Robinson v. EMS and Schultz CV-93-258-B 01/06/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel C. Robinson

v. C .A . No. C-93-258-B

Emergency Medical Services Associates, Inc., and Kenneth Schultz

O R D E R

Defendants Emergency Medical Services Associates, Inc.

("EMSA") and Kenneth Schultz have moved to dismiss plaintiff

Daniel Robinson's complaint pursuant to Rules 12(b)(2) and

12(b)(6) of the Federal Rules of Civil Procedure. Alternatively,

they seek to have the case transferred to a more convenient forum

pursuant to

(c). For the reasons stated below, I

deny their motion.

BACKGROUND

EMSA has a contract with the Commonwealth of Massachusetts

to provide medical services to inmates at correctional facilities

throughout the Commonwealth. When an inmate at MCI-Framingham

died after receiving medical treatment from EMSA employees, the company retained an independent insurance consulting firm,

Caronia Corporation ("Caronia")a to investigate the circumstances

of the inmate's death.

Caronia dispatched Daniel Robinson from its Bedford, New

Hampshire office to conduct the investigation. While

interviewing persons involved in the matter, Robinson discovered

that the EMSA employees and correctional officers involved in the

matter blamed each other for the inmate's death. Following these

interviews, Robinson was contacted at his Bedford office by a

representative of EMSA and instructed to take no further action

on the matter unless directed to do so by the company. A few

days later, Shultz, EMSA's medical director, contacted Charles

Caronia, the president of Caronia, to complain about the

Massachusetts investigation. Shultz placed the call to Mr.

Caronia's office in Houston, Texas, from EMSA's office in Fort

Lauderdale, Florida. During the call, Shultz alleged that

Robinson's interviews had resulted in a disturbance severe enough

to provoke complaints from both EMSA personnel and corrections

department officials. In a second telephone conversation the

next day, Shultz told Mr. Caronia that he had heard that Robinson

had brought his wife to the interviews and that he had even

permitted his wife to guestion witnesses. As a result of these

2 conversations, Robinson was fired two days later.

Robinson alleges that the information Shultz provided to Mr.

Caronia in these two conversations was false, unprivileged and

defamatory. As a result, he has sued both EMSA and Shultz for

defamation, invasion of privacy, interference with an employment

relationship and intentional infliction of emotional distress.

DISCUSSION

I. Personal Jurisdiction

Defendants first contend that this court lacks personal

jurisdiction. When a court's personal jurisdiction is contested,

the plaintiff must demonstrate that such jurisdiction exists.

Ealing Corp. v. Harrod's, Ltd.,

(1st Cir. 1986)

(citing McNutt v. General Motors Acceptance Corp.,

(1936)). Where, as in this case, the court has not conducted

an evidentiary hearing, the plaintiff need only make a prima

facie showing of jurisdiction based on specific facts alleged in

the pleadings, affidavits and exhibits. Kowalski v. Doherty,

Wallace, Pillsbury & Murphy, Attorneys at Law,

(1st

Cir. 1986). The court then "accepts properly supported proffers

of evidence by a plaintiff as true and makes its ruling as a

matter of law." United Flee., Radio and Mach. Workers v. 163

3 Pleasant St. Corp.,

(1st Cir. 1993).

A court may assert personal jurisdiction over a nonresident

defendant in a diversity of citizenship case only if the

plaintiff establishes both that: (1) the forum state's long-arm

statutes confer jurisdiction over the defendant; and (2) the

defendant has sufficient "minimum contacts" with the forum state

to ensure that the court's assertion of jurisdiction comports

with the requirements of constitutional due process. Kowalski,

. In the following sections, I consider both

requirements seriatim.

A. New Hampshire's Long-Arm Statutes

(1) Kenneth Schultz

The statutory basis for asserting long-arm jurisdiction over

a nonresident individual in New Hampshire is N.H. Rev. Stat. Ann.

510:4 (I), which provides in pertinent part that

[a]ny person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.

4 This statute has been construed by the New Hampshire Supreme

Court "to provide jurisdiction over foreign defendants to the

full extent that the statutory language and due process will

allow." Phelps v. Kingston,

,

(1987). Further, a person is deemed to commit a tortious act in

this state pursuant to N.H. Rev. Stat. Ann. 510:4 (I) when: (1)

the injury occurs in New Hampshire; and (2) either the act

causing the injury occurred here or the defendant who committed

the out-of-state act that caused the injury either knew or should

have known that his or her conduct would cause injury here.

Hugel v. McNeil,

, 3 (1st Cir. 1989), cert, denied,

(1990); Buckley v. Bourdon,

(D.N.H.

1988) .

Robinson alleges that Schultz contacted Mr. Caronia and

falsely informed him that Robinson: (1) had created a severe

disturbance while conducting interviews in Massachusetts; and (2)

had brought his wife to the interviews in guestion. Defendants

have stipulated that Shultz knew that the Massachusetts

investigation was being conducted by representatives from

Caronia's Bedford office when he allegedly made these false

statements. Moreover, defendants have also stipulated that

Shultz received a preliminary report on the investigation from

5 Robinson before Shultz allegedly made his complaints to Mr.

Caronia, a report which Robinson had submitted on behalf of

Caronia's Bedford office. When these facts are viewed in the

light most favorable to Robinson, they establish a prima facie

case that Shultz could reasonably foresee that his conduct would

interfere with Robinson's employment in New Hampshire.

