United States Court of Appeals For the First Circuit

No. 20-1591

FATEMEH MOJTABAI,

Plaintiff, Appellant,

v.

ZARY MOJTABAI; SHAPARAK MOJTABAI,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Smith,* District Judge.

Philip H. Cahalin for appellant. Darian M. Butcher, with whom Jonathan I. Handler and Day Pitney LLP were on brief, for appellees.

July 2, 2021

* Of the District of Rhode Island, sitting by designation. BARRON, Circuit Judge. This appeal arises out of a suit

that Fatemeh Mojtabai filed in the District of Massachusetts

against her two sisters, Zary and Shaparak Mojtabai, in connection

with the estate of all three sisters' mother. The defendants,

each of whom is a New Jersey resident, were appointed as co-

executors of the estate upon the 2017 death of the mother, who was

herself a resident of that state. The District Court dismissed

Fatemeh's complaint on the ground that it lacked personal

jurisdiction over the defendants as to any of her claims and then

denied her motion to set aside the judgment of dismissal. Fatemeh

now appeals those rulings. We reverse in part and affirm in part.

I.

The following facts are not in dispute. In 2005, the

parties' mother, Assayesh Nasseh, and father, Jamshid Mojtabai,

executed wills in New Jersey. The wills left the entirety of

Assayesh's and Jamshid's respective estates to each other.

Each of the wills identified all three daughters --

Fatemeh, Shaparak, and Zary -- as equal residual beneficiaries.

Assayesh's will named Jamshid as sole executor, with Zary and

Shaparak as successor co-executors. In 2011, Jamshid passed away

in New Jersey. Assayesh passed away in New Jersey some years later

in 2017.

Following Assayesh's death, the Passaic County

Surrogate's Court in New Jersey certified her will, admitted it to

- 2 - probate, and formally appointed Zary and Shaparak as co-executors

of the estate. In that capacity, Zary and Shaparak provided

Fatemeh with a copy of a final accounting of Assayesh's estate.

This final accounting listed as assets Assayesh's New

Jersey residence, a checking account, and a savings account. It

also provided that Fatemeh's one-third share of the estate after

expenses was $105,291.19.

On December 26, 2019, Fatemeh filed this action in the

District of Massachusetts. The complaint contains two counts,

each of which sets forth various claims against Zary and Shaparak.

Count One sets forth a number of state law tort claims

that relate to Zary and Shaparak's actions during and after their

parents' life with respect to assets that Fatemeh contends should

have been part of the estate and thus included in the final

accounting. The claims include breach of fiduciary duty, undue

influence, conversion, and alienation of affection.

In support of these claims, the count alleges that Zary

and Shaparak tortiously gained control of certain Mojtabai family

assets -- namely, various real properties in Iran, as well as

certain works of art, rugs, and antiques in both Iran and the

United States. The count also alleges that Zary improperly holds

the title to real property in Iran that is rightfully Fatemeh's,

- 3 - and it seeks the return to Fatemeh of that title.1 Finally, the

count alleges that Fatemeh suffered various hedonic damages as a

result of alleged tortious actions by the defendants leading up to

their final accounting.

Count Two of the complaint sets forth a number of

Massachusetts law claims that relate to the discharge of a mortgage

that Assayesh held on Fatemeh's Massachusetts condominium. In

support of these claims, the count alleges that Zary and Shaparak,

as co-executors of the estate, are successors to the holder of a

mortgage on Massachusetts real estate, that the two sisters refused

to discharge the mortgage as they were required to do as the

estate's co-executors, and that this failure has both clouded the

title to the real property that is subject to the mortgage and

prevented Fatemeh from obtaining an equity line of credit.

On March 27, 2020, Zary and Shaparak filed a motion to

dismiss all the claims set forth in the complaint pursuant to Fed.

R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(6). The motion to dismiss

argued that the claims in Count One must be dismissed for lack of

personal jurisdiction, lack of subject matter jurisdiction,

failure to state a claim, and pursuant to the doctrine of forum

1 This property has been the subject of litigation in the Iranian courts between Fatemeh's sisters and another relative in Iran who, according to the complaint, had fraudulently taken ownership of it and other real property belonging to Jamshid and Assayesh.

