Evans Cabinet Corp. v. Kitchen International, Inc.

           United States Court of Appeals
                      For the First Circuit

No. 08-2579

                    EVANS CABINET CORPORATION,

                       Plaintiff, Appellant,

                                v.

                   KITCHEN INTERNATIONAL, INC.,

                       Defendant, Appellee.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Joseph L. Tauro, U.S. District Judge]



                              Before

                        Lynch, Chief Judge,
               Torruella and Ripple,* Circuit Judges.



     Charles K. Reed, with whom P. Michael Freed, McKenna Long &
Aldridge, LLP, Alex C. Gianacoplos, and Duggan & Caccavaro, were on
brief, for appellant.
     Edward J. Fallman, for appellee.



                         February 3, 2010




     *
         Of the Seventh Circuit, sitting by designation.
            RIPPLE,   Circuit   Judge.      Evans   Cabinet     Corporation

(“Evans”) instituted this diversity action in the United States

District Court for the District of Massachusetts against Kitchen

International, Inc. for breach of contract and quantum meruit.1

Kitchen International filed a motion to dismiss based on res

judicata.   It claimed that the action was foreclosed because of an

earlier judgment entered by the Superior Court of Québec.           After a

hearing on the motion to dismiss, the district court determined

that the arguments went beyond the pleadings.              After allowing

limited discovery and converting the motion to one for summary

judgment, the court entered judgment for Kitchen International.

Evans filed a timely appeal to this court.2

            For the reasons set forth in the following opinion, we

reverse   the   judgment   of   the    district   court   and   remand   for

proceedings consistent with this opinion.




     1
        The district court had diversity jurisdiction over this
contract dispute pursuant to 28 U.S.C. § 1332. Evans is a Georgia
corporation with its principal place of business in Dublin,
Georgia. Kitchen International is a Louisiana corporation with its
principal place of business in Montreal, Québec.
     2
       This court has jurisdiction over the final decision of the
district court pursuant to 28 U.S.C. § 1291.

                                      -2-
                                 I

                             BACKGROUND

           According to the allegations of the complaint, Kitchen

International and Evans entered into a contract in 2004.3     Evans

agreed to supply Kitchen International with manufactured cabinetry

for several residential construction sites on the East Coast of the

United States.   Kitchen International placed these orders from its

headquarters in Montreal with the Georgia offices of Evans.    The

materials were shipped directly to the construction sites.

           According to Kitchen International, in 2004, the two

parties also agreed that they would create a products showroom at

Kitchen International’s office in Montreal.   Kitchen International

claims that Paul Gatti of Evans approved the design and layout of

the showroom. According to Kitchen International, later that year,

Evans manufactured and shipped cabinetry, related products and

sales and promotional materials to Québec for use in the showroom.

Evans denies the existence of such an agreement; it claims that it

never authorized Kitchen International to build a showroom and that

it did not supply products to Kitchen International for that

purpose.

           Various issues arose about the quality and conformity of

the products that Evans had shipped to the East Coast projects.



     3
       The record does not include a copy of this contract or any
information about the circumstances surrounding its formation.

                                -3-
Consequently, in May 2006, Kitchen International engaged a Canadian

attorney to file suit against Evans in the Superior Court of Québec

for breach of contract arising from the materials supplied by

Evans.   Evans was served with process and given notice of this

proceeding.        Evans did not answer or otherwise respond to the

action, and, consequently, on May 31, 2007, the Superior Court of

Québec entered a default judgment against Evans in the amount of

$149,354.74.

             On April 23, 2007, Evans instituted this action for

breach of contract and quantum meruit in the United States District

Court for the District of Massachusetts.               Kitchen International

filed a motion to dismiss on the ground that the action was barred

by res judicata by virtue of the Canadian judgment against Evans.

Evans opposed the motion on the ground that the Superior Court of

Québec had lacked jurisdiction over it, and, therefore, the Québec

judgment could not be recognized by the district court.

             During a hearing on Kitchen International’s motion to

dismiss, the district court realized that the issues being argued

went beyond the pleadings.         It therefore stated that the motion

should be converted to one for summary judgment and allowed the

parties ninety days to conduct limited discovery on the issue of

the Superior Court of Québec’s jurisdiction over Evans.             On March

4,   2008,   the    district   court   resumed   the    hearing.   The   only

additional documents supplied by either party were affidavits from


                                       -4-
their       principals.      On   November    4,    2008,   the   district   court

converted Kitchen International’s motion to a motion for summary

judgment and dismissed the case.             The court first determined that,

because       it   was     sitting    in     diversity,      it    should    apply

Massachusetts’s version of the Uniform Foreign Money-Judgments

Recognition Act (“Recognition Act”) to determine whether it should

enforce the Québec judgment.4         In order to enforce a judgment under

the Recognition Act, the court continued, the Québec court must

have been able to exercise personal jurisdiction over Evans.

               At the beginning of its analysis, the district court

observed that “jurisdictions have split over whether to apply the

personal jurisdiction law of the rendering country, the forum

state, or both.”          Evans Cabinet Corp. v. Kitchen Int’l, Inc., 584

F. Supp. 2d 410, 414 (D. Mass. 2008).              Because the Supreme Judicial

Court of Massachusetts had not chosen between these views, the

district court decided that it would scrutinize the jurisdiction of

the Québec court under both the law of Québec and the law of

Massachusetts.       Turning first to the law of Québec, the district

court noted that Kitchen International had attached the affidavit

of its Canadian attorney to establish that Québec’s exercise of

jurisdiction was appropriate.          The district court determined that

the affidavit clearly established that Kitchen International had


        4
       Massachusetts’s version of the Recognition Act is codified
at Massachusetts General Laws chapter 235, § 23A. The statute is
reprinted in the attached appendix.

