United States Court of Appeals
For the First Circuit
No. 25-1194
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff, Appellee,
v.
RAIMUND GASTAUER,
Relief Defendant, Appellant,
ROGER KNOX; WINTERCAP S.A.; MICHAEL T. GASTAUER; WB21 US INC.;
SILVERTON SA INC.; WB21 NA INC.; C CAPITAL CORP.; WINTERCAP SA
INC.; B2 CAP INC.,
Defendants,
SIMONE GASTAUER FOEHR; B21 LTD.; SHAMAL INTERNATIONAL FZE; WB21
DMCC,
Relief Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Aframe, Lynch, and Kayatta,
Circuit Judges.
Johannah Cassel-Walker, with whom Jo-Ann Tamila Sagar, Dana
A. Raphael, and Hogan Lovells US LLP were on brief, for appellant.
Theodore Weiman, Senior Appellate Counsel, Securities and
Exchange Commission, with whom Jeffrey B. Finnell, Acting General
Counsel, Securities and Exchange Commission, Tracey A. Hardin,
Solicitor, Securities and Exchange Commission, and Daniel
Staroselsky, Assistant General Counsel, Securities and Exchange
Commission, were on brief, for appellee.
August 19, 2026
KAYATTA, Circuit Judge. The Securities and Exchange
Commission (SEC) named appellant Raimund Gastauer, a German
national, as a so-called "relief defendant" in an enforcement
action against his son, Michael Gastauer, a United States
resident.1 In an earlier appeal from a judgment in favor of the
SEC, Gastauer contested the court's exercise of personal
jurisdiction over him. We ruled in his favor, foreclosing the SEC
from contending that personal jurisdiction had been established
over Gastauer as a relief defendant by imputing to him the forum
contacts of Michael as the defendant-in-interest. SEC v. Gastauer
(Gastauer I), 93 F.4th 1 (1st Cir. 2024).
On remand, the SEC sought jurisdictional discovery
concerning Gastauer's own contacts with the forum. In response,
Gastauer went to ground, filing no opposition to the request and
refusing to provide any discovery thereafter or otherwise
participate in the post-remand litigation, even after the district
court granted the SEC's jurisdictional-discovery request and
warned of sanctions. That refusal to participate in the
proceedings did lead to sanctions, eventually resulting in the
reinstatement of summary judgment against Gastauer and a
disgorgement award in the approximate amount of $3.3 million.
1To avoid confusion, we refer to Raimund Gastauer -- the
named party -- as "Gastauer" and Michael Gastauer as "Michael."
- 3 -Gastauer now resurfaces as appellant, challenging the
new judgment against him on several grounds. As we will explain,
he has waited too long to voice his objections to the district
court's rulings and judgment.
I.
A.
In October 2018, the SEC initiated a civil
securities-fraud action against Michael -- and many
others -- alleging that he had participated in a scheme enabling
corporate insiders to sell stock while evading statutory and
regulatory registration and disclosure rules. The complaint
identified Gastauer as a relief defendant pursuant to 15 U.S.C.
§ 78u(d)(5), which allows the SEC to seek, and a federal court to
grant, "any equitable relief that may be appropriate or necessary
for the benefit of investors."2 In relevant part, the SEC alleged
that Michael caused two of his United States-based companies to
"transfer approximately $3.3 million to . . . Raimund Gastauer, or
accounts held for Raimund Gastauer's benefit." The complaint
sought disgorgement of those funds.3
2 Relief defendants are "third-party non-wrongdoers" "who
are not accused of having violated the securities laws themselves,
but who are believed to be in possession of profits from such
violations." SEC v. Sanchez-Diaz, 88 F.4th 81, 87 (1st Cir. 2023)
(first quoting SEC v. Ahmed, 72 F.4th 379, 407 (2d Cir. 2023); and
then quoting SEC v. Smith, 710 F.3d 87, 90 n.2 (2d Cir. 2013)).
