USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1387

LYLE RICHARDS INTERNATIONAL, LTD.,

Plaintiff, Appellant,

v.

ASHWORTH, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________

Godbold* and Cyr, Senior Circuit Judges.

_____________________

____________________

Michael J. Traft, with whom Carney & Bassil was on brief for
________________
_______________
appellant.

Toni G. Wolfman, with whom Foley, Hoag & Eliot LLP was on brie
_______________
_______________________
for appellee.

____________________

December 22, 1997

____________________

____________________

*Of the Eleventh Circuit, sitting by designation.

CYR,

Senior Circuit

Judge.

Plaintiff

Lyle Richards

CYR,

Senior Circuit Judge.

_____________________

International, Ltd., a Massachusetts

district court

judgment dismissing

Ashworth, Inc., a

corporation, appeals from a

its contract

Delaware corporation with its

of business in California.

action against

principal place

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

In March 1994,

Andrew Tarlow,

California.

Ashworth hired a former

to direct

Shortly

its

new golf

to

serve as

months, Lyle

shoewear operations

thereafter, without

solicitation from Ashworth, Lyle made

Ashworth's purchasing

and Ashworth discussed

Lyle employee,

direct

or

in

indirect

overtures, through Tarlow,

agent.

Over

the next

the matter by phone

two

and at

meetings

in California

and

China.

At

no

time did

Ashworth

advertise for or solicit a purchasing agent in Massachusetts.

Not

later than

July 1994,

proposed entering into a formal

due

course,

the

Agreement,

Ashworth, through

written agreement with Lyle.

drafted

and

signed

Massachusetts, was mailed to California, where

it

on August

5.

The Agreement

purchasing agent for

but

required

to

designated Lyle

undertake

no

by

Lyle

In

in

Ashworth executed

footwear manufactured in China

Ashworth

Tarlow,

specific

as Ashworth's

and Taiwan,

contractual

responsibilities in Massachusetts.

Thereafter,

orders

to Lyle in

Ashworth

periodically

forwarded purchase

Massachusetts, which Lyle

transmitted to the

appropriate Chinese or Taiwanese factory.

Ashworth communicated

with Lyle

in Massachusetts two

or three times a

week regarding

ongoing contract performance, and from time to time placed orders

with

shoe-component suppliers which were instructed to bill Lyle

directly.

Ashworth

In

addition, during

representative

the

attended

term of

three

the Agreement

trade

shows

Massachusetts, accompanied on two occasions by a Lyle employee.

an

in

The Agreement

written notice of

prescribed

one-year

termination from either party

term.

Absent

at least ninety

days prior to its anniversary date, the Agreement renewed

automatically.

itself

In August 1995, Ashworth provided written notice

of termination to Lyle, dated April 19, 1995.

Thereafter,

Massachusetts

unfair trade

Lyle

filed

superior court,

suit

alleging

against

Ashworth in

breach of

practices under Mass. Gen. Laws

contract and

ch. 93A,

2, 11,

claiming that the termination notice had been back-dated to April

1995

its

to conceal its untimeliness under the Agreement.

removal,

nonevidentiary

see
___

28

U.S.C.

hearing, the

1332(a)

action was

&

Following

1441(a),

dismissed

and

for lack

of

personal jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(2).

II
II

DISCUSSION1
DISCUSSION
__________
____________________

1We review
708, 712 (1st
Since

the

without an
pleadings
affidavits,

de novo.
__ ____

Nowak v. Tak How Invs., Ltd., 94 F.3d

_____
____________________

Cir. 1996), cert. denied, 117 S.

_____ ______

district

court

evidentiary
and

the

resolved

hearing, "we

parties'

the
draw

supplementary

taking facts affirmatively

true and construing disputed facts

Ct. 1333 (1997).

jurisdictional
the facts
filings,

alleged by

in the light most

from

issue

the

including

plaintiff as

hospitable

A.
A.

The Breach of Contract Claim

The Breach of Contract Claim
____________________________

In

diversity

case, personal

jurisdiction

over

nonresident defendant is constrained both by the long-arm statute

of the forum state and the

Amendment.

