Poitras v. Greenberg CV-96-468-JD 05/23/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Russell L. Poitras

v. Civil No. 96-468-JD

William B. Greenberg, d/b/a Greenberg Engineering Co.

O R D E R

The plaintiff, Russell Poitras, brought this action against

the pro se defendant, William Greenberg d/b/a Greenberg

Engineering Co., seeking damages related to an injury Poitras

sustained while using a cable insulation stripping machine

manufactured by the defendant. Before the court is the

defendant's motion to dismiss for lack of personal jurisdiction

(document n o . 2).

Background

On June 26, 1995, the plaintiff, a New Hampshire resident,

was injured while operating a cable insulation stripping machine

designed, manufactured, and sold by the defendant, a Pennsylvania

citizen. The plaintiff sustained the injury in Hanover, New

Hampshire, while working for Janci Metal Recyclng, Inc. Janci

obtained the machine from George Apkin & Sons, Inc., a

Massachusetts corporation, which obtained the machine either directly or indirectly from Kirchenbaum, Inc., a New York

corporation, which purchased the machine from the defendant in

1974 .

The defendant's advertising indicates that the Greenberg

Engineering Co. has manufactured items for and served as a

consultant to nonferrous metal recycling industries since 1935.

The defendant also has represented that some of the machines his

company manufactured as far back as 1940 are still in use today.

During the last five years, the defendant has consistently placed

advertisements for his cable stripper in the national trade

publications American Metal Market, Scrap, and Recycling Today.

The defendant has attested that he has never been a resident

of, worked in, or received income from New Hampshire; that he has

never done any business in New Hampshire and is not licensed to

do so; that he has never sold or shipped eguipment to New

Hampshire; that he has no business connections, distributors,

agents, or offices in New Hampshire; that he never "had an

inguiry and then guoted a prospective customer in New Hampshire";

and that he never aimed advertising specifically at New

Hampshire. Discussion

The defendant contends that dismissal is warranted pursuant

to Fed. R. Civ. P. 12(b) (2) because the court's exercise of

personal jurisdiction would offend both the New Hampshire long-

arm statute applicable to individuals, N.H. Rev. Stat. Ann.

("RSA") § 510:4(1), and the Due Process Clause of the United

States Constitution. The plaintiff disputes these assertions,

arguing that the plaintiff's injury in New Hampshire satisfies

the long-arm statute, and that the defendant's placement of goods

in the stream of commerce, combined with his efforts to reach a

national market, including New Hampshire, satisfy the minimum

contacts standard.

Where, as here, the facts concerning the court's exercise of

personal jurisdiction are not in dispute, the "preferred" method

of deciding a motion to dismiss for lack of personal jurisdiction

is the "prima facie" approach. See Faigin v. Kelly,

(D.N.H. 1996). Under this method, the plaintiff has the

burden of demonstrating facts sufficient to raise a reasonable

inference that the court has personal jurisdiction over the

defendant. See, e.g.. Bolt v. Gar-Tec Prods., Inc.,

(1st Cir. 1992). The plaintiff may establish

jurisdiction through specific facts alleged in the pleadings,

affidavits, and exhibits. See

The decision to exercise

3 jurisdiction based on a prima facie showing is provisional, for

if a district court "applies the prima facie standard and denies

the motion to dismiss, it is implicitly, if not explicitly,

ordering 'that hearing and determination [of the motion to

dismiss] be deferred until the trial.'"

(guoting Fed.

R. Civ. P. 12(d)) (alteration in original).

Specific personal jurisdiction1 over a defendant may be

appropriate when the cause of action arises directly out of, or

relates to, the defendant's contacts with the forum state. See

Ticketmaster-New York, Inc. v. Alioto,

(1st Cir.

