Appellee Sheldon Adelson brought this declaratory action to determine rights under an oral contract that he had negotiated *79 with appellant Moshe Hananel. In the district court Hananel argued that the agreement, pursuant to which he was employed by a company owned by Adelson, entitled him to obtain a twelve percent investment in Adelson’s casino venture in Macau. Adelson claimed that their agreement was not so broad as to contemplate the Macau investment option. Rather, the contract limited Hananel to reaping twelve percent of net profits from high-tech sector investments in Israel that had been discovered, recommended and supervised by Hananel, and that were realized while he was employed by Adelson’s company.
In a prior appeal of this matter,
Adelson v. Hananel,
I. Background
Hananel is a native, citizen, and resident of Israel. Adelson is a U.S. citizen and a permanent resident and domiciliary of Nevada, where he votes, owns property, and holds a driver’s license. Adelson is also a native of Massachusetts and a current Massachusetts homeowner. He has worldwide business connections and investments, and he owns a warren of businesses known as the “Interface Group.”
On the basis of the disputed oral contract negotiated with Adelson, Hananel worked for one of Adelson’s companies, Interface Partners International, Ltd. (“IPI”), from approximately 1996 to 2000. IPI is a Delaware corporation that Adelson founded in 1994 for the purpose of investing in Israel, with a particular focus on Israel’s high-tech sector.
During the time period relevant to this case, IPI had offices in Needham, Massachusetts, and Ramat Gan, Israel. Hananel was based in Israel and was responsible for seeking investment opportunities there. Although IPI did not have regular employees working in Needham, it received ongoing legal and financial advice through frequent communications with one of the Interface Group companies co-located there, Interface Group Massachusetts (“IGM”). IGM personnel in the Needham office who provided such advice included IGM’s general counsel Paul Roberts, who also described himself as “counsel to IGI”, and IGM’s CFO Stephen O’Connor. There was testimony at trial that IPI’s funding customarily came from Adelson’s personal account in Las Vegas, Nevada, but not before passing through the IPI Massachusetts “office” as a capital contribution to IPI Massachusetts that was then “lent” to IPI Israel. Hananel made periodic calls to the Needham office and sent fax transmissions there at least monthly, including budget proposals for approval. He made one brief visit to the Needham office in late 1995, just before commencing his duties for IPI, and he later attended a meeting in Massachusetts to seek business opportunities in his role as chairman of a company in which IPI had invested.
The parties’ evidence about the terms of Hananel’s compensation was irreconcilable. *80 As the district court accurately described the testimony:
In the discussions regarding Hananel’s employment, it is undisputed that Adelson and Hananel agreed he would have a salary of $100,000 a year. They also agreed that Hananel would somehow receive 12% of the investments with which he was involved while at IPI.... Adelson and Hananel have different memories of the details of the twelve percent. Adelson testified that they agreed that Hananel would receive 12% of the net profits only of high tech investments in Israel that Hananel found, recommended, and supervised ánd which came to fruition while he was employed by IPI, but only so long as he remained employed there. Hananel testified that they agreed that he would receive “options” of up to 12 percent on any investment he or the Israeli office “initiated” outside the United States without any other geographic or time limitations so long as Hananel put up the proportionate costs of the investment at any point.
Adelson II,
In this appeal, Hananel argues, as to jurisdiction, that differences between the prima facie facts determined before the first appeal and the facts as later found by the district court at the merits trial undermine our previous decision on personal jurisdiction. He draws attention to prior references, by both the district court and by us, to Adelson being a resident of Massachusetts when in fact he was a resident of Nevada, and he emphasizes that at trial the district court concluded that the contract was formed in Israel rather than in Massachusetts. As noted, Hananel also presses claims that the district court erred in assigning the burden of proof to him rather than to Adelson; that it should have ordered an adverse inference based on the “missing witness” rule; and that the court misapprehended the facts surrounding both the formation of and his performance under the contract.
II. Jurisdiction
General jurisdiction over Hananel was not alleged, and he argues that the district court also lacked specific jurisdiction over him. We review the jurisdictional issue de novo.
Barrett v. Lombardi
To establish specific personal jurisdiction over Hananel, Adelson “must demonstrate that the Massachusetts long-arm statute grants jurisdiction over Hananel and that the exercise of that jurisdiction comports with the Due Process Clause of the Fifth Amendment.”
Adelson I,
A. Relatedness
To demonstrate “relatedness,” Adelson must show “ ‘a demonstrable nexus between [his] claims and [Hananel’s] forum-based activities, such ... [that] the litigation itself is founded directly on those activities.’ ”
Hannon,
Here, Hananel’s contacts to the forum are directly related to his fulfillment of the terms of his employment contract as he claims them to be. As the district court recognized:
[R]egardless of the contract’s core terms, the parties’ actual course of dealing connects the contract to Massachusetts: Hananel was in regular contact with Interface employees in Massachusetts, the money that funded Hananel’s work came through Massachusetts, and Hananel’s budgets were routinely faxed to the office in Massachusetts.... This is enough to satisfy the relatedness prong.
