FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Pedro A. Delgado-Hernández, U.S.
J. Torres, with whom Brooks L. Glahn, Torres Scammon Hincks
& Day LLP, Darío Rivera-Carrasquillo, Giancarlo
Font, and Rivera-Carrasquillo, Martínez & Font
were on brief, for appellant.
P. Dagen, with whom The Law Offices of Seda & Alan P.
Dagen, P.A., Luis A. Oliver-Fraticelli, and Adsuar
Muñiz Goyco Pérez-Ochoa, P.S.C. were on brief,
Torruella, Lipez, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE
appeal raises a now familiar issue: when do remote
communications by email and telephone give rise to the kind
of connection to a forum state or territory that justifies
the exercise of personal jurisdiction in that forum over an
out-of-forum defendant? The issue comes to us in this case
via the diversity suit in the United States District of
Puerto Rico that a Puerto Rico tour company brought against a
California youth soccer organization and related defendants.
The tour company alleges in this suit that the defendants, by
first requesting that the tour company make an offer for a
potential soccer trip to Puerto Rico for some of the
organization's teams and their families but then
declining after further communications to book the tour,
breached duties that the organization owed to it under Puerto
Rico contract and tort law. In response to the
defendants' motion, the District Court dismissed both the
contract and tort claims for lack of personal jurisdiction.
We now affirm that order.
Youth Soccer Organization ("AYSO") is a nonprofit
entity incorporated and headquartered in
California. The other defendants are Downey AYSO
Region 24 ("Region 24") and four volunteers for
24 is a regional chapter of AYSO from Downey, California.
Region 24 is not a separate legal entity from AYSO.
four Region 24 volunteers served at all relevant times as,
respectively, Region 24's commissioner (Armando
Rodríguez), assistant commissioner (Ramón
Aguilar), treasurer (Carl Jackson), and volunteer coordinator
(Alicia Ramírez). All four individuals are residents
TOURS, Inc. ("PREP Tours") is the
plaintiff. It is a Puerto Rico corporation that,
according to the complaint, "specializes in student
cultural immersion educational field trips" and is
"dedicated to servicing and organizing educational
soccer tours for student athletes and soccer clubs focusing
on friendly soccer games in Puerto Rico."
Friday, November 2, 2012, Ramírez emailed PREP Tours
from California to ask for a price quote and for what the
company could "offer" regarding an all-inclusive
trip to Puerto Rico for "[a]pproximately 60 players and
their families." Ramírez informed the tour
company in that email that Region 24 was also gathering
information about alternative destinations, like Hawaii and
Tours responded that very same Friday by sending via email a
promotional brochure regarding the "unique soccer
program" in the Puerto Rico cities of San Juan and
Rincón that it offered visiting youth soccer teams.
The tour company also emailed Ramírez, after the
weekend, a proposed itinerary based on the San Juan and
Rincón tour described in the brochure, which PREP
Tours described as "a tentative rough draft." There
followed, intermittently over the next four months, emails
and telephone calls, as well as at least one text message,
between the parties concerning the possible trip. During
these ensuing communications, Ramírez informed PREP
Tours that Region 24 was considering competing offers on a
possible trip to Puerto Rico from three alternative travel
agencies, at least one of which was not based in Puerto Rico.
Region 24 made a decision about the trip, a travel agency in
Florida, Hakuna Matata Group Tours, LLC, contacted
Ramírez by email concerning possible flights. The
complaint says that Hakuna Matata was "designated by
PREP Tours" to handle the soccer teams' flight
Matata later emailed Ramírez with information for
wiring it money as a deposit on the airline flights. Region
24's treasurer, Jackson, thereafter emailed Hakuna Matata
to say that he could wire transfer the money to Hakuna
Matata's account the next day, January 25.
did not wire the money. Ramírez did write PREP Tours
on January 25, however, to say that the commissioner,
assistant commissioner, and treasurer of Region 24 still had
"to go through everything with a fine tooth-comb."
