USCA1 Opinion

June 3, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________

No. 92-2286
SCOTT MARTEL,
Plaintiff, Appellant,
v.
GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.
Defendants, Appellees.
_________________________
ERRATA SHEET
ERRATA SHEET

The opinion of the Court issued on May 25, 1993 is corrected

as follows:

On page 12, footnote 10, lines 13-16

replace with the
following: under applicable Maryland law, Martel would have had
to present his claim against the estate within nine months after
the date of the decedent's death. See Md. Est. & Trusts Code
___
Ann.
8-103(a)(1)(1991).

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 92-2286
SCOTT MARTEL,
Plaintiff, Appellant,
v.
GEORGE F. STAFFORD, ADMINISTRATOR, ETC., ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________

_________________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
_________________________

Kenneth J. Chesebro, with

whom Robert E. Manchester,
_____________________
______________________
Patricia S. Orr, and Manchester Law Offices, P.C. were on brief,
________________
____________________________
for appellant.
Christopher S. Williams, with whom Griffin & Goulka was on
________________________
_________________
brief, for appellees.
_________________________
May 25, 1993
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
as

a law

court's

school examination
dismissal

of the

This appeal could do double duty

question.

third

action

It follows

a district

brought by

plaintiff-

appellant

Scott

Martel

in

to

stay in

unsuccessful effort
damages

for

personal

accident.

the

has

court

injuries

Because

jurisdiction

what

been

consistently

long enough

sustained

district

in

to

an

court

recover

automobile

lacked

personal

over the sole defendant, a foreign executor sued as

such, we affirm.
I.
I.

BACKGROUND
BACKGROUND
Leaving to

morass

in

one side the seepage

which this

straightforward.
Vermont highway.

case is

mired,

On April 18,
Martel,

from the geographical

the prefatory

1985, an accident

facts are

occurred on a

a Vermont resident, sustained injuries

when an automobile in which he was riding collided with a vehicle

driven
who was

by Wilhelmina S. Parker.
in the process

perished two days

testate,

of moving

Pursuant

jurisdictions

into a new

located

to

appointed

resident, as executor.
Stafford

citizen of Maryland
home in

Vermont,

crash.

She died

later as an aftermath of the

owning property

Vermont.

Parker, a

exclusively in

her

will,

probate

George

F.

Stafford,

Maryland

courts
a

in

and

both

Massachusetts

Letters of administration were issued to

in Maryland on

May 22,

1985 and

letters testamentary

were issued to him in Vermont on August 19, 1985.

Martel seemed to
his rights.

It was

be in no

not until

particular hurry to

April 18, 1988

3

that he

assert

brought

identical

suits against Stafford in a Vermont state court and in

Vermont's

federal district

dismissed Martel's

court.

complaint as

the

applicable statute of

See
___

Vt.

Stat. Ann.

not commenced

course, each

court

time-barred on the

ground that

limitations pretermitted

the action.

tit. 12,

actions against an executor

if

In due

557(a) (1973)

(providing that

for acts of the decedent

within two

years of

are barred

the issuance

of letters

testamentary).
Undeterred,
statute

appellant

of limitations.1

diversity

action in

summary judgment

statute

of

jurisdiction,

and

granted the motion

elaboration.
II.
II.

search
22,

States District

bouillabaisse of
res

forum non

judicata,
conveniens.

of

1988, he

Over two years later,

on a

limitations,

in

On November

the United

District of Massachusetts.
for

went

longer
filed

Court for

the

Stafford moved

grounds, including

absence

of

personal

The district

on the basis of res judicata,

court

but offered no

This appeal ensued.2

ANALYSIS
ANALYSIS
While the

judicata,

we

are

____________________

district court
free to

affirm

invoked the doctrine

the

judgment

of res

below on

any

1Appellant also appealed the superior court's entry of

judgment, but to no avail. See Martel v. Stafford, 603 A.2d 345,
___ ______
________
346 (Vt. 1991) (affirming dismissal of Vermont action).

2During the pendency of the proceedings, Stafford died and

Marilyn S. Elias, the executrix of Stafford's estate, became a
party-defendant in this action.
See Fed. R. Civ. P. 25(a)(1);
___
Fed. R. App. P. 43(a).
Because Elias's arrival on the scene has
no bearing on the disposition of this appeal, we refer to
Stafford as if he were still alive and still the sole defendant.
4

independently
See Garside
___ _______

sufficient ground

made manifest

by the

record.3

v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990);

_______________

Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st

__________________
________________
Cir. 1987);

Chongris v. Board of Appeals, 811

________
_________________

(1st Cir.),

cert. denied, 483 U.S. 1021 (1987).