                                       -5-
the right to institute a lawsuit in Québec.              However, it found the

affidavit deficient on the issue of “whether the Quebec Superior

Court   properly     exercised    personal       jurisdiction       over   [Evans]

pursuant to article 3136 of the Civil Code of Quebec.”                Id. at 415.

It noted, however, that the United States District Court for the

Southern District of New York had determined that the Québec court

could exercise personal jurisdiction over a defendant if the

contract at issue had been “‘concluded in Quebec or if the cause of

action arose in Quebec.’”        Id. (quoting Canadian Imperial Bank of

Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1253 (S.D.N.Y.

1995) (emphasis in original)).                Based on that authority, the

district court concluded that the Superior Court of Québec properly

had exercised personal jurisdiction over Evans pursuant to the law

of Québec.

            The    district     court     then       turned    to   the    law    of

Massachusetts. The court first noted that Massachusetts courts had

interpreted the Commonwealth’s long-arm statute “as an assertion of

jurisdiction      over   the   person    to    the    limits    allowed    by    the

Constitution of the United States.”            Id. (internal quotation marks

omitted).    The district court then held:

                    The Quebec Superior Court’s exercise of
            personal jurisdiction over Plaintiff did not
            contravene traditional notions of fair play
            and substantial justice.         Plaintiff had
            several contacts with Quebec. All the orders,
            communications, payments, correspondence and
            dealings    between   [the]   Parties  occurred
            through      Defendant’s    Montreal    office.

                                        -6-
          Moreover, Parties agreed to create a product
          showroom at Defendant’s Montreal office, which
          was ultimately constructed.    The purpose of
          this showroom was to display Plaintiff’s
          products to potential customers and sales
          agents from Canada and New England. Because
          under either Quebec or Massachusetts law the
          Quebec Superior Court properly exercised
          personal    jurisdiction    over    Plaintiff,
          Plaintiff’s argument that the Quebec default
          judgment is not conclusive fails.

Id. at 416 (internal quotation marks omitted).

          The court then turned to the question of whether Evans’s

claims were barred by the Québec judgment.       The district court

determined that, although Massachusetts supplies the applicable res

judicata law, “a Massachusetts court must give a prior judgment the

same finality it would receive in the rendering jurisdiction.” Id.

at 417.   Consequently, the court employed Québec rules of res

judicata to determine whether the default judgment should be given

preclusive effect.   Id. (citing Québec civil code and a Supreme

Court of Canada decision).   The court then concluded that Evans’s

suit was barred by these rules:

                 Here, the Quebec default judgment
          precludes the relitigation of Plaintiff’s
          claim. Because a default judgment is a final
          judgment under the Recognition Act, the Quebec
          default judgment qualifies for res judicata
          treatment.   First, this action involves the
          same cause of action--breach of contract--as
          the Quebec proceeding.       Second, as both
          Parties stipulated in open court, this action
          involves the same construction projects as
          were at issue in the Quebec proceeding.
          Third, the parties to this action were the
          same parties to the Quebec proceeding, with


                                  -7-
              the only difference being that Plaintiff here
              was the defendant in Quebec.

Id.     The    district    court,    therefore,    held    that   res   judicata

precluded the present action and entered summary judgment for

Kitchen International.

                                        II

                                    DISCUSSION

A.    Contentions of the Parties

              Evans submits that the district court erred in holding

that its claim for damages for breach of contract or in quantum

meruit were barred because of the prior default judgment entered

against it by the Superior Court of Québec.               In Evans’s view, the

Superior Court of Québec lacked personal jurisdiction over it, and,

consequently,     the     default   judgment     was   unenforceable     and   not

subject to recognition by the district court.                 Noting that the

district court applied a summary judgment standard in determining

whether the Québec court properly exercised jurisdiction, Evans

submits that there are significant unresolved factual questions

concerning     the   nature   of    Evans’s    relevant    contacts     with   the

Province of Québec. Evans contends that, if the district court had

taken the facts in the light most favorable to its position, as the

district court must do in the context of summary judgment, there

would be no basis for concluding that the Québec court could

exercise personal jurisdiction over it.



                                       -8-
           Kitchen International takes a decidedly different view.

It   submits   that   the   Québec   judgment    must   be   recognized   and

precludes the present suit.           Focusing on the summary judgment

motion, it notes that the district court characterized its evidence

that Evans had purposeful contacts with Québec as “overwhelming.”

See Evans Cabinet, 584 F. Supp. 2d at 416.              By contrast, Evans

submitted only the affidavits of Mark Trexler, Evans’s CEO, who, in

Kitchen International’s view, could show no involvement in the

parties’ agreements.

B.   Threshold Matters

           We review de novo a grant of summary judgment.            Summary

judgment is appropriate only when there is no genuine issue of any

material fact and the moving party is entitled to judgment as a

matter of law.    Fed. R. Civ. P. 56(c).        In assessing the merits of

such a motion, the court must consider the record in the light most

favorable to the party opposing the motion and must indulge in all

inferences favorable to that party.         Kunelius v. Town of Stow, 588

F.3d 1, 8-9 (1st Cir. 2009).         We also must keep in mind, however,

that the role of summary judgment is to “pierce the pleadings” and

to determine whether there is a genuine need for trial.           Garside v.

Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990).            The moving party

must “put the ball in play” by averring the absence of any genuine

issue of fact.    Id. at 48.    Once the ball is in play, however, the

non-moving party must come forward with competent evidence to rebut


                                      -9-
the assertion of the moving party.       Id.; see also Celotex Corp. v.

