USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________

No. 96-2170

ERNESTO ALERS RODRIGUEZ, ET AL.,

Plaintiffs, Appellees,

v.

FULLERTON TIRES CORP., ET AL.,

Defendants, Third-Party Plaintiffs, Appellants,

v.

CUSTOM METAL SPINNING CORPORATION, ET AL.,

Third-Party Defendants, Appellees.

________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Jaime E. Morales Morales

_________________________

and Pinto-Lugo & Rivera on brief

____________________

for appellant (third-party plaintiff).

Alfredo Fernandez Martinez and

____________________________

Martinez-Alvarez, Menendez
__________________________

Cortada & LeFranc Romero, PSC on brief for appellees (third-party

_____________________________
defendants).

_________________________

June 9, 1997

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Defendant

and

third-party

plaintiff

Fullerton

Tires

Corp.

(Fullerton)

appeals

from

district court order dismissing its third-party complaint against

Custom Metal Spinning

jurisdiction.1

Corporation (CMSC) for want of in personam

__ ________

Using the

parlance of

the trade,

Fullerton is

spinning its wheels.

This

Ernesto Alers

case

had

its genesis

in

or

before 1989

Rodriguez (Rodriguez), a resident

when

of Puerto Rico,

purchased two sand track tires from a Puerto Rican dealer who had

seen the tires advertised in a pamphlet distributed by

and had ordered a supply of them.

the

purchased tires

exploded

Fullerton

Some five years later, one

while being

inflated.

The

of

rim

snapped, severely injuring Rodriguez.

Invoking

diversity

jurisdiction,

28

U.S.C.

1332

(1994),

Rodriguez

district court.

CMSC

in

Puerto

Rico's

federal

filed a third-party complaint against

In due course, CMSC moved to dismiss the claim, alleging

lack of personal

Supp.

Fullerton

Fullerton

(the manufacturer of the rim used in Fullerton's sand track

tires).

The

sued

jurisdiction.

court obliged.

Rodriguez
_________

122 (D.P.R. 1996).

See Fed. R.
___

Civ. P.

12(b)(2).

v. Fullerton Tires Corp., 937 F.

______________________

After the court certified the judgment

____________________

1Fullerton Tires, Inc., an affiliated corporation, joined in

filing the third-party complaint.

That pleading named CMSC;

its

principals, Walter and Marianne Jenkins; and other individuals in

privity with
sake,

them as

we treat the

parties.

third-party defendants.
appeal as

if only

For simplicity's

Fullerton and

CMSC were

Because the jurisdictional argument is weaker as to the

individuals, our

decision disposes completely

of the

Fullerton

entities' attempts to sue CMSC and its privies in Puerto Rico.

in accordance with Fed. R. Civ. P. 54(b), this appeal ensued.

We

captures

legal

need

not linger.

the essence

of

The

the case

district court's

and applies

principles in an irreproachable

manner.

opinion

the controlling

Hence, we affirm

the judgment primarily on the basis of the opinion below.

We add

six comments.

First:

Fullerton

bemoans

the

district

court's

First:
_____

treatment of CMSC's

judgment.

motion to

dismiss as a

motion for

summary

We are unmoved by this jeremiad.

Motions to dismiss come under the aegis of Fed. R. Civ.

P. 12(b).

are

presented to and

motion

of

The rule states that

not excluded by

the court, the

[Rule 12]

shall be treated as one for summary judgment and disposed

as provided in

under

if "matters outside the pleading

Rule 56."

The

proper approach to conversion

this rule is functional rather than mechanical.

Rodriguez v.
_________

Puerto Rico Tel. Co.,

____________________

110 F.3d 174, 177

See Vega___ _____

(1st Cir.

1997); Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d
_____________________________
_______________

15,

18-19 (1st

Cir. 1992).

Here, CMSC attached

to its motion

several declarations ostensibly made under penalties of

perjury.

Given the specific language of Rule 12(b), the inclusion of these

materials with the motion

put the nonmovant, Fullerton, squarely

on notice that the court had the option of treating the motion as

one for summary judgment.

Of course,

summary judgment

opportunity

a motion

unless the

to present

cannot be

converted

adverse party is

all material

made

to one

for

given "reasonable

pertinent to

such a

motion by Rule 56."

Fed. R. Civ. P. 12(b).

requirement was satisfied.

April 29, 1996.

10,

1996.

CMSC

Here, however, that

filed its dispositive motion on

Fullerton did not file its opposition until July

During that

interval Fullerton, had

it chosen to do

so, could have served counter-affidavits, made other

submissions,

or sought leave to defer its response to the motion

until it had conducted jurisdictional discovery.

of these

tried

alternatives.

to meet

considered

the

the

Fullerton

Instead, it filed

motion head-on.

declarations

jurisdictional issue.