record references no further communications between any of
the parties until the ones that were made on February 25,
2013. On that day, PREP Tours emailed Region 24's
commissioner, assistant commissioner, and treasurer to follow
up on the status of its offer.
commissioner, Rodríguez, responded that same day with
an email telling PREP Tours that the assistant commissioner,
Aguilar, was "still working on logistics." He then
sent a later email that instructed PREP Tours to disregard
this first email. Aguilar had responded in the interim by
informing PREP Tours that "[a]fter reviewing all
proposals from the 3 compan[ies] we decided to go with a
short of two years later, PREP Tours sued AYSO, Region 24,
and the four volunteers in the United States District Court
for the District of Puerto Rico, seeking a minimum of $640,
000 in damages. The complaint alleged that the defendants
were liable under the Puerto Rico tort doctrine of culpa
in contrahendo, "which requires parties to
negotiate in good faith." Ysiem Corp.
v. Commercial Net Lease Realty, Inc., 328
F.3d 20, 23 (1st Cir. 2003) (citation omitted). The complaint
also alleged a breach-of-contract claim under Puerto Rico
law. The complaint asserted that the contract was created by:
(1) the email from Region 24's treasurer to Hakuna Matata
in Florida, saying that he could wire money to that
third-party travel agency in order to make a deposit on the
airline flights; and (2) other "representations"
made by the defendants. The complaint did not allege what the
contract's terms were, but it did allege that the
defendants were in breach of the contract.
defendants moved to dismiss PREP Tours's claims under
Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, and the defendants submitted affidavits with
their motion. An affidavit from AYSO's deputy executive
director as well as affidavits from the individual defendants
each averred that the "only contacts" that existed
between the defendants and PREP Tours consisted of "the
preliminary communications between some of [the Region 24]
volunteers and the travel agency with whom they communicated
in an effort to obtain pricing and information for a
potential trip for some of [Region 24's] youth soccer
Tours's brief in opposition to the defendants' motion
to dismiss included a number of evidentiary submissions
attached as exhibits. The submissions included copies of the
communications exchanged between the parties during the
relevant four-month period.
party requested an evidentiary hearing following the
defendants' motion challenging personal jurisdiction, nor
did the District Court conduct one. The District Court
instead used what we have referred to as "the prima
facie standard" to assess whether PREP Tours had met its
burden to justify the exercise of personal jurisdiction in
Puerto Rico over the defendants. Boit v.
Gar-Tec Prods., Inc., 967 F.2d 671, 675-76 (1st Cir.
1992) (emphasis omitted); see also A Corp.
v. All Am. Plumbing, Inc., 812 F.3d 54, 58
(1st Cir. 2016) (explaining that the plaintiff bears the
burden to establish that personal jurisdiction exists over
this standard, a district court "consider[s] only
whether the plaintiff has proffered evidence that, if
credited, is enough to support findings of all facts
essential to personal jurisdiction." Boit, 967
F.2d at 675. "To make a prima facie showing of this
calib[er], the plaintiff ordinarily cannot rest upon the
pleadings, but is obliged to adduce evidence of specific
facts." Foster-Miller, Inc. v.
Babcock & Wilcox Can., 46 F.3d 138, 145 (1st
Cir. 1995) (citing Boit, 967 F.2d at 675).
of 2016, the District Court granted the defendants'
motion to dismiss PREP Tours's claims without prejudice
for lack of personal jurisdiction. The District Court
reasoned that, although the defendants reached out to PREP
Tours regarding the trip, they "repeatedly communicated
to [PREP Tours] that officials had not made a final decision
in regards to the trip" and that the
"unilateral" actions undertaken by PREP Tours in
Puerto Rico in response were insufficient to establish
personal jurisdiction over the defendants as to any of PREP
Tours's claims. PREP Tours now appeals. Our review of the
District Court's judgment is de novo. See Boit,
967 F.2d at 675. "Reviewing a decision made under the
prima facie standard, we must accept [the plaintiff's]
properly documented evidentiary proffers as true and construe
them in the light most favorable to [the plaintiff's]
jurisdictional claim." A Corp., 812 F.3d at 58
(citing Phillips v. Prairie Eye Ctr., 530 F.3d 22,
26 (1st Cir. 2008)). "But we will also consider facts
offered by [the defendants], to the extent that they are not
disputed." Id. (citing Daynard
v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002)).