3 Disgorgement is an equitable remedy to "recover
ill[-]gotten gains for the benefit of the victims of wrongdoing,
- 4 -On March 28, 2019, Gastauer filed a motion to dismiss
for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2). Gastauer averred that he is a resident and
citizen of Germany, has never lived in the United States, and has
visited the United States only about five times in his life, with
the most recent visit occurring in January 2009. The SEC opposed
Gastauer's motion, arguing that: (1) Gastauer had sufficient
contacts with the forum -- i.e., the United States -- to establish
the court's personal jurisdiction over him; and (2) even if
Gastauer did not himself have such contacts, the court could impute
the forum contacts of Michael and his companies to Gastauer as a
relief defendant to establish personal jurisdiction. In the
alternative, the SEC requested jurisdictional discovery. On
April 26, 2019, the district court entered an electronic order
denying Gastauer's motion to dismiss. The court did not explain
its ruling or address the SEC's request for jurisdictional
discovery.
The case proceeded on the merits, and, on February 22,
2022, the SEC moved for summary judgment. The district court
granted the motion in part, holding Gastauer liable for
disgorgement of $500,000 but finding a genuine dispute of fact
whether held by the original wrongdoer or by one who has received
the proceeds after the wrong." Sanchez-Diaz, 88 F.4th at 88
(alteration in original) (quoting SEC v. Colello, 139 F.3d 674,
676 (9th Cir. 1998)).
- 5 -precluding summary judgment regarding the remaining approximately
$2.8 million the SEC had sought. SEC v. Knox (Knox I),
No. CV 18-12058, 2022 WL 1912877, at *5–6 (D. Mass. June 3, 2022).4
However, the court also found that Gastauer had committed a
discovery violation by failing to produce during discovery certain
evidence upon which he later relied in opposing summary judgment.
Id. at *6 n.3. As a result, the court ordered Gastauer to sit for
a supplemental deposition and allowed the SEC to resubmit its
motion for summary judgment as to the remaining $2.8 million it
sought in disgorgement. Id.
The SEC subsequently noticed a video deposition of
Gastauer pursuant to the Federal Rules of Civil Procedure.
Gastauer refused to sit for the deposition. The SEC then moved
for sanctions pursuant to Rule 37(d). Gastauer opposed, arguing
again that the court lacked personal jurisdiction over him and
asserting that the SEC should be required to follow the discovery
protocols of the Hague Convention on the Taking of Evidence Abroad
4 The district court in the same order granted summary
judgment to the SEC against six defendants and two other relief
defendants. Knox I, 2022 WL 1912877, at *1, *6. The court had
previously entered default judgment against Michael on March 23,
2022. The SEC has reached consent agreements with the remaining
defendants and one other relief defendant and has dismissed its
claim against another relief defendant. Following our remand in
Gastauer I, the SEC's disgorgement claim against Gastauer was the
only unresolved claim in the case.
- 6 -in Civil or Commercial Matters (the "Hague Convention"), rather
than the Federal Rules of Civil Procedure.5
On October 7, 2022, the district court allowed the SEC's
motion for sanctions. SEC v. Knox (Knox II), No. CV 18-12058,
2022 WL 6156565, at *1 (D. Mass. Oct. 7, 2022). The court first
reiterated its finding that it had personal jurisdiction over
Gastauer, explaining why for the first time: Because Gastauer was
named only as a relief defendant, the court did not think that it
needed to independently establish personal jurisdiction over him
so long as it had personal jurisdiction over Michael as the real
defendant-in-interest. Id. at *2. The court then rejected
Gastauer's argument regarding the Hague Convention, ruling that
the SEC properly noticed the deposition under the Federal Rules of
Civil Procedure. Id. at *2–3. Finally, as a sanction for
Gastauer's "severe and repetitive" discovery violations, the court
entered full summary judgment against him on the merits.6 Id. at
*3. The court's final judgment held Gastauer liable for
5 The Hague Convention "prescribes certain procedures by
which a judicial authority in one contracting state may request
evidence located in another contracting state." Société Nationale
Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522, 524
(1987); see also Hague Convention on the Taking of Evidence Abroad
in Civil or Commercial Matters, opened for signature Mar. 18, 1970, T.I.A.S. No. 7444, 847 U.N.T.S. 231.