1994); United Elec. Workers v. 163 Pleasant St. Corp.,

, 1088-89 (1st Cir. 1992). In determining whether specific

'in responding to the instant motion, the plaintiff has neither distinguished between specific and general jurisdiction nor indicated which theory of personal jurisdiction he believes is appropriate. See generally. Donatelli v. National Hockey League,

(1st Cir. 1990) (distinguishing between general and specific jurisdiction). However, the defendant's contacts with New Hampshire clearly are insufficient to establish "continuous and systematic activity" in the state. United Elec. Workers v. 163 Pleasant St. Corp.,

, 1088 (1st Cir. 1992) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall,

, 415-16 & n.9 (1984)); see, e.g., Bennett v. Jack Dennis Whitewater Trips,

(D. Mass. 1996) (Wyoming rafting expedition coordinator not subject to general jurisdiction in Massachusetts on basis of Massachusetts travel agent's offering of rafting trip as part of larger group package or on basis of advertising found in tour book available through American Automobile Association in Massachusetts). Accordingly, the court confines its analysis to the guestion of whether the plaintiff has made a prima facie demonstration of specific jurisdiction over his claims in New Hampshire.

4 personal jurisdiction is proper, the court initially determines

whether the applicable long-arm statute is satisfied, and then

determines whether the exercise of personal jurisdiction is

consistent with the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. See, e.g., Sawtelle

v. Farrell,

(1st Cir. 1995). Here, because

the applicable New Hampshire long-arm statute, RSA § 510:4(1)

confers jurisdiction over defendants whose out-of-state activity

results in foreseeable injury within New Hampshire, see Estabrook

v. Wetmore,

,

(1987), and

because the statute "affords jurisdiction over foreign defendants

'to the full extent that the statutory language and due process

will allow,'" Phelps v. Kingston,

,

(1987), the court need only consider whether the

exercise of jurisdiction is consistent with the Due Process

Clause. See Sawtelle,

.

The First Circuit has identified three areas of inguiry for

determining whether a defendant has sufficient contacts with a

forum state to exercise specific personal jurisdiction over the

defendant in that state. First, the plaintiff must allege that

the claim underlying the litigation directly arises out of, or

relates to, activity directed at the forum state. See

Ticketmaster,

. To satisfy this reguirement, the

5 defendant's forum-state contacts must form an important or

material element of proof in the plaintiff's case. United Elec.

Workers, 960 F.2d at 1089. The First Circuit has analogized this

requirement to the causation requirement in tort law, and has

suggested that it requires a showing of both but-for and

proximate causation, i.e., "that the injury would not have

occurred 'but for' the defendant's forum-state activity," and

that "the defendant's in-state conduct gave birth to the cause of

action." Id.; see Nowak v. Tak How Invs., Ltd.

(1st Cir. 1996) (adopting proximate cause standard, but noting

that strict adherence thereto may be unnecessarily restrictive),

cert, denied, 117 S. C t . 1333 (1997).

Second, the plaintiff must show that "the defendant's in­

state contacts . . . represent a purposeful availment of the

privilege of conducting activities within 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." United Elec. Workers, 960 F.2d at

1089; see also Sawtelle,

(cornerstones upon which

purposeful availment rest are voluntariness and foreseeability).

In assessing the question of whether a manufacturer of a product

has subjected itself to jurisdiction in a state by injecting the

product into the stream of commerce reaching that state, the

6 First Circuit has cautioned that "mere awareness that a product

may end up in the forum state does not constitute purposeful

availment." Bolt,

(quotation marks omitted).

Rather, to rise to the level of purposeful availment, injection

of a product into the stream of commerce must be accompanied by,

inter alia, evidence that the product is designed specifically

for use in the forum state, advertising in the forum state,

establishment of channels for providing regular advice to

customers in the forum state, or marketing of the product through

a distributor who agrees to serve as the manufacturer's sales

agent in the forum state. See

(citing Asahi Metal Indus. Co.

v. Superior Court of Cal.,

(1987)); see also

Sawtelle,

(law firm's placement of general

statement in Martindale-Hubbell legal directory did not

constitute targeting of New Hampshire); Bennett,

(rafting expedition company's listing in AAA tour book of

Wyoming did not constitute purposeful availment of benefits and

protections of Massachusetts law).

