Manchester School District v. Akron, CV-98-151-M 12/01/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

City of Manchester School District, Plaintiff

v. Civil No. 98-151-M

Akron Public Schools and The State of Ohio Board of Education, Defendants

O R D E R

Since 1989, the City of Manchester School District ("MSD")

has funded the special education provided to Kimberli M., an

educationally disabled student who attends school in Pittsfield,

New Hampshire. MSD seeks reimbursement from defendants for a

portion of those educational expenses (i.e., those incurred since

March 16, 1995). Defendants assert that the court lacks personal

jurisdiction over them and, therefore, move to dismiss MSD's

claims. For the reasons set forth below, defendants' motions to

dismiss are granted.

Factual Background

The relevant facts underlying MSD's claims are largely

undisputed. Kimberly M. was born in Colorado on September 5,

1988. In January of 1989, Kimberli's parents were visiting

friends in Manchester, New Hampshire, when some type of medical

emergency occurred, leaving Kimberli with substantial

developmental disabilities and cortical blindness. She was treated at hospitals in Manchester and Boston and, upon her

release, her parents voluntarily placed her in the care of the

Brock Home in Pittsfield, New Hampshire, a facility licensed by

the New Hampshire Department of Mental Health. At some point, it

appears that a "surrogate parent" was appointed to represent

Kimberli's educational interests and to insure that she received

a free and appropriate public education. Nevertheless,

Kimberli's parents retained legal custody.

In 1992, MSD learned that Kimberli's parents had moved from

Manchester. Accordingly, it asked the New Hampshire Department

of Education to make a "district of liability" decision, to

determine whether MSD remained obligated to pay the expenses

associated with providing Kimberli's education. The Department

of Education concluded that Kimberli's most recent residence

(prior to her placement in the Brock Home) had been Manchester

and, therefore, under applicable state law, MSD remained

obligated to finance her special education costs.

By 1995, Kimberli's parents were divorced and her father,

then a resident of Akron, Ohio, was awarded legal and physical

custody. In June of 1996, MSD attempted to discharge Kimberli to

Akron's care. Kimberli's surrogate parent (under the I.D.E.A.)

reguested a due process hearing before the New Hampshire

Department of Education. The Department of Education determined

that Manchester could not disavow its educational funding

2 obligations to Kimberli due to operation of the applicable

statute of limitations. (In a separate proceeding, MSD appealed

that decision to this court and that matter is pending.)

Having failed in its effort to obtain a legal determination

that it is no longer liable for Kimberli's continuing educational

expenses, MSD seeks reimbursement from defendants for a portion

of the expenses it has incurred. MSD asserts subject matter

jurisdiction under

(federal guestion

jurisdiction), arguing that its claims against the Ohio

defendants arise under the Individuals with Disability Education

Act,

. Alternatively, MSD says that the court

has subject matter jurisdiction under

, because

the parties are diverse and the amount in controversy exceeds

$75,000.

Defendants, on the other hand, argue that this court is

without personal jurisdiction over them, and that plaintiff lacks

standing to bring an IDEA claims against them, and in any event,

such a claim is time barred. Accordingly, they move to dismiss

MSD's suit.

Standard of Review

I. Plaintiff's Burden

It is well established that when personal jurisdiction is

contested, the plaintiff bears the burden of establishing that

3 the court has such jurisdiction. See Kowalski v. Doherty,

Wallace, Pillsburv & Murphy,

(1st Cir. 1986).

Allegations of jurisdictional facts are construed in the

plaintiff's favor, see Buckley v. Bourdon,

(D.N.H. 1988), and, if the court proceeds based upon the written

submissions of the parties without an evidentiary hearing, the

plaintiff need only make a prima facie showing that jurisdiction

exists. See Kowalski,

; Bolt v. Gar-Tec Products,

Inc.,

(1st Cir. 1992). Nevertheless, the

plaintiff's demonstration of personal jurisdiction must be based

on specific facts set forth in the record in order to defeat a

defendant's motion to dismiss. See Foster-Miller, Inc. v.