Catrett,   477   U.S.   317,   323-24    (1986).   Not   every   factual

discrepancy is sufficient to defeat a motion for summary judgment.

“[E]vidence that ‘is merely colorable or is not significantly

probative’” cannot defeat the motion.       Mesnick v. Gen. Elec. Co.,

950 F.2d 816, 822 (1st Cir. 1991) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986)).5

           When sitting in diversity and asked to recognize and

enforce a foreign country judgment, federal courts tend to apply



     5
        Evans notes that, in determining the jurisdiction of the
Québec court, the district court did not employ any of the
methodologies set out in Boit v. Gar-Tec Products, Inc., 967 F.2d
671, 674-78 (1st Cir. 1992).     See also Foster-Miller, Inc. v.
Babcock & Wilcox Canada, 46 F.3d 138, 144-49 (1st Cir. 1995). We
agree with Evans that the district court correctly proceeded in
this regard. The approaches set forth in Foster-Miller and in Boit
are designed to assist the district court in investigating the
basis of its own jurisdiction in the suit before it.       They are
designed to reconcile the sometimes competing interests of fairness
to the parties and considerations of judicial economy that often
arise in that context.
     Here, the jurisdictional issue is raised in a very different
context.   Kitchen   International’s    motion   to   dismiss   the
Massachusetts action did not attempt simply to bar the prosecution
of the current action in Massachusetts on the ground that the
district court lacked authority to adjudicate Evans’s present
contract claim there. Rather, it was a motion addressed to the
merits of the Massachusetts action. It sought a ruling that Evans
was precluded from obtaining the substantive relief that it sought
in the Massachusetts action because an earlier judgment obtained in
another court precluded any further litigation of the matter. As
part of that assertion, Kitchen International submits that the
earlier judgment was rendered by a court that had personal
jurisdiction over the defendant in that action, Evans. Evans takes
the opposite view. This is a merits dispute properly analyzed at
this stage of the proceedings by conventional summary judgment
analysis.

                                  -10-
the law of recognition and enforcement of the state in which they

sit, as required by Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938).6 However, some courts and commentators have suggested that

recognition and enforcement of foreign country judgments deserves

application of a uniform federal body of law because suits of this

nature necessarily implicate the foreign relations of the United

States.7   This question has not been decided definitively in this


     6
        See, e.g., Sarl Louis Feraud Int’l v. Viewfinder, Inc., 489
F.3d 474, 477-78 (2d Cir. 2007); Soc’y of Lloyd’s v. Siemon-Netto,
457 F.3d 94, 98-99 (D.C. Cir. 2006); Sw. Livestock & Trucking Co.
v. Ramon, 169 F.3d 317, 320 (5th Cir. 1999); Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir. 1996); Andes v.
Versant Corp., 878 F.2d 147, 149-50 (4th Cir. 1989); Ingersoll
Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir. 1987);
Bank of Montreal v. Kough, 612 F.2d 467, 469-72 (9th Cir. 1980);
Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440
(3d Cir. 1971); see also McCord v. Jet Spray Int’l Corp., 874 F.
Supp. 436, 437-38 (D. Mass. 1994); Restatement (Second) of Conflict
of Laws § 98 & cmt. c (rev. 1988).
     7
        See, e.g., Wilson v. Marchington, 127 F.3d 805, 813 (9th
Cir. 1997) (“We apply federal common law when a federal rule of
decision is necessary to protect uniquely federal interests.”
(internal quotation marks omitted)); Banque Libanaise Pour Le
Commerce v. Khreich, 915 F.2d 1000, 1003 n.1 (5th Cir. 1990)
(“Commentators have argued that the enforceability of a foreign
judgment in United States’ courts should [] be governed by
reference to a general rule of federal law.”); Tahan v. Hodgson,
662 F.2d 862, 868 (D.C. Cir. 1981) (“[N]otwithstanding Erie
Railroad Co. v. Tompkins, the issue seems to be national rather
than state.”); see also Restatement (Second) of Conflict of Laws
§ 98 cmt. c (“[I]t seems probable that federal law would be applied
to prevent application of a State rule on the recognition of
foreign nation judgments if such application would result in the
disruption or embarrassment of the foreign relations of the United
States.” (citing Zschernig v. Miller, 389 U.S. 429 (1968))); Ronald
A. Brand, Enforcement of Foreign Money-Judgments in the United
States: In Search of Uniformity and International Acceptance, 67
Notre Dame L. Rev. 253, 301-18 (1991) (suggesting that federal
common law may supplant state laws on the recognition and

                               -11-
circuit.   In John Sanderson (Wool) Pty. Ltd. v. Ludlow Jute Co.,

569 F.2d 696, 697 n.1 (1st Cir. 1978), we left the question open,

noting that there was no reason to decide the matter under the

facts of that case because there was no appreciable difference

between the federal and the state rules.   We shall follow the same

course in this case because we need not resolve the matter here.