Tours conceded below, as it must, that the District Court
lacks general jurisdiction over the defendants because the
defendants do not have "continuous and systematic"
contacts with Puerto Rico. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011). PREP Tours nevertheless contends that the
District Court erred in dismissing its claims because the
District Court does have "specific or case-linked"
jurisdiction over the defendants as to both of its claims.
Id. Jurisdiction on this basis "depends on an
affiliatio[n] between the forum and the . . .
controversy" underlying the plaintiff's claims.
Id. (alteration in original) (internal quotation
. . . the lens of judicial inquiry narrows to focus on
specific jurisdiction . . . . the applicable constitutional
limits assume critical importance."
Foster-Miller, 46 F.3d at 144. Those limits, arising
from the Due Process Clause of the Fourteenth Amendment to
the United States Constitution, permit a court to exercise
jurisdiction over an out-of-forum defendant only if, with
respect to the claims at issue, the 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
determine whether the exercise of specific jurisdiction in
the forum over an out-of-forum defendant conforms to that
federal constitutional test, three requirements must be met:
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 . . . be reasonable.
United Elec., Radio & Mach. Workers of Am.
v. 163 Pleasant St. Corp., 960
F.2d 1080, 1089 (1st Cir. 1992).
inquiry is highly "fact-specific." Id. As
the Supreme Court has explained, the constitutional test is
"not susceptible of mechanical application; rather, the
facts of each case must be weighed to determine whether the
requisite 'affiliating circumstances' are
present." Kulko v. Superior
Court of Cal., 436 U.S. 84, 92 (1978) (quoting
Hanson v. Denckla, 357 U.S. 235,
246 (1958)). Moreover, "this determination is one in
which few answers will be written 'in black and white.
The greys are dominant and even among them the shades are
innumerable.'" Id. (quoting Estin
v. Estin, 334 U.S. 541, 545 (1948)).
begin with the requirement that PREP Tours's claims must
relate to the defendants' contacts with Puerto Rico. This
"flexible, relaxed standard" for assessing
relatedness requires that there be only a "demonstrable
nexus" between the complaint's claims and the
activities in the forum that properly may be attributed to
the defendants, such that "the litigation itself is
founded directly on those activities." Adelson
v. Hananel, 652 F.3d 75, 81 (1st Cir. 2011)
(quoting N. Laminate Sales, Inc. v.
Davis, 403 F.3d 14, 25 (1st Cir. 2005);
Hannon v. Beard, 524 F.3d 275,
279-80 (1st Cir. 2008)).
Tours contends that, as to each of its claims, the
defendants' "related" forum contacts are the
defendants' remote communications with the Puerto
Rico-based tour company during the four-month period
beginning with Ramírez's initial inquiry email and
the activities that PREP Tours undertook from Puerto Rico
during those four months in response to those
communications. PREP Tours contends that its tort claim
alleging that the defendants negotiated in bad faith arises
from the defendants' contacts with Puerto Rico because it
was through the defendants' remote communications with
the tour company that the defendants acted in bad faith,
resulting in harm to the tour company in Puerto Rico in
consequence of, at least in part, the activities that PREP
Tours undertook in Puerto Rico in response to those
communications. PREP Tours contends that its
breach-of-contract claim arises from these same set of
contacts, as the remote communications between the parties
and the actions that the tour company undertook in response
to them provide the basis for the claim that the defendants
reached into Puerto Rico to enter into the alleged contract
and then breached it. See Daynard, 290 F.3d at 52
(explaining that, with respect to a breach-of-contract claim,
we focus on "the parties' 'prior negotiations
and contemplated future consequences, along with the terms of
the contract and the parties' actual course of
dealing'" (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 479 (1985))).