Due Process Clause of the

See Ticketmaster-New York, Inc. v. Alioto,

___ ____________________________
______

201, 204 (1st Cir. 1994).

courts to assert

the

jurisdiction "over a person, who

person's

commonwealth . . . ."
____________

26 F.3d

Massachusetts law permits Commonwealth

or by an agent, as to a cause of action in law

from

Fourteenth

. transacting
___________

any
___

acts directly

or equity arising

business
________

Mass. Gen. Laws ch. 223A,

in
__

this
____

3(a) (emphasis

added).

The

designed

to

"transacting business" test

identify

fortuitous, contacts

deliberate,

with the

under section 3(a) is

as

forum by

distinguished

the nonresident

from

party,

see, e.g., Good Hope Indus., Inc. v. Ryder Scott Co., 389 N.E.2d
___ ____ _______________________
_______________

76, 82

possible

forum's

(Mass. 1979),

need to

with a view

invoke

to determining

the benefits

and

laws was reasonably foreseeable . .

whether "'the

protections of

. .'"

the

Id. (quoting
___

Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 496 (5th Cir.
________________________
________

1974)).

Often, the

informed

by ascertaining whether the nonresident party initiated

or

solicited the

instance, the

"transacting business" test

business transaction

Massachusetts Supreme

in

is importantly

Massachusetts.

Judicial Court

For

("SJC") has

held

that

California

corporation

transacted

business

in

____________________

to plaintiff[,]" but without crediting "conclusory allegations or

draw[ing] farfetched inferences."

Ticketmaster-New York, Inc. v.

___________________________

Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

______

Massachusetts by systematically

in Massachusetts.

advertising its California hotel

See Tatro v. Manor Care, Inc., 625 N.E.2d 549,

___ _____
________________

551-52 (Mass. 1994); see also Hahn v. Vermont Law Sch.,

___ ____ ____
________________

48,

51

(1st

Cir.

by

sending

business

acceptance

1983)

(nonresident

application for

to plaintiff

law

school

admission

698 F.2d

transacted

and

notice of

in

Massachusetts); New Hampshire Ins.

___________________

Guar. Ass'n v. Markem Corp.,

___________
____________

676 N.E.2d 809, 812-13 (Mass. 1997)

(nonresident insured did not transact business by mailing premium

payments

to

Massachusetts,

since

Massachusetts-based

insurer

solicited insurance business in New Hampshire).

An

Ashworth

proposed, in March
_____

went

summer

of

1994,

attesting

that

Lyle

had

1994, to serve as Ashworth's purchasing agent

____

unopposed by

inapposite fact

affidavit

Lyle.

Instead,

Lyle relied

upon

the

that it was Ashworth which suggested, during the

that

the

precise

terms

of

the

business

______

__

____

relationship previously proposed by Lyle be reduced to writing.

__________

Although any effect a nonresident defendant's

may

have

had upon

commerce

in

Massachusetts

activity

is also

to

be

considered in determining

whether it transacted business

Commonwealth, see Droukas

___ _______

v. Divers Training Academy, Inc., 376

______________________________

N.E.2d 548, 551

n.5 (Mass. 1978), the purely incidental contacts

involved

here were

personal

jurisdiction over Ashworth.

insufficient

v. United Aircraft Corp.,

______________________

(finding

and

thus

personal

to

support

an

assertion

of

See, e.g., Whittaker Corp.

___ ____ _______________

482 F.2d 1079,

defendant's contacts

no

in the

1085 (1st

with Massachusetts

jurisdiction,

where

Cir. 1973)

insufficient,

there

was

"no

requirement in any of the

___________

in

agreements that performance take place

Massachusetts") (emphasis added);

Ass'n v.
_____

Markem Corp., 676

____________

New Hampshire Ins. Guar.