Neither party has suggested that the district court ought to have

followed a rule other than that of Massachusetts.    In any event,

even if the reciprocity rule of Hilton v. Guyot were applicable

under the facts of this case, the Massachusetts rule of recognition



enforcement of foreign country judgments).
     Proponents of this view note that a federal rule of
recognition and enforcement of foreign country judgments may
already exist, as established by the Supreme Court in Hilton v.
Guyot, 159 U.S. 113 (1895).     When a federal court is asked to
recognize and enforce a foreign country judgment in an action where
the court’s subject matter jurisdiction is based not on diversity,
but on 28 U.S.C. § 1331 or some other source of federal
jurisdiction, the federal rule of recognition and enforcement would
govern. See, e.g., Gordon & Breach Sci. Publishers S.A. v. Am.
Inst. of Physics, 905 F. Supp. 169, 178-79 (S.D.N.Y. 1995)
(applying the federal rule in a Lanham Act case). See generally
Brand, supra, at 262 n.32 (discussing non-diversity cases applying
federal rules).
     According to Hilton, a diversity case from the pre-Erie era,
foreign judgments shall be recognized so long as the rendering
court afforded an opportunity for full and fair proceedings; the
court was of competent jurisdiction over the persons and subject
matter; the court conducted regular proceedings, which afforded due
notice of appearance to adversary parties; and the court afforded
a system of jurisprudence likely to secure an impartial
administration of justice between the citizens of its own country
and those of other countries. See 159 U.S. at 202-03. The Hilton
rule also requires reciprocity in the recognition and enforcement
of United States judgments from the jurisdiction of the rendering
court. Id. at 210, 226-27.

                               -12-
and enforcement also contains a reciprocity requirement. See Mass.

Gen. Laws ch. 235, § 235A (subsection (7) of third paragraph); see

also John Sanderson, 569 F.2d at 697.

C.   Massachusetts Law on the Recognition of Foreign Country
     Judgments


            With     respect    to    the   recognition   of   foreign   country

judgments, Massachusetts, like many other states of the Union, has

enacted a version of the Recognition Act.8                 The Massachusetts

version of that Act is codified at Massachusetts General Laws

chapter    235   §   23A.9     This   section   clearly   requires   that   the

rendering court have personal jurisdiction over the defendant in

order for the resulting judgment to be recognized in Massachusetts.


      8
         The parties do not question that the Recognition Act
applies not only to enforcement actions but also to the recognition
of the foreign judgments to preclude further litigation. See 18B
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure
§ 4473 n.7 (“The inclusion of at least the core of claim preclusion
in   Section   3   [of  the   Recognition    Act]   is  noted   [by
commentators].”); see also Brand, supra, at 265-66 & n.43
(“‘Whether a foreign judgment should be recognized, may be in
issue, however, not only in enforcement . . . but in other
contexts, for example where the defendant seeks to rely on a prior
adjudication   of   a  controversy   (res   judicata).’”   (quoting
Restatement (Third) of Foreign Relations Law § 481 cmt. b (1986))).
Of course, in the case of recognition to preclude further
litigation, once the foreign judgment is deemed entitled to
recognition under the Recognition Act, the extent of the foreign
judgment’s preclusive effect still must be determined.          See
generally Restatement (Second) of Conflicts of Laws § 98 cmt. g
(rev. 1988). In this case, we need not address that issue because
Evans has waived any argument that the Québec judgment is entitled
to less res judicata effect than what the district court gave it.
See infra note 18.
      9
          See the statutory appendix to this opinion.

                                        -13-
The   statute   does   not   state   explicitly,   however,   whether   the

correctness of that exercise of jurisdiction by the rendering court

ought to be determined according to the law of the rendering or the

enforcing jurisdiction. The district court suggested that there is

currently a division of authority on this question among the states

that have enacted a form of the Recognition Act.10            The district


      10
         Some states have concluded that the relevant question is
only whether personal jurisdiction would have been present had the
rendering court applied the law of the enforcing state. See, e.g.,
Genujo Lok Beteiligungs GmbH v. Zorn, 943 A.2d 573, 580 (Me. 2008)
(looking only to whether the foreign jurisdiction could have
established personal jurisdiction under Maine law); Sung Hwan Co.
v. Rite Aid Corp., 850 N.E.2d 647, 650-51 (N.Y. 2006) (interpreting
the term “personal jurisdiction” as used in an analogous New York
statute to mean “whether exercise of jurisdiction by the foreign
court comports with New York’s concept of personal jurisdiction”
and omitting any analysis of foreign law).
     Other state courts instead have concluded that the proper
interpretation is to ascertain first whether the rendering court
could exercise personal jurisdiction over the defendant under its
own laws. They then look to whether the rendering court could have
exercised personal jurisdiction under the law of the forum state.
The purpose of this second step is to ensure that the rendering
court not only possessed jurisdiction at the time of judgment but
also that the rendering court’s procedures comported with United
States due process standards. Under this approach, both of these
requirements are necessary for a rendering court to have personal
jurisdiction over the defendant within the meaning of the
Recognition Act. See, e.g., Monks Own, Ltd. v. Monastery of Christ
in the Desert, 168 P.3d 121, 124-27 (N.M. 2007) (adopting the
approach of first ascertaining whether personal jurisdiction was
satisfied under the law of the rendering foreign jurisdiction and
then determining whether the judgment debtor’s applicable contacts
with the rendering jurisdiction satisfy the United States
constitutional due process minimum); Vrozos v. Sarantopoulos, 552
N.E.2d 1093, 1099-1100 (Ill. App. Ct. 1990) (reviewing a trial
court decision concluding that a Canadian court had personal
jurisdiction over the judgment debtor pursuant to United States
principles of due process and remanding for consideration of
whether the Canadian court also had personal jurisdiction pursuant
to Canadian law of service of summons). Federal courts applying

                                     -14-
court also noted that the Supreme Judicial Court of Massachusetts

has not yet spoken squarely on the matter.11

          The district court, faced with the ambiguity about the

prevailing rule in Massachusetts with respect to the law governing

personal jurisdiction in the rendering court, explicitly declined

to resolve the matter and instead applied the governing rule of

both jurisdictions.   On appeal, neither party has contended that

the district court erred in this regard.       Nor has either party

argued that Massachusetts would apply any other rule.   Under these

circumstances, we must conclude that the parties have waived any

reliance on another rule and that we must decide this case by

assessing the facts in light of the personal jurisdiction law of

both the Province of Québec and the Commonwealth of Massachusetts.




