26 F.3d 201 (1st Cir. 1994), 93-1692, Ticketmaster-New York, Inc. v. Alioto

Docket Nº:93-1692.
Citation:26 F.3d 201
Party Name:TICKETMASTER-NEW YORK, INC., Plaintiff, Appellant, v. Joseph M. ALIOTO, Defendant, Appellee.
Case Date:April 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 201

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

TICKETMASTER-NEW YORK, INC., Plaintiff, Appellant,


Joseph M. ALIOTO, Defendant, Appellee.

No. 93-1692.

United States Court of Appeals, First Circuit

April 13, 1994

Heard Dec. 10, 1993.

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[Copyrighted Material Omitted]

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Jonathan W. Lubell, with whom Malcolm I. Lewin, Frank McClain-Sewer, Morrison Cohen Singer & Weinstein, New York City, Stephen R. Wainwright, and Wainwright, Wainwright, Wainwright, Wainwright & Wainwright, Brockton, MA,were on brief, for appellant.

James A.G. Hamilton, with whom Theodore F. Schwartz, Jerry Cohen, and Perkins, Smith & Cohen, Boston, MA, were on brief, for appellee.

Before TORRUELLA, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This case probes the frontiers of the doctrine of personal jurisdiction in a context fraught with constitutional implications. The issue, simply put, is this: Can a Massachusetts-based court, consistent with the Due Process Clause, assert jurisdiction over a California resident who is alleged to have made a defamatory comment during an unsolicited telephone interview with a staff reporter for a Massachusetts newspaper? We conclude, on the facts of this case, that the lower court correctly disclaimed jurisdiction.


Inasmuch as the district court dismissed this suit for failure of the plaintiff to make a prima facie jurisdictional showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992), we draw the facts from the pleadings and the parties' supplementary filings, including affidavits, taking facts affirmatively alleged by plaintiff as true and construing disputed facts in the light most hospitable to plaintiff. Of course, we do not credit conclusory allegations or draw farfetched inferences. See generally Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir.1989) (discussing line between "facts" and "conclusions" for purposes of a motion to dismiss).

Defendant-appellee Joseph M. Alioto is an attorney practicing in California. Among his other cases, Alioto is pressing a class action in the California courts against Ticketmaster-Southern California, Inc. (T-SC). T-SC, a California-based corporation, is affiliated with Ticketmaster-New York, Inc. (T-NY), a Delaware corporation. Both Ticketmaster entities are engaged in the business of selling ducats to entertainment events.

The litigation between T-NY and Alioto finds its genesis in the decision by the Boston Globe, a daily newspaper, to undertake an investigation into pricing practices on "Ticketmaster's" part. 1 In conducting this investigation, a Globe reporter conversed by telephone with Alioto. The plaintiff does not allege, and the record does not suggest, that Alioto dialed the telephone or otherwise initiated the call. The record is equally barren of any showing that Alioto solicited the inquiry 2 or that more than one call occurred. It is clear, nevertheless, that Alioto, who was in California, knew when speaking that his comments would inform a story slated for publication

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in a newspaper circulated chiefly in Massachusetts.

The investigation culminated in a front-page expose that hit the newsstands on Sunday, September 20, 1992, under the banner headline, "Rising ticket fees pad concert profits." The ensuing article contained over fifty paragraphs. Well past the midpoint, the article mentioned mounting complaints about price gouging in New York and California. It then reported that "three class action antitrust lawsuits" had recently been filed "against Ticketmaster" in California. There followed the paragraph around which this controversy revolves (buried deep in the body of the article). We quote the allegedly offending paragraph in full, and, in the interests of context, add the beginning of the following paragraph.

Attorney Joseph M. Alioto, who filed one of the suits, charged that kickbacks are the key to Ticketmaster's California monopoly. "They're nothing more than a straight bribe," he said.

Ticketmaster and its affiliates took on their California adversaries in typical aggressive fashion, ...

Based on this reported comment, T-NY brought suit against Alioto in the United States District Court for the District of Massachusetts. Invoking diversity jurisdiction, 28 U.S.C. Sec. 1332 (1988), it alleged that Alioto, with the requisite intent, conveyed and/or caused to be conveyed certain defamatory impressions of and concerning T-NY, namely, that T-NY engaged in bribery and related criminal conduct.