6 The district court did not seek to rely on the sanctions
order to justify its assertion of personal jurisdiction over
Gastauer; rather, that assertion rested solely on the
imputed-contacts theory. Knox II, 2022 WL 6156565, at *1–2.
- 7 -disgorgement of $3,315,305 (plus prejudgment interest of
$604,839).
B.
Gastauer appealed the district court's decision to this
court. In his opening brief on that first appeal, Gastauer argued
both that the district court's imputed-contacts theory was
incorrect and that the district court lacked grounds for personal
jurisdiction based on his own contacts with the forum. Brief for
Appellant at 18–19, Gastauer I, 93 F.4th 1 (No. 22-1865). In its
response brief, the SEC did not respond to -- or even
acknowledge -- Gastauer's argument that the district court lacked
personal jurisdiction over him based on his own contacts with the
United States. Rather, its briefing focused, first, on arguing
that Gastauer had waived his objection to personal jurisdiction by
litigating the case on the merits, and, second, on defending the
district court's imputed-contacts theory. Brief of the Securities
& Exchange Commission at 2–3, Gastauer I, 93 F.4th 1 (No. 22-1865).
On February 9, 2024, we issued our decision in
Gastauer I. 93 F.4th 1. After rejecting the SEC's waiver
argument, we turned to "the heart of Gastauer's argument on appeal:
that the district court erred in finding that it had personal
jurisdiction over him merely because it had jurisdiction over the
real defendants-in-interest from whom he had received the
wrongfully obtained funds." Id. at 8. In doing so, we noted that,
- 8 -"[o]n appeal, the SEC makes no claim that Gastauer has any actual
contacts with the United States," but instead "urges us to 'impute'
to Gastauer the contacts of his son." Id. at 9. In a footnote,
we added:
While in the proceedings below the SEC argued
in the alternative that Gastauer did satisfy
the minimum contacts requirement -- by
engaging in financial transactions routed
through U.S.-based institutions -- the SEC has
limited its argument on appeal to the
imputation of jurisdictional contacts from the
defendant-in-interest. We therefore consider
only this latter argument in our analysis.
Id. at 9 n.4. In the end, we rejected the district court's
imputed-contacts theory, ruling that "due process prohibits the
imputation of contacts to a relief defendant like Gastauer, whose
only involvement in the case is his receipt of a unilateral
transfer of money from a third party." Id. at 12. We therefore
"reversed" "[t]he district court's exercise of personal
jurisdiction" over Gastauer and "remanded to the district court
for further proceedings consistent with this opinion." Id. at 13
(emphases omitted).
C.
On remand, the district court promptly ordered
supplemental briefing on "whether Gastauer had sufficient minimum
contacts with the forum for the court to exercise personal
jurisdiction over him." To that end, the SEC filed a memorandum
asserting that Gastauer was subject to the district court's
- 9 -personal jurisdiction based on his own forum contacts and, in the
alternative, requesting jurisdictional discovery. To support its
argument that Gastauer's known conduct was sufficient to establish
personal jurisdiction over him, the SEC argued that Gastauer had
facilitated two sets of wire transfers he received from U.S.-based
companies owned and controlled by Michael: (1) a $500,000 transfer
made in December 2017 -- labeled "loan agreement 12/17" -- from
WB21 US Inc. to Gastauer's personal bank account; and (2) a pair
of transfers made in February 2018 totaling over $2.8 million,
from C Capital Corp. to a law firm's client account in London,
which was then used to purchase a condominium in the name of an
entity allegedly controlled by Gastauer.
Gastauer filed no response to either the district
court's order or the SEC's memorandum. Instead, roughly two weeks
after the SEC's filing, counsel for Gastauer emailed the SEC
stating that Gastauer did not plan to file any response and that
Gastauer had asked counsel to withdraw from the case. In response
to the SEC's expressed concern that Gastauer would stonewall
further proceedings, Gastauer's now-former counsel relayed to the
SEC a message from Gastauer directing the SEC to contact his German
attorneys going forward.7
7 Gastauer's U.S. counsel would not formally file a motion
to withdraw from the case until over two months later, on July 30,
2024, with the district court granting that motion on August 6.