Babcock & Wilcox Canada,

(1st Cir. 1995) ("To

make a prima facie showing of this calibre, the plaintiff

ordinarily cannot rest upon the pleadings, but is obliged to

adduce evidence of specific facts."). Conseguently, "in

reviewing the record before it, a court 'may consider pleadings,

affidavits, and other evidentiary materials without converting

the motion to dismiss to a motion for summary judgment.'" VDI

Technologies v. Price,

(D.N.H. 1991) (guoting

Lex Computer & Management Corp. v. Eslinqer & Pelton, B.C., 67

(D.N.H. 1987)).

Here, however, MSD has submitted no affidavits, depositions,

or other materials (other than its amended complaint and

memorandum in opposition to defendants' motion to dismiss) in

4 support of its assertion that defendants have the requisite

"minimum contacts" with New Hampshire to permit the court to

properly exercise personal jurisdiction over them.

II. Relevant Jurisdictional Factors.

The inquiry a court must conduct before exercisinq personal

jurisdiction over a non-resident defendant is well established.

See, e.g., Sawtelle v. Farrell, No. 94-392-M, slip op. at 7-11

(D.N.H. April 28, 1995), aff'd ,

(1st Cir. 1995). It

is sufficient to note that both the New Hampshire individual and

corporate lonq-arm statutes authorize the exercise of personal

jurisdiction over foreiqn defendants to the full extent permitted

by federal law. See N.H. RSA 510:4 (individual lonq-arm

statute); N.H. RSA 293-A:15.10 (corporate lonq-arm statute). See

also McClarv v. Erie Engine & Mfg. Co.,

(D.N.H. 1994); Phelps v. Kingston,

(1987).

Accordinqly, the pertinent inquiry focuses on whether the

exercise of personal jurisdiction over defendants would comport

with federal constitutional requirements of due process. See

McClarv,

.

Before a court may exercise personal jurisdiction over a

foreiqn defendant in a manner consistent with the Constitution,

the plaintiff must demonstrate that the defendant has "certain

minimum contacts with the forum such that the maintenance of the

5 suit does not offend traditional notions of fair play and

substantial justice." Helicopteros Nacionales de Colombia, S.A.

v. Hall,

(1984). To carry that burden, a

plaintiff must, among other things, show that the defendant's

conduct bears such a "substantial connection with the forum

state" that the defendant "should reasonably anticipate being

haled into court there." Burger King Corp. v. Rudzewicz,

(1985) (citing World-Wide Volkswagen Corp. v.

Woodson,

(1980)).

A court may exercise either general or specific jurisdiction

over a defendant. "General jurisdiction exists when the

litigation is not directly founded on the defendant's forum-based

contacts, but the defendant has nevertheless engaged in

continuous and systematic activity, unrelated to the suit, in the

forum state." United Elec. Workers v. 163 Pleasant Street Corp.,

, 1088 (1st Cir. 1992). MSD does not contend that

defendants engaged in "continuous and systematic activity" in New

Hampshire, nor does it ask the court to exercise general

jurisdiction over them. Accordingly, if the court may properly

exercise personal jurisdiction over these defendants, it must be

specific jurisdiction.

A court may exercise specific jurisdiction when the cause of

action arises directly out of, or relates to, the defendant's

forum-based contacts. See United Elec. Workers, 960 F.2d at

6 1088-89. In an effort to assist district courts in determining

whether they might properly exercise specific jurisdiction, the

Court of Appeals has formulated a three-part test:

First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state contacts. Second, the defendant's in-state activities must 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. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.

United Elec. Workers, 960 F.2d at 1089. See also Nowak v. Tak

How Investments, Ltd.,

(1st Cir. 1996), cert.

denied,

(1997).