- 4 - non conveniens. The motion to dismiss asserted that the claims in

Count Two must be dismissed for lack of subject matter

jurisdiction.

Fatemeh filed a brief in opposition to her sisters'

motion to dismiss. Fatemeh asserted in the brief in opposition

that there was federal subject matter jurisdiction over the claims

in both counts of the complaint and that the complaint stated

claims for which relief may be granted. Fatemeh's brief in

opposition did not address whether there was personal jurisdiction

as to any of the claims, but it did argue that the case should not

be dismissed pursuant to the doctrine of forum non conveniens.

The District Court granted Zary and Shaparak's motion to

dismiss on April 13, 2020. Citing the "defendants' persuasive

argument that this court lacks personal jurisdiction over Zary and

Shaparak" and finding that Fatemeh failed to "me[et] th[e]

challenge" to "show a prima facie case authorizing personal

jurisdiction," the District Court found the "lack of personal

jurisdiction . . . conclusive of the case."

The District Court went on to suggest in its ruling that

the probate exception to diversity jurisdiction would deprive the

court of subject matter jurisdiction "to the extent that Fatemeh

is disputing the settling of her mother's estate in the New Jersey

Probate Court." The District Court also suggested that it was

"patently ill-suited" to resolve this dispute, given that it

- 5 - involves "real estate matters being litigated in the national

courts of Iran," and thus that dismissal pursuant to the doctrine

of forum non conveniens might be appropriate in the event that the

court did have jurisdiction.

Fatemeh filed a motion to set aside the judgment on May

11, 2020. See Fed. R. Civ. P. 59(e). She asserted in that motion

that the District Court's dismissal of the claims in Count Two for

lack of personal jurisdiction was improper because her sisters'

only argument for the dismissal of those claims was based on there

being a lack of subject matter jurisdiction. She argued that her

sisters had therefore waived any argument that a lack of personal

jurisdiction barred the claims set forth in that count from going

forward. Fatemeh also argued that, waiver aside, it was "clear

that personal jurisdiction exists in Massachusetts to litigate

[her] claims in Count Two to discharge the mortgage on her

Massachusetts property and recover damages." She further

contended that, in part because her sisters had waived any argument

for dismissing the claims in Count Two for lack of personal

jurisdiction, the claims in Count One also should not be dismissed

for lack of personal jurisdiction. Here, she argued among other

things that there was "pendent personal jurisdiction" over the

claims in that count because they were sufficiently related to the

claims in the other count, as to which any argument that there was

a lack of personal jurisdiction had been waived.

- 6 - In an electronic order, the District Court denied the

motion to set aside the judgment dismissing the claims in the two

counts. The order denying that motion did not expressly address

Fatemeh's arguments that there was personal jurisdiction over the

Count Two claims or pendent personal jurisdiction over the Count

One claims. The District Court instead merely concluded that it

was "plain on the face of the Complaint that Count Two does not

meet the jurisdictional amount prerequisite for diversity

jurisdiction to attach" and thus that there could be no subject

matter jurisdiction over the Count Two claims. In so ruling,

however, the District Court appeared to be implicitly rejecting

Fatemeh's argument for pendent personal jurisdiction over the

Count One claims based on the Count Two claims, as it was holding

that there was no subject matter jurisdiction over the Count Two

claims and thus no anchoring claim for which there was

jurisdiction.

II.

We begin with Fatemeh's challenge to the dismissal of

her Count Two claims. After setting out the relevant factual

background, we turn to Fatemeh's contention that the District Court

erred in ruling that there is no federal subject matter

jurisdiction over these claims. As we will explain, we conclude

- 7 - that Fatemeh's challenge on that score is persuasive.2 As a result,

we then move on to address her further contention that her sisters

are wrong to contend that the District Court's order dismissing

these claims nevertheless must be affirmed because there is a lack

of personal jurisdiction as to them. Here, too, we agree with

Fatemeh, even if we assume that she is wrong to contend that her

sisters waived any personal-jurisdiction-based argument for

dismissing these claims.