- 10 -In an electronic order dated May 16, 2024, the district
court found that "[o]n the current record, the connection between
the wires and Gastauer's in-forum conduct falls short of supporting
the SEC's claim of personal jurisdiction over Gastauer." However,
the district court also found that the SEC had made out "a
colorable case for jurisdiction" and "identifie[d] factual
disputes that may show exercising jurisdiction over Gastauer is
proper." Accordingly, the district court allowed "jurisdictional
discovery on the issue of Gastauer's involvement in financial
transactions in the United States involving Michael Gastauer, WB21
US Inc., and C Capital Corp." The district court further ruled
that, in conducting such discovery, the SEC could rely on the
Federal Rules of Civil Procedure rather than the Hague Convention.
Finally, the district court warned that "Rule 37 sanctions for
failing to cooperate are applicable, up to and including
establishing as admitted jurisdictional facts."
The SEC subsequently served on Gastauer five document
requests, five interrogatories, and a notice of deposition. In
response, Gastauer's German counsel sent a letter to the SEC -- but
not the court -- stating that Gastauer would only participate in
discovery served pursuant to the Hague Convention. Although German
counsel asked the SEC to make its letter "available" to the
district court -- and the SEC did so -- Gastauer filed no objection
with the court directly. On July 15, in light of Gastauer's
- 11 -noncompliance with the district court's jurisdictional-discovery
order, the SEC filed a motion to compel or, in the alternative,
for sanctions. Again, Gastauer filed no response. When the
district court subsequently held a hearing on the SEC's motion,
neither Gastauer nor any counsel representing him appeared.
On August 6, 2024, the district court, pursuant to
Rule 37(b), allowed the SEC's motion for sanctions "by
establishing as admitted facts that would support the exercise of
personal jurisdiction over [Gastauer]."
On October 24, 2024, the SEC renewed its motion for
summary judgment. The district court, via electronic order,
reminded Gastauer that he had until November 14, 2024, to oppose
the SEC's summary-judgment motion. The SEC emailed that order to
Gastauer's German counsel, who told the SEC -- but, again, not the
district court -- that Gastauer would not be accepting any "[c]ourt
documents . . . other than [those] received from Germany's central
authority under the Hague Convention on Service."
On January 29, 2025, the district court allowed the
SEC's motion, reinstated its prior entry of summary judgment, and
held Gastauer liable for disgorgement of the entire $3,315,305
plus $1,347,326 in prejudgment interest. SEC v. Knox (Knox III),
No. CV 18-12058, 2025 WL 330557, at *2–3 (D. Mass. Jan. 29, 2025).
This timely appeal followed.
- 12 -II.
Gastauer makes three arguments challenging the district
court's jurisdictional-discovery order on appeal, but, as we will
discuss, he made none of those arguments to the district court on
remand. Accordingly, under our circuit's somewhat inconsistent
precedent, those arguments are either forfeited and thus subject
to plain-error review, see, e.g., Nat'l Fed'n of the Blind v. The
Container Store, Inc., 904 F.3d 70, 86 (1st Cir. 2018),8 or waived
and therefore not subject to appellate review at all except as a
"matter of discretion" under "the most extraordinary
circumstances," Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d
622, 627 (1st Cir. 1995) (citation omitted); accord Dahua Tech.
USA, Inc. v. Zhang, 138 F.4th 1, 10 (1st Cir. 2025). Gastauer,
for his part, argues that we should, as a matter of discretion,
consider the merits of any arguments he failed to raise below,
though he does not label such arguments as "waived" or cite any
standard to guide that discretion. For simplicity, we will use
8 On plain-error review, a party must show that: "(1) an
error occurred (2) which was clear or obvious (3) affected [the
party's] substantial rights and (4) seriously impaired the
fairness, integrity, or public reputation of the judicial
proceedings." Nat'l Fed'n of the Blind, 904 F.3d at 86 (citation
modified). This standard applies to forfeited arguments in
criminal cases and derives from Federal Rule of Criminal
Procedure 52(b), see, e.g., United States v. Johnson, 177 F.4th
67, 76–77 (1st Cir. 2026), but our circuit has also sometimes
applied plain-error review to forfeited arguments in civil cases,
see, e.g., Nat'l Fed'n of the Blind, 904 F.3d at 86.