_____ ______

F.2d 36, 37

n.1

When, as now, a

potential jurisdictional defect rears its ugly head, an appellate

court

should

not

hesitate

to scrutinize

that

defect

before

proceeding further.

See Feinstein v. Resolution Trust Corp., 942

___ _________
______________________

F.2d

Cir.

34,

ordinarily

40

(1st

1991)

(stating

that

"courts

should

satisfy jurisdictional concerns before addressing the

merits of a

civil action").

Because jurisdiction

is the

most

natural and obvious starting point here, and because the district
court's rationale strikes us as problematic
that

a dismissal on limitations

the general rule is

grounds does not

bar the claim

generally, but only bars a second action in the same jurisdiction

or

in

jurisdiction that

limitations,

see, e.g.,
___ ____

Practice & Procedure

_____________________

would

apply

18 Charles
4441,

at 366

A.

the

same statute

Wright et
(1981)

of

al., Federal
_______

we

tackle

the

jurisdictional issue first.

A.
A.

Personal Jurisdiction over an Executor.

Personal Jurisdiction over an Executor.
______________________________________

Plaintiff sued only one defendant

Stafford

and sued

____________________

3This option has particular utility in the summary judgment

context, as a district court's entry of summary judgment entails
plenary appellate review.
See, e.g., Rivera-Muriente v. Agosto___ ____ _______________
_______
Alicea, 959 F.2d 349, 352 (1st Cir. 1992); Garside v. Osco Drug,
______
_______
__________
Inc., 895 F.2d 46, 48 (1st Cir. 1990).
____
5

him

solely

in his

capacity

as executor

With exceptions not pertinent here,

the law

of the forum

of

Parker's estate.4

the Civil Rules provide that

state determines a

representative party's

capacity to sue or be sued in a federal district court.

R. Civ. P. 17(b); see
___

also 6A Charles A. Wright et

____

Practice & Procedure

_____________________
Massachusetts

law

1565, at

governs

the

473

(2d

See Fed.
___

al., Federal
_______

ed. 1990).

determination

of

Thus,

whether

the

district court could lawfully exercise personal jurisdiction over

Stafford qua executor.
___
The

traditional

Massachusetts rule

executor or administrator

has been

appointed in another state

use the generic term "foreign executor"

that an

we shall

is not subject to

suit

in Massachusetts unless a statute dictates to the contrary.

See,
___

e.g., Saporita v. Litner,

____ ________
______
Trust Co. v.
_________

371 Mass. 607, 614 (1976);

Clarke, 291 Mass. 17, 23 (1935);

______

Me. R.R.,
________

283 Mass. 192, 195

67, 76-77

(1809); see also

___ ____

(1846)

(holding

that

Massachusetts); Langdon
_______
(same).

The

rule

personal

representative

Brown v. Boston &

_____
________

(1933); Borden v. Borden,

______
______
Gallup v. Gallup, 52
______
______
foreign

v. Potter,
______

stems from
is

Old Colony
__________

the

executor

Mass. 445, 447

cannot

11 Mass. 313,
concept that

creature

of

5 Mass.

the

sue

in

313-14 (1814)
a

decedent's
state

which

appointed him or

her, and, as

such, possesses

beyond the creator's boundaries.

no power to

act

See Saporita, 371 Mass. at 615;

___ ________

____________________

4At one point in the proceedings, plaintiff sought to amend

his complaint to name Stafford, individually, as a defendant.
The court below denied the motion. On appeal, plaintiff does not
assign error to this ruling.
6

Brown,
_____

283 Mass.

at

195;

Greyhound Lines, Inc.,

______________________
(dismissing action

see
___

148 F.

also
____

Derrick
_______

Supp. 496,

against foreign

v.

New England
____________

497 (D.

Mass. 1957)

executor on the

ground that

"even if he were present and served he represents the estate only

to the extent of

his Connecticut appointment, i.e., not

at all,

as [the appointment] has no extraterritorial effect").

The traditional rule
not without exceptions.
that

"the

rule has

not

like most traditional rules

See Saporita, 371 Mass. at

___ ________
been

rigidly applied"

certain common law exceptions).