A.

The following facts are not in dispute. In 2010,

Assayesh paid the $400,000 purchase price of a condominium unit in

Weston, Massachusetts, to buy it for Fatemeh. Thereafter, Fatemeh

held the title to that property.

Fatemeh subsequently granted Assayesh a mortgage on that

property pursuant to a mortgage agreement between the two. The

mortgage agreement did not require Fatemeh to pay back the amount

that Assayesh paid to purchase the home. It did require her,

2 The District Court suggested in its dismissal order that the probate exception could deprive the court of subject matter jurisdiction "to the extent that Fatemeh is disputing the settling of her mother's estate in the New Jersey Probate Court." But, the mortgage at issue in Count Two was not included in the account of estate assets, and the relief sought would not require the court to probate or annul a will, administer a decedent's estate, or "dispose of property that is in the custody of a state probate court." Marshall v. Marshall,

(2006). Nor does either party contend otherwise. In fact, Zary and Shaparak raised a probate exception argument only as to Count One to the District Court.

- 8 - however, to maintain the property in good condition and to pay all

expenses related to the property. The agreement further provided

that if Fatemeh defaulted on these terms, Assayesh would have the

right to foreclose on the property.

These terms were set forth in a written agreement that

was notarized on July 1, 2010. The agreement was signed by Fatemeh

in Massachusetts and by Assayesh in New Jersey. It was secured by

a mortgage deed recorded in Massachusetts at the Middlesex County

Registry of Deeds.

The agreement provided that the mortgage was to

"automatically discharge upon Assayesh's death provided Fatemeh is

not then in default" and that, to that end, the mortgage "shall

contain[] language stating that it will automatically discharge

upon filing of Assayesh's death certificate at the Middlesex County

Registry of Deeds." The mortgage document did not in fact include

that language, however.

At some point after receiving the final accounting of

her mother's estate from Zary and Shaparak, Fatemeh notified the

two sisters "of their obligation under Massachusetts law, [

], as execut[or]s of Assayesh's estate and

therefore as successors to the holder of a mortgage on

Massachusetts real estate to record a discharge of the

mortgage . . . within 45 days of Assayesh's death." The sisters

indicated in response that they would do so only if Fatemeh

- 9 - executed a release and waiver of formal accounting with respect to

the assets owned by Assayesh in the United States at the time of

her death.

Fatemeh's Count Two claims seek to compel Zary and

Shaparak, as co-executors of the estate that is the successor in

interest to legal title to the mortgaged condominium unit in

Weston, to fulfill a purported obligation of that estate by

effecting the discharge of the mortgage. The claims in that count

also seek to recover payment for the defendants' failure to do so

up to this point.

B.

The District Court found in its order denying Fatemeh's

motion to set aside the judgment pursuant to Rule 59(e) that it

was "plain on the face of the Complaint that Count Two does not

meet the jurisdictional amount prerequisite for diversity

jurisdiction to attach" under

(a)(1). That

provision states that the federal "district courts shall have

original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between . . . citizens of different

States."

We review a district court's denial of a Rule 59(e)

motion "only for abuse of discretion," but, in doing so, we afford

de novo review to issues of law. Primarque Prods. Co. v. Williams

- 10 - West & Witts Prods. Co.,

(1st Cir. 2021) (quoting

Marie v. Allied Home Mortg. Corp.,

, 7 n.2 (1st Cir.

2005)). Because the District Court made the determination as to

the amount in controversy on the pleadings without making any

findings of disputed fact, the amount-in-controversy issue here is

a legal one that we review de novo. See Amoche v. Guarantee Tr.

Life Ins. Co.,

(1st Cir. 2009); see also Fothergill

v. United States,

(1st Cir. 2009). Fatemeh, as

"the party seeking to invoke jurisdiction[,] has the burden of

alleging with sufficient particularity facts indicating that it is

not a legal certainty that the claim involves less than the

jurisdictional amount." Dep't of Recreation & Sports v. World

Boxing Ass'n,

, 88 (1st Cir. 1991).