- 13 -the label "forfeited," though we need not determine the particular
governing standard because Gastauer has failed to convince
us -- indeed has largely failed to argue -- that we should forgive
his silence below under any standard. We take each argument in
turn.
A.
First, Gastauer contends that the district court erred
in ordering jurisdictional discovery because the mandate of
Gastauer I required the district court to dismiss him from the
case. This argument invokes the mandate rule, which "prevents
relitigation in the trial court of matters that were explicitly or
implicitly decided by an earlier appellate decision in the same
case." United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004).
Gastauer's failure to raise this mandate-rule theory
below dooms his argument on appeal. At no point on remand did
Gastauer, his U.S. counsel (before withdrawal), or his German
counsel (even in communications with the SEC) suggest that our
ruling in Gastauer I required his dismissal from the case. A
clearer example of forfeiture by silence would be difficult to
find. See Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23,
32–33 (2d Cir. 2002) (finding forfeiture of mandate-rule argument
where argument "was never presented to the district court before,
during, or after the bench trial"), overruled on other grounds by
Slayton v. Am. Express Co., 460 F.3d 215 (2d Cir. 2006).
- 14 -Gastauer counters that the SEC itself first waived any
argument that it could establish personal jurisdiction over him on
remand by limiting its briefing in Gastauer I to the
imputed-contacts theory. But Gastauer's waiver argument is itself
forfeited because, like his mandate-rule argument, he failed to
raise it on remand. See United States v. Scott, 705 F.3d 410, 415
(9th Cir. 2012) ("A party who fails to assert a waiver argument
forfeits -- and therefore implicitly waives -- that argument.").9
In sum, Gastauer's complete abandonment of the post-remand case
renders his mandate-rule argument forfeited at the very least.
Gastauer has not shown reason for us to ignore that
forfeiture and reach the merits of his argument, either. To start,
Gastauer makes no claim that he can satisfy plain-error review,
asserting only that the plain-error standard does not apply in
civil cases.10 He has thereby "definitively waive[d]" plain-error
9 In any event, the SEC's position in Gastauer I waived only
its ability to assert that the record, as it existed at that time,
established personal jurisdiction based on Gastauer's own forum
contacts. The SEC did not waive its ability to seek jurisdictional
discovery to supplement that record. Indeed, the district court
had not ruled on the SEC's request for jurisdictional discovery at
the time of Gastauer I, so there was no jurisdictional-discovery
issue for the SEC to raise on appeal in the first instance. Cf.
Moran, 393 F.3d at 11 ("In general, available claims of error not
raised in an initial appeal may not be raised during subsequent
appeals in the same case.").
10 Gastauer seems to assume that plain-error review is an
unwelcome burden rather than a reprieve for an argument not made
below.
- 15 -review. United States v. Benjamin-Hernandez, 49 F.4th 580, 584–85
(1st Cir. 2022).
Instead, Gastauer points to United States v.
Cheveres-Morales for the proposition that we may "raise an
abridgement of the mandate rule sua sponte." 83 F.4th 34, 40 (1st
Cir. 2023). He does not, however, explain why this is a case where
we should do so. In Cheveres-Morales, we took up a mandate-rule
issue notwithstanding its waiver after a defendant, on remand from
a first appeal in which the government conceded sentencing error,
had been resentenced to a higher term of imprisonment based on
similar erroneous grounds. Id. at 38–40. In doing so, we noted
that "the equities strongly preponderate[d] in favor of review,"
citing our specific "institutional interest in protecting the
integrity of our mandate," as well as our more general interest in
"avoiding a miscarriage of justice" in light of Cheveres-Morales's
reasonable expectation that he would receive a reduced, rather
than enhanced, sentence on remand. Id. at 42. In contrast, here,
our institutional interest is not the same because -- though we
need not definitively rule on the merits -- we have serious doubts
that the district court did violate the mandate rule. Gastauer I
neither instructed the district court to dismiss for lack of
personal jurisdiction, nor said anything to foreclose
jurisdictional discovery. Similarly, the risk of a miscarriage of
justice is lessened here where Gastauer's own actions -- namely,
- 16 -his withdrawal from the proceedings -- led to the district court's
exercise of jurisdiction. All in all, this is simply not a case
in which the equities weigh in favor of reaching Gastauer's
forfeited mandate-rule argument.