analogous state recognition acts also have adopted this approach.
See K & R Robinson Enters. Ltd. v. Asian Exp. Material Supply Co.,
178 F.R.D. 332, 339-42 (D. Mass. 1998). See generally Royal Bank
of Canada v. Trentham Corp., 491 F. Supp. 404, 408-10 (S.D. Tex.
1980), vacated by, 665 F.2d 515 (5th Cir. 1981). The American Law
Institute adopts this approach in its model federal statute on the
recognition of foreign money judgments.         See American Law
Institute, Recognition and Enforcement of Foreign Judgments:
Analysis and Proposed Federal Statute § 3 & cmt. c (2006).
     11
        In Manches & Co. v. Gilbey, 646 N.E.2d 86 (Mass. 1995), the
Supreme Judicial Court decided that an English default judgment was
worthy of recognition in Massachusetts. It reviewed the English
judgment employing the criteria stated in the Massachusetts version
of the Recognition Act.    However the court did not rule on the
question of whether the actual exercise of jurisdiction by the
English court ought to be measured solely by the law of England or
Massachusetts or both.

                               -15-
1.   The Jurisdiction of the Superior Court of Québec under the
     Law of Québec

                We    turn,    then,    to    the    question    of   whether      Kitchen

International             established   that     the   Superior       Court   of    Québec

properly exercised personal jurisdiction over Evans.12                              In the

district court, Kitchen International submitted the affidavit of a

Canadian        attorney      and    argued    that    the   Québec    court       properly

exercised jurisdiction under Article 3136 of the Québec Civil Code.

That provision states:

                Even though a Québec authority has no
                jurisdiction to hear a dispute, it may hear
                it, if the dispute has a sufficient connection
                with Québec, where proceedings cannot possibly
                be instituted outside Québec or where the
                institution of such proceedings outside Québec
                cannot reasonably be required.

Civil        Code    of    Québec,   R.S.Q.,     ch.   64,   art.     3136.        From   an

examination of the record in its entirety, it does not appear that

Kitchen International relied upon any other particular provision of

the Code.           Moreover, the opinion of the district court appears to

have     interpreted         Kitchen    International’s         position      as   relying

entirely on this provision.                   The district court took the view,

albeit in conclusory fashion, that this provision applied because

“‘the contract [at issue] was concluded in Quebec or [] the cause

of action arose in Quebec.’”             Evans Cabinet, 584 F. Supp. 2d at 415


        12
        The Superior Court of Québec is the court of general trial
jurisdiction in the Province of Québec. See F. Pearl Eliadis &
France Allard, The Legal System in Quebec, in Gerald Gall, The
Canadian Legal System 277 (5th ed. 2004).

                                              -16-
(quoting Canadian Imperial Bank, 899 F. Supp. at 1253 (emphasis and

first alteration in original)).

               There are two problems with this analysis.               First, the

Québec provision relied upon by Kitchen International, Article

3136, is clearly a provision that permits Québec courts to assume

personal jurisdiction over parties in exceptional cases when there

is    no    other   available    jurisdiction      to    which   the   parties   may

litigate their dispute.          See GreCon Dimter, Inc. v. J.R. Normand,

Inc., [2005] 2 S.C.R. 401 para 33.13              Such a situation is clearly

not the case here.        The litigants are American corporations which

are amenable to suit in the state of their corporate domicile and,

with respect to particular transactions, in the states where they

have the requisite minimum contacts with the other party and with

the transaction at issue in the lawsuit.                 Because there obviously

are    other    forums   quite    able   to     assume   jurisdiction     over   the

parties, we must conclude that Kitchen International has not

carried its burden of establishing that this provision can serve as

an adequate basis for jurisdiction over Evans in the courts of that

province. Cf. Bouchard v. Ventes de Vehicules Mitsubishi du Canada

Inc., [2008] Q.J. No. 13487, 2008 QCCS 6033 para. 22 (holding that

the statute does not apply because “all Respondents are domiciled

in countries with sophisticated court systems which apply the rule


       13
         Other provisions of the code, however, would have been
invoked more appropriately. See the statutory appendix to this
opinion.

                                         -17-
of law”).       The second infirmity with the district court’s reliance

on Article 3136 is that Canadian Imperial Bank does not indicate

that the parties in that case, or the district court in that case,

were relying on this provision of Québec law.               Nor does Canadian

Imperial Bank identify what provision of Québec law the court

believed supported an exercise of personal jurisdiction in that

case.     899 F. Supp. at 1253.              Thus, simply invoking Canadian

Imperial Bank does not prove that the Superior Court of Québec

properly exercised personal jurisdiction over Evans pursuant to

Québec law.

            Under these circumstances, we normally would have little

difficulty in concluding that Kitchen International had not met its

burden    of     establishing      that    the   Québec   court    had     personal

jurisdiction over Evans on the basis of Article 3136 and, moreover,

that    Kitchen       International   had    waived   reliance    on     any    other

provision of Québec law by its failure to raise any other provision

in the district court.             However, several considerations make a

determination of waiver inappropriate under the circumstances of

this case.       First, although relying on the wrong section of the

Code, the district court indicated to the parties that it believed

Québec’s Code authorized jurisdiction if the contract had been made

in     Québec    or     if   the   cause    of   action   had     arisen       there.