Finally, even if the plaintiff succeeds in establishing

relatedness and purposeful availment, the defendant may still

avoid the exercise of jurisdiction if allowing the action to

proceed would be "inconsistent with fair play and substantial

justice." Ticketmaster,

; see also United Elec.

7 Workers, 960 F.2d at 1089. This determination involves

consideration of the "gestalt" factors -- five criteria

identified by the United States Supreme Court as relevant in

determining whether asserting personal jurisdiction over a

defendant is fundamentally fair -- in light of the strength or

weakness of the relatedness and purposeful availment

demonstrations.2 See Ticketmaster,

. The

gestalt factors are

(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.

United Elec. Workers, 960 F.2d at 1088 (Burger King Corp. v.

Rudzewicz,

(1985)).

The Court begins its analysis by identifying which, if any,

of the defendant's contacts with New Hampshire rise to the level

of purposeful availment. See Burger King Corp. v. Rudzewicz, 471

2The First Circuit has made clear that a weak demonstration of relatedness or purposeful activity will be relevant in the third prong of the inguiry, i.e., whether exercising jurisdiction over the defendant comports with traditional notions of fair play and substantial justice. See Ticketmaster,

. However, a complete failure to demonstrate relatedness or purposeful availment does not merely "carry over" into the third part of the inguiry. Rather, such a failure is dispositive of the jurisdictional issue. See

(permitting the court to "dismiss a . . . case for lack of relatedness per se").

, 472 (1985) (exercise of jurisdiction warranted if

defendant has purposefully directed his own activities at

residents of forum state and litigation results from injuries

that arise out of or relate to these same activities).

Significantly, the defendant has neither sold in nor shipped to

New Hampshire his cable insulation stripping machine. This

factor suggests that the defendant did not voluntarily direct his

conduct toward New Hampshire and therefore militates heavily

against a finding of purposeful availment. See Bolt,

(manufacturer's sale of product to distributor, which in turn

sold the product to Maine, did not evince intent to serve Maine

market). To be sure, the record also indicates that the

defendant has sold his product in interstate commerce for more

than fifty years and that he has advertised the product on a

consistent basis in trade publications that reach New Hampshire.

This evidence satisfies the "injection into interstate commerce

plus" standard articulated in Bolt and Asahi. However, the court

does not understand those cases to stand for the proposition that

injection into interstate commerce plus any guantum of

advertising, no matter how insignificant, is sufficient to

constitute purposeful availment. Here, there is no indication in

the record that the advertisements for the defendant's product,

which appeared in nationally available trade publications, were

9 specifically targeted at New Hampshire residents. See Dalmau

Rodriquez v. Hughes Aircraft Co.,

(1st Cir. 1986)

(mere placement of advertisement in trade magazine did not

suggest that defendant had aimed advertising at Puerto Rico). In

addition, the plaintiff has failed even to allege that his use of

the product is traceable to the defendant's advertising. See

Sawtelle,

(noting plaintiff's lack of reliance on

defendant's Martindale-Hubbell listing in concluding that listing

did not constitute purposeful availment); Bennett,

(purposeful availment of privilege of conducting

business in Massachusetts not satisfied through defendant's AAA

listing where plaintiffs did not read listing prior to lawsuit

and only came into conduct with defendant as a result of

defendant's activities in Wyoming). Consideration of these

factors leads the court to conclude that the defendant's 1974

sale of an item that eventually wound up in New Hampshire,

coupled with advertising that reached but was not targeted at New

Hampshire, does not constitute purposeful availment of the

privilege of conducting business in New Hampshire.

In light of the plaintiff's failure to make out a prima

facie showing of purposeful availment, the court need not address

relatedness or the gestalt factors. See Ticketmaster,

207. The plaintiff's claims must be dismissed for lack of

personal jurisdiction over the defendant.

Conclusion

The defendant's motion to dismiss for lack of personal

jurisdiction (document no. 2) is granted. The clerk is ordered

to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

May 23, 1997

cc: Joseph F. Daschbach, Esguire William B. Greenberg, pro se

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