B.
In the alternative, Gastauer argues the district court
erred in ordering jurisdictional discovery on the record before
it. To warrant jurisdictional discovery, a party must show only
"a colorable claim of jurisdiction," i.e., "a non-frivolous
dispute about facts that may yield a sufficient predicate for in
personam jurisdiction." Motus, LLC v. CarData Consultants, Inc.,
23 F.4th 115, 128 (1st Cir. 2022) (first misquoting United States
v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625–26 (1st Cir. 2001)).
Gastauer insists that the SEC failed to meet this threshold, so
the district court's order authorizing jurisdictional discovery
was error.
Again, the problem for Gastauer is that he did not object
to jurisdictional discovery on remand from Gastauer I. In
Gastauer's view, he preserved this issue for appeal because he
raised the defense of personal jurisdiction from the very start of
the case and has reiterated that defense throughout -- at least
when he has chosen to communicate with the courts. However, an
objection to personal jurisdiction is not the same as an objection
to jurisdictional discovery, given the lower threshold for the
- 17 -latter. See In re Auto. Refinishing Paint Antitrust Litig., 358
F.3d 288, 291–92, 292 n.3 (3d Cir. 2004) (explaining appellants
objected to personal jurisdiction but not court's finding that
jurisdictional discovery standard was met). Simply put, Gastauer
did not have the option of both contesting personal jurisdiction
and blocking reasonable jurisdictional discovery. See, e.g., Ins.
Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
706, 709 (1982).
While Gastauer tries to frame this as an appeal not from
a jurisdictional-discovery order but from the district court's
failure to dismiss him for lack of personal jurisdiction, that is
simply not the case. Gastauer never renewed his motion to dismiss
on remand or even argued to the district court that his original
motion to dismiss also applied to the remand proceedings, and the
district court therefore never ruled on any such motion post
remand. Rather, the district court sanctioned Gastauer by deeming
admitted facts sufficient to establish personal jurisdiction -- a
sanction Rule 37 expressly permits. See Fed. R. Civ.
P. 37(b)(2)(A)(i); Ins. Corp. of Ir., 456 U.S. at 704–06.11
11 Gastauer separately insists that the district court should
have considered lesser sanctions, including finding as established
only the facts the SEC was seeking to establish through
jurisdictional discovery. Of course, Gastauer never made this
argument below in response to either the court's warning of
sanctions in its jurisdictional-discovery order or the SEC's
subsequent motion for sanctions. In any event, the court did what
Gastauer argues for: The SEC sought facts to establish Gastauer's
- 18 -Finally, German counsel's communications with the SEC
did not preserve Gastauer's objection to jurisdictional discovery,
either. Those communications never stated that Gastauer opposed
jurisdictional discovery generally, only that he opposed it if not
undertaken pursuant to the Hague Convention. Besides, while the
SEC later brought these communications to the district court's
attention, Gastauer needed to present his argument to the district
court directly to preserve the issue for appeal. See United States
v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule
that when a party has not presented an argument to the district
court, [that party] may not unveil it in the court of appeals."
(emphasis added)).12
Having made no timely complaint to the district court,
Gastauer forfeited his objection to the merits of the court's
contacts with the United States, and the court took such contacts
as established. See Ins. Corp. of Ir., 456 U.S. at 709 ("The
sanction took as established the facts -- contacts with [the
forum] -- that [the plaintiff] was seeking to establish through
discovery. That a particular legal consequence -- personal
jurisdiction of the court over the defendants -- follows from this, does not in any way affect the appropriateness of the sanction.").