defendants counter that PREP Tours's claims do not in
fact arise from their remote communications with the tour
company or the activities in Puerto Rico that PREP Tours
claims to have taken in response to those communications. The
defendants contend that their conduct that allegedly breached
both their duty to negotiate in good faith and their alleged
contract with PREP Tours was their decision to book the trip
through a different company, which was a decision that they
made outside of Puerto Rico. Moreover, as far as the
breach-of-contract claim is concerned, the defendants point
out that the complaint's only non-conclusory allegation
that a contract existed between the parties is based on an
email that was sent by Region 24's treasurer in
California to a travel agency, Hakuna Matata, that is located
in Florida and that has no connection to Puerto Rico.
District Court agreed with PREP Tours that the relatedness
requirement for case-linked jurisdiction is met as to both
the tort and contract claims, but we need not decide whether
the District Court was right. Even if the defendants'
remote communications with PREP Tours and PREP Tours's
activities in Puerto Rico in response relate to PREP
Tours's claims, PREP Tours must also show that the
defendants purposefully availed themselves of the privilege
of conducting activities in Puerto Rico through these
contacts. See United Elec., 960 F.2d at 1089. And,
as we next explain, the District Court rightly concluded that
PREP Tours failed to do so. Accordingly, we turn to the
purposeful availment inquiry, assuming that the contacts that
PREP Tours identifies as being related to its claims are in
fact related to them.
explain why we agree with the District Court that PREP Tours
has not satisfied the purposeful availment requirement as to
any of its claims, we first need to describe that requirement
in more detail. With that legal background in place, we then
can explain why we conclude that PREP Tours, on this record,
fails to make the requisite showing.
that the defendants purposefully availed themselves of the
privilege of conducting activities in the forum, PREP Tours
must demonstrate that the defendants established a
"substantial connection" with Puerto Rico.
Burger King, 471 U.S. at 475 (quoting McGee
v. Int'l Life Ins. Co., 355 U.S. 220,
223 (1957)). Put otherwise, PREP Tours must point to
"some act by which the defendant[s] purposefully
avail[ed] [them]sel[ves] of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws." Id. (quoting
Hanson, 357 U.S. at 253).
requiring the plaintiff to establish such a substantial
connection between the out-of-forum defendant and the forum,
we ensure that it is "fair to require defense of the
action in the forum." Kulko, 436 U.S. at 91
(citing Milliken, 311 U.S. at 463-64). The
purposeful availment requirement in this way "represents
a rough quid pro quo: when a defendant deliberately targets
its behavior toward the society or economy of a particular
forum, the forum should have the power to subject the
defendant to judgment regarding that behavior."
Carreras, 660 F.3d at 555 (citing J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873,
879 (2011) (plurality op.)).
flip side of this deal, however, is that when the
out-of-forum defendant has not "manifestly . .
. availed himself of the privilege of conducting business
there," it would be "unreasonable to require [the
defendant] to submit to the burdens of litigation in that
forum[.]" Burger King, 471 U.S. at 476. And, in
accord with this understanding of the purposeful availment
requirement, we have explained that "the two
cornerstones of purposeful availment" are
"voluntariness" and "foreseeability."
Ticketmaster-N.Y., 26 F.3d at 207.
requires that the defendant's contacts with the forum
state 'proximately result from actions by the defendant
himself.'" Phillips, 530 F.3d at
28 (quoting Burger King, 471 U.S. at 475).