Fatemeh does not dispute that the alleged damages for

her Count Two claims might be less than $75,000. Nevertheless,

she points out that she also seeks equitable relief on those

claims, and she contends that the amount in controversy for them

is properly "measured by the value of the object of the litigation"

precisely because she seeks such equitable relief. Hunt v. Wash.

State Apple Advert. Comm'n,

(1977); accord

Richard C. Young & Co. v. Leventhal,

(1st Cir. 2004);

14AA Charles Alan Wright et al., Federal Practice and Procedure

§ 3702.5 (4th ed. 2011) ("It is well-settled . . . that the amount

in controversy for jurisdiction purposes is measured by the direct

- 11 - pecuniary value of the right that the plaintiff seeks to enforce

or protect or the value of the object that is the subject matter

of the suit."). She thus contends that because her complaint

alleges that the mortgage creates a $400,000 lien on her property

and she seeks equitable relief from that lien in the Count Two

claims, she has met her burden with respect to the amount-in-

controversy requirement as to those claims.

We agree. The mortgage at issue did not require Fatemeh

to repay the $400,000. Zary and Shaparak also disclaim on appeal

any interest in the mortgage.3 But, neither fact is dispositive.

Fatemeh has met her burden at this stage of the litigation to show

that the value of the removal of the cloud on the title to this

property exceeds $75,000. Accordingly, because the equitable

relief that she seeks for her Count Two claims would remove that

cloud on the title, she has met her burden as to the amount-in-

controversy requirement.

Counsel for Zary and Shaparak did argue otherwise in

part by pointing out at oral argument that Fatemeh may have a

"self-help" option to discharge the mortgage: She could file the

agreement and Assayesh's death certificate with the registry of

deeds. The sisters' counsel argued that Fatemeh's doing so might

3 Zary and Shaparak do not dispute that, as successors in interest to Assayesh, they have the ability as executors to discharge the mortgage.

- 12 - make it unnecessary for her to obtain the injunctive relief that

she seeks.

There is no legal certainty, however, that Fatemeh could

clear the title to the Weston property at issue by taking those

steps, and Zary and Shaparak's counsel conceded as much at

argument. Thus, the fact that Fatemeh could take them on her own

does not undermine the force of her contention that the District

Court erred in dismissing these claims for lack of subject matter

jurisdiction based on the amount-in-controversy requirement in

(a)(1).

C.

Having concluded that there is no subject-matter-

jurisdiction bar to the Count Two claims, we now address the

separate contention by Fatemeh's sisters that there is nonetheless

a personal-jurisdiction bar. We may assume that Fatemeh is wrong

to contend that her sisters waived their right to contest personal

jurisdiction as to these claims, because, as we will explain,

reviewing de novo, Kuan Chen v. U.S. Sports Acad., Inc.,

(1st Cir. 2020), the "facts set forth in the record" here

are sufficient to make a prima facie showing of personal

jurisdiction, Boit v. Gar-Tec Prods., Inc.,

(1st

Cir. 1992); see also Mass. Sch. of L. at Andover, Inc. v. Am. Bar

Ass'n,

(1st Cir. 1998) (explaining that "[i]n

conducting the requisite analysis under the prima facie standard,

- 13 - we . . . add to the mix facts put forward by the defendants, to

the extent that they are uncontradicted").4

"In determining whether a non-resident defendant is

subject to its jurisdiction, a federal court exercising diversity

jurisdiction 'is the functional equivalent of a state court sitting

in the forum state.'" Baskin-Robbins Franchising LLC v. Alpenrose

Dairy, Inc.,

(1st Cir. 2016) (quoting Sawtelle v.