_________________________

N.E.2d 809, 812 (Mass.

[plaintiff] then decided to conduct

1997) ("That

some administration . . . in
____

Massachusetts . . . cannot be the basis for personal jurisdiction

against [defendant] where [defendant] reasonably assumed it would

be doing

fact

business with [plaintiff]

conduct most
____

added).

of

its

in New Hampshire and

business .

. there.")

did in

(emphasis

See also Nichols Assocs., Inc. v. Starr, 341 N.E.2d 909,

___ ____ _____________________
_____

912 (Mass. App. Ct. 1976) (no significant involvement in commerce

of

Massachusetts,

nonresident

acceptance

and

thus

defendant's

of services

no

personal

"contact [was]

which

the

jurisdiction,

limited

plaintiff

to the

simply

where

chose
_____

. .

to

perform in Massachusetts.") (emphasis added).

For

under the

The

one

thing,

Agreement was

Agreement

administrative

did

not

functions

most performance

to be

even

required

rendered outside
_______

require

actually

from Lyle

Massachusetts.

that

the

conducted

by

internal

Lyle

in

Massachusetts

merchandise

be

performed

shipments from

there,

the

such

as

arranging

Chinese-Taiwanese suppliers

for

to

Ashworth in California, receiving price quotes or product samples

from the

Asian

factories, or

reporting to

Ashworth on

market

conditions and the availability of merchandise.

Nor does the Agreement indicate that Lyle either needed

or

intended to perform its "quality control" responsibilities in

Massachusetts.

Rather,

most

of

its

core

contractual

responsibilities relating

have had to

have been performed in China or

Massachusetts.

in

was

incidental

to

the

formation

of

the

See Nichols Assocs., Inc., 341 N.E.2d at 912.2

___ _____________________

Finally,

shows

Taiwan, rather than

Thus, its performance of various attendant chores

Massachusetts

Agreement.

to the inspection of merchandise would

Lyle

in Massachusetts,

notes,

Ashworth

accompanied by

attended three

trade

Lyle employee

on at

least two occasions, and Lyle performed two contract functions in

Massachusetts:

designing golf shoes and purchasing various golf-

shoe components and the materials

shipment

to Asia.

Nevertheless,

with which to package them for

as

these

initiatives

were

undertaken

neither

unilaterally by the

was

Agreement,

responsible

this

for

attempt to

respective parties,

even though

their

under

the

personal jurisdiction

over

assert

performance

Ashworth is unavailing since chapter 223A requires that the cause

of action have "aris[en] from

________ ____

[Ashworth's] . . . transacting any

__________

business in [Massachusetts] . . . ."

3(a) (emphasis added).

The

Mass. Gen. Laws ch. 223A,

We explain briefly.

"arising from"

clause in

chapter 223A

is to

be

generously construed in favor of asserting personal jurisdiction,

____________________

2The

contention

that

Ashworth

Massachusetts

by mailing

its

Massachusetts

is

as well,

flawed

transacted

termination
since

notice
Ashworth

business

in

to

in

Lyle

cannot have

solicited business by terminating the business relationship.

_________
___________

Nor

was

see
___

the Agreement

executed by

Ashworth

in Massachusetts,

Carlson Corp. v.
______________
(Mass.

1980) (defendant

where it
been

University of Vermont,
______________________

signed the

forwarded

transacted

having

N.E.2d 483,

business in

contract), but in

after

402

been

Massachusetts,

California where
executed

485

by

it had

Lyle

in

Massachusetts, supra p. 2.
_____

by

applying the

following "but

for" causation

test:

Did the

defendant's contacts with the

Commonwealth constitute "the first

step

that

in

a train

of

events

result[ed] in

the

personal

injury."

almost

Tatro, 625
_____

certainly

California hotel

N.E.2d at

would

but for
___ ___

not

553.

have

The

selected

the advertisements

placed in various Massachusetts media.

does

not contend

attendance

that

at

trade

plaintiff in

component

shows

the

Tatro
_____

defendant's

the defendant

had

Lyle, on the other hand,

purchases,

comprised

shoe

any

design,

part

of

or

the

responsibilities of either party under the Agreement.