Discussion

MSD says defendants purposefully availed themselves of the

privilege of conducting activities in New Hampshire by: (1)

passively (and wrongfully) "permitting" MSD to continue paying

educational expenses properly borne by defendants; (2) directing

an unspecified number of letters and/or telephone calls to

parties in New Hampshire who are involved with Kimberli's

education; and (3) receiving Kimberli's medical records, sent

from New Hampshire. See Plaintiff's Objection (document no. 14)

at 15-16. Importantly, however, MSD has not submitted affidavits

from those individuals who allegedly received letters from, or

otherwise had contact with, defendants. Nor has it produced any

evidence suggesting that defendants' alleged contacts with New

7 Hampshire were unsolicited and/or voluntary, rather than the

product of MSD's conduct or that of third parties (such as, for

example, Kimberli's custodial parent and his decision to assume

residency in Akron). See, e.g.. Burger King,

(holding that a defendant's contacts with the forum state must be

voluntary and purposeful, rather than "random," "fortuitous,"

"attenuated," or based upon the unilateral actions of a third

party). C f .

(defendant was found to have

purposefully availed itself of the privilege of conducting

business in Massachusetts by, among other things, repeatedly

soliciting business in Massachusetts from Massachusetts

residents).

Even if the court were to assume that MSD has stated a

viable claim against defendants, MSD has pointed to no authority

which might support the court's exercise of personal jurisdiction

under the circumstances present here. MSD has not adeguately

demonstrated that defendants have the reguisite "minimum

contacts" with New Hampshire. MSD has, therefore, failed to

carry its burden of showing that the court may properly exercise

personal jurisdiction over defendants.

Defendants' contacts with New Hampshire are, at best,

extraordinarily limited. The mere existence of an alleged

implicit debt owed to MSD, which is the product of defendants'

purported inaction, combined with an undocumented and unspecified (but, at most, modest) number of alleged phone calls to New

Hampshire is, on this record, simply insufficient to constitute

"purposeful availment." Accordingly, the court cannot,

consistent with constitutional principles of due process and

fundamental fairness, exercise personal jurisdiction over

defendants. MSD's arguments to the contrary are not supported by

the record. Moreover, its reliance upon the court of appeals'

holding in Nowak is misplaced insofar as the facts of that case

(in which the defendant's contacts with the forum state were far

more substantial and plainly "purposeful") are readily

distinguished from those in this case.

Conclusion

Accepting MSD's factual allegations as true and even

assuming it has a viable claim against defendants for monies

expended on Kimberli's special education, the proper forum for

such a claim would appear to be Ohio. At a minimum, because

defendants have had extraordinarily few (if any) meaningful

contacts with New Hampshire, this court cannot properly exercise

personal jurisdiction over them. Even if MSD is correct in

claiming that defendants passively allowed MSD to absorb costs

which defendants should properly have borne, such conduct (even

when combined with the alleged phone calls and letters

referenced, but not documented by MSD) is insufficient to support

the exercise of personal jurisdiction over defendants. In short,

MSD has failed to demonstrate that: (1) this litigation arises directly out of defendants' "forum-state contacts;" (2)

defendants' alleged contacts with New Hampshire represent a

"purposeful availment of the privilege of conducting activities"

in New Hampshire; or (3) that the exercise of personal

jurisdiction over defendants would be reasonable. See generally

Sawtell v. Farrell,

(1st Cir. 1995);

United Elec. Workers, 960 F.2d at 1089.

MSD has failed to carry its burden of making a prima facie

showing that this court may properly exercise personal

jurisdiction over defendants. Defendants' motions to dismiss

(document nos. 9 and 20) are, therefore, granted. MSD's motion

to strike defendants' seventh and eighth affirmative defenses

(document no. 20) is denied as moot. The Clerk of the Court is

instructed to enter judgment in accordance with this order and

close the case.

SO ORDERED

Steven J. McAuliffe United States District Judge

December 1, 1998

cc: Dean B. Eggert, Esg. H. Jonathan Meyer, Esg. Susan S. McGown, Esg. William C. Saturley, Esg. Thomas M. Clossan, Esg. Roger F. Carroll, Esg.

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