Farrell,

(1st Cir. 1995)). Thus, the exercise

of personal jurisdiction must comport with both the Massachusetts

long-arm statute, Mass. Gen. Laws ch. 223A, § 3, and the Due

Process Clause of the U.S. Constitution. Id.; see also SCVNGR,

Inc. v. Punchh, Inc.,

, 52 (Mass. 2017) (explaining

that "the [Massachusetts] long-arm statute imposes specific

constraints on the exercise of personal jurisdiction that are not

coextensive with the parameters of due process" and thus that

Massachusetts courts are to begin with "a determination under the

In its dismissal order, the District Court seems to have 4

relied in part on the fact that Fatemeh made no argument sounding in personal jurisdiction in opposing the defendants' motion to dismiss. But, given that the defendants had not developed any argument going to personal jurisdiction over Count Two, we cannot conclude that it was incumbent on Fatemeh to do so, particularly when the allegations in her complaint and the undisputed facts in the record supported a prima facie finding of personal jurisdiction. See Mass. Sch. of L.,

; Sawtelle v. Farrell,

(1st Cir. 1995) ("When a court's jurisdiction is contested, the plaintiff bears the burden of proving that jurisdiction lies in the forum state." (emphasis added)).

- 14 - long-arm statute" before "consider[ing] . . . the constitutional

question"). We consider each of these requirements in turn and

conclude that Fatemeh has met her burden at this stage of the

litigation as to each.

1.

The Massachusetts long-arm statute provides for

jurisdiction over a person "as to a cause of action . . . arising

from the person's . . . having an interest in, using or possessing

real property in this commonwealth." Mass. Gen. Laws ch. 223A,

§ 3(e). The long-arm statute clearly contemplates the existence

of jurisdiction over executors, see Mass. Gen. Laws ch. 223A, § 1

(defining "person" in § 3 to include a person's executor), and

Massachusetts law further provides that an executor is subject to

the jurisdiction of Massachusetts courts "to the same extent that

the decedent was subject to jurisdiction immediately prior to

death," Mass. Gen. Laws ch. 190B, § 4-302, notwithstanding that

the common-law rule was otherwise, see Martel v. Stafford,

(1st Cir. 1993) ("[T]he Saporita exception [to the

common-law rule that an executor appointed in another state is not

subject to suit in Massachusetts unless a statute dictates to the

contrary] confers personal jurisdiction over a foreign executor

only when the testator manifests sufficient contacts with

Massachusetts to support the exercise of jurisdiction . . . ."

(discussing Saporita v. Litner,

(Mass. 1976))).

- 15 - Fatemeh's sisters contend that they have no interest in

the real property in Massachusetts that is at issue in the Count

Two claims as executors because any such interest on the part of

the estate was extinguished upon Assayesh's death. That is so,

they contend, because the mortgage conditions were satisfied at

that point and thus the mortgage was "effectively discharged."

See Maglione v. BancBoston Mortg. Corp.,

(Mass.

App. Ct. 1990) ("[U]pon payment of the note by the mortgagor or

upon performance of any other obligation specified in the mortgage

instrument, the mortgagee's interest in the real property comes to

an end."); see also Faneuil Invs. Grp. v. Bd. of Selectmen,

(Mass. 2010) ("Under the title theory, legal

'title' to the mortgaged real estate remains in the mortgagee until

the mortgage is satisfied or foreclosed . . . ." (quoting

Restatement (Third) of Prop.: Mortgs. § 4.1 cmt. a (1997))).

This argument is not persuasive. There is little doubt

that Assayesh's mortgage on Fatemeh's Massachusetts property gave

Assayesh an interest in that property, as, in Massachusetts, "a

mortgagee has legal title to the mortgaged real estate." Vee Jay

Realty Tr. Co. v. DiCroce,

(Mass. 1972); see

also Woods v. Wells Fargo Bank, N.A.,

(1st Cir.

2013) ("In Massachusetts, a title theory state, possession of the

mortgage and note undisputedly vests in the holder a real property

interest."). It is also undisputed that no action has been taken

- 16 - to effect the discharge of the mortgage and that the mortgage did

not include the automatic discharge language referenced in the

agreement. Thus, Fatemeh's allegations that her sisters have

refused to agree to discharge the mortgage suffice to show that

the Count Two claims arise from the testator's interest in

Massachusetts property, such that the Massachusetts long-arm

statute is satisfied with respect to those claims.