There,

Massachusetts

resident

is

615 (noting

and

surveying

Saporita illustrates the point.

________
sued a

foreign

executor

to

recover

payment for

services

rendered to

Massachusetts Supreme

Judicial

court's

personal jurisdiction

exercise

primarily because
Massachusetts.
share

the testator

the

the two cases

over

in

The

state

the executor,

of contacts

with

both instances,

according to the

foreign

Massachusetts and was thus subject

there, and the decedent

approved

wealth

resemblance

will,

testator.

Although Saporita and this case

________

appointed the executor

decedent's

(SJC)

had a

See id. at 618.

___ ___

certain factual

foreign state
the

of

Court

the

executor

terms of

resided

in

to in-hand service of process

owned no real estate in

are more noteworthy

Massachusetts

for their dissimilarity

than

for their similitude.

In

Saporita,
________

Massachusetts.

the

See id. at
___ ___

sued had been made and

plaintiff
612-13.

worked

in

The contract upon which

she

performed there.

lived

and

See id.
___ ___

Moreover, the

testator's links

with Massachusetts

and practiced medicine

were pervasive;

there, considered Boston to

he resided

be his home,

and spent approximately seventy-five percent of each week

Commonwealth.

See id. at 611-12.

___ ___

the testator's contacts with

in the

In the last analysis, it was

Massachusetts that prompted the SJC

to relax the traditional rule and find personal jurisdiction over

the foreign executor.
"sufficient

The court

. to

allow

reasoned that, given

the

jurisdiction over [the testator],"

although appointed
and

worked

court

to exercise

and who

had

had himself lived

been served

there, would "not alter the court's jurisdiction."

The
Despite ample
no

case

before

us

personal

substituting an executor who,

in a foreign jurisdiction,

in Massachusetts

contacts

is

at

time for pretrial discovery,

in hand

Id. at 618.
___

considerable

remove.

the record discloses

relationship between the decedent and the forum state.5

aught

that

appears,

Parker

had

not

single

tie

From

to

____________________

5It is apodictic that a plaintiff bears the burden of

proving facts necessary to establish jurisdiction. See Donatelli
___ _________
v. National Hockey League, 893 F.2d 459, 468 (1st Cir. 1990). On
______________________
such an issue, a party faced with a motion for summary judgment
"must reliably demonstrate that specific facts sufficient to
create an authentic dispute exist." Garside, 895 F.2d at 48; see
_______
___
also Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676-78 (1st Cir.
____ ____
____________________
1992) (discussing standards for determining motions to dismiss
for want of personal jurisdiction that involve the court in
weighing evidence);
General Contracting & Trading
Co. v.
______________________________________
Interpole, Inc., 899 F.2d 109, 115 (1st Cir. 1990) (drawing
________________
analogy to Fed. R. Civ. P. 56 in connection with proving disputed
jurisdictional facts).
Thus, the absence of "relationship"
evidence at the summary judgment stage weighs heavily against
appellant.
As we have observed before, a litigant is always
chargeable with knowledge that his "decision to sit idly by and

allow the summary judgment proponent to configure the record is

likely to prove fraught with consequence."
Kelly v. United
_____
______
States, 924 F.2d 355, 358 (1st Cir. 1991).
______
8

Massachusetts.
state.

And, moreover,

Had Parker

the cause of action arose

survived and Martel attempted

out of

to sue in

the

Commonwealth, there is not the slightest reason to believe that a

Massachusetts court
person.

could

have obtained

Here, then, unlike in

jurisdiction over

her

Saporita, allowing the suit to go

________

forward based on the foreign executor's presence in Massachusetts

would significantly alter the jurisdictional calculus.
We have
confers personal

said enough.

Because the

Saporita exception
________

jurisdiction over a foreign

executor only when

the testator manifests sufficient contacts

with Massachusetts to

support the exercise of jurisdiction, not merely when the foreign

executor is
Parker's

within

behavioral

the

physical

patterns

reach of

assume

process

decretory

server,

significance.

Because she forged no links of any kind with Massachusetts in her

lifetime, her executor's Massachusetts
jurisdictional balance.

And

residency cannot tilt the

putting Stafford's residency aside,

appellant has
personal

identified no other state-law

jurisdiction.