Adelson II,
In addition, the record shows that Hananel visited the Massachusetts Interface of *82 fice prior to beginning formal, full time employment with IPI in January 1996. Later, while employed by IPI, Hananel attended a board meeting in Massachusetts as a direct result of an IPI investment. 3
Although Hananel does not deny that as manager of the IPI Israel office he had regular contact with the Needham office, he argues that his Massachusetts “activities were minor administrative tasks insufficient to warrant jurisdiction.” This argument understates his managerial role in IPI and the importance of the Massachusetts funding connection to the finances of IPI Israel. As discussed in greater detail below, we disagree with Hananel’s characterization of his Massachusetts activities as “purely incidental contacts” and agree with the district court that they evince the relationship between Hananel’s actions under the oral contract and the forum of Massachusetts.
B. Purposeful Availment
For there to be personal jurisdiction over Hananel, his contacts must “represent a purposeful availment of the privilege of conducting activities in [Massachusetts], thereby invoking the benefits and protections of [Massachusetts’s] laws and making [his] presence before [Massachusetts’] courts foreseeable.”
Daynard,
Hananel directed regular administrative and financial conduct toward Massachusetts, and his contacts with the state were voluntary and the result of more than just a single event or transaction. We see no reason to deviate from our previous conclusion that “given that it was Hananel who sought this employment contract with a company whose key officers were all located in Massachusetts and whose financial accounts were all administered out of Massachusetts, the court properly concluded that Hananel had purposefully availed himself of Massachusetts law.”
Adelson I,
That Hananel’s December 1995 trip to Massachusetts was brief and its purpose was not found to be substantially related to negotiation of the agreement does not detract from the conclusion that the exercise of jurisdiction is appropriate. Hananel “need not have been physically present in [Massachusetts] in order to have ‘transacted business’ there” for purposes of establishing minimum contacts.
Hannon,
Here, as in
Hannon,
there was purposeful availment where Hananel’s business activities for IPI involved,
inter alia,
“communication and interaction between [him] in [Israel] and [staff] in Massachusetts.”
See Hannon,
C. Reasonableness
To examine reasonableness, we consider the gestalt factors: “(1) [Hananel’s] burden of appearing, (2) [Massachusetts’s] interest in adjudicating the dispute, (3) [Adelson’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 I,
First, because Hananel has not demonstrated a “special or unusual burden” in staging a defense in Massachusetts over and above that of doing so in any foreign jurisdiction, we conclude that this factor does not weigh against jurisdiction.
See Pritzker,
Second, Hananel emphasizes the fact that both the district court and this court in the previous appeal were mistaken when they concluded that Adelson was a Massachusetts resident and domiciliary, when in fact he was a resident and domiciliary of Nevada. In presenting this argument, Hananel stakes too much on the importance of Adelson’s state of residence to the personal jurisdiction analysis. Although this factual conclusion may have contributed to our original weighing of Massachusetts’ interest in hearing the matter, Adelson’s residency and domicile are not alone dispositive of personal jurisdiction and there are other facts that support Massachusetts’ interests in the matter.
When previously we connected Adelson’s assumed Massachusetts residency with Massachusetts’ interests in the case, we also noted that “[Massachusetts’] interest ... is further heightened by the involvement of IPI’s executive officers who are employed in Massachusetts and of funds
*84
which are held and managed in Massachusetts.”
Adelson I,
Third, Adelson demonstrated his interest in obtaining convenient and effective relief through the federal courts in Massachusetts by bringing his suit there, and “nothing about this case suggests that those courts will have any difficulty rendering effective relief’ if Adelson’s declaratory action is affirmed.
See Jet Wine & Spirits, Inc. v. Bacardi & Co., Ltd.,
Fourth, although the district court noted that “the existence of prior lawsuits in Israel ... make this case an inefficient burden on the judicial system,” it concluded that “this is ‘insufficient to tip the constitutional balance on the facts of this case.’”
Adelson II,
As to the fifth and final factor, we do not see how a finding of jurisdiction here would speak one way or another to the common interests of all sovereigns in advancing a particular social policy.
Even if the last two factors weighed against jurisdiction, this alone would be “insufficient to tip the constitutional balance” on the facts presented here.
Adelson I,
Given the reasonableness of exercising jurisdiction, the relatedness of the dispute to the forum, and Hananel’s contacts with the forum, we affirm the district court’s assertion of personal jurisdiction over Hananel.
III. Burden of Proof
We review de novo the placement of the burden of proof.
Estate of Abraham v. C.I.R.,
Here, Hananel seeks an interpretation of the agreement that would permit him to assert a contractual right of recovery. As the natural plaintiff who would have had the burden of proving his affirmative claim to the twelve percent option in a damages action, we see no impropriety in assigning the burden of proof to him.
See Markley v. Semle,
Regardless, any error in assigning the burden of proof is harmless unless “the court’s ... decision at the end of the trial turned on ‘burden of proof rules rather than on the weight of the evidence in the record.”
Applewood Landscape & Nursery Co., Inc. v. Hollingsworth,
IV. The Contract’s Terms
We review the district court’s findings of fact for clear error.