Additionally, Evans, far from relying on a waiver on the part of

Kitchen International, explicitly admits in its brief before this


                                          -18-
court that the Québec court could have had jurisdiction if the

contract had been concluded in Québec or if the cause of action

arose in Québec.      Appellant’s Br. 16 (citing Canadian Imperial

Bank).14   Under these circumstances, we must conclude that Kitchen

International may be able to demonstrate that the Québec court was

authorized to exercise jurisdiction if it can demonstrate that a

contractual relationship was established with Evans in Québec or

that there was a breach of that agreement in Québec or that one of

the obligations arising from the contract was to be performed in

the Province.     A provision of the Civil Code of Québec authorizes

the exercise of jurisdiction on these bases.      See Civil Code of

Québec, R.S.Q., ch. 64, art. 3148.15 Under that provision, a Québec

court can exercise personal jurisdiction over a foreign defendant

if, inter alia, “a fault was committed in Québec, damage was

suffered in Québec, an injurious act occurred in Québec or one of

the obligations arising from a contract was to be performed in

Québec.”    Id.

            Relying on the affidavit of Ms. Shiell, an officer and

owner of Kitchen International, the district court took the view

that the authority of Québec to exercise jurisdiction over Evans


     14
          Read in context, it is clear that Evans makes this
statement in reference to the district court’s reading of Article
3136. However, there is no indication that Evans disagrees with
that reading or that it believes that Article 3136 is limited to
the extraordinary circumstance when there is no other viable forum.
     15
           See the statutory appendix to this opinion.

                                 -19-
had been established because all of the “‘orders, communications,

payments, correspondence and dealings’” between the parties had

taken place through Kitchen International’s Montreal office. Evans

Cabinet, 584 F. Supp. 2d at 416 (quoting Shiell Aff. at 3).                    The

district court also concluded that the parties had agreed to create

a   product    showroom   to     display    Evans’s    products   to   potential

customers and sales agents from New England and Canada.                 Id.

              An examination of the record makes clear, however, that

the district court’s factual conclusions were not undisputed.

Through the affidavit and supplemental affidavit of its CEO, Mark

Trexler,      Evans   disputed    that     it   had   accepted   in   Québec   any

contractual obligation with Kitchen International or had engaged,

through its representatives, in any business in Québec. Indeed, it

denied the existence of any agreement with Kitchen International

other than various agreements to sell the allegedly defective

material. Evans denied, explicitly, any joint venture to establish

a showroom in Montreal.            Indeed, none of the affidavits make

explicit the precise relationship between the alleged showroom and

the specific sales of allegedly defective products by Evans. Under

these circumstances, it is clear that genuine issues of fact remain

to be resolved before the authority of Québec to exercise personal

jurisdiction over Evans can be established.




                                         -20-
2.   The Application of Massachusetts Standards to the Superior
     Court of Québec’s Exercise of Jurisdiction

             At the outset, we pause to emphasize that the parties do

not dispute that the district court had personal jurisdiction over

them in this case.     Here we review its determination of whether the

exercise of personal jurisdiction by the Superior Court of Québec

comported with Massachusetts and federal standards.

             The exercise of personal jurisdiction over a defendant

such as Evans is governed by the Commonwealth’s long-arm statute

insofar as the exercise of jurisdiction also comports with the

requirements of the federal Due Process Clause. Caplan v. Donovan,

879 N.E.2d 117, 120 (Mass. 2008); see also Ticketmaster-New York,

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

Massachusetts long-arm statute permits the exercise of personal

jurisdiction when a person has transacted business within the

Commonwealth or when the person has contracted to supply services

or things within the Commonwealth.         This conferral of jurisdiction

creates a specifically affiliating jurisdictional nexus;16 the

personal jurisdiction conferred is only with respect to litigation

arising out of the transaction within the Commonwealth, not with

respect to the defendant’s transactions that did not take place in



       16
        The district court understood Kitchen International to be
arguing that Evans had a specifically affiliating nexus with
Québec.    Evans Cabinet, 584 F. Supp. 2d at 415.         Kitchen
International does not dispute that understanding on appeal, and,
indeed, argues the case on that basis. Appellee’s Br. 13.

                                    -21-
the Commonwealth.   Here, “[w]e may sidestep the statutory inquiry

and proceed directly to the constitutional analysis . . . because

the Supreme Judicial Court of Massachusetts has interpreted the

state’s long-arm statute as an assertion of jurisdiction over the

person to the limits allowed by the Constitution of the United

States.”   Daynard v. Ness, Motley, Loadholt, Richardson & Poole,

290 F.3d 42, 52 (1st Cir. 2002) (internal quotation marks omitted).

           We have described in earlier cases these constitutional

requirements:

           “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, in light of the
           Gestalt factors, be reasonable.”

Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144

(1st Cir. 1995) (quoting United Elec., Radio and Mach. Workers of

Am. v. 163 Pleasant Street Corp., 960 F.2d 1080, 1089 (1st Cir.

1992)).    With respect to the “Gestalt factors,” we have observed

that,

           In constitutional terms, the jurisdictional
           inquiry is not a mechanical exercise.      The
           Court has long insisted that concepts of
           reasonableness   must    inform   a   properly
           performed minimum contacts analysis.      This
           means that, even where purposefully generated
           contacts exist, courts must consider a panoply

                               -22-
            of other factors which bear upon the fairness
            of subjecting a nonresident to the authority
            of a foreign tribunal.

Ticketmaster-New York, 26 F.3d at 209 (internal quotation marks and

citations omitted). The Gestalt factors that a court will consider

include:    “(1) the defendant’s burden of appearing, (2) the forum

state’s interest in adjudicating the dispute, (3) the plaintiff’s

interest in obtaining convenient and effective relief, (4) the

judicial    system’s   interest   in   obtaining   the   most    effective

resolution of the controversy, and (5) the common interests of all

sovereigns in promoting substantive social policies.”           Id.