2.

We come, then, to the requirement that the exercise of

personal jurisdiction as to the Count Two claims must comport with

federal constitutional due process. Compliance with the demands

of due process may be shown on the basis of either general or

specific jurisdiction. The parties are in agreement, however,

that there is no general personal jurisdiction over Zary or

Shaparak in Massachusetts. So, the question is whether Fatemeh

can meet her burden to show that there is specific personal

jurisdiction over them as to the Count Two claims.

Fatemeh, as the plaintiff, bears the burden of

establishing that "there is a demonstrable nexus between [her]

claims and [the] defendant[s'] forum-based activities." Mass.

Sch. of L.,

; see also Adelson v. Hananel,

(1st Cir. 2007). In determining whether the

constitutionally required nexus exists as to the Count Two claims,

we consider (1) whether the claims "directly arise out of, or

- 17 - relate to, the defendant[s'] forum-state activities"; (2) whether

"the defendant[s'] in-state contacts . . . 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"; and (3) whether the

exercise of jurisdiction is reasonable. Daynard v. Ness, Motley,

Loadholt, Richardson & Poole, P.A.,

(1st Cir. 2002)

(quoting Foster-Miller, Inc. v. Babcock & Wilcox Can.,

(1st Cir. 1995)).

We conclude that Fatemeh has met her burden as to the

relatedness requirement with respect to each of the Count Two

claims because the mortgage on the Massachusetts property

"comprises the source and substance of, and is thus related to,"

the core dispute that the Count Two claims implicate. Pritzker v.

Yari,

(1st Cir. 1994). We further conclude that

she has also met her burden with respect to the "purposeful

availment" requirement as to each of these claims, because

Fatemeh's sisters purposefully availed themselves of the

"privilege of conducting activities" in Massachusetts. Daynard,

(quoting Foster-Miller,

).

In so concluding, we recognize that Fatemeh's sisters

were appointed as executors in New Jersey and that the estate is

a New Jersey-based one. But, according to the allegations in Count

- 18 - Two, they accepted the appointment as to an estate that included

a potential real-property interest in Massachusetts, an interest

that they not only chose to maintain, through their conduct in

refusing to effect the mortgage discharge, but also actively

leveraged by conditioning any discharge on Fatemeh releasing them

from liability as executors relating to the final accounting.

These allegations, at least in combination, are sufficient to

establish that the sisters acted in a manner that made their

"involuntary presence before the state's courts foreseeable."

at 61 (quoting Foster-Miller,

); cf. Pritzker,

(finding personal jurisdiction in part because the

nonresident defendant had "knowingly acquir[ed] an economically

beneficial interest" involving "control over property located in"

the forum state).

That leaves only the reasonableness requirement to

address. In connection with that requirement, we must consider

(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.

Adelson,

(quoting United Elec., Radio & Mach.

Workers of Am. v. 163 Pleasant St. Corp.,

, 1088 (1st

Cir. 1992)).

- 19 - The defendants' appearance in Massachusetts does not

constitute the kind of "special or unusual burden" that we have

found would make the first of these "gestalt" factors meaningful.

See Pritzker,

(noting that most cases finding an

unusual burden "are cases in which the defendant's center of

gravity . . . was located at an appreciable distance from the

forum" and concluding that "[i]n the modern era, the need to travel

between New York and Puerto Rico" did not so qualify (quoting

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

(1st Cir.

1994))). Moreover, Fatemeh, as a resident of Massachusetts, "has

an interest in bringing this action in Massachusetts, which weighs

in favor of a finding of personal jurisdiction." Adelson,

; see also Ticketmaster-N.Y., Inc.,

(recognizing that "we must accord plaintiff's choice of forum a

degree of deference in respect to the issue of its own

convenience").