In due season, Alioto moved to dismiss. T-NY objected. The district judge heard oral argument and dismissed the action for lack of in personam jurisdiction, concluding that appellant failed to make the requisite showing at every stage of the obligatory jurisdictional inquiry under the due process clause. See United Electrical Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir.1992) (Pleasant St. I ) (discussing nature of requisite inquiry). Two perceptions figured prominently in the district court's reasoning. First, the defendant did not actively shape and focus the reporter's story, but, rather, passively responded to a telephone call. Second, the allegedly defamatory comment dealt with the California activities of a California corporation, T-SC, and did not pertain to T-NY.

Plaintiff appeals. Because the court below dismissed the case on legal grounds, without convening an evidentiary hearing or resolving contested evidentiary questions, appellate review is plenary. See United Electrical Workers v. 163 Pleasant St. Corp., 987 F.2d 39, 43-44 (1st Cir.1993) (Pleasant St. II ); Boit, 967 F.2d at 675. In conducting this tamisage, we are not wedded to the district court's rationale, but remain free to affirm the judgment below on any independently sufficient ground made manifest by the record. See Martel v. Stafford, 992 F.2d 1244, 1245 (1st Cir.1993).


To subject a non-resident defendant to its jurisdiction in a diversity case, a court--and for this purpose, a federal court exercising diversity jurisdiction is the functional equivalent of a state court sitting in the forum state, see General Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20, 23 n. 4 (1st Cir.1991)--must find contacts that, in the aggregate, satisfy the requirements of both the forum state's long-arm statute and the Fourteenth Amendment. 3 See Pleasant St. I, 960 F.2d at 1086 ("In Massachusetts, a court may exercise personal jurisdiction over a foreign defendant if such jurisdiction is authorized by state statute or rule and its exercise does not offend due process."); Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 931 (1st Cir.1985) (similar). The district court determined that T-NY satisfied neither of these two prerequisites. We explore these determinations.

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  1. The State Statute.

    The applicable Massachusetts statute, familiarly known as "section 3(c)," deals with torts committed by persons who have no ongoing relationship with the forum state. The language of this provision tracks the Uniform Interstate and International Procedure Act, and differs significantly from other leading formulations. See Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663-64 (1st Cir.1972); see also Margoles v. Johns, 483 F.2d 1212, 1216 (D.C.Cir.1973). The statute states:

    A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ...

    (c) causing tortious injury by an act or omission in this Commonwealth....

    Mass.Gen.Laws ch. 223A, Sec. 3 (1986).

    Although the lower court did not reach the question of jurisdiction under state law, we have pondered whether the case might more appropriately be dispatched on that basis. After all, "[i]t has long been a basic tenet of the federal courts to eschew the decision of cases on constitutional grounds unless and until all other available avenues of resolution [have been] exhausted." Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 726 (1st Cir.1984). But here, as we explain below, the state-law issues are extremely murky. Thus, on balance, we agree with the district court that it makes sense to resolve the jurisdictional question on constitutional grounds.

    In the first place, although logic suggests that, on these facts, the defendant cannot be said to have performed "an act" in Massachusetts, that suggestion is not easily reconciled with Murphy. There, we ruled that an allegedly tortious act committed outside the borders of Massachusetts, purposefully directed at the state and intended to cause injury there, could constitute an in-forum act within the meaning of section 3(c). See Murphy, 460 F.2d at 664. While Murphy can be distinguished on the ground that it was decided in the context of fraudulent misrepresentation, as opposed to defamation, 4 its interpretation of section 3(c) is worded in general terms and its reasoning conceivably could be transferred to the defamation context. Despite our profound reservations about extending the Murphy rationale, 5 it spreads a shadow of uncertainty over the state-law issues.

    In the second place, because we are skeptical that defendant made any remark "of and concerning" T-NY, we harbor doubts whether defendant can be said to have inflicted any "tortious injury" within the meaning of section 3(c). 6 We are, however, hesitant to move beyond an expression of skepticism. At this stage of the proceedings, appellant has not had the benefit of an evidentiary

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    hearing or a comparable opportunity (say, access to the full-dress summary judgment protocol after a reasonable period of discovery) for presenting proof. Thus, it may be too early to reach the state-law issues.

    To be sure, our reservations about one or both of these points might well be resolved upon closer perscrutation. But there is no need to sally forth. Because it is apodictic that...

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