            In applying these standards, the district court held:

                   The Quebec Superior Court’s exercise of
            personal jurisdiction over Plaintiff did not
            contravene traditional notions of fair play
            and substantial justice.        Plaintiff had
            several contacts with Quebec. All the orders,
            communications, payments, correspondence and
            dealings between Parties occurred through
            Defendant’s   Montreal   office.     Moreover,
            Parties agreed to create a product showroom at
            Defendant’s   Montreal    office,  which   was
            ultimately constructed. The purpose of this
            showroom was to display Plaintiff’s products
            to potential customers and sales agents from
            Canada and New England.

Evans Cabinet, 584 F. Supp. 2d at 416 (internal quotation marks

omitted).    However, as we have noted in our earlier discussion of

the Québec jurisdictional statute, the affidavits supplied by the

parties were in conflict.     Evans, through the affidavits of Mr.

Trexler, maintains that there were various contracts for the

purchase of the allegedly defective material, that they were all

                                  -23-
entered into by Evans at its Georgia plant and that Evans did no

business in Québec.    It further claims that it had no agreement

with Kitchen International with respect to a showroom in Montreal

and therefore, at least implicitly, denies any connection between

such a showroom and its contracts to supply the allegedly defective

goods.    Mark Trexler further stated in his affidavit that, in his

position as CEO of Evans, he had personal knowledge of Evans’s

contractual relationships and that he was unaware of any agreement

with Kitchen International to develop or construct a showroom.

Janet Shiell, one of the principals of Kitchen International, by

contrast, stated in her affidavit that there was an agreement with

Evans to create a showroom, and she produced paperwork purportedly

related to that agreement (but no document embodying the agreement

itself).    Furthermore, she stated in a rebuttal affidavit that

there was no reason for Trexler to know about the agreement because

she (and others at Kitchen International) had dealings only with

Gatti,17 another employee of Evans.      Kitchen International never

makes clear the exact relationship between the alleged joint

venture to create a showroom and the agreements to sell the

allegedly defective material.18


     17
        Who Paul Gatti is, and what his position is/was at Evans,
never was explained by either party in their submissions.
     18
         If the district court were to find that there was no
connection between the alleged agreement to establish a showroom in
Montreal and the agreements to supply the allegedly defective
material, Kitchen International’s argument for maintaining that the

                                  -24-
          Furthermore, even if such an argument had been made

successfully,19 the district court’s analysis of jurisdiction still


Québec court had jurisdiction over the contracts to supply the
allegedly defective material would be weakened substantially. See
Lyle Richards Int’l v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir.
1997) (discussing application of the “arising from” clause in the
Commonwealth’s long-arm statute).
     19
         Absent the “showroom evidence,” Evans’s contacts with
Canada are limited to its contractual relationship with Kitchen
International for the supply of cabinetry to various business sites
in the United States. In Burger King Corp. v. Rudzewicz, 471 U.S.
462 (1985), the Court explained the “purposeful availment”
requirement as it applies to a contractual relationship.         It
stated:

          This purposeful availment requirement ensures that
     a defendant will not be haled into a jurisdiction solely
     as a result of random, fortuitous, or attenuated
     contacts, or of the unilateral activity of another party
     or a third person.     Jurisdiction is proper, however,
     where the contacts proximately result from actions by the
     defendant himself that create a substantial connection
     with the forum State.         Thus where the defendant
     deliberately has engaged in significant activities within
     a State, or has created continuing obligations between
     himself and residents of the forum, he manifestly has
     availed himself of the privilege of conducting business
     there, and because his activities are shielded by the
     benefits and protections of the forum’s laws it is
     presumptively not unreasonable to require him to submit
     to the burdens of litigation in that forum as well.
          Jurisdiction in these circumstances may not be
     avoided merely because the defendant did not physically
     enter the forum State.     Although territorial presence
     frequently   will   enhance    a  potential   defendant’s
     affiliation with a State and reinforce the reasonable
     foreseeability of suit there, it is an inescapable fact
     of modern commercial life that a substantial amount of
     business is transacted solely by mail and wire
     communications across state lines, thus obviating the
     need for physical presence within a State in which
     business is conducted. So long as a commercial actor’s
     efforts are purposefully directed toward residents of
     another State, we have consistently rejected the notion

                               -25-
is deficient.   Absent from the district court’s analysis is any

discussion of the “Gestalt factors,” which, we have made clear, a

court must consider to determine the fairness of subjecting the

defendant to a foreign jurisdiction.




     that an absence of physical contacts can defeat personal
     jurisdiction there.

Id. at 475-76 (internal quotation marks, citations and emphasis
omitted).
     In Burger King, although the defendant had no physical ties to
the state of Florida, the Court determined nonetheless that he had
established the necessary minimum contacts with that state to be
hauled into court there. It noted that, in determining that there
was a want of jurisdiction, the appellate court had “overlook[ed]
substantial record evidence indicating that Rudzewicz most
certainly knew that he was affiliating himself with an enterprise
based primarily in Florida.” Id. at 480. It stated:

     The contract documents themselves emphasize that Burger
     King’s operations are conducted and supervised from the
     Miami headquarters, that all relevant notices and
     payments must be sent there, and that the agreements were
     made in and enforced from Miami. Moreover, the parties’
     actual course of dealing repeatedly confirmed that
     decisionmaking authority was vested in the Miami
     headquarters and that the district office served largely
     as an intermediate link between the headquarters and the
     franchisees. When problems arose over building design,
     site-development fees, rent computation, and the
     defaulted payments, Rudzewicz and MacShara learned that
     the Michigan office was powerless to resolve their
     disputes and could only channel their communications to
     Miami. Throughout these disputes, the Miami headquarters
     and the Michigan franchisees carried on a continuous
     course of direct communications by mail and by telephone,
     and it was the Miami headquarters that made the key
     negotiating decisions out of which the instant litigation
     arose.