Nor can we discount Massachusetts's interest in this

dispute, given that it concerns the legal effect of the mortgage

agreement on title to Massachusetts real estate that was recorded

in a Massachusetts registry of deeds. Cf. Pritzker,

("Sovereigns have few interests greater than those in the conduct

of forum-based litigation and the disposition of forum-based real

estate."). For, although New Jersey, as the state in which the

estate was admitted into probate, may have its own interests

- 20 - concerning resolution of its residents' estates, the

reasonableness inquiry requires that we "determine the extent to

which the forum has an interest" rather than compare the strength

of the forum state's interest to that of other states. Foster-

Miller,

(citing Burger King Corp. v. Rudzewicz,

, 483 & n.26 (1985)). That Fatemeh is a Massachusetts

resident adds to Massachusetts's interest in the case. See

Adelson,

(noting the state's "stake in being able

to provide a convenient forum for its residents to redress injuries

inflicted by out-of-forum actors" (quoting Daynard,

)).

Considerations of "the most effective resolution of the

controversy" matter to the reasonableness inquiry. Adelson,

(quoting United Elec., Radio & Mach. Workers of Am.,

960 F.2d at 1088). But, in this case, they fail to tip the

constitutional balance against finding personal jurisdiction as to

the Count Two claims.

There may be an argument -- similar to one that Zary and

Shaparak have adverted to in connection with their separate forum

non conveniens argument as to Count One -- that convenience and

judicial economy favor resolving Fatemeh's many claims stemming

from her sisters' administration of the New Jersey estate together

in New Jersey. But, even if we were to assume that this factor

does militate against Massachusetts's exercise of personal

- 21 - jurisdiction over Count Two, we would not find it sufficient to

conclude that such an exercise of personal jurisdiction would

"offend traditional notions of 'fair play and substantial

justice,'" Pritzker,

(quoting Burger King Corp.,

), given all the reasons described above for concluding

that Massachusetts is a proper forum for this dispute.

Therefore, we find that the record supports a prima facie

showing of specific personal jurisdiction over Zary and Shaparak

in their capacities as co-executors as to the Count Two claims.

And, as the defendants do not argue that any other basis supports

the District Court's dismissal of the claims set forth in that

count, we reverse its order of dismissal as to them.

III.

We still have left to consider Fatemeh's challenge to

the dismissal of her Count One claims. As we have noted, the

District Court based its dismissal of those claims on its

determination that there was no personal jurisdiction as to them.

Fatemeh contends that the District Court erred in so ruling, in

part because there is what is known as pendent personal

jurisdiction over the Count One claims.5 She argues that there is

Fatemeh does seemingly assert in her reply brief that there 5

is an independent basis for personal jurisdiction over Count One. But, she did not present such a theory to the District Court or in her opening brief on appeal. See Forcier v. Metro. Life Ins. Co.,

(1st Cir. 2006) (explaining that arguments "not made to the district court or in appellant's opening brief, [but]

- 22 - pendent personal jurisdiction over these claims because they share

a common nucleus of operative fact with the Count Two claims and,

as we have just explained, there is personal jurisdiction as to

those claims.

Our Circuit has never had occasion to address whether

pendent personal jurisdiction exists at all, let alone in

circumstances akin to those presented here. But, we need not

decide whether that doctrine does exist in some cases, because, in

all the authority that Fatemeh identifies as support for

recognizing its existence, the doctrine was being asserted as a

basis for finding personal jurisdiction as to some claims against

the same defendant for whom there was otherwise personal

jurisdiction as to other claims. See 4A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1069.7 (3d ed.

2002); see also Fed. R. Civ. P. 4(k)(1)(A) (providing that

"[s]erving a summons or filing a waiver of service establishes

personal jurisdiction over a defendant . . . who is subject to the

jurisdiction of a court of general jurisdiction in the state where

the district is located" (emphasis added)); Al Seraji v. Wolf, No.

19-2839,

, at *6 (D.D.C. Dec. 22, 2020) (emphasizing

surfacing only in his reply brief" are waived (alteration in original) (quoting Sandstrom v. ChemLawn Corp.,

(1st Cir. 1990))). And, at oral argument, Fatemeh's counsel represented that "Count One is a pendent personal jurisdiction argument for the most part."