12 Gastauer would not have been waiving his jurisdictional
challenge by filing an objection to jurisdictional discovery
directly with the district court or otherwise raising whatever
claims he had to the court. See Prac. Concepts, Inc. v. Republic
of Bolivia, 811 F.2d 1543, 1547 (D.C. Cir. 1987) (Ginsburg, J.)
(explaining that defendant who objects to personal jurisdiction
"may defend on the merits in the district court without losing his
right to press on direct review the jurisdictional objection, along with objections on the merits").
- 19 -jurisdictional-discovery order. Further, Gastauer makes no
argument that his belated objection either satisfies the
plain-error standard or else presents the extraordinary
circumstances necessary for us to exercise our discretion to
forgive his forfeiture. Accordingly, he is not entitled to any
further review of this forfeited objection.
C.
Lastly, Gastauer asserts that, even if jurisdictional
discovery was proper, the district court erred by allowing such
discovery to proceed under the Federal Rules of Civil Procedure,
rather than the Hague Convention.
Gastauer did raise a Hague Convention argument to the
district court prior to our decision in Gastauer I, but that did
not preserve the issue now before us. Gastauer's prior Hague
Convention argument came in response to merits discovery. In
contrast, the discovery requested after Gastauer I concerned only
Gastauer's jurisdictional contacts with the United States. See In
re Auto. Refinishing, 358 F.3d at 303 (contrasting "'merits'
discovery, which [one] can expect to be more comprehensive or
burdensome" with "more limited and less intrusive jurisdictional
discovery"). The only Hague Convention-based objection Gastauer
made to jurisdictional discovery came in his German counsel's
communications with the SEC, but again, Gastauer's
objections -- expressed only to the SEC -- were not preserved
- 20 -simply because opposing counsel had the courtesy to pass them on
to the district court. Gastauer needed to present his Hague
Convention-based objection to jurisdictional discovery directly to
the district court to preserve the issue for appeal. See, e.g.,
Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38 (1st
Cir. 2000) (holding that plaintiffs "raise[d] [a discovery
argument] too late" where they failed to oppose government's
discovery motion or develop their argument before the district
court). To rule otherwise would open the door to disputes
regarding what exactly each party has or has not filed with the
court.
Even if we were to construe Gastauer's prior Hague
Convention-based objection to merits discovery as initially
preserving his present objection to jurisdictional
discovery -- which we do not -- that objection was forfeited (or
even waived) by Gastauer's subsequent actions. The district court
rejected Gastauer's Hague Convention argument in the order that
directly preceded Gastauer I. Knox II, 2022 WL 6156565, at *3.
The issue was therefore ripe for review in Gastauer I, yet Gastauer
never pressed the issue in that appeal. The district court's
decision on the Hague Convention then arguably became the law of
the case for future, similar discovery attempts, likely
foreclosing further review. See United States v. Wallace, 573
F.3d 82, 90 (1st Cir. 2009) ("When [appellant] failed to challenge
- 21 -the obstruction of justice enhancement the first time around [on
appeal], it became the law of the case."); Unión Internacional
UAW, Loc. 2415 v. Bacardí Corp., 8 F.4th 44, 53 (1st Cir. 2021)
("[A] legal decision made at one stage of a civil or criminal case,
unchallenged in a subsequent appeal despite the existence of ample
opportunity to do so, becomes the law of the case for future stages
of the same litigation." (quoting United States v. Bell, 988 F.2d
247, 250 (1st Cir. 1993))).
Gastauer thus failed to preserve his Hague
Convention-based objection for this appeal. And, once more, he
develops no independent argument whatsoever that this objection
either satisfies plain-error review or implicates the
extraordinary circumstances necessary for us to reach the merits.
We need go no further.
III.
Finding no reason to allow Gastauer to take his leave of
the district court proceedings and then raise on appeal objections
to those proceedings that he could have made below, we affirm the
district court's judgment.
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