Williams v. Poulos,
It is not disputed that Hananel and Adelson spoke several times between August 1995 and December 1995 regarding Hananel’s employment with IPI. As noted, however, what they agreed to is disputed. Hananel testified that the intention was for him to have an option covering any investment proposed by him, except for investments in the United States. Adelson’s position has been that they agreed that Hananel would receive a portion of net profits from a much narrower category of investments.
It is also not disputed that Hananel, Adelson, and Roberts (IGM’s general counsel) were present in the Needham, *86 Massachusetts, office on December 5,1995. But, the parties greatly dispute the exact contents and nature of that office visit. Adelson testified that the employment contract’s final details were hammered out in that December meeting, including the meaning of alleged contract terms such as the share of “net profits minus losses.” In stark contrast, Hananel testified that the contract was finalized in Israel, the employment contract was not discussed during the December office visit, and, in any event, that visit did nothing to change the substance of the contract.
The district court found that “while a meeting [in Massachusetts] may have taken place, it was at most a rehash of the terms of Hananel’s contract, which had already been finalized with Adelson in Israel.” Adelson
II,
In actions that are tried to the court, the judge’s findings of fact are to be honored unless clearly erroneous, paying due respect to the judge’s right to draw reasonable inferences and to gauge the credibility of witnesses. A corollary of this proposition is that, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.... [W]hen a case has been decided on the facts by a judge ... an appellate court must refrain from any temptation to retry the factual issues anew.
Johnson v. Watts Regulator Co.,
In sum, the district court’s finding that there was no “meeting of the minds,” was grounded in the record and not clearly erroneous.
See United States v. Lara,
Moreover, even accepting Hananel’s argument that there was a “meeting of the minds” about the existence and scope of the twelve percent option clause, the district court’s finding that Hananel failed to “initiate” whatever investment(s) Adelson subsequently made in Macau was also not clearly erroneous.
As the district court noted, there were questions of veracity in both parties’ accounts of the employment contract, the “option,” and the discussions of Macau. But, even viewing Hananel’s account in the most favorable light, a reasonable observer applying practical business sense and plain meaning could conclude easily that satisfying the “initiate” requirement of the option — on what would become a $7 billion project — would have required Hananel to do more than what his evidence showed: discuss Macau during a few 1999 meetings; prepare limited materials on Macau for Adelson’s review; “research! ] Macau generally” and potential investments in Macau; give Adelson some third-party maps and brochures; and urge him to visit Macau. As the district court described it, “Hananel may have gotten Adelson’s wheels spinning, but he never got anything in gear.” Adelson
II,
Y. The Missing Witness Rule
Hananel’s final argument is that the district court abused its discretion when it denied him a “missing witness” inference, because Adelson did not call an Israeli witness, Danny Raviv, as Hananel
*87
had expected. After a jury trial, a claim about failure to give a missing witness instruction indeed would be reviewed for abuse of discretion.
Latin Am. Music Co. v. Am. Soc. of Composers, Authors & Publishers,
Hananel has not shown the necessity for applying the missing witness rule here. First, he offers no concrete evidence that demonstrates that Raviv was peculiarly available or obviously partial to Adelson.
United States v. Spinosa,
As the district court stated:
In this case, however, there is no reason to believe that Raviv was not available to testify if called by the Defendant. Defendant made no effort to call him to testify or to depose him. In this case, where Raviv’s testimony would likely cut both ways, the Court is unwilling to allow Defendant the dual benefit of avoiding Raviv’s potentially damaging testimony by purposely failing to call him, while simultaneously giving him the benefit of a negative inference for Plaintiffs failure to call him.
Adelson II,
This finding was not erroneous. The appellant’s argument appears to be a manifestation of his regret at his decision not to confront Raviv in court. Regret is not a ground for reversal.
VI. Conclusion
For the reasons set forth above, we affirm the judgment of the district court.
Notes
. The statute provides that "[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s transacting any business in this commonwealth.” Mass. Gen. Laws ch. 223A, § 3(a).
. Although, as Hananel points out, the district court concluded that the agreement was governed by Israeli law, this conclusion does not affect the outcome of our jurisdictional analysis because the issue before us is one of personal jurisdiction, not choice of law.
J. McIntyre Machinery, Ltd. v.
Nicastro, -U.S. -,
. During his tenure with IPI, Hananel recommended that it invest in the tech company, IMDSoft. After the investment Hananel was named chairman of the board of IMDSoft and traveled to Andover, Massachusetts, in that capacity with the goal of advancing business partnership opportunities for IMDSoft.
. We have construed the Massachusetts statute broadly and " 'do[ ] not require that the defendant have engaged in commercial activity. [The] language is general and applies to any purposeful acts by an individual, whether person, private, or commercial.' "
Hannon,
. As we have recognized, Hananel has certain health issues that affect his lifestyle, such as his diabetes and legal blindness.
Adelson I,
. Subsequent to briefing and argument in this case, Adelson informed us of a decision by the Tel Aviv District Labor Court addressing claims that mirror some of those presented here. We have no occasion to consider that decision. We review this appeal based on the record before us.
. Hananel asserts that Adelson waived any right to argue that the burden of proof was Hananel’s. In light of our disposition of the issue, we need not address this argument.