- 23 - that the doctrine of pendent personal jurisdiction is limited to

the exercise of personal jurisdiction "over . . . remaining claims

against the same defendant" (emphasis added)). Yet, here, Fatemeh

asks us to apply pendent personal jurisdiction over claims for

which the defendants are not the same as they are for the claims

for which she contends there otherwise is personal jurisdiction.

To be sure, both the Count One claims and the Count Two

claims name her two sisters, Zary and Shaparak, as the defendants.

But, under Massachusetts law, a person sued in her individual

capacity is a different legal person than that same person sued in

her capacity as executor. See Fessenden v. Gunsenhiser,

(Mass. 1932) ("The executor as a party to the cause of

action in his official capacity was a distinct person from the

defendant, however described, in his private capacity."); Martel,

(explaining that a Massachusetts resident who

would individually be subject to general personal jurisdiction in

Massachusetts is not for that reason subject to personal

jurisdiction in Massachusetts in his capacity as foreign

executor); cf. 6 Charles Alan Wright et al., Federal Practice and

Procedure § 1404 (3d ed. 2010) (explaining that in general a

defendant sued in one capacity cannot counterclaim in another

capacity); Goldstein v. Galvin,

(1st Cir. 2013);

Dunham v. Crosby,

(1st Cir. 1970) (suggesting

that when plaintiff sought to recover from school board members

- 24 - individually, defendants could not assert a counterclaim that

arose out of the plaintiff's alleged obligation to the board as a

unit).6

That is significant because Fatemeh's Count One claims

seek relief against Zary and Shaparak as individuals, while her

Count Two claims seek relief against them only in their capacities

as co-executors of the estate. After all, the request for relief

in Count Two seeks injunctive relief based on a purported

obligation of the estate, including an injunction to pay.

Fatemeh's briefing at no point suggests that her Count Two claims

are against Zary and Shaparak in their individual capacities rather

than in their capacities as co-executors of the estate at issue.

The request for relief in Count One, in contrast, seeks a share of

property that -- according to the allegations in that count --

Zary and Shaparak own personally, as well as compensation for Zary

and Shaparak's allegedly tortious conduct predating their

appointment as executors.7 Zary and Shaparak thus argued on appeal

The traditional application of pendent personal jurisdiction 6

arises when "one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction." Action Embroidery Corp. v. Atl. Embroidery, Inc.,

, 1180-81 (9th Cir. 2004); see also IUE AFL-CIO Pension Fund v. Herrmann,

(2d Cir. 1993); 4B Charles Alan Wright et al., Federal Practice and Procedure § 1125 (4th ed. 2015). Count One does contain assertions that Zary and Shaparak 7

breached their fiduciary duty and complaints about their

- 25 - that the two counts seek relief from the sisters in different

capacities, and nothing in Fatemeh's briefing challenges this

premise or suggests that the counts are against the same legal

persons. In fact, at oral argument, Fatemeh's counsel appeared to

accept that the Count Two claims are brought against the sisters

in their capacities as co-executors of the estate, even though the

claims in Count One are brought against them in their individual

capacities.

Thus, we conclude that Fatemeh's claims in Count One and

Count Two -- though they both name her sisters as defendants --

are not against the same legal persons. As a result, we conclude

that Fatemeh has failed to identify any authority to support her

contention that the existence of personal jurisdiction over Zary

and Shaparak in their representative capacities as to her Count

Two claims could authorize an assertion of pendent personal

jurisdiction as to her Count One claims, even assuming that pendent

personal jurisdiction is allowable in some circumstances. And

that is so even if we assume, as Fatemeh contends, that the claims

in both counts arise from a common nucleus of operative fact.

Accordingly, we reject Fatemeh's challenge to the District Court's

dismissal of her Count One claims.

accounting of the mother's estate, but the relief sought is not based on these allegations.

- 26 - IV.

We reverse the District Court's order of dismissal as it

pertains to Count Two and remand for further proceedings consistent

with this opinion. Each party shall bear its own costs.

- 27 -