Since

evidentiary

had

in

It pursued none

an opposition

The district

its

court

determination

See
___

Rodriguez, 937
_________

ample

opportunity

F. Supp.

to

present

of

which

then

the

at 124-25.

pertinent

materials

in

opposition

incentive to do so,

in

impliedly

judgment.

889

to

CMSC's

motion,

we think that the court

converting

the motion

to

as

well

as

the

acted appropriately

motion

for summary

See American Express Int'l, Inc. v. Mendez-Capellan,

___ _____________________________
_______________

F.2d 1175, 1178 (1st

court's conversion

Cir. 1989) (finding

that the district

of a Rule 12(b)(2) motion to a Rule 56 motion

was proper); see also Vega-Rodriguez, 110 F.3d at 177 (explaining

___ ____ ______________

that

when extrinsic

materials

are proffered

and are

actually

considered by the nisi prius court, conversion is proper).

To

fairness might

exercise the

be sure,

require

we

can envision

special notice

conversion privilege.

Lowry, Rall, Barber & Ross, 585

_____________________________

circumstances in

of a

which

court's intent

to

See, e.g., Ohio v. Peterson,

___ ____ ____
_________

F.2d

454, 455-57

(10th Cir.

1978).

But this

is not such

a situation.

The district court

never

indicated that

refuse

to

district

infra, not
_____

consider

it

the

would eschew

proffered

exhibits.

court continued to apply the

some more

conversion or

grueling standard

otherwise

Moreover,

the

prima facie standard, see

___

indigenous to Rule

56.

Last, but not

CMSC's

least, Fullerton

account

attacks the

of

the

to this day

relevant

circumstances,

legal significance of certain

to contradict

them.

does not

challenge

but,

rather,

facts without seeking

Consequently, the application

of Rule

56

produced no perceptible unfairness here.

Second:
Second:
______

the

forum court

defendant.

It is the plaintiff's burden to establish that

has jurisdiction

court

145 (1st Cir.

can use

1995).

the sued

v. Babcock & Wilcox Canada, 46

________________________

There

in determining

jurisdiction is lawful.

the

person of

See Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir.

___ ________
_______

1995); Foster-Miller, Inc.

___________________

138,

over the

are several

preponderance standard,

standards that a

whether the exercise

These include

and the

F.3d

of personal

the prima facie standard,

likelihood standard.

See

___

Boit
____

v. Gar-Tec Prods., Inc.,

_____________________

1992).

We

have no

differences among

influence a

967 F.2d

occasion

today

these approaches

court's

choice

to

671, 675-78

to

or

use one

(1st Cir.

delineate either

the considerations

standard

rather

the

that

than

another at a particular stage of the litigation.

For present purposes, it suffices to say that the least

taxing of

one

these standards from a plaintiff's standpoint, and the

most commonly employed in the early stages of litigation, is

the prima

facie standard.

Under it, a suitor, in order to stave

off defeat, "must

satisfy both

make the showing as to

the forum's

long-arm statute

clause of the Constitution."

quotation marks

omitted).

standard, a district

contrary, it

See
___

id.
___

appellate

support the

and the

Id. at 675 (citation

___

When it

employs

court does not act as a

ascertains only

fully credited,

every fact required to

the

due process

and internal

prima

facie

factfinder; to the

whether the facts

exercise of personal

duly proffered,

jurisdiction.

Because this is a quintessentially legal determination,

review is

plenary.

See
___

Ticketmaster-N.Y., Inc.
_______________________

v.

Alioto, 26 F.3d 201, 204 (1st Cir. 1994).

______

In the

case at

apply the prima facie

did

hand, the

district court

standard and made a determination

not have in personam jurisdiction over CMSC.

__ ________

937 F.

Supp.

purposed to

at 124-25.

Citing

that it

See Rodriguez,
___ _________

Foster-Miller, the
_____________

appellant

complains

that the court erred because it failed to give advance

notice as

to which of

the three

standards it would

utilize in

resolving the jurisdictional issue.

This protest

There,

we vacated

distorts the rationale

dismissal

when

of Foster-Miller.
_____________

the trial

court,

having
______

advised counsel that it would apply the prima facie standard,

________________________________________________________________

shifted

gears

without

warning

and

applied

more

rigorous

standard.

court

46 F.3d at 143.

should "alert

scrutiny

the

We said in that context that

__ ____ _______

parties in

advance

to the

a trial

level

of

that it will apply to the pending motion [to dismiss]."

Id. at 151.
___

But the instant

case is at a considerable

remove from

Foster-Miller.
_____________

steered

Here, the

a steady

standard.