Therefore,

we

must

Stafford,

like

nonentity, ergo,
the

state(s)

For our

apply

the

the

part, we

stereotypical

his

can envision

traditional

not amenable to

of

basis for grounding

rule.

foreign

Under it,

executor,

suit beyond the

appointment.

none.6

Giving

is

boundaries of
force

to

the

____________________

6The other exceptions to the traditional rule, see Saporita,

___ ________
371 Mass. at 615-17, are plainly inapposite, as are two state
statutes authorizing jurisdiction over foreign executors upon a
showing of sufficient decedent contacts with Massachusetts. See
___
Mass. Gen. L. ch. 90,
3A (1990); Mass. Gen. L. ch. 199A,
9
(1990).
9

Massachusetts
that

the

cases and

district

court

the policies
lacked

behind them,

personal

we conclude

jurisdiction

over

Stafford qua foreign executor.

___
We
indication

add a
that

longstanding rule

small
a

eschatocol.

Massachusetts

court

Absent some
would

persuasive

abandon

its

to find jurisdiction on these specific facts

an extremely dubious prospect given that

the lawsuit's center of

gravity

obviously lies

manufacture

elsewhere7

a basis for ignoring

we are

not at

the rule.

liberty to

We have repeatedly

warned that a plaintiff who, like Martel, selects a federal forum

in

preference to

federal

court

an available
to

steer

state forum
state

law

may not
into

expect the

unprecedented

configurations.

See, e.g., Catrone v. Thoroughbred Racing Ass'ns

___ ____ _______
__________________________

of N.A., Inc.,
______________

929 F.2d

Nutter, 913 F.2d 37,

______
875

881, 889

(1st Cir.

41 (1st Cir. 1990); Kassel

______

F.2d 935, 949-50 (1st Cir. 1989).

reshape

Massachusetts's judge-made

diversity court, with

1991); Porter
______

v.

v. Gannett Co.,
___________

While the SJC is free to

law, we

are not;

exceptions not germane to

rather, a

this case, must

take state law as it stands.

B.
B.
Appellant

Consent (Waiver).
Consent (Waiver).
________________

argues

that

jurisdiction of a Massachusetts

Stafford

consented

to

the

court, or, alternatively, waived

____________________

7We think it unlikely that the SJC would fashion a new

exception to an old and honored jurisdictional rule where, as
here, the plaintiff is a non-resident, the decedent had no
contacts with Massachusetts, the cause of action arose in another
place, and no discernible state interest would be served by an
assertion of jurisdiction.
10

his jurisdictional defense,8 by

means of statements contained in

United

States

There,

the defendant,

brief

filed

in the

District of

Vermont.

plaintiff's

threat

district

court,

Massachusetts

to bring

an

speculated

residency,

District

action
that,

the proper

Court for
in

response

in Maryland's
because

of

fall-back

the

to

federal

Stafford's

forum would

be

Massachusetts, not Maryland.

Appellant's
consent

to

basic

court's

in
__

premise
personam
________

is

sound:

jurisdiction

party

may

before

the

commencement of an action.

See, e.g., National Equipment Rental,

___ ____ __________________________

Ltd. v. Szukhent, 375 U.S.

____
________

311, 314-15 (1964); Pennsylvania Fire

_________________

Ins. Co.
________

v. Gold Issue Mining & Milling Co.,

_________________________________

243 U.S.

(1917); Holloway v. Wright & Morrissey, Inc., 739 F.2d

________
_________________________
(1st Cir. 1984).
be said to have

But,

consent to personal

occurred here.

buried, as they were,

93, 95

695, 699

jurisdiction cannot

The allegedly

consenting words,

in a responsive argument to

threat in a prior suit before a different court

a speculative

and concerning a

matter unrelated to that suit's determination, dealt with a topic

wholly separate
in

context,

the

from the issue of personal

language

to which

jurisdiction.

plaintiff

clings,

Taken

quoted

____________________

8Because the alleged conduct occurred beyond the confines of

the present suit, the argument may be more aptly phrased as
involving "consent" rather than "waiver."
We do not probe the
point, however, for the distinction is immaterial in this
situation. See General Contracting & Trading Co. v. Interpole,
___ _________________________________
__________
Inc., 940 F.2d 20, 22-23 & n.3 (1st Cir. 1991).
____
11

verbatim in the
________

margin,9 constituted no

that,

an

because

executor's

more than an

residence

controls

assertion
for

venue

purposes, see, e.g., Smith v. Harris, 308 F. Supp. 527, 528 (E.D.
___ ____ _____
______
Wis.