Accordingly, Schultz is subject to jurisdiction under New

Hampshire's long-arm statute.

(2) Emergency Medical Service Associates

Because EMSA is a foreign corporation, the applicable

long-arm statute is N.H. Rev. Stat. Ann. 293-A:121. Phelps v.

Kingston,

,

; Kowalski,

. N.H. Rev. Stat. Ann. 292-A:121 provides, in pertinent part:

If a foreign corporation makes a contract to be performed in whole or in part by either party in New Hampshire, or if the foreign corporation commits a tort in whole or in part in New Hampshire, the acts shall be deemed to be doing business in New Hampshire by the foreign corporation. . . .

As the First Circuit Court of Appeals has recognized, the

tortious acts of a corporation's agent can subject the

corporation to personal jurisdiction. Mangual v. General Battery

Corp.,

(1st Cir. 1983). Because EMSA does not

dispute that Schultz was a high ranking EMSA employee acting on

6 behalf of his employer when he allegedly made the statements in

question, EMSA is subject to New Hampshire's long-arm statute as

well.

B. Minimum Contacts

The Due Process Clause of the Fourteenth Amendment limits a

state's power to assert personal jurisdiction over nonresident

defendants. Helicopteros Nacionales De Colombia, S.A. v. Hall,

(1984). Defendants are not subject to the

judgments of states with whom they have had no meaningful

"contacts, ties, or relations." Burger King Corp. v. Rudzewicz,

(1985). In order for a court to assert

personal jurisdiction over a nonresident defendant, the defendant

must have had "certain minimum contacts with [the forum] such

that the maintenance of suit does not offend traditional notions

of fair play and substantial justice." Helicopteros,

(quoting International Shoe Co. v. Washington,

(1945)). Minimum contacts are established when a defendant

"purposefully directs" his or her activities to residents of the

forum state. Burger King,

(citing Keeton v.

Hustler Magazine, Inc.,

(1984)). The

defendant's conduct should bear such a "'substantial connection'

to the forum state" that the defendant "should reasonably

7 anticipate being haled into court there." Burger King,

-75 (citing World-Wide Volkswagen Corp. v. Woodson,

(1980)).

A court may exercise either general or specific jurisdiction

over a defendant. If a defendant's activities within the forum

state are "continuous and systematic" or "substantial," the

defendant has a sufficient relationship with the forum state to

support a finding of general jurisdiction. Helicopteros,

. If, however, a court cannot assert general

jurisdiction over the defendant, it may still assert specific

jurisdiction depending on the guality and nature of the

defendant's contacts with the forum state in connection with the

causes of action alleged in the complaint.

Robinson does not claim that either EMSA or Shultz have the

kind of substantial and systematic contacts with New Hampshire

that would support a finding of general jurisdiction. Instead,

he contends that the court has specific jurisdiction over both

defendants because Shultz's statements, for which both defendants

are liable, were aimed at Robinson's employment interests in New

Hampshire.

The First Circuit has formulated a tripartite test for

determining whether a district court has specific jurisdiction over a defendant. See United Elec. Radio and Mach. Workers v.

163 Pleasant St. Corp.,

, 1089 (1st Cir. 1992).

First, the claim underlying the litigation must "directly arise

out of, or relate to, the defendant's forum-state activities."

Id. 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 protection of

that state's laws and making the defendant's involuntary presence

before the state's courts foreseeable." Id. Third, the exercise

of jurisdiction must be reasonable in light of certain "Gestalt"

factors. Id.

Turning to the facts of this case, Robinson has responded to

defendants' motion to dismiss by alleging that both Shultz and

EMSA could reasonably foresee that Schultz's allegedly defamatory

statements would interfere with Robinson's employment in New

Hampshire. Robinson has supported this allegation with a

stipulation in which defendants admit that before Shultz made the

allegedly defamatory statements: (1) he knew that the

Massachusetts investigation was being conducted by

representatives of Caronia's Bedford office; and (2) he had

reviewed the initial report on the Massachusetts investigation

that Robinson submitted on behalf of Caronia's Bedford office. These facts provide ample prima facie support for Robinson's

allegation. Moreover, Robinson's properly supported allegation

satisfies the first two steps of the specific jurisdiction test

with respect to both defendants.1 See generally Calder v. Jones,

(1984); Hugel, 886 F.2d at 3.

The so-called "Gestalt" factors that comprise the third part

of the specific jurisdiction test are:

[T]he plaintiff's interest in obtaining convenient and effective relief; the burden imposed upon the defendant by reguiring it to appear; the forum's adjudicatory interest; the interstate judicial system's interest in the place of adjudication; and the common interest of all affected sovereigns, state and federal, in promoting substantive social policies.

Donatelli v. National Hockey League,

(1st Cir.