We

will

course and

believe

notice that motions

signals remained constant;

forthrightly applied

that all

litigants

the court

the baseline

effectively are

on

to dismiss for want of personal jurisdiction

be adjudicated under

the prima

facie standard

unless the
______

court informs them in advance that it will apply a more demanding

test.

Thus, the court below was under no obligation

to give the

appellant special notice that it would conduct business as usual,

any

more

than a

directed verdict,

court,

before passing

would have

to

upon

give advance

motion for

warning that

it

intended to apply the customary complex of legal rules.

The

insisting

appellant

that the

lower

tries

to

avoid

court, despite

this

conclusion

using the

by

vocabulary

associated

with prima

facie showings,

pass a higher level of scrutiny.2

actually required

it to

Were the court guilty of such

tergiversation, the appellant would

have a legitimate grievance.

See Foster-Miller, 46 F.3d at 150-51.

___ _____________

But the accusation

support for it

record.

in the lower court's opinion or

CMSC's

buttressed by

here is merely bombast;

assertions

anent

we find no

elsewhere in the

jurisdictional

facts

were

declarations made on personal knowledge; Fullerton

____________________

2In Boit, we noted that "an opinion using the terminology of

____
`prima facie'
e.g.,
____

showing may fairly be read as requiring a bit more

that the plaintiff present plausible evidence tending to

show that the court has jurisdiction."

(citation and internal quotation
(if

marks omitted).

any) that Judge Casellas' opinion

we do not deem

Boit, 967 F.2d at 675 n.2

____
To

the extent

falls into this category,

it to have deviated in any

material way from the

prima facie standard.

did

time

nothing to

to do

consistent

true.

rebut or dispute

so; and

the lower

these facts,

despite abundant

court therefore

had

the right,

with the prima facie standard, to take these facts as

The court's opinion plainly indicates that it reviewed the

materials

credibility

presented

and

judgments,

passed

resolving

upon

them

without

evidentiary

essaying

conflicts,

or

otherwise

making findings of fact.

Supp. at 124-25.

court

See, e.g., Rodriguez, 937 F.

___ ____ _________

In short, Fullerton's claim that

surreptitiously

applied

more

stringent

the district

degree

of

perscrutation than that typically associated with the prima facie

standard is totally unsubstantiated.

Third:
Third:
_____

third-party

Taking as true

complaint,

as

the specific averments

supplemented

by

the

of the

declarations

attached to CMSC's motion, the factual scenario is not in serious

dispute.

CMSC sold rims to Fullerton (presumably in California,

where both corporations

that Fullerton would

for

maintained their headquarters),

incorporate them into tires and

sale in distant markets.

knowing

offer them

Fullerton, in turn, sent brochures

to

Puerto

Rico

among

publications which

filled

orders

obtained

leased,

directly

from

advertised

in

or

through

or otherwise

used an

Based on

The

never

record

and

confirms,

applied

there, and

office or

these facts, the

national

business in Puerto

agents),

do business

in

the Commonwealth,

there.

never conducted any

authorization to

Commonwealth.

places,

were disseminated

emanating

however, that CMSC

(either

other

Rico

for

or

never owned,

other property

district court

in the

found

that

CMSC was not amenable to suit

in Puerto Rico.3

See id. at
___ ___

128.

In this venue, Fullerton argues, as it did

CMSC, by

placing

commerce,

its

transacted

product into

business

in

the

stream

Puerto

satisfy the minimum contacts requirement.

wash.

into the stream

defendant

is

insufficient

interstate

sufficient

directed toward

to

support

to

480 U.S. 102

held that the "placement of

of commerce, without more, is not

purposefully

of

This argument will not

In Asahi Metal Indus. Co. v. Superior Ct.,

_______________________
____________

(1987), the Supreme Court

thus,

Rico

below, that

the forum

claim

a product

an act of the

State," and,

of

personal

jurisdiction.

Id. at 112
___

that

specific knowledge

CMSC had

would move

evidence

(plurality opinion).

its tire rims into Puerto Rico

nor allegation

to that

would not be enough to constitute

is necessary for a showing

is still

has

that the

effect

stream

assuming

of commerce

and there is neither

this

awareness alone

the purposeful availment which

of minimum contacts.

good law, see Boit,

___ ____

Even

967 F.2d at

See id.
___ ___

Asahi
_____

681-83, and Fullerton

failed to direct us to any persuasive authority supporting a

contrary view.

