USCA1 Opinion

UNITED STATES COURT OF APPEALS

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

_________________________

No. 96-2173

SUNVIEW CONDOMINIUM ASSOCIATION, ET AL.,

Plaintiffs, Appellants,

v.

FLEXEL INTERNATIONAL, LTD.,

Defendant, Appellee.
_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

[Hon. James R. Muirhead, U.S. Magistrate Judge]

_____________________

_________________________

Before

Selya, Circuit Judge,

_____________

Cyr, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________
_________________________

Christopher J. Sorenson, with whom Gary J. Gordon, Katherine

_______________________
______________ _________

A. Killen Hall,
_______________

Fetterly & Gordon, P.A.,

________________________

John L. Putnam, and

_______________

Stebbins, Bradley, Wood & Harvey were on brief, for appellants.

________________________________
Mark G. DeGiacomo,
__________________

with

whom M. Carolina Avellaneda

_______________________

Roche, Carens & DeGiacomo, P.C. were on brief, for appellee.

_______________________________

_________________________

June 27, 1997

_________________________

and

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

make two related arguments.

improperly precluded from

Second,

appeal, the plaintiffs

First, they contend that

undertaking jurisdictional

they assert that this

the district

In this

discovery.

initial error was compounded when

court subsequently dismissed their

of jurisdiction over

they were

the corporate person

Flexel International, Ltd. (Flexel).1

action for want

of defendant-appellee

Discerning no

reversible

error, we affirm.

I.
I.

BACKGROUND
BACKGROUND

The Sunview Condominium

serene

1993,

Complex is located amidst

pastoral beauty of Derry, New Hampshire.

that

tranquility

went

up

in

smoke,

the

On December 17,

literally

figuratively, when a conflagration erupted at the complex.

and

Those

flames,

in turn,

ignited the

controversy which

underlies this

heating panels

manufactured by

appeal.

Alleging

Flexel's

predecessor in interest, Thermaflex International, Ltd.

(Thermaflex),

Association

Inc.

that radiant

had

caused

and its

the

blaze, the

management

(collectively, Sunview),

Sunview

Condominium

company, Evergreen

Management,

brought

this

product

liability

both

Flexel and

class action to recover damages.2

____________________

1The

plaintiffs

International,
the

originally

Ltd. (Aztech).

district court

against Flexel as

certified

sued

Aztech

Aztech

is now in bankruptcy, and

its order

dismissing the

a final judgment under Fed.

action

R. Civ. P. 54(b).

Thus, we treat the appeal as if Flexel were the sole defendant.

2Sunview alleges that Thermaflex (the actual manufacturer of

the heating panels) transferred its assets to Flexel in mid-1993.

For the purpose of resolving the jurisdictional issue,
court assumed
the

arguendo that
________

successor in interest to

Flexel, a Scottish

the lower

corporation, is

Thermaflex, an English

firm.

We,

The

commenced

moved

having

relevant

its suit

to dismiss

chronology

in August

for

undertaken any

want of

is

1995.

as

In February

other discovery,

cold shoulder, Sunview moved to

Sunview

1996, Flexel

personal jurisdiction.

Sunview sought

depositions of Flexel officials in Scotland.

follows.

Without

to take

When Flexel turned

compel it to cooperate in the

taking

of the

desired depositions.

denied

Sunview's motion.

Int'l, Ltd., Civ.

___________

See
___

Magistrate

Judge Muirhead

Sunview Condo. Ass'n

_____________________

No. 95-418-B, slip

v. Aztech
______

op. at 2-6 (D.N.H.

May 1,

1996).

Sunview did not lodge

an objection to the magistrate's

ruling.

On May 28, 1996, it filed an opposition to the dismissal

motion.

On September

of

3, the district court, finding

minimum contacts, granted the motion to dismiss.

an absence

This appeal

ensued.

II.
II.

ANALYSIS
ANALYSIS

Although

interconnected,

each

instance.

Sunview's

a separate

two

set of

Consequently,

claims

of

legal principles

we

treat

the

error

are

applies in

two

claims

sequentially.

A.
A.

Denial of Jurisdictional Discovery.

Denial of Jurisdictional Discovery.
__________________________________

Sunview

permitted

to

asseveration has

argues

engage

heatedly

in

that

it

jurisdictional

some superficial appeal.

too, proceed on that assumption.

have

discovery.

been

This

After all, a diligent

plaintiff who sues an out-of-state corporation

____________________

should

and who makes out

a colorable case

for the existence

of in personam
__ ________

jurisdiction

may

well be entitled to a modicum of jurisdictional discovery if

the

corporation

Whittaker Corp.
_______________

interposes

jurisdictional

v. United Aircraft Corp.,

______________________

defense.3

482 F.2d 1079,

(1st Cir. 1973); Surpitski v. Hughes-Keenan Corp.,

_________
___________________

255-56 (1st Cir. 1966) (per curiam).

absolute; in all

reasonably

events, it

See
___

1086

362 F.2d 254,

But that entitlement is not

presupposes that

the plaintiff

attentive to the preservation of its rights.

is

That is

not the situation here.

When

Muirhead

Sunview

could

not

to approve the depositions

convince

Magistrate

that it wished

Judge

to take, it

dropped

the matter.

Specifically,

it eschewed the

filing of a

timely objection to

the magistrate's order denying its motion to

compel discovery.

This omission

assignment of error.

Since

the

is fatal

to Sunview's

first

We explain briefly.

motion

to

compel

discovery

nondispositive matter, the magistrate's order

involved

was effective when

made, and it was therefore immediately appealable to the district

court.

See 28 U.S.C.
___

636(b)(1)(A).

To receive

such review, a

____________________

3This rule

has its limitations.