Since

undertaken

by

the

the

extra-contractual

respective

parties

activities

in

unilaterally

Massachusetts

were

extraneous to the formation of the Agreement, see Hahn v. Vermont

___ ____
_______

Law Sch.,
________

698 F.2d 48,

"we have no doubt that

satisfied when the

51 (1st Cir. 1983)

(holding, pre-Tatro:
_____

[the 'arising from' requirement] has been

cause of action is

for an alleged breach

of

contract

and the

formation of the
_________ __ ___

did

business transacted

was

instrumental in
____________ __

contract.") (emphasis added), those

________

not constitute a

"but for" cause for

the
___

activities

the alleged breach of

contract, see Tatro, 625 N.E. 2d at 553.

___ _____

B.
B.

The Unfair Trade Practices

The Unfair Trade Practices
__________________________
Claim Under Chapter 93A
Claim Under Chapter 93A
_______________________

Finally,

jurisdiction over

Lyle

contends,

"a cause

since

of action

Chapter

. .

defendant's] . . . causing tortious injury by

in [Massachusetts] . .

the federal

grants

arising from

[a

an act or omission

. [,]" Mass. Gen. Laws ch.

district court possessed personal

223A

223A,

3(c),

jurisdiction over

Ashworth in

relation to the

Mass. Gen. Laws

ch. 93A.

unfair trade practices

For present purposes

claim under

we shall assume,

without deciding, that a Chapter 93A violation would constitute a

"tortious

injury" under Chapter

223A.

Cf.
___

Burtner v. Burnham,
_______
_______

430 N.E.2d 1233, 1237 (Mass. App. Ct. 1982) ("Whether a violation

of . . . chapter [93A] constitutes a 'tortious injury' within the

meaning of c. 223A,

3(c) may be open to some doubt.").

Lyle

tardiness of

alleges that

Ashworth attempted

its nonrenewal

notice by

termination letter to Lyle, see supra

___ _____

deception

much,

untimely

p. 3, and that the alleged

termination of the

we nonetheless conclude

conceal the

backdating its

was designed to prevent Lyle

action for wrongful

to

from pursuing a contract

Agreement.

that Lyle

Assuming

as

cannot prevail

on its

provides that "[a]ny

person

Chapter 93A claim.

Chapter 93A,

who

engages

suffers
_______

in the

any loss of
___ ____ __

result of the use

any

conduct of

any trade

money or property,
_____ __ ________

or commerce

and who
___ ___

real or personal,

as a

or employment by another person who engages in

trade or commerce

unfair or

section 11,

of an unfair method

deceptive act or

practice . .

of competition or an

. may

. . .

bring an

action in the superior court . . . ." (emphasis added).

order

to

state

demonstrate a loss

loss.

chapter

by

93A claim,

Lyle

of money or property.

Instead, it asserted

Ashworth's failure

required

to provide

the Agreement.

a breach

required

to

Yet it alleged no such

of contract by

timely notice

In

was

Thus, in

virtue of

of termination

addition, Lyle

alleged

as

that

Ashworth violated chapter 93A by engaging in the deceptive act of

backdating

the

allegation,

caused

notice

however,

by the alleged

of

Lyle

claimed no

breach of

failed to allege a "loss of

of [Ashworth's]

termination.

As

injury
______

contract.

to

the

apart

. . of [a] .

breach-of-contract claim,

into a

tort claim.

without more,

Finally,

be converted

See Redgrave v. Boston Symphony Orchestra,

___ ________
___________________________

Inc., 557 F. Supp. 230, 238 (D. Mass. 1983).

____

Affirmed.
________

cannot

a result

. . deceptive

act . . . [,]" as required by chapter 93A, section 11.

from that

Consequently, Lyle

money or property . . . as

use or employment .

latter

10