Fourth:
Fourth:
______

The appellant's

next argument deserves

high

____________________

3The lower court determined that the appellant

the requisite

jurisdictional showing

under

had not made

either the

federal

Constitution,

see
___

Ticketmaster, 26
____________

constitutional minima), or Puerto

F.3d at

Rico's long-arm statute,

Laws Ann. tit. 32, App. III, Rule 4.7(a)

937 F.

Supp. at 124.

district

204-12 (describing

(1989).

P.R.

See Rodriguez,
___ _________

Although we agree with both aspects of the

court's holding,

we

couch our

ensuing discussion

in

terms of the constitutional requirement.

marks

for ingenuity, but otherwise

rates a failing

grade.

The

argument features a suggestion that the specific nature of CMSC's

product

tire rims designed for use with sand track tires

made

it

foreseeable that

Rico,

an

beaches

island

ideal for

CMSC could

ecosystem

be amenable

containing an

dune buggies

and other

to suit

abundance

in Puerto

of

sandy

sandworthy vehicles.

This argument proves too much.

Sand, a

disintegration

gravel

of

loose granular material that

rocks,

consists of

but larger than silt.

the ice

caps of

acres.

See
___

Geography
_________

Richard

50 (2d

Jackson

ed. 1986).

particles

The earth's

Greenland and

results from the

smaller

land mass (excluding

Antarctica) totals

& Lloyd

This

than

Hudman,

32.1 billion

World Regional
_______________

total includes

4.2 billion

acres of desert and 1.7 billion acres of soil comprised primarily

of

sand.

See id.
___ ___

at 51.

Put another way, roughly

world's land surface is covered with sand.4

18% of the

Subjecting a manufacturer to suit in Puerto Rico merely

because its

product is designed for use in sand would offend the

constitutional

principles

exercise jurisdiction.

life

that

limit

Under such

state's

a regime, a

preservers automatically would be subject

jurisdiction

whose

boundaries included

an

authority to

manufacturer of

to suit in every

ocean,

a river,

____________________

4This

figure is not static

as many of

the world's regions

are experiencing desertification, a process commonly described as

the slow encroachment of fertile lands by arid

soils.

See David
___

Hastings, GIS Techniques Using NOAA Data Improve Monitoring of

_______________________________________________________
Desertification (visited May 12, 1997)

10

seg/globsys/gisd

stream, a lake, a pond, or a swimming pool.

manufacturer

worldwide.

109-12

of

air

conditioners

would

This surely is not the law.

(imposing

reasonableness

By the same token, a

be

subject

to

suit

See Asahi, 480 U.S. at

___ _____

requirement

in

respect

to

foreseeability).

Fifth:
Fifth:
_____

Fullerton

sought

proffering a

Following

the

granting

reconsideration,

copy of a

Dun and

Fed.

of

R.

CMSC's

Civ.

motion,

P.

Bradstreet credit report.

59(e),

The

district court refused reconsideration,

reverse this ruling.

This ground of appeal lacks force.

A district court's ruling on

reviewable only for

States, 993 F.2d

______

Line Co.,
________

abuse of

a motion to reconsider is

discretion.

See
___

Cotto v.
_____

(1st Cir. 1993);

Appeal of Sun Pipe

___________________

831 F.2d 22, 25

(1st Cir. 1987).

The "new" document

as newly

States, primarily

the Dun and Bradstreet report

discovered evidence.

indicates only that

More

CMSC serves a market comprising

California."

That sort of

directed

to

significant fashion.

particular

place

in

hardly

importantly, it

the "United

broad generality

has very little bearing on whether a defendant's activities

been

United
______

274, 277

that Fullerton proffered

qualifies

and Fullerton asks us to

have

jurisdictionally

In essence, then, the belatedly proffered report did no

more than confirm what the court already knew

its

that CMSC

product into the stream of interstate commerce.

circumstances,

the

court's

rejection

of the

placed

Under these

motion

did

not

constitute an abuse of discretion.

11

Sixth:
Sixth:

The appellant's motion for reconsideration also

_____

requested

permit

which

that the lower court

discovery on

had

not been

the

delay the entry

jurisdictional issue.

made earlier,

was

1973).

Therefore,

declining to honor it.

Affirmed.
Affirmed.
________

This

untimely.5

Whittaker Corp. v. United Aircraft Corp.,

________________
______________________

(1st Cir.

of judgment and

request,

See, e.g.,
___ ____

482 F.2d

1079, 1086

the district court did

not err in

____________________

5Fullerton entered
March

27, 1995.

its appearance in the

district court on

It brought a third-party complaint against CMSC

on December 27, 1995.

CMSC did not file its Rule 12(b)(2) motion

until April of 1996 and Fullerton did not respond until July.
this timetable

illustrates, the appellant had

As

ample opportunity

to initiate discovery before the district court acted upon CMSC's

motion.

12