1990). In this case, the balancing of the Gestalt factors weighs

heavily in favor of finding personal jurisdiction over the

defendants. First, as a New Hampshire resident, Robinson has a

strong interest in litigating the case here. Moreover, while it

may be somewhat burdensome to the defendants to litigate in New

1 As I have already noted, if this court has personal jurisdiction over Schultz, it also has jurisdiction over EMSA since Schultz was acting as EMSA's agent when he allegedly engaged in the conduct that gives rise to personal jurisdiction in this court.

10 Hampshire, it would also be burdensome to Robinson to require him

to litigate his claims in Massachusetts. Second, this court's

interest in making the most efficient use of limited judicial

resources will be served by finding personal jurisdiction here

since this court already has jurisdiction over the closely-

related claims that Robinson has made against Caronia. Third,

since defendants' acts allegedly injured Robinson's employment in

New Hampshire, this state also has an interest in having the case

determined here. Finally, no other forum has a greater interest

in having the case decided in its jurisdiction.

In summary, Robinson has made a sufficient prima facie

showing to warrant a finding of personal jurisdiction over both

defendants.

II. Failure to State a Claim Upon Which Relief Can Be Granted

Defendants also argue that the complaint must be dismissed

pursuant to Rule 12(b)(6) because Robinson's complaint fails to

state a claim for relief. In considering this claim, I apply the

following standard of review: "a complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Conley v. Gibson,

11

(1957); accord Berniqer v. Meadow Green-

Wildcat Corp.,

(1st Cir. 1991). In making this

determination, I accept the truth of the facts alleged in the

complaint and give the plaintiff the benefit of "every reasonable

inference helpful to the plaintiff's cause." Garita Hotel, Ltd.

Partnership v. Ponce Fed. Bank, F.S.B.,

(1st Cir.

1992) .

Defendants contend the complaint should be dismissed because

Shultz' statements were gualifiedly privileged. I disagree. The

resolution of a gualified privilege claim ordinarily is a matter

for summary judgment or trial. Robinson has pleaded facts which,

if proved at trial, would permit a rational fact finder to find

for Robinson on each count of the complaint. Moreover, Robinson

has specifically alleged that Schultz' statements were

unprivileged. I cannot dismiss an otherwise valid complaint at

this stage of the proceedings merely because defendants dispute

Robinson's claim that their conduct was unprivileged.

Accordingly, I decline to dismiss the complaint for failure to

state a claim.2

2 Defendants' remaining challenges to the sufficiency of the complaint are so insubstantial that they reguire no discussion. It is sufficient merely to observe that I have considered them

12 III. Transfer

Defendants' final contention is that I should transfer the

case to Massachusetts pursuant to

(a). Section

1404(a) provides: "For the convenience of the parties and

witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where

it might have been brought."

District courts enjoy considerable discretion in deciding

whether to transfer a case pursuant to section 1404(a). Norwood

v. Kirkpatrick,

(1955); Cianbro Corp. v. Curran-

Lavoie, Inc.,

(1st Cir. 1987); Codex Corp. v.

Milqo Elec. Corp.,

(1st Cir.), cert, denied,

(1977); McFarland v. Yegen,

(D.N.H. 1988). In exercising such discretion, judges must

consider the convenience of the parties and witnesses, the

relative ease of access to documents needed for evidence, and the

possibility of consolidation. See Cianbro Corp.,

;

Codex Corp.,

. While a plaintiff's choice of

forum is an important consideration, it is not dispositive. See

and found them unpersuasive.

13 Norwood,

; United States ex rel. La Valiev v.

First N a t '1 Bank,

(D.N.H. 1985). Despite

considering the appropriate mix of factors, "there will often be

no single right answer" as to where venue should lie. Codex,

. However, one thing is clear: defendants seeking to

transfer an action bear the "substantive burden" of showing that

these factors "predominate" in favor of transfer. Buckley v.

McGraw-Hill, Inc.,

(D.N.H. 1991); accord

Crosfield Hastech, Inc. v. Harris Corp.,

(D.N.H. 1987).

The key witnesses in this case will consist of, among

others, Massachusetts Department of Corrections employees (from

Massachusetts) , Coronia employees (from New Hampshire and Texas),

and EMSA officials (from Florida and Massachusetts). Defendant

asserts that because most witnesses will be from the Department

of Corrections, transfer would serve the interests of justice and

further judicial economy because fewer out-of-state subpoenas

would need to be served. While defendants' efforts to ensure

judicial economy are admirable, this bald assertion alone falls

far short of showing that the relevant factors "predominate" in

14 favor of transfer.3 Accordingly, their motion is denied.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss

or transfer (document no. 5) is denied.

SO ORDERED.

Paul Barbadoro United States District Judge January 6, 1994

cc: Daniel I. Small, Esg. Peter S. Wright, Jr., Esg. Claudia C. Damon, Esg.

3 Indeed, the Massachusetts witnesses whom defendants intend to call presumably work at MCI Framingham, an institution located less than 100 miles from this court. Hence, it is reasonable to assume that defendants will be able to subpoena witnesses from MCI Framingham without having to invoke the jurisdiction of another court. See Fed. R. Civ. P. 45(b) (2) .

15