Accordingly, the Supreme Court has explained that any
contacts that cannot be attributed "proximately" to
the defendant's own activities constitute
"unilateral" activity that cannot establish
purposeful availment. See Burger King, 471 U.S. at
addition, the Supreme Court has described the
"benchmark" for purposeful availment in terms of a
particular "kind of foreseeability." Id.
at 474 (quoting World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 295 (1980));
see also Donatelli v. Nat'l Hockey
League, 893 F.2d 459, 464 (1st Cir. 1990) (discussing
the Court's introduction of this "explicit
'foreseeability' element into the liturgy of minimum
contacts"). Specifically, the Supreme Court has
explained that "the foreseeability that is critical to
due process analysis . . . is that the defendant's
conduct and connection with the forum State are such that he
should reasonably anticipate being haled into court
there." Burger King, 471 U.S. at 474 (quoting
World-Wide Volkswagen, 444 U.S. at 297). For this
reason, too, a plaintiff's "unilateral
activity" cannot establish the requisite connection
between the defendants and the forum jurisdiction.
Id. at 474-75 (quoting Hanson, 357 U.S. at
is good reason to focus on whether out-of-forum defendants
could foresee being haled into a court in the forum from the
connection that they are said to have with the forum. Such a
focus for the inquiry "gives a degree of predictability
to the legal system" because it "allows potential
defendants to structure their primary conduct with some
minimum assurance as to where that conduct will and will not
render them liable to suit." World-Wide
Volkswagen, 444 U.S. at 297.
the fact that a defendant directly contacted the plaintiff in
the forum only remotely by Internet or telephone, as
allegedly happened here, does not preclude the defendant from
having the substantial connection to the forum that is
necessary to satisfy the purposeful availment requirement.
See Burger King, 471 U.S. at 476. Such remote
communications are often the primary means by which business
relationships are forged and conducted. See id.
the Supreme Court has noted, the application of the rule
prohibiting a plaintiff's unilateral activity from
establishing the requisite foreseeable substantial connection
between the defendant and the forum "will vary with the
quality and nature of the defendant's activity."
Id. at 474-75 (quoting Hanson, 357 U.S. at
253). Thus, the fact that the communications occurred
remotely may well be relevant to the inquiry. And, to that
very point, we have recently observed that three factors have
been the "hing[e]" in our past assessment of
purposeful availment in cases in which remote communications
supplied the predicate for the contacts that ground specific
or case-linked personal jurisdiction over an out-of-forum
defendant: "the defendant's in-forum solicitation of
the plaintiff's services, the defendant's
anticipation of the plaintiff's in-forum
services, and the plaintiff's actual performance
of extensive in-forum services."
Copia, 812 F.3d at 6 (emphasis added) (describing
the factors from C.W. Downer & Co. v.
Bioriginal Food & Sci. Corp., 771 F.3d 59 (1st
Cir. 2014), and Cossart v. United Excel
Corp., 804 F.3d 13 (1st Cir. 2015)).
this background, we now must assess whether the showing that
PREP Tours has made regarding both the nature and quality of
the defendants' activities and the activities that PREP
Tours engaged in that relate to the contract and tort claims
at issue satisfies the purposeful availment requirement. PREP
Tours relies on the three factors identified in
Copia in asserting that its showing as to these
activities does suffice. And so we need to address what PREP
Tours has to say about how these activities relate to each of
Tours does point to aspects of the record that bear on each
one of these three factors. As to solicitation, we agree with
PREP Tours that the record shows that one of the Region 24
volunteers, Ramírez, voluntarily reached out
(remotely) from California to PREP Tours in Puerto Rico in
order to ask for a price quote and for what the company could
"offer" as a proposed trip for roughly sixty soccer
players and their families. We can also agree that the
defendants should have reasonably anticipated that some
action would be undertaken by PREP Tours in Puerto Rico in
response to that inquiry -- such as replying with a proposed
itinerary -- given that the defendants knew that PREP Tours
was located there. And, finally, we can see no reason to
doubt that some foreseeable action was then actually
undertaken by PREP Tours in Puerto Rico.
even granting all that, as we will next explain, the factors
that we identified in Copia are not present here
"to remotely the same degree" as they were in our
other cases on which PREP Tours relies in arguing that the
purposeful availment requirement is met. Copia, 812
F.3d at 6. And, in light of that fact and our review of the
relevant contacts as a whole, we conclude, as we did in
Copia itself, that the in-forum ...