over nonresidents . . . is a quid for a quo

that consists of the state's extending protection or other services

to the nonresident." Sawtelle, 70 F.3d at 1392 (quoting Coté v.

Wadel, 796 F.2d 981, 984 (7th Cir. 1986)) (alteration omitted)

(internal quotation marks omitted); see also Moelis, 2008 WL

2122417, at *3 (noting that jurisdiction is more appropriate "where

nonresidents more intentionally take advantage of favorable State

policies"). There is no indication nor even an allegation that

Prairie Eye availed itself of any of the protections of

Massachusetts law or any other services provided by the state. See

Phillips Exeter Acad., 196 F.3d at 292. Hence, Prairie Eye's

contacts with Massachusetts do not constitute sufficiently

purposeful availment to allow for the exercise of jurisdiction.

3. Reasonableness

In addition, the Gestalt factors weigh strongly against

the exercise of jurisdiction here. The Gestalt factors measure

reasonableness: even "if such [requisite] contacts exist," the

court's exercise of jurisdiction "must comport with 'fair play and

substantial justice.'" U.S.S. Yachts, Inc. v. Ocean Yachts, Inc.,
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894 F.2d 9, 11 (1st Cir. 1990) (quoting Burger King, 471 U.S. at

476). 

We think it would be unfair to subject Prairie Eye to

suit in Massachusetts. First, the burden on the defendant is

disproportionate. The defendant's principal place of business is

in Illinois, and it has no ongoing connection to Massachusetts. As

the defendant informed the district court, it plans to call

multiple Illinois witnesses in support of its case, all of whom are

outside of the jurisdiction of Massachusetts courts. 

Second, while we normally give deference to the

plaintiff's choice of forum, see Adelson, 510 F.3d at 52, as the

plaintiff no longer lives in Massachusetts, it is hard to see why

it would be less burdensome for him to appear in Illinois than in

Massachusetts, save that he has retained a Massachusetts lawyer.

In addition, efficient administration of justice can easily be

accomplished in Illinois, where the plaintiff has already asserted

his claims as counterclaims in the civil action that is currently

proceeding against him. See Daynard, 290 F.3d at 62-63.

Accordingly, exercising personal jurisdiction over

Prairie Eye in Massachusetts would "offend traditional notions of

fair play and substantial justice." Int'l Shoe, 326 U.S. at 316

(quoting Milliken, 311 U.S. at 463) (internal quotation marks

omitted).

The judgment of the district court is affirmed.