1970),

venue
_____

would

Notwithstanding appellant's
venue

and personal

consent

to a

likely

jurisdiction

a passing

are not

agreement

to appoint

must be

an

Massachusetts.

the two

concepts,

same.

Pre-suit

far more

clear and

the

remark directed to

Cf., e.g., National Equipment, 375

___ ____ __________________
with

in

effort to muddle

court's jurisdiction

unequivocal than

lie

another subject.

U.S. at 314 (equating consent

agent for

Petrowski v. Hawkeye-Security Ins. Co.,

service

of process);

350 U.S. 495, 496 (1956)

_________

_________________________

(holding that defendant's

waived

any

right

to

stipulation submitting to jurisdiction

contest

in
__

personam
________

jurisdiction);

Pennsylvania Fire Ins., 243 U.S. at 94-95 (holding that a foreign

______________________
corporation's
constitutes

registration
consent);

to

do

within

state

General Contracting & Trading Co.

_____________________________________

Interpole, Inc., 940 F.2d 20, 23

________________
plaintiff who

business

v.

(1st Cir. 1991) (ruling that a

purposefully avails himself of

a particular forum

surrenders jurisdictional objections to claims arising out of the

same transaction that are brought against him in the same forum).
Furthermore,
trial court
by

unlike,

say,

factual

pleadings, statements contained in

a party's attorney

in one case

allegations

in

briefs submitted

cannot routinely be

used in

____________________

9The exact words Stafford's counsel used were: "venue might

. . . be proper in the U.S. District Court for the District of
Massachusetts."
Defendant's Response to Plaintiffs's Reply
Memorandum, at 9 (July 26, 1988).
12

another case as evidentiary

admissions of the party.

See Hardy

___ _____

v. Johns-Manville Sales Corp., 851 F.2d 742, 745 (5th Cir. 1988);
__________________________

cf. Fragoso v. Lopez,

F.2d
,
(1st Cir. 1993), [No. 92___ _______
_____ ___
___ ___
2046,

slip

judgment, a

op.

at

21]

(holding

litigant may not rest

contained in a lawyer's brief).

achieve

binding

Kassel,
______

875 F.2d at

statements

force

in

that,

opposing

summary

upon freestanding allegations

And although such statements may

highly

unusual

952 n.17 (suggesting

contained in

in

a pro se
___ __

circumstances,

see
___

that specific factual

brief may

be used

in cross-

examining the author), we discern no such circumstances here.10

Having read the
it

reveals

no

word, act,

entire record with care,

or

omission

that

we find that

may properly

be

construed as consent to the jurisdiction of a Massachusetts court

or as a waiver

of any available defenses in that regard.

contrary, defendant
answer and

raised the

by motion,

and in

jurisdictional objection
his briefs

below and

Throughout, he made his point abundantly clear.

It

To the

in his

on appeal.

is a winning

____________________

10We think it is well to note that appellant has not claimed

that the venue-related allusion caused any detrimental reliance.
At any rate, such a claim would be bootless.
Maryland generally
views "the question as to which period of limitations applies" as
"a matter of procedural, not substantive, law." Turner v. Yamaha
______
______
Motor Corp., U.S.A., 591 A.2d 886, 887 (Md. Ct. Spec. App. 1991).
___________________
Thus, a court sitting in Maryland would apply Maryland's statute
of limitations. By July 26, 1988 (the date when Stafford served
the brief containing the controversial comment), Maryland's
three-year statute of limitations for civil actions, see Md. Cts.

___

& Jud. Proc. Code Ann.

5-101 (1992), had expired.
Plaintiff
has called no applicable tolling provision to our attention; and,
furthermore, under applicable Maryland law, Martel would have had
to present his claim against the estate within nine minths after
the date of the decedent's death.
See Md. Est. & Trusts Code
___
Ann.
8-103(a)(1) (1991).
13

point,

properly preserved,

never abandoned,

and sufficient

to

carry the day.

III.
III.

CONCLUSION
CONCLUSION
We need go

no further.11

As Massachusetts has

never

recognized personal jurisdiction over a foreign executor on facts

akin to those presented here, the action may not proceed.

Affirmed.
Affirmed.
________

Costs to appellees.
Costs to appellees.
__________________

____________________

11Since the jurisdictional issue is determinative, we take

no view of the intriguing choice-of-law questions that lurk in
the record or any of the other defenses Stafford advances.
14