Id. at 480-81 (internal citations omitted).

                               -26-
            Because the district court resolved material issues of

fact against Evans, the nonmoving party, the judgment must be

reversed.    The controverted issues of fact that Evans has raised

must be resolved.   Accordingly, the judgment of the district court

is reversed and the case is remanded for proceedings consistent

with this opinion.20

            REVERSED and REMANDED




     20
        Evans did not argue, until the reply brief, that, even if
the district court correctly had analyzed the jurisdictional issue,
it nevertheless erred in holding that its (Evans’s) claims were
barred by res judicata because the claim before the district court
is different from the claim or cause of action before the Québec
court. Because this argument was not raised in its opening brief,
it is waived. Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st
Cir. 1990) (“[B]ecause the argument was not made to the district
court or in appellant’s opening brief, surfacing only in his reply
brief, it has been waived.”).

                                -27-
                       Statutory Appendix

Massachusetts General Laws Chapter 235, § 23A

          Except as hereinafter provided, any foreign
          judgment that is final and conclusive and
          enforceable where rendered even though an
          appeal therefrom is pending or it is subject
          to appeal shall be conclusive between the
          parties to the extent that it grants or denies
          recovery of a sum of money.       The foreign
          judgment shall be enforceable in the same
          manner as the judgment of a sister state which
          is entitled to full faith and credit.

          A foreign judgment shall not be conclusive if
          (1) it was rendered under a system which does
          not provide impartial tribunals or procedures
          compatible with the requirements of due
          process of law; (2) the foreign court did not
          have personal jurisdiction over the defendant;
          or (3) the foreign court did not have
          jurisdiction over the subject matter.

          A foreign judgment shall not be recognized if
          (1) the defendant in the proceedings in the
          foreign court did not receive notice of the
          proceedings in sufficient time to enable him
          to defend; (2) the judgment was obtained by
          fraud; (3) the cause of action on which the
          judgment is based is repugnant to the public
          policy of this state; (4) the judgment
          conflicts with another final and conclusive
          judgment; (5) the proceedings in the foreign
          court were contrary to an agreement between
          the parties under which the dispute in
          question was to be settled otherwise than by
          proceedings in that court; (6) in the case of
          jurisdiction based only on personal service,
          the foreign court was a seriously inconvenient
          forum for the trial of the action; or (7)
          judgments of this state are not recognized in
          the courts of the foreign state.

          A foreign judgment shall not be refused
          recognition for lack of personal jurisdiction
          if (1) the defendant was served personally in
          the   foreign   state;  (2)   the   defendant

                              -28-
voluntarily appeared in the proceedings, other
than for the purpose of protecting property
seized or threatened with seizure in the
proceedings or of contesting the jurisdiction
of the court over him; (3) the defendant prior
to the commencement of the proceedings had
agreed to submit to the jurisdiction of the
foreign court with respect to the subject
matter involved; (4) the defendant was
domiciled in the foreign state when the
proceedings were instituted, or, being a body
corporate had its principal place of business,
was incorporated, or had otherwise acquired
corporate status, in the foreign state; (5)
the defendant had a business office in the
foreign state and the proceedings in the
foreign court involved a cause of action
arising out of business done by the defendant
through that office in the foreign state; or
(6) the defendant operated a motor vehicle or
airplane in the foreign state and the
proceedings involved a cause of action arising
out of such operation.

The courts of this state may recognize other
bases of jurisdiction.

If the defendant satisfies the court either
that an appeal is pending or that he is
entitled and intends to appeal from the
foreign judgment, the court may stay the
proceedings   until   the  appeal   has   been
determined or until the expiration of a period
of time sufficient to enable the defendant to
prosecute the appeal.

This section shall not prevent the recognition
of a foreign judgment in situations not
covered by this section and its provisions.

As used in this section (1) “foreign state”
means any governmental unit other than the
United States, or any state, district,
commonwealth, territory, insular possession
thereof, or the Panama Canal Zone, the Trust
Territory of the Pacific Islands, or the
Ryukyu Islands; (2) “foreign judgment” means
any judgment of a foreign state granting or

                    -29-
          denying recovery of a sum of money, other than
          a judgment for taxes, a fine or other penalty,
          or a judgment for support in matrimonial or
          family matters.


Civil Code of Québec, R.S.Q., ch. 64, art. 3148

          In personal actions of a patrimonial nature, a Québec
          authority has jurisdiction where

          (1) the defendant has his domicile or his
          residence in Québec;

          (2) the defendant is a legal person, is not
          domiciled in Québec but has an establishment
          in Québec, and the dispute relates to its
          activities in Québec;

          (3) a fault was committed in Québec, damage
          was suffered in Québec, an injurious act
          occurred in Québec or one of the obligations
          arising from a contract was to be performed in
          Québec;

          (4) the parties have by agreement submitted to
          it all existing or future disputes between
          themselves arising out of a specified legal
          relationship;

          (5) the defendant submits to its jurisdiction.

          However,   a   Québec    authority   has   no
          jurisdiction where the parties, by agreement,
          have chosen to submit all existing or future
          disputes between themselves relating to a
          specified legal relationship to a foreign
          authority or to an arbitrator, unless the
          defendant submits to the jurisdiction of the
          Québec authority.




                              -30-