See,
___

e.g., Compagnie De
____ _____________

Bauxites De Guinee v. L'Union Atlantique S.A., 723 F.2d 357, 362

___________________
_______________________
(3d Cir. 1983)

(indicating that discovery

may be disallowed

the assertion of jurisdiction appears frivolous).

when the rule applies, the plaintiff is
to take

depositions.

Here,

if

Moreover, even

not necessarily entitled

Sunview never

attempted to

learn

jurisdictional

facts

through

interrogatories

document production, see Fed. R.

___

or

demands

Civ. P. 33, 34, and we

for

have no

way to tell either how effective these less intrusive devices may
have been or to

what extent Flexel would have

sought protection

from them (and if so, whether the magistrate would have permitted
their use).

party must file objections within ten days from service of a copy

of the order.

See Fed. R. Civ. P. 72(a).

___

Unless an objection is

filed within this window of opportunity, a magistrate's

order on

a nondispositive matter, such as a self-operating order granting,

denying,

or

reviewable on

limiting

appeal.

pretrial

See
___

(1st Cir. 1993); see also

___ ____

271, 275 (1st Cir.

respect

to a

magistrate's

discovery,

is

Pagano v. Frank,
______
_____

not

thereafter

983 F.2d

343, 346

Keating v. Secretary of HHS,

_______
________________

848 F.2d

1988) (per curiam) (explicating same

party's failure

to file

recommended disposition

rule in

timeous objections

of a

to a

dispositive motion).

The Civil Rules are quite explicit on this point:

Within 10 days after being served with a copy

of the magistrate judge's
serve and

file objections

party may not

defect in

the

order, a party may

to

the order;

as error

order

to

thereafter assign
magistrate judge's

which objection was not timely made.

Fed.

R. Civ.

P.

72(a);

see
___

also
____

28

U.S.C.

636(b)(1)(A)

(empowering

the district

magistrate's

court

to reconsider

order on a nondispositive

and set

aside a

matter when the order is

clearly erroneous or contrary to law).

This

court has

applied

72(a) straightforwardly and

Pagano,
______

983 F.2d at 346;

the plain

in accordance with

directive of

Rule

its tenor.

See
___

Unauthorized Practice of Law Comm. v.

___________________________________

Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992) (per curiam); see also
______
___ ____

United States
_____________

curiam) (citing

unambiguously

review

v. Ecker,
_____

28 U.S.C.

for

923

F.2d 7,

(1st Cir.

636(b)(1)(A)).

the proposition

of a magistrate's order

that,

These

in

(per

cases stand

order to

on a nondispositive

1991)

receive

matter in a

court of

appeals, the

aggrieved

party first

must have

sought

district court review by timely filing an objection to the order.

The instant

from this salutary

case presents no occasion

proposition.

for a departure

Because Sunview never sought to

have the district court review the magistrate's ruling, the issue

of jurisdictional discovery is

by the boards and Sunview

resurrect it in this venue.

B.
B.

Dismissal for Want of Jurisdiction.

Dismissal for Want of Jurisdiction.

cannot

__________________________________

Sunview argued below, as it does here, that Thermaflex,

Flexel's predecessor in interest,

availed

itself

of

the

Hampshire,

and therefore

successor)

to

suits in

privilege

Sunview

had pointed

to

of

doing

subjected itself

New Hampshire

Hampshire-directed activities.

thesis, holding, after an

see supra note 2, purposefully

___ _____

business

in

(and Flexel,

arising

Judge Barbadoro

out of

New

as its

its New

rejected

this

exhaustive review of the record,

that

"insufficient

contact[s] to

establish

Thermaflex's

purposeful availment of New Hampshire as a place to

do business."

Sunview Condo. Ass'n v. Aztech Int'l, Ltd., Civ.

_____________________
___________________

No. 95-418-B,

slip op. at

10 (D.N.H.

assigns error to this order.4

Sept. 3, 1996).

We see none.

Sunview

To wax longiloquent would serve no useful purpose.

have

We

stated before, and today reaffirm, that "when a lower court

produces

a comprehensive,

well-reasoned decision,

an appellate

____________________

4Because Sunview

never

raised the

discovery issue

before

Judge Barbadoro, see supra Part II(A), we pay no heed to its vain
___ _____
attempt to attack

the judge's

order on the

discovery.

basis of

curtailed

court should refrain from writing at length to no other end

to

hear its

own words

resonate."

Lawton v.
______

Assur. Co. of Am., 101 F.3d 218, 220 (1st

__________________

State Mut. Life

________________

Cir. 1996); accord In

______ __

re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d

__________________________________________

Cir.

1993).

Barbadoro's

That

principle

rescript cites

the

is

than

dispositive

relevant case

36, 38 (1st

here.

Judge

law, see,
___

e.g.,
____

Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Foster-Miller,

________
_______
______________

Inc. v.
____

Babcock & Wilcox Canada, 46

________________________

Ticketmaster-N.Y., Inc. v.
_______________________

Boit
____

Alioto, 26 F.3d 201

______

v. Gar-Tech Prods., Inc.,

______________________

applies the legal principles

F.3d 138 (1st

967 F.2d

Cir. 1995);

(1st Cir. 1994);

671 (1st

Cir. 1992),

derived therefrom to the documented

facts in an impeccable manner, and reaches an

conclusion.

appeal

Hence, we

dispense with

for substantially

the

unarguably correct

this aspect of

reasons elucidated

Sunview's

in the

lower

court's opinion.

We

need go

no

further.

Given Sunview's

default on the discovery front and the paucity of

the merits of

be

Affirmed.
Affirmed.
________

the jurisdictional issue, the

procedural

its proffer on

judgment below must